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Exhibit 10.9
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement ("Agreement") is entered into as
of _________, 199_ ("Effective Date") by and among [RTSI SUBSIDIARY] a _____
corporation ("MANAGEMENT SERVICES") and [PROFESSIONAL CORP.] a __________
professional corporation (the "PC").
RECITALS
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A. The PC is a __________professional corporation that engages in the
business of providing or arranging for the provision of health care services
(the "Practice"). The PC has entered into and throughout the term of this
Agreement may (if MANAGEMENT SERVICES does not do so itself as provided herein)
continue to enter into arrangements with insurers, HMOs and other third-party
payors ("Payors") to provide or arrange for the provision of health care
services to persons covered by those Payors ("Enrollees").
B. The PC has entered into written employment agreements with
physicians and other health care providers and health care professionals
("Employed Providers") licensed to practice in the State of _________. The PC
may also enter into independent contractor agreements with various physicians
and other health care providers and health care professionals ("Contracting
Providers") to assist the PC in providing or arranging for the provision of
health care services to Enrollees and other patients of the PC (collectively,
"Patients").
C. MANAGEMENT SERVICES engages in the business of providing certain
administrative and support services concerning the day-to-day affairs of
radiation therapy centers (the "Centers"), both in their startup and established
phases, and in providing space in the Centers, equipment, furnishings, supplies,
inventory, personnel and working capital to Centers and facilities management in
connection therewith.
D. The PC desires to secure certain administrative services from
MANAGEMENT SERVICES in connection with its operation of the Practice in the
Centers, and to lease from MANAGEMENT SERVICES certain space, equipment,
furnishings, supplies and inventory in connection therewith.
E. The PC and MANAGEMENT SERVICES desire to enter into a written
agreement for the provision by MANAGEMENT SERVICES, on an exclusive basis, of
administrative services to the PC with respect to the Practice, and for the
provision of space, furnishings, supplies, inventory, non-medical personnel and
management services to the Practice, so as to permit the PC to devote its
efforts on a concentrated and continuous basis to the rendering of medical
services to its Patients.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
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I. RESPONSIBILITIES OF THE PC
1.1. SOLE RESPONSIBILITY FOR ALL MEDICAL AND PROFESSIONAL MATTERS. All
medical and professional matters relating to the provision of radiation therapy
or oncology services at the Centers shall be the sole responsibility of the PC.
The PC shall use and occupy the facilities provided by MANAGEMENT SERVICES
hereunder exclusively for the practice of medicine. The PC expressly
acknowledges that the medical practice or practices conducted at these
facilities shall be conducted solely by Employed Providers and Contracting
Providers.
1.2. EMPLOYED PROVIDERS AND CONTRACTING PROVIDERS. The PC shall have
complete control of and responsibility for the hiring, engagement, compensation,
supervision evaluation, and termination of all Employed Providers and
Contracting Providers, including nurses, physician assistants and other licensed
healthcare professionals. With respect to physicians, the PC shall only employ
and contract with licensed physicians meeting applicable credentialing
guidelines established by the PC. The PC shall be responsible for the payment of
salaries and wages, compensation, payroll taxes, employee benefits, and all
other taxes and charges now or hereafter applicable to Employed Providers and
Contracting Providers. Prior to making any changes with respect to any of the
Employed Providers or Contracting Providers, the PC shall consult with
MANAGEMENT SERVICES. The PC shall also consult with MANAGEMENT SERVICES with
regard to the terms of contracts entered into between the PC and Employed
Providers and Contracting Providers and the terms and conditions of their
employment or engagement as independent contractors, as applicable.
1.3. FEES, CHARGES AND PAYOR AGREEMENTS. The PC shall, after
consultation with MANAGEMENT SERVICES, determine the fees, charges, premiums, or
other amounts due in connection with its delivery of health care services to
Patients. Such fees, charges, premiums, or other amounts, regardless of whether
determined on a fee-for-service, capitated, prepaid, or other basis, shall be
reasonable and consistent with the fees, charges, premiums and other amounts due
to health care providers for similar services within the community under the
type of reimbursement program involved.
1.4. COMPLIANCE WITH LAW. The PC shall require all of its Employed
Providers and Contracting Providers to comply with all laws, regulations, and
ethical and professional standards applicable to the practice of medicine.
Employed Providers and Contracting Providers who are physicians shall at all
times be licensed to practice medicine in the State of __________and all other
states in which a Center at which such physician provides patients medical
services is located.
1.5. CENTERS; HOURS OF OPERATION; STAFFING. The PC shall conduct the
Practice from the current Centers located in _____________________ at
__________________, as well as such hospitals and other facilities as may be
agreed upon by MANAGEMENT SERVICES and the PC from time to time. Changes in or
additions to the Centers shall require the consent of both parties which consent
shall not be unreasonably withheld. Any additional or substitute Center shall be
deemed to be part of the Practice for the purposes of this Agreement. The hours
of operation
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and the medical staffing of the Centers shall be established by the agreement of
the PC and MANAGEMENT SERVICES from time to time hereafter.
1.6. QUALITY ASSURANCE. The PC shall rigorously monitor utilization and
quality of services provided by Employed Providers and Contracting Providers,
shall develop, maintain and administer quality assurance programs and
performance standards and shall take all steps necessary to remedy any and all
deficiencies in the efficiency or the quality of medical care provided.
1.7. PATIENT REFERRALS. The parties agree that the benefits to the PC
hereunder do not require, are not payment for, and are not in any way contingent
upon the admission, referral or any other arrangements for the provision of any
item or service offered by MANAGEMENT SERVICES or any Affiliate, as defined in
Section 8.21 of this Agreement, of MANAGEMENT SERVICES to any of the PC's
Patients in any facility or laboratory controlled, managed or operated by
MANAGEMENT SERVICES or any Affiliate of MANAGEMENT SERVICES.
1.8. PROFESSIONAL DUES AND EDUCATION EXPENSES. The PC and its Employed
Providers and Contracting Providers shall be solely responsible for the cost of
membership in professional associations, and continuing professional education.
The PC shall ensure that each of its Employed Providers and Contracting
Providers participates in such continuing medical education as is necessary for
such provider to remain current with professional licensure and community
standards.
1.9. PROFESSIONAL INSURANCE ELIGIBILITY. The PC shall cooperate with
MANAGEMENT SERVICES in the obtaining and retaining of professional liability
insurance by assuring that either its Employed Providers and Contracting
Providers are insurable or instituting proceedings to terminate any Employed
Provider of Contracting Provider who is not insurable or loses his or her
insurance eligibility. Termination shall be effective no more than thirty (30)
days from such determination. The PC shall require all Employed Providers and
Contracting Providers to participate in an on-going risk management program.
1.10. FEES FOR PROFESSIONAL SERVICES. MANAGEMENT SERVICES shall be
solely responsible for legal, accounting and other professional services
incurred by the PC in operating the Practice absent a violation by the PC of any
provisions of this Agreement.
II. RESPONSIBILITIES OF MANAGEMENT SERVICES
2.1. GENERAL RESPONSIBILITY. MANAGEMENT SERVICES shall have general
responsibility for providing fiscal services, administrative services, and other
strategic and tactical support services to the PC with respect to the Practice,
except as otherwise provided in this Agreement. MANAGEMENT SERVICES shall
perform all required functions in accordance with sound management techniques.
Notwithstanding MANAGEMENT SERVICES's general and specific rights and
responsibilities set forth in this Agreement, the PC shall have full authority
and control with respect to all medical, professional and ethical determinations
over the PC's Practice to the extent
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required by federal, state and local laws, rules and regulations. MANAGEMENT
SERVICES shall not engage in activities which constitute the practice of
medicine under applicable laws. MANAGEMENT SERVICES shall neither exercise
control over nor interfere with the physician-patient relationship, which shall
be maintained strictly between the physicians employed by or contracting with
the PC and the PC's Patients.
2.2. RESPONSIBILITIES WITH REGARD TO SELECTED PATIENT-RELATED MATTERS.
(a) PATIENT RELATIONS, SCHEDULING, ETC. MANAGEMENT SERVICES
shall assist the PC in maintaining positive Patient relations by, among other
things, in conjunction with and at the direction of the PC: scheduling Patient
appointments; responding to Patient grievances and complaints in matters other
than medical evaluation, diagnosis, and treatment; and establishing and
maintaining in the PC's name and on its behalf Patient transfer arrangements to
expedite referrals where medically necessary, as determined and requested by the
attending physician.
(b) RECORDKEEPING. MANAGEMENT SERVICES shall assist the PC
in maintaining Patient medical records in accordance with applicable laws
concerning their confidentiality and retention, and promptly making such records
available to the PC's Employed Providers, Contracting Providers and other
appropriate recipients. Notwithstanding the foregoing sentence, Patient medical
records shall be and shall remain the property of the PC, and the content
thereof shall be solely the responsibility of the PC.
(c) QUALITY ASSURANCE.
(i) IN GENERAL. MANAGEMENT SERVICES shall assist
the PC, in accordance with criteria established by the PC, in the development
and implementation of appropriate quality assurance programs, including
development of performance and utilization standards, sampling techniques for
case review, and preparation of appropriately documented studies.
Notwithstanding the foregoing, MANAGEMENT SERVICES shall not perform any duties
that constitute the corporate practice of medicine in __________and all other
states in which a Center at which the PC provides patient medical services is
located.
(ii) PERIODIC INDEPENDENT REVIEW. On behalf of the
PC, MANAGEMENT SERVICES may periodically perform quality assurance and
utilization reviews through nurses employed by it; PROVIDED, HOWEVER, that
MANAGEMENT SERVICES shall not engage in activities which constitute the practice
of medicine under applicable law. Alternatively, MANAGEMENT SERVICES may
periodically arrange for an independent quality assurance and utilization review
to be performed by persons who are unrelated to the PC or MANAGEMENT SERVICES,
or to any Affiliate of the PC or MANAGEMENT SERVICES, which has expertise in
such areas, and which has been approved in advance by the PC. Such review shall
include a random sampling of medical records (consistent with laws regarding the
confidentiality of medical records), an analysis of the PC's quality assurance
utilization review procedures, and an analysis of the
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appropriateness of costs associated with operating the PC's medical practice at
the Practice.
2.3. RESPONSIBILITIES WITH REGARD TO SELECTED FINANCIAL MATTERS.
(a) BILLING. MANAGEMENT SERVICES shall submit on a timely
basis all bills and necessary documentation required by Patients and Payors in
order to obtain payment in connection with the PC's delivery of health care
services at the Practice or its arrangement for the delivery of such services.
In seeking such payment, MANAGEMENT SERVICES shall act as the PC's exclusive
agent in billing and collecting professional fees, charges and other amounts
owed to the PC. In this connection, the PC hereby appoints MANAGEMENT SERVICES,
during the term of this Agreement, as the PC's true and lawful attorney-in-fact,
with power of substitution, for the following purposes relating to the Practice:
(i) To xxxx the PC's Patients on the PC's behalf.
(ii) To collect accounts receivable generated by
such xxxxxxxx on the PC's behalf, including, where deemed appropriate by
MANAGEMENT SERVICES and approved in advance by the PC, settling and compromising
claims, assigning such accounts receivable to a collection agency or the
bringing of legal action against a Patient or Payor on the PC's behalf.
(iii) To receive payments on behalf of the PC from
Patients and Payors, to cause such payments to be deposited into appropriate
depository accounts (each such depository account, a "Collections Account") and
to write checks against or otherwise withdraw such payments to pay the PC
Expenses (as hereinafter defined).
(b) ACCOUNTING. MANAGEMENT SERVICES shall direct and
maintain the operation of an appropriate accounting system with respect to the
PC's operation of the Practice which shall perform all bookkeeping and
accounting services required for the operation of the Practice, including the
maintenance, custody and supervision of business records, ledgers and reports;
the establishment, administration and implementation of accounting procedures,
controls and systems. Such accounting system shall allow MANAGEMENT SERVICES to
prepare the reports specified in Section 2.3(c).
(c) REPORTING. MANAGEMENT SERVICES shall present to the PC
reports on the financial condition of the PC on the basis set forth below in
clauses (i) and (ii) and such other reports that the PC may reasonably request,
including daily activity reports, weekly analyses, alternative delivery system
reports, backlog reports and the like. MANAGEMENT SERVICES also shall provide
such reports as may be required by any regulatory agency having jurisdiction
over the operations of the PC.
The reports initially required to be delivered to the PC
under this Section 2.3(c) with respect to the Practice are as follows:
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(i) As soon as possible after the close of each
month, a balance sheet and a related statement of revenues and expenses showing
the results of the PC's operations for the preceding month of the fiscal year
and the year to date.
(ii) As soon as possible after the close of each
fiscal year, a balance sheet and related statement of revenues and expenses
showing the results of the PC's operations during that fiscal year.
2.4. RESPONSIBILITIES WITH RESPECT TO FACILITIES MANAGEMENT.
(a) OFFICE MANAGEMENT SERVICES. MANAGEMENT SERVICES shall
provide, supervise and direct the development of appropriate and efficient
office management services with respect to the PC's operation of the Practice.
(b) CENTERS. MANAGEMENT SERVICES shall provide, manage
and maintain the Centers and reasonable improvements during the term of this
Agreement. MANAGEMENT SERVICES shall be responsible for all management,
maintenance and other decisions pertaining to the Centers consistent with the
terms of this Agreement. MANAGEMENT SERVICES shall maintain the Centers in good
condition and repair, reasonable wear and tear excepted. MANAGEMENT SERVICES
shall provide such additional and/or replacement facilities as the PC and
MANAGEMENT SERVICES agree, from time to time. MANAGEMENT SERVICES shall provide
the PC with all utilities (including water, gas and electricity), heat, air
conditioning, telephone, janitorial services and disposal services (including
the disposal of medical wastes) required in connection with the operation of the
Centers.
(c) USE OF ASSETS.
(i) MANAGEMENT SERVICES shall lease or purchase
and, when necessary, replace equipment and furnishings needed for the delivery
of health care services by the PC at the Centers and for the delivery of
services provided by MANAGEMENT SERVICES pursuant to this Agreement. MANAGEMENT
SERVICES shall consult with the PC with respect to the suppliers, prices and
specifications of such equipment and furnishings. MANAGEMENT SERVICES shall use
its best efforts to keep and maintain the equipment and furnishings used by the
PC at the Centers in good working order and condition.
(ii) All assets provided or purchased under this
Agreement by MANAGEMENT SERVICES, including any management information systems,
shall remain the property of MANAGEMENT SERVICES and the PC shall have the right
to use such assets only during the term of this Agreement.
(iii) Nothing in this Agreement shall be construed
to affect or limit in any way the professional discretion of the PC to select
and use equipment, furnishings, inventory and supplies purchased by MANAGEMENT
SERVICES in accordance with the terms of this Agreement insofar as such
selection or use constitutes or might constitute the practice of medicine.
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(d) SUPPLIES AND INVENTORY. MANAGEMENT SERVICES shall
provide and replenish, as necessary and as may be permitted by applicable law,
the inventory and supplies needed for the delivery of medical services by the
PC, and for the delivery of services by MANAGEMENT SERVICES pursuant to this
Agreement. MANAGEMENT SERVICES shall consult with the PC with respect to the
suppliers, prices and specifications of such inventory and supplies.
(e) NO WARRANTIES. THE PC ACKNOWLEDGES THAT MANAGEMENT
SERVICES MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE
SUITABILITY OR ADEQUACY OF ANY FACILITIES, EQUIPMENT, FURNISHINGS, INVENTORY OR
SUPPLIES PROVIDED PURSUANT TO THIS AGREEMENT FOR THE CONDUCT OF A MEDICAL
PRACTICE OR FOR ANY OTHER PARTICULAR PURPOSE.
2.5. OTHER RESPONSIBILITIES.
(a) PUBLIC RELATIONS. MANAGEMENT SERVICES shall provide
services reasonably necessary for enhancing public relations for the PC's health
care services and shall submit any public relations programs for prior review
and revision, if necessary, and approval by the PC, which approval shall not be
unreasonably withheld. Such public relations shall comply with applicable laws
and regulations governing the use of promotional activities by the medical
profession and with applicable standards of medical ethics.
(b) INSURANCE.
(i) PROPERTY AND LIABILITY INSURANCE. MANAGEMENT
SERVICES shall obtain and maintain during the term of this Agreement, if
available on commercially reasonable terms, (a) property damage insurance
protecting the Practice premises and the personal property located therein
against such hazards and in such amounts as MANAGEMENT SERVICES determines are
reasonably prudent; and (b) general liability insurance in such amounts as
MANAGEMENT SERVICES determines are reasonably prudent.
(ii) GENERAL LIABILITY INSURANCE. The PC shall
obtain and maintain during the term of this Agreement general liability
insurance in such amounts as the PC determines are reasonably prudent. The PC
shall name MANAGEMENT SERVICES as an additional insured on such policies.
(iii) MALPRACTICE INSURANCE. It is understood that
the PC and its Employed Providers shall, at the PC's cost, at all times be
covered by malpractice insurance with coverage in usual and customary amounts
for practitioners of the same profession and specialties in __________and, if
applicable, other states. The PC shall ensure that its written agreements with
Contracting Providers who are physicians require such Contracting Providers to
at all times be covered by malpractice insurance in amounts that are usual and
customary for practitioners of the same profession and
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specialty in __________and, if applicable, other states. Such malpractice
policies shall name MANAGEMENT SERVICES as an additional insured.
(iv) COPIES OF INSURANCE POLICIES. MANAGEMENT
SERVICES or the PC shall, upon request by the PC or MANAGEMENT SERVICES, as the
case may be, promptly provide the PC or MANAGEMENT SERVICES, as the case may be,
with copies of all policies of insurance that it procures under this Agreement.
Each such policy shall provide that it cannot be modified or terminated except
after thirty (30) days written notice to MANAGEMENT SERVICES.
(c) PERSONNEL. MANAGEMENT SERVICES shall furnish the
services of all personnel other than physicians, nurses, physician assistants or
other licensed healthcare professionals required for the operation of the
Practice. Except as specifically provided in this SECTION 2.5(C), MANAGEMENT
SERVICES has the power to recruit, hire, train, promote, assign, set the
compensation level for, and discharge all personnel other than physicians,
nurses, physician assistants or other licensed healthcare professionals. Any
personnel employed by MANAGEMENT SERVICES who perform patient care services
shall perform such services under the exclusive direction, supervision and
control of the PC, while all other services of MANAGEMENT SERVICES personnel
shall be performed under the exclusive direction, supervision and control of
MANAGEMENT SERVICES. If the PC is dissatisfied with the services of any
personnel employed by MANAGEMENT SERVICES, the PC shall consult with MANAGEMENT
SERVICES. MANAGEMENT SERVICES shall in good faith determine whether the
performance of that employee could be brought to acceptable levels through
counsel and assistance, or whether, if requested by the PC (provided that such
employee is not an officer or senior manager of MANAGEMENT SERVICES), such
employee should be removed from providing services for the PC. Employee
assignments shall be made with the intention of assuring consistent and
continued rendering of quality services and to ensure prompt availability and
accessibility of personnel to physicians in order to develop constant, familiar
and routine working relationships between the Employed Providers, Contracting
Providers and MANAGEMENT SERVICES personnel.
(d) EMPLOYED PROVIDERS. MANAGEMENT SERVICES shall assist
the PC in the administration of any employee benefit plans established by the PC
in compliance with the provisions of Section 1.10 hereof.
(e) MANAGED CARE AGREEMENTS. MANAGEMENT SERVICES shall
negotiate, enter into (to the extent deemed advisable by MANAGEMENT SERVICES)
and administer all managed care agreements on behalf of the PC and shall consult
with the PC on all professional and clinical matters relating thereto.
III. FINANCIAL ARRANGEMENTS
3.1. MANAGEMENT FEE. For the services to be provided hereunder by
MANAGEMENT SERVICES, the PC shall pay to MANAGEMENT SERVICES a Management Fee of
$_________. Such fee shall be payable on a monthly basis. The parties agree that
the Management Fee represents the fair market value of the
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services provided by MANAGEMENT SERVICES hereunder and that the parties shall
meet annually to reevaluate the value of services provided by MANAGEMENT
SERVICES and shall establish the fair market value thereof for purposes of this
Section 3.1.
3.2. SECURITY AGREEMENT; THE PC EXPENSES. To secure the PC's payment
obligations hereunder, the PC is concurrently herewith entering into a security
agreement, in form acceptable to MANAGEMENT SERVICES, to grant to MANAGEMENT
SERVICES a security interest in the accounts receivable of the PC and all of the
PC's rights to receive payments under managed care contracts. The PC shall
cooperate with MANAGEMENT SERVICES and execute all reasonably necessary
documents in connection with the granting of such security interest.
All payments on behalf of the PC from Patients and Payors shall be
deposited into one or more Collection Accounts. To the extent the PC receives
any such payments, the PC shall direct such payments to MANAGEMENT SERVICES for
deposit in one or more Collection Accounts.
3.3. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement or the transactions contemplated hereby, including any
controversy or claim arising out of or relating to the parties' decision to
enter into this Agreement or the transactions contemplated hereby, shall be
settled by binding arbitration. Each party shall select an arbitrator who has at
least three (3) years experience in health care or medical practice management
or in health care or medical practice dispute resolution.
The arbitration proceedings shall be confidential and the arbitrators may issue
appropriate protective orders to safeguard each party's confidential
information. Such protective orders shall be enforceable by any court of
competent jurisdiction. Except as specifically provided in this section, the
arbitration shall be conducted in accordance with the rules of conciliation and
arbitration of the American Arbitration Association. The two arbitrators shall
agree upon any issue no later than thirty (30) days after the date the second
arbitrator has been engaged, and shall take into account the principles and
objectives set forth in paragraph (b) below. If the two arbitrators cannot agree
on a determination, then within five (5) days thereafter the two arbitrators
shall select a third arbitrator, who shall have the same qualifications required
for the first two arbitrators. No later than thirty (30) days after the date the
third arbitrator is engaged, he or she shall determine which of the two
positions best satisfies the provisions of the contract and the intent of the
parties, taking into account the principles and objectives set forth in
paragraph (b) below. The third arbitrator shall have no right to propose a
middle ground between the two or to make any modification of the proposals of
either party. The third arbitrator's determination shall be final and binding on
all parties. The cost and expense of the third arbitrator shall be shared
equally between the parties. If either party fails to engage an arbitrator as
required hereunder, the arbitrator selected by the other party shall conduct the
arbitration and make the final decision in accordance with this Section 3.4.
(b) The arbitration shall be conducted at the offices of
MANAGEMENT SERVICES or such other mutually acceptable site. In conducting
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the arbitration, the arbitrator(s) shall consider the following principles and
objectives of the parties in entering into this Agreement:
(i) The parties contemplate that the PC shall pay
MANAGEMENT SERVICES a flat fee for the fair market value of MANAGEMENT SERVICES'
hereunder.
(ii) The parties contemplate that MANAGEMENT
SERVICES shall in no way provide medical services to Patients.
(iii) The parties contemplate an expansion of the
Practice by acquisition or purchase of other Centers and by expansion of the
variety of specialty medical services provided and/or ancillary services
provided.
IV. REPRESENTATIONS AND WARRANTIES; COVENANTS
4.1. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PC.
(a) The PC hereby represents and warrants to MANAGEMENT
SERVICES as follows:
(i) The PC is and shall remain during the term of
this Agreement a professional corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada, actively engaged in the
practice of medicine, and possessing full corporate power and authority to own
its properties and to conduct the business in which it engages.
(ii) The PC has full corporate power and authority
to execute and deliver this Agreement and to engage in the transactions and
obligations contemplated by this Agreement. Upon its execution, this Agreement
shall constitute a valid and binding obligation of the PC, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, moratorium, or other similar laws affecting generally the rights of
creditors and by principles of equity. The party executing this Agreement on
behalf of the PC is duly authorized to do so.
(iii) The consummation of the transactions
contemplated by this Agreement will not: result in a breach of the terms,
provisions, or conditions of or constitute a default under the Articles of
Incorporation, By-Laws or other enabling or governing instruments of the PC or
any agreement to which the PC is a party or by which it is bound; or, to the
best knowledge of the PC, constitute a violation of any applicable law or
regulation.
(b) The PC hereby covenants to MANAGEMENT SERVICES that it
shall not, without the prior written consent of MANAGEMENT SERVICES, take any
action to terminate or nullify, or release any Employed Provider from, the terms
of any noncompetition covenant set forth in any employment agreement between the
PC and such Employed Provider.
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4.2. COVENANTS AND WARRANTIES OF MANAGEMENT SERVICES. MANAGEMENT
SERVICES hereby represents and warrants to the PC as follows:
(a) MANAGEMENT SERVICES is and shall remain during the term
of this Agreement a corporation which is duly organized, validly existing and in
good standing under the laws of the State of Nevada, possessing full corporate
power and authority to own its properties and to conduct the business in which
it engages.
(b) MANAGEMENT SERVICES has full corporate power and
authority to execute and deliver this Agreement and to engage in the
transactions and obligations contemplated by this Agreement. Upon its execution,
this Agreement shall constitute a valid and binding obligation of MANAGEMENT
SERVICES, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, moratorium, or other similar laws affecting
generally the rights of creditors and by principles of equity. The party
executing this Agreement on behalf of MANAGEMENT SERVICES is duly authorized to
do so.
(c) The consummation of the transactions contemplated by
this Agreement will not: result in any breach of the terms, provisions or
conditions of or constitute a default under the Certificate of Incorporation,
Bylaws or other enabling or governing instruments of MANAGEMENT SERVICES or any
agreement to which MANAGEMENT SERVICES is a party or by which it is bound; or,
to the best knowledge of MANAGEMENT SERVICES, constitute a violation of any
applicable law or regulation.
V. TERM AND TERMINATION
5.1 INITIAL AND RENEWAL TERM. The term of this Agreement will be for an
initial period of twenty-five (25) years after the Effective Date, and shall be
automatically renewed for successive five (5) year periods thereafter
(collectively, the "Term"), provided that neither MANAGEMENT SERVICES nor the PC
shall have given notice of termination of this Agreement at least one hundred
twenty (120) days before the end of the initial term or any renewal term, or
unless otherwise terminated as provided in Section 5.2 of this Agreement.
5.2 TERMINATION.
(a) TERMINATION BY THE PC. The PC may immediately terminate
this Agreement at its discretion, upon written notice as follows:
(i) If MANAGEMENT SERVICES becomes insolvent by
reason of its inability to pay its debts as they mature; is adjudicated bankrupt
or insolvent; files a petition in bankruptcy, reorganization or similar
proceeding under the bankruptcy laws of the United States or shall have such a
petition filed against it which is not discharged within thirty (30) days; has a
receiver or other custodian, permanent or temporary, appointed for its business,
assets or property; makes a general assignment for the benefit of creditors; has
its bank accounts, property or accounts attached; has execution levied against
its business or property; or voluntarily
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dissolved or liquidates or has a petition filed for corporate dissolution and
such petition is not dismissed with thirty (30) days;
(ii) If the MANAGEMENT SERVICES fails to comply
with any material provision of this Agreement, or any other agreement with the
PC, and does not correct such failure within sixty (60) days after written
notice of such failure to comply is delivered by the PC specifying the nature of
the breach in reasonable detail.
(b) TERMINATION BY MANAGEMENT SERVICES.
MANAGEMENT SERVICES may immediately terminate this Agreement at its discretion,
upon written notice as follows:
(i) If the PC becomes insolvent by reason of its
inability to pay its debts as they mature; is adjudicated bankrupt or insolvent;
files a petition in bankruptcy, reorganization or similar proceeding under the
bankruptcy laws of the United States or shall have such a petition filed against
it which is not discharged within thirty (30) days; has a receiver or other
custodian, permanent or temporary, appointed for its business, assets or
property; makes a general assignment for the benefit of creditors; has its bank
accounts, property or accounts attached; has execution levied against its
business or property; or voluntarily dissolves or liquidates or has a petition
filed for corporate dissolution and such petition is not dismissed with thirty
(30) days; or
(ii) If the PC fails to comply with any material
provision of this Agreement with MANAGEMENT SERVICES, and does not correct such
failure within sixty (60) days after written notice of such failure to comply is
delivered by MANAGEMENT SERVICES specifying the nature of the breach in
reasonable detail.
(c) TERMINATION BY AGREEMENT. In the event the PC and
MANAGEMENT SERVICES shall mutually agree in writing, this Agreement may be
terminated on the date specified in such written agreement.
(d) LEGISLATIVE, REGULATORY OR ADMINISTRATIVE CHANGE. In
the event there shall be a change in the Medicare or Medicaid statutes, federal
statutes, state statutes, case laws, administrative interpretations, regulations
or general instructions, the adoption of new federal or state legislation, or a
change in any third-party reimbursement system, any of which are reasonably
likely to materially and adversely affect the manner in which either party may
perform or be compensated for its services under this Agreement or which shall
make this Agreement or any related agreements unlawful or unenforceable, or
which would be reasonably likely to subject either party to this Agreement, or
any member, shareholder, officer, director, employee, agent or affiliated
organization to any civil or criminal penalties or administrative sanctions, the
parties shall immediately use their best efforts to enter into a new service
arrangement or basis for compensation for the services furnished pursuant to
this Agreement that complies with the law, regulation, or policy, or which
minimizes the possibility of such penalties, sanctions or unenforceability, and
that approximates as closely as possible the economic position of the parties
prior to the
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change. If the parties are unable to reach a new agreement within a reasonable
time, then either party may submit the issue to arbitration pursuant to Section
3.3 for the purpose of reaching an alternative arrangement that is equitable
under the circumstances.
5.3 EFFECTS OF TERMINATION. Upon termination of this Agreement, as
provided in this Article V, neither party shall have any further obligations
hereunder except for (i) obligations accruing prior to the date of termination,
including, without limitation, payment of the Management Fee relating to
services provided prior to the termination of this Agreement, (ii) obligations,
promises, or covenants set forth herein that are expressly made to extend beyond
the Term, including, without limitation, insurance, indemnities and
non-competition provisions, which provisions shall survive the expiration or
termination of this Agreement. In effectuating the provisions of this Section
5.3, the PC specifically acknowledges and agrees that if this Agreement
terminates pursuant to Sections 5.2(b) or (d), MANAGEMENT SERVICES shall
continue for a period not to exceed ninety (90) days to collect and receive on
behalf of the PC on an exclusive basis all cash collections from accounts
receivable in existence at the time this Agreement is terminated, it being
understood that (a) such cash collections may be used to compensate MANAGEMENT
SERVICES for services rendered prior to the termination of this Agreement, (b)
MANAGEMENT SERVICES shall not be entitled to collect accounts receivable after
the termination date of this Agreement is terminated pursuant to Section 5.2(a),
and (c) the MANAGEMENT SERVICES shall deduct for such cash collections any other
amounts owed to MANAGEMENT SERVICES under this Agreement, including, without
limitation, (i) ten percent (10%) of such cash collections as its Management Fee
during any period after the termination of this Agreement while such collections
are taking place and (ii) any reasonable costs incurred by MANAGEMENT SERVICES
in carrying out the post-termination procedures and transactions contemplated
herein. MANAGEMENT SERVICES shall remit remaining amounts from such collection
activities, if any, to the PC. Upon the expiration or termination of this
Agreement for any reason or cause whatsoever, MANAGEMENT SERVICES shall
surrender to the PC all books and records pertaining to the PC's Patient medical
records and PC Records (as defined in Section 7.2).
VI. RESTRICTIVE COVENANTS
6.1. COVENANT REGARDING PROPRIETARY INFORMATION. In the course of the
relationship created pursuant to this Agreement, the PC will have access to
certain methods, trade secrets, processes, ideas, systems, procedures,
inventions, discoveries, concepts, software in various stages of development,
designs, drawings, specifications, models, data, documents, diagrams, flow
charts, research, economic and financial analysis, developments, procedures,
know-how, policy manuals, financial data, form contracts, marketing ad other
techniques, plans, materials, forms, copyrightable materials and trade
information regarding the operations of MANAGEMENT SERVICES and/or of its
Affiliates (collectively, the "Protected Parties"). The foregoing, together with
the existence and terms of this Agreement, are referred to in this Agreement as
"Proprietary Information". The PC shall maintain all such Proprietary
Information in strict secrecy and shall not divulge such information to any
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14
third parties, except as may be necessary for the discharge of its obligations
under this Agreement. The PC shall take all necessary and proper precautions
against disclosure of any Proprietary Information to unauthorized persons by any
of its officers, directors, employees or agents. All officers, directors,
employees and agents of the PC who will have access to all or any part of the
Proprietary Information may be required to execute an agreement, at the
reasonable request of MANAGEMENT SERVICES, valid under the law of the
jurisdiction in which such agreement is executed, and in a form acceptable to
MANAGEMENT SERVICES and its counsel, committing themselves to maintain the
Proprietary Information in strict confidence and not to disclose it to any
unauthorized person or entity. The Protected Parties not party to this Agreement
are hereby specifically made third party beneficiaries of this Section 6.1, with
the power to enforce the provisions hereof. Upon termination of this Agreement
for any reason, the PC and each of its Employed Providers and Contracting
Providers shall cease all use of any of the Proprietary Information and, at the
request of MANAGEMENT SERVICES, shall execute such documents as may be necessary
to evidence the PC's abandonment of any claim thereto. The parties recognize
that a breach of this Section 6.1 cannot be adequately compensated in money
damages and therefore agree that injunctive relief shall be available to the
Protected Parties as their respective interests may appear.
The obligations of the PC under this Section 6.1 shall not apply to
information: (i) which is a matter of public knowledge on or becomes a matter of
public knowledge after the Effective Date of this Agreement, other than as a
breach of the confidentiality terms of this Agreement or as a breach of the
confidentiality terms of any other agreement between the PC and MANAGEMENT
SERVICES or its Affiliates; or (ii) was lawfully obtained by the PC on a
nonconfidential basis other than in the course of performance under this
Agreement and from some entity other than MANAGEMENT SERVICES or its Affiliates
or from some person other than one employed or engaged by MANAGEMENT SERVICES or
its Affiliates, which entity or person has no obligation of confidentiality to
MANAGEMENT SERVICES or its Affiliates.
6.2. COVENANTS NOT TO COMPETE DURING THE TERM. The parties recognize
that the services to be provided by MANAGEMENT SERVICES shall be feasible only
if the PC operates an active medical practice to which the PC and Employed
Providers devote full time and attention. To that end:
(a) RESTRICTIVE COVENANTS BY THE PC. During the term of
this Agreement, the PC shall not establish, operate or provide physician or
other health care services at any medical office, clinic or other health care
facility providing services substantially similar to those provided by the PC
pursuant to this Agreement anywhere other than at the Centers and as may be
approved in writing by MANAGEMENT SERVICES. The PC shall also not enter into any
management or administrative services agreement or arrangement with any person
or entity other than MANAGEMENT SERVICES without MANAGEMENT SERVICES's prior
written approval.
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(b) RESTRICTIVE COVENANTS BY EMPLOYED PROVIDERS. All
employment contracts between the PC and its Employed Providers shall name
MANAGEMENT SERVICES as a third-party beneficiary to the contract and shall not
be revised without the prior written consent of MANAGEMENT SERVICES. The
contracts shall include noncompetition agreements with its Employed Providers
who are physicians, the substance and form of which is set forth as EXHIBIT A
hereto, and which the PC will enforce.
6.3. COVENANT NOT TO COMPETE FOLLOWING TERMINATION. For three (3) years
following the termination of this Agreement by MANAGEMENT SERVICES pursuant to
Section 5.2, the PC shall not enter into any management or administrative
services agreement or any similar arrangement with any person or entity for the
provision of the same or similar services as MANAGEMENT SERVICES provides to the
PC under this Agreement.
6.4. COVENANT NOT TO SOLICIT. During the term of this Agreement and for
three (3) years following the termination of this Agreement, the PC shall not:
(a) Directly or indirectly solicit, recruit or hire, or
induce any party to solicit, recruit or hire any person who is an employee of,
or who has entered into an independent contractor arrangement with, MANAGEMENT
SERVICES or any Affiliate of MANAGEMENT SERVICES (excluding any person who
performs patient services);
(b) Directly or indirectly, whether for itself or for any
other person or entity, call upon, solicit, divert or take away, or attempt to
solicit, call upon, divert or take away any of MANAGEMENT SERVICES's customers,
business, or clients; or
(c) Disrupt, damage, impair or interfere with the business
of MANAGEMENT SERVICES.
6.5. ENFORCEMENT. MANAGEMENT SERVICES and the PC acknowledge and agree
that since a remedy at law for any breach or attempted breach of the provisions
of this Article VI or of Article VII shall be inadequate, either party shall be
entitled to specific performance and injunctive or other equitable relief in
case of any such breach or attempted breach, in addition to whatever other
remedies may exist by law. All parties hereto also waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief. If any provision of Article VI or Article
VII relating to the restrictive period, scope of activity restricted and/or
other provisions described therein shall be declared by a court of competent
jurisdiction to exceed the maximum time period, scope of activity restricted or
geographical area such court deems reasonable and enforceable under applicable
law, the time period, scope of activity restricted and/or area of restriction
held reasonable and enforceable by the court shall thereafter be the restrictive
period, scope of activity restricted and/or the territory applicable to the
restrictive covenant provisions in this Article VI or Article VII. The
invalidity or non-enforceability of this Article VI or Article VII in any
respect shall not affect the validity or enforceability of
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the remainder of this Article VI or Article VII or of any other provisions of
this Agreement.
VII. INFORMATION AND RECORDS
7.1. OWNERSHIP OF RECORDS. At all times during and after the term of
this Agreement, including any extensions or renewals hereof, all business
records, including but not limited to, business agreements, books of account,
general administrative records and all information generated under or contained
in the management information system pertaining to MANAGEMENT SERVICES's
obligations hereunder, and other business information of any kind or nature,
except for Patient medical records and the PC's Records (as defined in Section
7.2), shall be and remain the sole property of MANAGEMENT SERVICES; PROVIDED
that after termination of this Agreement the PC shall be entitled to reasonable
access to such records and information, including the right to obtain copies
thereof, for any purpose related to patient care or the defense of any claim
relating to patient care or the business of MANAGEMENT SERVICES or the PC.
7.2. THE PC'S BUSINESS AND FINANCIAL RECORDS. At all times during and
after the term of this Agreement, the financial, corporate and personnel records
and information relating exclusively to the business and activities of the PC,
as distinguished from the business and activity of MANAGEMENT SERVICES,
hereinafter referred to as "the PC's Records," shall be and remain the sole
property of the PC.
7.3. ACCESS TO RECORDS. Each party shall be entitled, upon request and
with reasonable advance notice, to obtain access to all records of the other
party directly related to the performance of such party's obligations pursuant
to this Agreement; provided, however, that such right shall not allow for access
to records that must necessarily be kept confidential. Either party, at its
expense, shall have the right to make copies of any records to which it has
access pursuant to this Section.
7.4. CONFIDENTIALITY OF RECORDS. MANAGEMENT SERVICES and the PC shall
adopt procedures for maintaining the confidentiality of the records relating to
the operations of MANAGEMENT SERVICES and the PC which do not constitute
Proprietary Information, which information is not otherwise available to third
parties publicly or by law, and shall comply with all applicable federal and
state statutes and regulations relating to such records. Patient medical records
and other privileged Patient information shall not be disclosed or utilized by
the PC or MANAGEMENT SERVICES or their agents or employees except as required or
permitted by applicable laws and regulations.
VIII. MISCELLANEOUS
8.1. INDEPENDENT CONTRACTOR STATUS OF PARTIES. In the performance of
the work, duties and obligations under this Agreement, it is mutually understood
and agreed that each party is at all times acting and performing as an
independent contractor with respect to the other and that no relationship of
partnership joint venture or employment is created by this Agreement. Neither
party, nor any other
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17
person performing services on behalf of such party pursuant to this Agreement,
shall have any right or claim against the other party for Social Security
benefits, workers' compensation benefits, disability benefits, unemployment
insurance benefits, health benefits, vacation pay, sick leave or any other
employee benefits of any kind.
8.2. NO WAIVER. The waiver by any party to this Agreement of any breach
of any term or condition of this Agreement shall not constitute a waiver of
subsequent breaches. No waiver by any party of any provision of this Agreement
shall be deemed to constitute a waiver of any other provision.
8.3. NOTICES. If, at any time after the execution of this Agreement, it
shall become necessary or convenient for one of the parties to serve any notice,
demand or communication upon the other party, such notice, demand, or
communication shall be in writing and shall be served personally, by nationally
recognized overnight courier which provides confirmation of delivery, or by
depositing the same in the United States mail, registered or certified, return
receipt requested, postage prepaid and to such address as either party may have
furnished to the other party in writing as the place for the service of notice.
Any notice so mailed shall be deemed to have been given three (3) days after the
same has been deposited in the United States mall; when delivered if the same
has been given personally; or the next business day if the same has been
delivered to a nationally recognized overnight courier service.
8.4. ASSIGNMENT. Neither party may sell, transfer, assign, or otherwise
convey its rights or obligations under this Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, MANAGEMENT SERVICES shall have the right to (a)
assign its rights and/or delegate all or any of its obligations to any of its
Affiliates; and/or (b) subcontract some portion of its obligations hereunder to
a third party which is not an Affiliate of MANAGEMENT SERVICES, in each case
without the consent of the PC.
8.5. SUCCESSORS AND ASSIGNS. Subject to the provisions of this
Agreement respecting assignment, the terms, covenants and conditions contained
herein shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto.
8.6. SEVERABILITY. Nothing contained in this Agreement shall be
construed to require the commission of an act contrary to law, and whenever
there is any conflict between any provision of this Agreement and any statute,
law, ordinance or regulation, the latter shall prevail. In such event, and in
any case in which any provision of this Agreement is determined to be in
violation of a statute, law, ordinance or regulation, the affected provision(s)
shall be limited only to the extent necessary to bring it within the
requirements of the law and, insofar as possible under the circumstances, to
carry out the purposes of this Agreement. The other provisions of this Agreement
shall remain in full force and effect, and the invalidity or unenforceability of
any provision hereof shall not affect the validity and enforceability of the
other provisions of this Agreement, nor the availability of all remedies in law
or equity to the parties with respect to such other provisions.
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8.7. THIRD PARTIES. Except as provided in Article VII, nothing in this
Agreement shall be construed to create any duty to, any standard of care with
reference to or any liability to anyone not a party to this Agreement.
8.8. HEADINGS. The headings used in this Agreement are for convenience
of reference only and shall have no force or effect in the construction or
interpretation of the provisions of this Agreement.
8.9. TIME OF THE ESSENCE. Time is of the very essence of each and all
of the agreements, covenants and conditions of this Agreement.
8.10. GOVERNING LAW. This Agreement shall be deemed made, executed and
entered into and shall be governed by and construed in accordance with the
internal laws of the State of Florida.
8.11. LANGUAGE CONSTRUCTION. The language in all parts of this
Agreement shall be construed, in all cases, according to its fair meaning, and
not for or against either party hereto. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
8.12. INDEMNIFICATION. The PC shall indemnify, hold harmless and defend
MANAGEMENT SERVICES, its officers, directors, shareholders, employees, agents
and independent contractors (the "MANAGEMENT SERVICES Group") from and against
any and all liabilities, losses, damages, claims, causes of action, and expenses
(including reasonable attorneys' fees and disbursements (a "MANAGEMENT SERVICES
Loss")), caused or asserted to have been caused, directly or indirectly, by or
as a result of the performance of medical services or any other acts or
omissions by MANAGEMENT SERVICES and/or its partners, agents, employees and/or
subcontractors (other than MANAGEMENT SERVICES) during the term hereof except
with respect to any MANAGEMENT SERVICES Loss which is the result of any gross
negligence or willful misconduct by a member of the MANAGEMENT SERVICES Group.
MANAGEMENT SERVICES shall indemnify, hold harmless and defend the PC, its
officers, directors, partners employees, agents and independent contractors (the
"the PC Group") from and against any and all liabilities, losses, damages,
claims, causes of action, and expenses (including reasonable judgment attorneys'
fees and disbursements) (a "the PC Loss"), caused or asserted to have been
caused, directly or indirectly, by or as a result of the performance of any acts
of omissions by MANAGEMENT SERVICES and/or its shareholders, agents, employees
and/or subcontractors during the term hereof except with respect to any the PC
Loss which is the result of any gross negligence or willful misconduct by a
member of the PC Group.
8.13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions,
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whether written or oral, between or among parties regarding the subject matter
of this Agreement.
8.14. INCORPORATION BY REFERENCE. All exhibits and other attachments to
this Agreement are incorporated by reference into this Agreement by such
reference.
8.15. AMENDMENTS ONLY IN WRITING. This Agreement may not be amended or
modified in any respect whatsoever, except by an instrument in writing signed by
the parties hereto.
8.16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original and all of which
shall constitute one and the same agreement. This Agreement shall not become
effective until it has been executed by all of the parties hereto.
8.17. COMMERCIAL IMPRACTICABILITY. No party to this Agreement shall be
liable for any failure to perform its obligations hereunder where such failure
results from any cause beyond that party's reasonable control, including, for
example, an act of God, labor disturbance such as a strike or walkout, war,
riot, fire, storm, accident, government regulation or interference, or
mechanical, electronic or communications failure.
8.18. ELECTION OF REMEDIES. The respective rights of the parties to
this Agreement shall be cumulative. Each party shall have all other rights and
remedies consistent with this Agreement as law and equity may provide. No
exercise by any party of one right or remedy shall be deemed to be an exclusive
election of rights or remedies.
8.19. SURVIVAL. The provisions of Articles III, IV, V, VI, VII and VIII
shall survive any termination of this Agreement.
8.20. THIRD PARTY BENEFICIARIES. Except with respect to Affiliates of
MANAGEMENT SERVICES, nothing in this Agreement shall be construed to create any
duty to, any standard of care with reference to, or any liability to any Person
not a party to this Agreement. The Affiliates of MANAGEMENT SERVICES are
intended third party beneficiaries of this Agreement.
8.21 AFFILIATE. An "Affiliate" of an entity means (i) any person or
entity directly or indirectly controlled by such entity; (ii) any person or
entity directly or indirectly controlling such entity; (iii) any subsidiary of
such entity if the entity has a fifty percent (50%) or greater ownership
interest in the subsidiary; or (iv) such entity's parent entity if the parent
has a fifty percent (50%) or greater ownership interest in the entity. For
purposes of this Agreement, the PC is not an Affiliate of MANAGEMENT SERVICES.
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IN WITNESS WHEREOF, MANAGEMENT SERVICES and the PC have
caused this Agreement to be executed by their duly authorized respective
officers as of the Effective Date.
[RTSI SUBSIDIARY]
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx, M.D.
President
[PROFESSIONAL CORPORATION]
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A
---------
NONCOMPETITION AGREEMENT
NON-COMPETITIVE AND RESTRICTIVE AGREEMENTS.
A. During the term of this Agreement and any
renewal period, Physician shall not undertake any professional service except as
directed and authorized by [Employer] and shall not engage in any profession
other than the rendition of the professional services as directed by [Employer].
B. In the event of the termination of this
Agreement for any reason, Physician agrees not to directly or indirectly engage
in the practice of radiation therapy or oncology, or otherwise compete with
[Employer], or any of its physician providers, by practicing as a radiation
therapist or oncologist (i) at any hospital in which physician providers of
[Employer] regularly admit patients, (ii) within any county in which [Employer]
or any of its Affiliates operate a Center, or (iii) or within a radius of
twenty-five (25) miles of any Center of [Employer] or any of its Affiliates, for
a period of two (2) years after the date of such actual termination of this
Agreement. The purpose of this covenant is to protect [Employer] from the
irreparable harm it will suffer if Physician competes with [Employer] after
having participated in the initial public offering of RTRC, and having been
introduced to [Employer]'s personnel and patients and after learning special
medical procedures used by [Employer]'s physician providers, [Employer]'s
business procedures, office and practice policies, and the special and
confidential professional procedures developed by [Employer].
C. The parties agree that in the event of any
breach or attempted breach of any of the covenants set out in section 7.B (the
"Covenant Not to Compete"), [Employer] will be entitled to equitable relief by
way of injunction or otherwise, in addition to any remedy at law which may be
available. The parties agree that any violation or threatened violation by
Physician of the Covenant Not to Compete will cause [Employer] to suffer
irreparable harm. The parties agree that [Employer]'s remedy of an injunction is
not the exclusive remedy for breach of the Covenant Not to Compete and that a
court may grant such additional relief as is reasonable.
D. In the event Physician breaches the Covenant
Not to Compete, in addition to the injunctive relief to which [Employer] shall
be entitled under the law, Physician shall immediately repay to [Employer] any
amounts paid by [Employer] pursuant to section 3.B hereof after the termination
of this Agreement, and all severance or termination pay, if any, paid pursuant
to this Agreement. [Employer] may offset against any amounts owed Physician
pursuant to this Agreement any amounts Physician owes [Employer] pursuant to
paragraph E below for breach of the Covenant Not to Compete.
E. In addition to the injunctive relief to which
[Employer] is entitled under the law and in addition to the payments provided
for in paragraph D
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above and in order to compensate [Employer] for the damages it will incur in
recruiting and compensating a replacement radiation oncologist and for the lost
business it will suffer, in the event of a breach by Physician of the Covenant
Not to Compete, Physician shall pay to [Employer] a sum equal to a percentage of
the gross xxxxxxxx of [Employer] for the twelve month period immediately
preceding the termination of this Agreement. The percentage shall be that formed
by dividing the number one by the number equal to the total number of physician
providers of [Employer], including Physician, on the date of termination of this
Agreement.
F. In the event the Covenant Not to Compete shall
be determined by a court of competent jurisdiction to be unenforceable by reason
of its geographic or temporal restrictions being too great, or by reason that
the range of activities covered is too great, or for any other reason, section 7
shall be interpreted to extend over the maximum geographic area, period of time,
range of activities or other restrictions as to which it may be enforceable.
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