EXHIBIT 10.7
AMENDED AND RESTATED EXCLUSIVE MANAGEMENT
AND ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDED AND RESTATED EXCLUSIVE MANAGEMENT AND ADMINISTRATIVE
SERVICES AGREEMENT (the "Agreement") effective January 1, 2003, is by and
between PEDIATRIX MEDICAL GROUP, INC., a Florida corporation ("Manager") and
__________________________, a _____________ professional corporation
("Practice").
WHEREAS, Practice is a professional corporation or association which
employs physicians and other clinical professionals qualified to provide
neonatology, perinatology, and/or certain other pediatric services to patients
("Professional Medical Services"); and
WHEREAS, Manager is a corporation engaged in the business of providing
administrative and management services to medical practices and hospitals,
including arranging for the provision of Professional Medical Services; and
WHEREAS, Manager and Practice are parties to that certain Exclusive
Management and Administrative Services Agreement dated _________________ (the
"Prior Agreement") pursuant to which Practice engaged Manager for the provision
of management and administrative services; and
WHEREAS, in recognition of and in consideration for the parties' mutual
obligations to each other with respect to the handling of protected healthcare
information and in order to take into account other changes in practice
operations since execution of the Prior Agreement, the parties desire to enter
into this Agreement pursuant to the terms set forth below; and
WHEREAS, the Prior Agreement is superseded and replaced in its entirety
by this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and other
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties intending to be legally bound by this Agreement, agree as follows:
ARTICLE 1.
ENGAGEMENT
Practice hereby engages Manager, and Manager hereby agrees to be
engaged by Practice, to provide the management and administrative services
described in this Agreement, and to arrange for Practice, through the physician
and other clinical employees or independent contractors of Practice (the
"Professionals"), to provide the Professional Medical Services to hospital(s)
and patients.
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ARTICLE 2.
DUTIES OF MANAGER
Manager shall provide all of the management and administrative services
required for the day-to-day operations of Practice. Manager shall have exclusive
authority over all decision-making relating to ongoing, major or central
operations of Practice (except for decision-making relating to the delivery of
Professional Medical Services, which shall be the exclusive responsibility of
the Professionals). Specifically, Manager shall have exclusive decision-making
authority over the scope of services (other than Professional Medical Services),
patient acceptance policies and procedures, pricing of services, negotiation and
execution of contracts, establishment and approval of operating and capital
budgets, and issuance of debt by the Practice. Further, Manager shall have
exclusive authority over total compensation of the Professionals as well as the
ability to establish and implement guidelines for the selection, hiring and
firing of Professionals. Additional responsibilities and duties of Manager
hereunder shall include the following:
2.1 Coding. Manager will provide resources to the Practice to assist
with the process of assigning CPT and ICD-9 codes to the Professional Medical
Services provided by the Professionals. Such services may include implementation
of coding guidelines, computerized billing programs, and individual coding
review. The Practice acknowledges that, although Manager will provide resources
to assist the coding process, final coding decisions shall be the responsibility
of the Professionals. Practice and Manager acknowledge that, in connection with
such coding support, it may be necessary to provide Manager with Protected
Health Information (as defined in Section 2.17) and Practice and Manager agree
to treat such information in accordance with Section 2.17 hereof.
2.2 Billing and Collection Services. Manager shall provide billing and
collection services for all Professional Medical Services rendered by Practice
and its Professionals. Such services shall include: the correlation of records
kept by the Professionals who render care; maintenance of insurance information
for each patient; computation and submission of regular bills for each patient
account; pursuit of any disputed claims, including the filing of lawsuits to
obtain payment; and accounting for the collection of all revenues. To facilitate
the expeditious collection of all of Practice's fees for services provided by
its Professionals, and to assist Manager in providing appropriate cash flow
management to Practice, Practice hereby assigns to Manager all of its
professional fees and accounts receivable for services provided, excluding fees
and accounts receivable relating to professional services rendered to patients
eligible for coverage under the Medicare or Medicaid programs or other third
party payors which refuse to honor such assignments, and hereby appoints Manager
as its true and lawful attorney-in-fact, with full power to collect and
otherwise deal in and with such fees and receivables assigned by Practice;
provided, however, that, to the extent allowed by law, Practice assigns to
Manager all income received by it on account of services rendered to patients of
Practice who are eligible for coverage in the Medicare or Medicaid programs and
other third party payors which refuse to honor assignments, and Practice agrees
to surrender, transfer, and remit to Manager promptly all
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fees received on behalf of or from such patients. Practice agrees to execute any
and all instruments and documents deemed necessary or desirable by Manager to
carry out the provisions of this section. Practice agrees that to the extent
Manager receives notice from a hospital of, or Manager makes on its own behalf,
a bona fide request to write-off or hold in abeyance any of Practice's
professional fees, that Practice will not unreasonably refuse the request of the
hospital or Manager. Practice and Manager acknowledge that, in connection with
such billing and collection services, it may be necessary to provide Manager
with Protected Health Information and Practice and Manager agree to treat such
information in accordance with Section 2.17 hereof.
2.3 Third Party Payors. Manager shall act as the liaison of Practice
with all third party payors for the purpose of negotiating managed care,
preferred provider, and other agreements with such third party payors. Manager
shall monitor performance of the respective parties to such agreements for
compliance with the terms and conditions set forth therein, as well as all
applicable Federal and state laws, rules and regulations.
2.4 Hospital Liaison. Manager shall be the administrative liaison
between Practice and any hospital in which Practice and/or Professionals provide
Professional Medical Services, including pursuant to a contractual arrangement
between either Manager or Practice and the hospital. Manager shall provide to
Practice all administrative services associated with Practice's Professional
Medical Services at such hospitals. Manager shall also xxxx and collect all
medical director stipends, coverage fees or other sums that may be due from such
hospitals.
2.5 Personnel Services. Manager shall provide the following personnel
services: maintenance of complete personnel records on each employee;
establishment and administration of employee benefits, including insurance
plans; recruitment of Professionals and recruitment and hiring of non-medical
personnel; evaluation and salary recommendations for non-medical personnel;
provision of day-to-day management and direction to non-medical personnel; and
development of personnel policies and procedures. Manager shall establish
payroll accounts and procedures in accordance with Section 2.7.
2.6 Financial Services. Manager shall provide the following financial
services: Manager shall provide such bookkeeping services as may be required to
keep the books and accounts of Practice, and may retain a professional
accountant to perform same; Manager shall ensure that all state and federal tax
returns are prepared and filed on a timely basis; and Manager shall track and
pay all accounts payable from funds made available by Practice. Manager and
Practice shall work together to develop a fee schedule for each service to be
provided by Practice; provided, however, that this fee schedule shall be subject
to the approval of Manager. Manager shall review the fee schedule on a periodic
basis and recommend changes to Practice as may be necessary.
2.7 Cash Management. Manager is authorized to open one or more bank
accounts necessary to manage the finances of Practice, at banks designated by
Practice. Practice shall approve one or more individuals designated by Manager
to have authority to sign checks, make deposits and transact such other business
as may be reasonably necessary. Manager is authorized
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to establish payroll systems and make payroll payments, pay accounts payable,
and otherwise satisfy the obligations of Practice from these accounts. Manager
shall deposit all collections from services rendered by Practice into these
accounts. Manager shall prepare and provide Practice monthly reconciliations of
all bank accounts. Manager may utilize one bank account to deposit funds of
Practice and other entities with whom Manager has similar arrangements so long
as Manager is able to account for the funds of Practice.
2.8 Recruitment. Manager shall recruit and provide initial screening of
Professionals on behalf of Practice. Practice retains responsibility for
monitoring and maintaining the qualifications of its Professionals, and agrees
that the role of Manager is to present candidates for consideration by Practice
consistent with guidelines established by Manager.
2.9 Planning and Budgeting. Manager shall assist Practice in short and
long range planning, including the projection of personnel needs, proposals of
benefit packages, analyses of future markets, and other necessary planning
services. Manager shall prepare annual budgets on behalf of Practice, which
shall be submitted to Practice for its approval. Practice agrees to provide
Manager with an approved budget ("Annual Budget") no later than 30 days prior to
commencement of each fiscal year during the term of this Agreement. Such Annual
Budget must be acceptable to Manager in its sole discretion. Practice agrees to
operate within and in accordance with the Annual Budget unless the variance from
the Annual Budget is previously approved by Manager or it involves an emergency
expenditure to maintain required staffing levels or treatment standards and
approval of Manager could not be obtained in a timely manner because of the
emergency.
2.10 Insurance. Manager shall evaluate, on an ongoing basis, the
professional liability, general liability, and other insurance needs of Practice
and its employees and Professionals taking into consideration coverage
customarily maintained by similar enterprises, hospital requirements, and
general availability of coverage in the market. Insurance shall be maintained in
accordance with Article 10 hereof.
2.11 Equipment and Supplies. Manager shall develop inventory systems to
assure that reasonable inventories of equipment and supplies required by the
employees of Practice are available at all times. Manager shall purchase, pay
for and arrange for the delivery of such equipment and supplies.
2.12 Compliance. Manager shall develop, on behalf of Practice, a
compliance program under which Manager shall make available a Compliance
Officer, compliance hotline and compliance training program for Practice's
personnel to facilitate compliance by Practice with laws impacting its business
and to create a reporting process for concerns regarding compliance issues.
Manager shall coordinate filing of all state mandated clinical reports. Practice
and Manager acknowledge that, in connection with such compliance initiatives or
clinical reports, it may be necessary to provide Manager with Protected Health
Information and Practice and Manager agree to treat such information in
accordance with Section 2.17 hereof.
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2.13 Legal and Risk Management. Manager shall arrange for legal
resources to facilitate hospital and clinical employment contracting, lease and
other contract review, maintenance of corporate records and minute books, and
general legal compliance. Manager also shall develop programs to identify areas
of potential legal risk for the Practice and provide and coordinate legal
representation in the event of actual or anticipated litigation against
Practice. Practice and Manager acknowledge that, in connection with such legal
representation, it may be necessary to provide Manager with Protected Health
Information and Practice and Manager agree to treat such information in
accordance with Section 2.17 hereof.
2.14 The Pediatrix-Obstetrix Center for Research and Education. Manager
shall provide educational resources to Professionals, including resources to
support continuing medical education requirements of the Professionals under
state licensure laws. Manager shall make available to Professionals various
resources and opportunities to participate in and support clinical research
projects. In addition, Manager shall undertake research using certain clinical
data assembled by Practice. Practice and Manager acknowledge that, in connection
with such education and research programs, it may be necessary to provide
Manager with Protected Health Information and Practice and Manager agree to
treat such information in accordance with Section 2.17 hereof.
2.15 Quality Improvement. Consistent with the Health Care Quality
Improvement Act of 1986, 42 U.S.C. Section 11101, Manager shall develop and
maintain, on Practice's behalf, programs to improve the quality of care provided
by Practice's Professionals. Specifically, Manager shall implement the following
programs:
(a) Peer Review. Upon a request for peer review from an
officer or Professional employee of the Practice, Manager, through its
Medical Board, shall arrange for a review by a qualified professional
or professionals in the same or similar specialty as the Professional
under review. Manager's Medical Board shall report the results of such
review to the officer or agent of the Practice and provide assistance
to the Practice to implement recommendations, follow-up and fulfill
reporting obligations, if any. Practice and Manager acknowledge that,
in connection with such peer review activities, it may be necessary to
provide Manager with Protected Health Information and Practice and
Manager agree to treat such information in accordance with Section 2.17
hereof.
(b) Quality Improvement. Manager shall develop programs
designed to improve the quality of care provided by the Professionals
and encourage identification and adoption of best demonstrated
processes. Practice and Manager acknowledge that, in connection with
such quality improvement activities, it may be necessary to provide
Manager with Protected Health Information and Practice and Manager
agree to treat such information in accordance with Section 2.17 hereof.
2.16 Additional Services. Although the parties have endeavored to
reflect the management and administrative services that Manager shall provide
hereunder, they expressly recognize that there may be additional services
provided by Manager, it being the intent of the parties that all management and
administrative services necessary for the operations of the
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Practice be provided by Manager. Additional services also may be suggested by
Practice and provided by Manager upon mutual agreement of the parties.
2.17 HIPAA Compliance. Manager and Practice acknowledge that Manager
will be required to access the protected health information of patients, as
defined in 42 U.S.C. Section 1320d and 45 CFR Section 164.501 (collectively,
"Protected Health Information"), in order for Manager to perform its duties
under this Agreement, particularly under Sections 2.1, 2.2, 2.12, 2.13, 2.14,
and 2.15 above. Manager and Practice each agree to comply with the applicable
provisions of the Administrative Simplification section of the Health Insurance
Portability and Accountability Act of 1996, as codified at 42 U.S.C. Section
1320d through d-8 ("HIPAA"), and the requirements of any regulations promulgated
thereunder, including, without limitation, the federal privacy regulations as
contained in 45 CFR Parts 160 and 164 (the "Federal Privacy Regulations") and
the federal security standards as contained in 45 CFR Part 142 (the "Federal
Security Regulations"), as well as the specific agreements and assurances set
forth below. A material breach of the provisions of this Section shall
constitute a material breach of this Agreement.
(a) Use and Disclosure of Protected Health Information.
Manager and Practice each agree not to use or further disclose any Protected
Health Information other than as permitted or required by this Agreement and the
requirements of HIPAA or regulations promulgated under HIPAA, including, without
limitation, the Federal Privacy Regulations and the Federal Security
Regulations. Manager and Practice each will implement appropriate safeguards to
prevent the use or disclosure of a patient's Protected Health Information other
than as provided for by this Agreement. Manager and Practice each will promptly
report to the other any use or disclosure of a patient's Protected Health
Information not provided for by this Agreement or in violation of HIPAA, the
Federal Privacy Regulations, or the Federal Security Regulations of which
Manager or Practice becomes aware. In the event Manager or Practice, with the
other's approval, contracts with any agents to whom it provides a patient's
Protected Health Information, it shall include provisions in such agreements
whereby it and the agent agree to the same restrictions and conditions that
apply to it with respect to such patient's Protected Health Information. Manager
and Practice will take necessary steps to accord patients the individual rights
of record access, amendment and disclosure accounting required by HIPAA and the
Federal Privacy Regulations. Manager and Practice will make its internal
practices, books, and records relating to the use and disclosure of a patient's
Protected Health Information available to the Secretary of Health and Human
Services to the extent required for determining compliance with the Federal
Privacy Regulations and the Federal Security Regulations. Notwithstanding the
foregoing, no attorney-client, accountant-client, or other legal privilege shall
be deemed waived by Manager or Practice by virtue of this Section. Because the
Manager will need Protected Health Information for the ongoing management and
operation of its business, the Manager may retain such information after the
termination of this Agreement, provided that the Manager continues to extend the
protections of this Agreement to the Protected Health Information and limits
further disclosures to the purposes that make the return or destruction of the
information infeasible or to purposes otherwise required by law.
(b) Research Data. In accordance with Section 2.14 of this
Agreement, Manager shall undertake research using certain clinical data
assembled by Practice. Except
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where authorization for the use of Protected Health Information in research is
obtained in accordance with the Federal Privacy Regulations, such clinical data
shall be furnished to Manager in the form of a limited data set that meets the
requirements of Section 164.514(e) of the Federal Privacy Regulations. That
limited data set shall be used by Manager, and by its employees and agents,
exclusively for the purposes of research, public health and health care
operations. Manager also may grant access to the limited data set to other
individuals or entities engaged in research activities. Manager shall not use or
further disclose information contained in the limited data set other than as
permitted by this Section 2.17(b) or as otherwise required by law. Manager
further agrees that it will (i) use appropriate safeguards to prevent use or
disclosure of the information contained in the limited data set other than as
provided for in this Section 2.17(b), (ii) report to Practice any use or
disclosure of such information not provided for in this Section of which it
becomes aware, and (iii) ensure that any agents or subcontractors to whom
Manager provides the limited data set agree to the same conditions and
restrictions with respect to such information. Manager will not identify the
information contained in the limited data set or use the limited data set to
contact the individuals whose information is contained therein.
(c) Data Security. On or before April 21, 2005, Manager will
implement, in accordance with the Federal Security Regulations, administrative,
physical and technical safeguards that reasonably and appropriately protect the
confidentiality, integrity and availability of the electronic Protected Health
Information that Manager creates, receives, maintains or transmits on behalf of
Practice. If Manager becomes aware of any security incident involving Protected
Health Information furnished to Manager by Practice or that Manager otherwise
maintains on the Practice's behalf, Manager will report such incident to
Practice. Manager will require any agent or subcontractor who receives
electronic Protected Health Information from Manager to abide by these security
restrictions.
ARTICLE 3.
HOSPITAL CONTRACTS
3.1 Performance of Services. Upon approval of Manager, Practice may
directly contract with hospitals and medical centers for the provision of
Professional Medical Services pursuant to Section 3.2 below. In the alternative,
Manager may contract directly with hospitals and medical centers to provide
administrative and management services, including arranging for the provision of
Professional Medical Services by Practice. Practice hereby agrees to provide
Professional Medical Services solely and exclusively to hospitals and medical
centers with which Manager has either contracted to arrange for such services,
or has approved of the provision of such services by Practice. Practice shall
perform and require its shareholders and Professionals to perform Professional
Medical Services in accordance with the terms and conditions of this Section and
such hospital contracts.
3.2 Negotiation of Contracts. Practice agrees not to negotiate, make,
propose, or execute any contract, nor allow any other party besides Manager to
arrange for the Professional Medical Services of Practice or its Professionals
during the term of this Agreement; provided,
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however, that upon request of Manager, Practice will execute agreements with
hospitals that have been negotiated and approved by Manager. The
responsibilities of Manager hereunder do not include any duty to negotiate or
obtain medical staff membership or clinical privileges for Professionals. Such
Professionals shall be required to (i) obtain necessary medical staff membership
and clinical privileges; and (ii) to resign from medical staff membership and
clinical privileges upon termination for any reason from Practice, upon
termination of this Agreement, or as may be required to fulfill the contracts
with hospitals.
3.3 Non-Competition. Practice agrees that neither Practice, nor its
shareholders or Professionals, nor their heirs, assigns or successors in
interest, shall contract with or arrange for the provision of Professional
Medical Services at any hospital or medical center which has been a party to a
contract with Manager or Practice for a period of eighteen (18) months following
the termination of any such contract. Practice further agrees that, upon
termination of this Agreement for any reason, it will not contract with or
arrange for the provision of Professional Medical Services at any hospital or
medical center at which Practice has provided services during the term hereof
for a period of eighteen (18) months following the termination of this
Agreement. The parties specifically agree that this provision shall survive the
termination of this Agreement for any reason and that Practice shall cause each
shareholder and Professional to execute such further documents or instruments as
Manager may request to evidence this Agreement.
3.4 Confidential Information. Practice agrees that neither Practice,
nor its shareholders or Professionals, shall reveal to any person, association,
or company, or shall use or otherwise exploit for their own benefit or for the
benefit of anyone other than Manager, any Confidential Information (as defined
below) concerning the organization, business or finances of Manager so far as
they have come or may come to their knowledge, except as may be required in the
ordinary course of performing their duties for the medical practice of Practice
or except as may be in the public domain through no fault of their own, and they
shall keep secret all matters entrusted to them and shall not use or attempt to
use any such Confidential Information in any manner which may injure or cause
loss or may be calculated to injure or cause loss whether directly or indirectly
to Manager. "Confidential Information" shall include, without limitation, any
patents, patent applications, licenses, copyrights, trademarks, trade names,
service marks, service names, "know-how," trade secrets, customer or patient
lists, details of client or consulting contracts, pricing policies, operational
methods, marketing plans or strategies, product development techniques or plans,
procurement and sales activities, promotional and pricing techniques, credit and
financial data concerning customers, business acquisition plans or any portion
or phase of any scientific or technical information, ideas, discoveries,
designs, computer programs (including source or object codes), processes,
procedures, formulas or improvements of Practice, whether or not in written or
tangible form, and whether or not registered, and including all memoranda,
notes, plans, reports, records, documents and other evidence thereof.
Practice, its shareholders and Professionals agree to return to Manager
any Confidential Information in their possession upon disassociation or
termination for any reason from Practice or upon the termination of this
Agreement for any reason.
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The parties specifically agree that the provisions of this Section 3.4
shall survive termination of this Agreement for any reason and that Practice
shall cause each shareholder and Professional to execute such further documents
or instruments as Manager may request to evidence this Agreement.
3.5 Breach of Covenants. The parties hereto agree that damage to
Manager would be irreparable and incalculable should Practice or its
shareholders, Professionals or other employees, affiliates or agents violate the
covenants contained in Section 3 of this Agreement. Without limitation of any
other legal or equitable rights which Manager may possess, Practice expressly
agrees that Manager or its assigns shall be entitled to injunctive relief
without the necessity of first proving damages in the event of a threatened or
actual breach by Practice, its shareholders, Professionals or other employees,
affiliates or agents of such covenants. Said right to temporary or injunctive
relief shall exist notwithstanding any dispute, controversy or allegation of
breach by Practice hereunder or otherwise. Practice shall cause its
shareholders, Professionals and other employees, affiliates or agents to execute
appropriate documents as necessary to effectuate this provision.
ARTICLE 4.
LIMITATION ON SERVICES
Notwithstanding any other provision to the contrary contained in this
Agreement, Manager shall exercise no control nor have any responsibility for the
Professional Medical Services rendered by the Professionals to any patient.
Manager and Practice agree that it is not the intent of this Agreement to
interfere with the professional judgement of the Professionals. Manager shall
not, in any manner, directly or indirectly regulate or control the
Professional's independent judgment concerning the practice of medicine or the
diagnosis and treatment of patients. All decisions relating to patient care and
treatment shall be made by a licensed physician or other appropriate clinical
provider in his or her sole and absolute discretion. Any licenses, permits or
other certifications which Practice or its Professionals may need to provide
Professional Medical Services shall be the sole responsibility of Practice and
such Professionals. The shareholder(s) of Practice agree to perform all medical
management deemed necessary or advisable by either Practice or Manager to
satisfy hospital agreements, third party payor relationships, and good medical
practice organization and management.
Except as provided in Section 2 above with respect to the establishment
and implementation of guidelines for the selection, hiring and firing of
Professionals, Practice shall retain responsibility for the hiring, termination,
training or supervision of Professionals employed or otherwise retained by
Practice. Any Professional employed or otherwise retained by Practice shall be
retained pursuant to an agreement having terms and conditions that are
satisfactory to Manager and Practice agrees to ensure that Professionals perform
the obligations of their respective agreements (including employment agreements)
in accordance with the terms and conditions of such agreements. No amendments,
or waivers or termination of employment agreements may be made by Practice
without the consent of Manager.
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ARTICLE 5.
BOOKS AND RECORDS
Practice shall have the right to inspect the books and records of
Manager regarding its collections, billing, accounting and other functions
provided by Manager on behalf of Practice.
ARTICLE 6.
COMPENSATION AND EXPENSES
6.1 Compensation. For all services rendered by Manager in accordance
with this Agreement, Practice shall pay Manager those sums described in "Exhibit
A," which is attached to and made a part of this Agreement. "Exhibit A" may be
amended from time to time by Manager to reflect industry standards and the range
of services provided by Manager.
6.2 Expenses. Manager shall pay all costs and expenses of Practice out
of the revenues of Practice.
ARTICLE 7.
TERM AND TERMINATION
7.1 The parties intend that the term of the arrangements under this
Agreement shall be permanent, subject only to the rights of termination pursuant
to Sections 7.2, 7.3 and 7.4 hereof.
7.2 Termination by Manager with Cause. This Agreement may be terminated
by Manager upon a material breach of any provision of this Agreement by Practice
which is not cured within sixty (60) days after written notice is given to
Practice specifying the nature of the alleged breach.
7.3 Termination by Manager without Cause. This Agreement may be
terminated by Manager without cause upon sixty (60) days written notice to
Practice.
7.4 Termination by Practice with Cause. This Agreement may be
terminated by Practice only in the event of gross negligence, fraud, or other
illegal acts of Manager; provided, that such events must first have been proven
in a court of competent jurisdiction and all appeal rights related thereto have
been exhausted prior to any termination pursuant to this Section 7.4. Except as
provided in this Section 7.4, under no circumstances shall Practice have the
right to terminate this Agreement.
ARTICLE 8.
STATUS OF MANAGER
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In the performance of the duties, responsibilities and obligations
required by this Agreement, Manager shall at all times be performing as an
independent contractor of Practice. No act, work, commission or omission by
Manager pursuant to the terms and conditions of this Agreement shall be
construed to make or render Manager an agent, servant or employee of, or joint
venturer with, Practice. Nothing in this Agreement limits the right of Manager
to provide any services or products or enter into any contractual arrangements
with any person or entity, including, without limitation, persons or entities in
similar businesses or in competition with Practice.
ARTICLE 9.
INSURANCE
Manager shall obtain and maintain, on behalf of Practice, such policies
of general liability, professional liability and other appropriate insurance as
are commercially available at limits of liability which are customarily
maintained by similar enterprises. In the alternative, at the request of
Manager, Practice shall maintain such policies with coverage and limits
acceptable to Manager in its sole discretion. In no event shall Manager be
liable under any circumstances if such coverage is deemed insufficient for any
reason. Practice shall advise Manager in detail of any claims or possible claims
against such insurance policies.
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ARTICLE 10.
MISCELLANEOUS
10.1 Notices. Any notice required or permitted to be given hereunder to
either party shall be deemed given if sent by hand delivery, by registered or
certified mail, return receipt requested, or by overnight mail delivery for
which evidence of delivery is obtained by the sender, to such party at:
Practice: c/o Pediatrix Medical Group, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Manager: Pediatrix Medical Group, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
10.2 Limitation of Assignment. This Agreement shall not be assigned by
Practice without the prior express written consent of Manager. This Agreement
may be assigned by Manager unilaterally and without consent of the Practice.
10.3 Binding on Successors in Interest. The provisions of, and
obligations arising under, this Agreement shall extend to, be binding upon and
inure to the benefit of the successors and assigns of each party.
10.4 Severability; Changes in Law. If any part of this Agreement is
determined to be invalid, illegal, inoperative, or contrary to law or
professional ethics, the part shall be reformed, if possible, to conform to law
and ethics; the remaining parts of this Agreement shall be fully effective and
operative to the extent reasonably possible. If any restriction contained in
this Agreement is held by any court to be unenforceable or unreasonable, a
lesser restriction shall be enforced in its place and the remaining restrictions
shall be enforced independently of each other.
10.5 Conformance with Law. Each party agrees to carry out all
activities undertaken by it pursuant to this Agreement in conformance with all
applicable federal, state, and local laws, rules, and regulations.
10.6 Time of the Essence. Time shall be of the essence with respect to
each and every term, covenant, and condition of this Agreement.
10.7 Attorneys' Fees. If either party incurs any suit costs and
reasonable attorneys' fees with respect to the enforcement of this Agreement
against the other, the successful party shall be entitled to recover from the
other all suit costs and reasonable attorneys' fees, including
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fees on appeal, and each party shall pay those suit costs and reasonable
attorneys' fees that may be incurred by the successful party in enforcing this
Agreement.
10.8 Entire Agreement/Amendment. This Agreement supersedes all previous
contracts between the parties relating to the subject matter hereof, including
the Prior Agreement, and, together with the Joinder and any Exhibits expressly
incorporated herein, constitutes the entire agreement between the parties. Oral
statements or prior written materials not specifically incorporated in this
Agreement shall not be of any force and effect. In entering into and executing
this Agreement, the parties rely solely upon the representations and agreements
contained in the Agreement and no others. Except as provided in Section 6.1, no
changes in or additions to this Agreement shall be recognized unless and until
made in writing and signed by an authorized officer or agent of Practice and
Manager.
10.9 Governing Law. This Agreement has been executed and delivered and
shall be construed and enforced in accordance with the laws of the State of
Florida. Any action by any party whether at law or in equity, shall be commenced
and maintained and venue shall properly be in Broward County, Florida.
10.10 Third Party Beneficiaries. This Agreement shall not be construed
to create any third party beneficiaries.
10.11 Waiver of Breach. No provision of this Agreement shall be deemed
waived unless evidenced by a written document signed by an authorized officer or
agent of Practice and Manager. The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same or other
provision of this Agreement.
10.12 Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
10.13 Gender and Number. When the context of this Agreement requires,
the gender of all words shall include the masculine, feminine, and neuter, and
the number of all words shall include the singular and plural.
10.14 Execution. This Agreement and any amendments may be executed in
multiple originals, each counterpart shall be deemed an original, but all
counterparts together shall constitute one and the same instrument.
10.15 Additional Assurances. The provisions of this Agreement are
self-operative and do not require further agreement by the parties; provided,
however, at the request of either party the other shall execute any additional
instruments and take any additional acts that Manager may deem reasonably
necessary to effectuate this Agreement.
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10.16 Force Majeure. Neither party shall be liable nor deemed to be in
default for any delay or failure in performance under this Agreement or other
interruption of service or employment deemed resulting, directly or indirectly,
from acts of God, civil or military authority, acts of public enemy, war,
accidents, fires, explosions, earthquakes, floods, failure of transportation,
strikes or other work interruptions by either party's employees, or any similar
or dissimilar cause beyond the reasonable control of either party.
10.17 Authority. Each signatory to this Agreement represents and
warrants that he/she possesses all necessary capacity and authority to act for,
sign, and bind the respective entity on whose behalf he/she is signing.
10.18 Acquisition Right. The shareholder(s) of Practice hereby
irrevocably grant(s) Manager the fully assignable right, but not the obligation,
to acquire or to designate a qualified buyer to acquire all of the stock of
Practice (the "Stock") for the sum of the lesser of the amount paid by the
shareholder(s) for such Stock or the book value thereof ("Acquisition Right") in
each of the following instances:
(i) if a termination occurs pursuant to Section 7.2 (or if
Practice attempts to terminate this Agreement for any reason), Manager shall
have the right to acquire or designate a qualified buyer to acquire the Stock
from the date of the notice of termination and for a period of ninety (90) days
after the end of the term of this Agreement.
(ii) if the shareholder(s) of Practice receive(s) a bona fide
written offer from a third party that he, she or they wish(es) to accept,
Manager shall have sixty (60) days from the date of the actual receipt by
Manager of a copy of such bona fide offer to acquire or designate a qualified
buyer to acquire the Stock.
In order to protect the Acquisition Right, Practice and the
shareholder(s) agree as follows:
(i) Practice will not merge or consolidate with another entity
or sell any of its assets in other than the normal course of its business.
(ii) Practice will not issue any stock, incur any debt, pledge
or grant a security interest in any asset, amend the Articles of Incorporation,
By-Laws or any agreements of Practice or declare any dividends.
(iii) Practice will not enter into any material agreements
with any person or entity without the prior written consent of Manager.
(iv) Practice shall cause each shareholder of the Practice to
execute a Joinder to this Agreement in the form attached hereto.
In addition to the acquisition right described herein, Manager also may
have certain rights to acquire the Stock pursuant to a Stock Transfer Agreement
between Manager and Practice's shareholder(s).
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10.19 Security. As security and collateral for (i) the obligations of
Practice to Manager under this Agreement, and (ii) any loans from Manager to
Practice (whether made before or after the date hereof), Practice hereby grants
a first security interest to Manager in all tangible and intangible assets of
Practice, whether now owned or later acquired, and to all proceeds from such
assets. Additionally, the shareholder(s) of Practice pledges, as security for
his, her, or their obligation to Manager and the obligations of Practice to
Manager, all of the shares of Practice owned by him, her, or them and shall
place such shares in the possession of Manager. Practice and the shareholder(s)
of Practice agree to execute such further documents and instruments as may be
deemed necessary or desirable by Manager, in Manager's sole discretion, to
effect the provisions of this Section.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers or agents.
"Practice" "Manager"
PEDIATRIX MEDICAL GROUP, INC.
By: _______________________________ By: _________________________
Name: _____________________________ Name:
Title: ____________________________ Title:
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