EX-10.1 2 a12-13949_1ex10d1.htm EX-10.1 AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT BY AND BETWEEN ONCURE MEDICAL CORP. AND INTEGRATED COMMUNITY ONCOLOGY NETWORK, LLC DATED AS OF MAY 1, 2012 Page AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT
Exhibit 10.1
“***” = CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
AMENDED AND RESTATED
BY AND BETWEEN
ONCURE MEDICAL CORP.
AND
INTEGRATED COMMUNITY ONCOLOGY NETWORK, LLC
DATED AS OF MAY 1, 2012
Table of Contents
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Page |
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1 | ||
SECTION 1.1 |
Definitions |
1 |
SECTION 1.2 |
Rules of Construction |
9 |
ARTICLE II OBLIGATIONS OF THE COMPANY |
10 | |
SECTION 2.1 |
Management Services |
10 |
SECTION 2.2 |
Furniture, Fixtures, Equipment and Supplies |
10 |
SECTION 2.3 |
Financial Planning and Goals |
10 |
SECTION 2.4 |
Business Office Services |
11 |
SECTION 2.5 |
Financial Statements |
13 |
SECTION 2.6 |
Personnel |
13 |
SECTION 2.7 |
Cancer Centers |
14 |
SECTION 2.8 |
Files and Records |
15 |
SECTION 2.9 |
Recruitment of New Physicians |
15 |
SECTION 2.10 |
Expansion of the Practice |
15 |
SECTION 2.11 |
Practice Assessment and Consulting Services |
15 |
SECTION 2.12 |
Managed Care Contracting |
16 |
SECTION 2.13 |
Restrictive Covenants of the Company |
16 |
SECTION 2.14 |
Payment of Operational Expenses |
17 |
SECTION 2.15 |
Company Expenses |
17 |
ARTICLE III OBLIGATIONS OF THE PRACTICE |
17 | |
SECTION 3.1 |
Required Services and Service Hours |
17 |
SECTION 3.2 |
Professional Standards |
17 |
SECTION 3.3 |
Physician Powers of Attorney |
18 |
SECTION 3.4 |
Restrictive Covenants of the Practice |
18 |
SECTION 3.5 |
Continuing Professional Education |
20 |
SECTION 3.6 |
Current Physicians |
20 |
SECTION 3.7 |
Additional Physicians |
20 |
SECTION 3.8 |
Termination of Physicians |
20 |
SECTION 3.9 |
Cooperation |
20 |
SECTION 3.10 |
Billing Information and Collection Policy |
21 |
SECTION 3.11 |
Quality and Utilization Management |
21 |
SECTION 3.12 |
Peer Review |
21 |
SECTION 3.13 |
Practice Operational Authority |
22 |
SECTION 3.14 |
Other Obligations of the Practice |
22 |
SECTION 3.15 |
Practice Expenses |
22 |
ARTICLE IV OBLIGATIONS OF THE JOINT GOVERNING BOARD |
23 | |
SECTION 4.1 |
Operation of the Joint Governing Board |
23 |
SECTION 4.2 |
Duties and Responsibilities of the Joint Governing Board |
23 |
SECTION 4.3 |
Medical Decisions |
24 |
ARTICLE V FINANCIAL ARRANGEMENT |
24 | |
SECTION 5.1 |
Management Fee and Allocation of Distribution Pool |
24 |
SECTION 5.2 |
Advances |
25 |
SECTION 5.3 |
Payments |
25 |
SECTION 5.4 |
Reconciliation |
25 |
SECTION 5.5 |
Review of Financial Arrangements by the Practice |
25 |
SECTION 5.6 |
Collateral Security |
26 |
SECTION 5.7 |
Deposit of Receivables |
30 |
SECTION 5.8 |
Automatic Termination |
31 |
ARTICLE VI TERM AND TERMINATION |
31 | |
SECTION 6.1 |
Term; Renewal Terms |
31 |
SECTION 6.2 |
Termination by the Company |
31 |
SECTION 6.3 |
Termination by the Practice |
32 |
SECTION 6.4 |
Limitation On Termination Rights |
33 |
SECTION 6.5 |
Duties And Remedies Upon Expiration Or Termination |
33 |
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE PRACTICE |
34 | |
SECTION 7.1 |
Representations and Warranties of the Practice |
34 |
SECTION 7.2 |
Representations and Warranties of the Company |
38 |
ARTICLE VIII OTHER OBLIGATIONS OF THE PARTIES |
40 | |
SECTION 8.1 |
Covenants of the Practice |
40 |
SECTION 8.2 |
Taxes |
41 |
SECTION 8.3 |
Covenants of the Company |
41 |
ARTICLE IX INSURANCE AND INDEMNIFICATION |
42 | |
SECTION 9.1 |
Insurance Maintained by the Practice |
42 |
SECTION 9.2 |
Insurance Maintained by the Company |
42 |
SECTION 9.3 |
Requirements as to Insurance |
43 |
SECTION 9.4 |
Indemnification |
43 |
SECTION 9.5 |
Indemnification Procedure |
44 |
ARTICLE X CONFIDENTIAL INFORMATION; ACCESS TO RECORDS |
45 | |
SECTION 10.1 |
Confidential Information and Trade Secrets |
45 |
SECTION 10.2 |
Books and Records |
45 |
ARTICLE XI ARBITRATION |
45 | |
SECTION 11.1 |
Arbitration |
45 |
ARTICLE XII GENERAL PROVISIONS |
47 | |
SECTION 12.1 |
Changes in the Law |
47 |
SECTION 12.2 |
Independent Contractors |
47 |
SECTION 12.3 |
Force Majeure |
47 |
SECTION 12.4 |
Notices and Addresses |
47 |
SECTION 12.5 |
Entire Agreement |
48 |
SECTION 12.6 |
Physician Rights |
48 |
SECTION 12.7 |
Governing Law |
48 |
SECTION 12.8 |
Captions |
48 |
SECTION 12.9 |
Severability |
48 |
SECTION 12.10 |
Waiver |
49 |
SECTION 12.11 |
Counterparts |
49 |
SECTION 12.12 |
Amendment and Modification |
49 |
SECTION 12.13 |
Assignment and Delegation |
49 |
SECTION 12.14 |
Open Records |
49 |
SECTION 12.15 |
Binding Effect |
49 |
SECTION 12.16 |
Further Actions |
49 |
SECTION 12.17 |
No Prejudice |
50 |
AMENDED AND RESTATED
THIS AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT (this “Agreement”), dated as of May 1, 2012 (the “Effective Date”), is by and between Oncure Medical Corp., a Delaware corporation, (“Oncure” or the “Company”), and Integrated Community Oncology Network, LLC, a Florida limited liability company (the “Practice” or “ICON”).
A. The Practice is a part of an integrated group medical practice that provides Radiation Oncology Services (as defined herein) and other medical services in the State of Florida.
B. The Company is in the business of providing certain administrative and support services to medical practices, and in providing space, equipment, furnishings, supplies and inventory to medical practices in connection therewith.
C. USCC Florida Acquisition Corp. (“USCC”), FROG OnCure Southside, LLC (“FROG”), OnCure and ICON were previously parties to a Management Services Agreement dated March 1, 2005 (the “2005 MSA”).
D. Effective May 1, 2012, the parties agreed to amend certain provisions of this Agreement, and to amend and restate this Agreement in its entirety. This Agreement supersedes the 2005 MSA in all respects as of the Effective Date.
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
“ACCC” shall mean the Association of Community Cancer Centers.
“Accountants” shall have the meaning set forth in Section 5.5.
“ACR” shall mean the American College of Radiology.
“Administrative Employees” shall have the meaning in Section 2.6(a).
“Affiliate” shall mean a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of capital stock, by contract or otherwise. For purposes of this Agreement, neither the Practice nor any of the Physicians shall be deemed Affiliates of the Company.
“Agreement” shall mean this Agreement, as amended, modified or supplemented from time to time in accordance with the terms hereof, together with any exhibits, schedules or other attachments thereto.
“Ancillary Services” shall have the meaning set forth in Section 7.1(d).
“Annual Budget” shall have the meaning set forth in Section 2.3.
“Billing and Collection Fee” shall mean four percent (4%) of Practice Revenues.
“BHS” shall mean Baptist Health System, Inc. and its affiliates.
“Business Day” shall mean a day (other than a Saturday or Sunday), on which commercial banks are open for business in New York, New York.
“Cancer Centers” shall mean the: (i) Florida Cancer Center — Orange Park, located at 0000 Xxxxxxxx Xxx., Xxxxxx Xxxx, XX, 00000, (ii) Florida Cancer Center — Xxxxx Complex Clinic, located at 0000 Xxxxxxxxxx Xxxx. Xxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX, 00000, (iii) Florida Cancer Center — Palatka, located at 000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000, (iv) Florida Cancer Center — St. John’s, located at 000 Xxxxxxxxxx Xxxx., Xxxxx 0000, Xx. Xxxxxxxxx, XX 00000, (v) Florida Cancer Center — Beaches, located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxxxx Xxxxx, XX 00000, and any future center owned or operated by the Company that the Parties mutually agree. The Southside Cancer Center located at 0000 Xxxxx Xxxx, Xxxxxxxxxxxx, XX 00000 is specifically excluded from the definition of “Cancer Centers.
“Change of Control” means and includes each of the following: (i) the acquisition, in one or more transactions, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) by any person or entity or any group of persons or entities who constitute a group (within the meaning of Section 13(d)(3) of the Exchange Act), other than (x) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a Subsidiary, or (y) a person who acquires such securities directly from the Company in a privately-negotiated transaction approved by all of the members of the Company’s Board of Directors, of any securities of the Company such that, as a result of such acquisition, such person, entity or group either (A) beneficially owns (within the meaning of Rule l3d-3 under the Exchange Act), directly or indirectly, more than 50% of the Company’s outstanding voting securities entitled to vote on a regular basis for a majority of the members of the Board of Directors of the Company or (B) otherwise has the ability to elect, directly or indirectly, a majority of the members of the Board; (ii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or (iii) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one or more transactions) all or substantially all of the Company’s assets; provided, however, that notwithstanding the foregoing, the term “Change of Control” shall not include any Change of Control that has occurred in connection with, or as a result of, an underwritten public offering by the Company of all or part of the capital stock or other equity securities of the Company pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended.
“Clinical Employees” shall have the meaning set forth in Section 2.6(a).
“CMS” shall mean the Centers for Medicare & Medicaid Services, an agency of the United States Department of Health and Human Services, and any successor thereto.
“Collateral” shall have the meaning set forth in Section 5.6(a).
“Communities” shall mean the city of Jacksonville, and the counties of Nassau, Duval, Baker, Union, Bradford, Clay, Alachua, Xxxxxx, St. John’s, and Flagler, each located in the State of Florida.
“Company” shall have the meaning set forth in the preamble.
“Company Account” shall have the meaning set forth in Section 5.7.
“Company Expense” shall mean any expense of the Company which is not an Operational Expense or a Practice Expense. Company Expense shall include, without limitation, the following:
(a) all costs and expenses of the Company associated with the Company providing assistance to the Practice to comply with all appropriate rules and regulations imposed by managed care programs, Third-Party Payors, governmental agencies and accreditation bodies, including without limitation, Joint Commission, ACR and ACCC;
(b) salaries, benefits (including any deferred compensation) and other costs relating to the employment or engagement by the Company of (i) any director or executive officer of the Company (or Person serving in a similar capacity), (ii) any Person who provides accounting, finance, payroll, human resources, informational technology, and compliance services, and (iii) the regional Vice President for North Florida; and
(c) such other costs and expenses expressly set forth in the Annual Budget as Company Expenses.
For purposes of this definition, the term “Company” shall mean, collectively, the Company and its Affiliates.
“Company Lender” shall mean any Person that makes funds available to the Company or any Affiliate of the Company to borrow.
“Company Lender Loan” shall mean any loan agreement between the Company or any of its Affiliates and a Company Lender.
“Company Taxes” shall have the meaning set forth in Section 8.2(a).
“Confidential Information and Trade Secrets” shall mean (a) the material terms of this Agreement or any other written agreement between the Parties, and (b) any confidential or secret information concerning (i) any trade secrets, new product developments, special or unique processes or methods of the Company or any of its Affiliates or of the Practice, as the case may be, (ii) any sales, advertising or other concepts or plans of the Company or any of its Affiliates or of the Practice, as the case may be, (c) records (other than patient medical records), patient lists, reports and other documents pertaining to the Management Services, (d) the systems, protocols, policies, procedures, manuals, reports, data bases, documents, instruments and other materials used by the Company or any of its Affiliates or by the Practice, as the case may be, (e) all other professional or business information developed by or on behalf of the Company or any of its Affiliates or by the Practice, as the case may be, including items produced by the Physicians, and (f) all financial statements and reports produced by the Company or any of its Affiliates or by the Practice in connection with this Agreement. Confidential Information and Trade Secrets does not include any information that is in the possession of the other party by legal means and not subject to an agreement to limit the disclosure or use of such information, or information that is generally publicly available.
“Contract Year” shall mean each twelve (12) month period beginning on May 1 and ending on April 30 during the term of this Agreement.
“Depository Bank” shall mean Xxxxx Fargo Bank, National Association or successor banking institution designated by the Company.
“DHS” shall have the meaning set forth in Section 7.1(d).
“Distribution Pool” shall mean Practice Revenues minus Operational Expenses.
“DME” shall have the meaning set forth in Section 7.1(d).
“Effective Date” shall have the meaning set forth in the preamble.
“Event of Company Default” shall have the meaning set forth in Section 6.3.
“Event of Practice Default” shall have the meaning set forth in Section 6.2.
“Extension Notice” shall have the meaning set forth in Section 6.1.
“FF&E” shall have the meaning set forth in Section 2.2(a).
“GAAP” shall mean U.S. generally accepted accounting principles and practices set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession that are applicable to the circumstances as of the date of determination.
“General Management Services Fee” shall have the meaning set forth in Section 5.1(a).
“Government Receivables” shall mean all accounts receivable generated from services rendered to beneficiaries under the Medicare, Medicaid and other state and federal programs, which services are reimbursable under any of such programs.
“Governmental Authority” shall mean any governmental or quasi-governmental authority including, without limitation, any federal, state, territorial, county, municipal or other governmental or quasi-governmental agency, board, branch, bureau, commission, court, arbitration panel, department, authority, body or other instrumentality or political unit or subdivision or official thereof, whether domestic or foreign.
“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended.
“ICON Physicians” shall have the meaning set forth in Section 7.1(d).
“Indemnified Party” shall have the meaning set forth in Section 9.5.
“Indemnifying Party” shall have the meaning set forth in Section 9.5.
“Joint Commission” shall mean The Joint Commission.
“Joint Governing Board” shall have the meaning set forth in Section 4.1.
“Law” shall mean any statute, ordinance, code, rule, regulation or court order enacted, adopted or promulgated by any Governmental Authority.
“Lease” and “Leases” shall have the meaning set forth in Section 2.7.
“Lien” shall mean any security agreement, financing statement (whether or not filed), mortgage, lien (statutory or otherwise), charge, pledge, hypothecation, conditional sales agreement, adverse claim, title retention agreement or other security interest, encumbrance, lien, charge, restrictive agreement, mortgage, deed of trust, indenture, pledge, option, limitation, exception to or other title defect in or on any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale, lease, consignment, or bailment given for security purposes, trust receipt or other title retention agreement with respect to any property or asset of such Person, whether direct, indirect, accrued or contingent.
“Lockbox Account Agreement” shall have the meaning set forth in Section 4.7.
“Loss” shall have the meaning set forth in Section 8.4(a).
“Management Services” shall have the meaning set forth in Section 2.1.
“Medicaid” shall mean, collectively, the healthcare assistance program established by Title XIX of the Social Security Act and any statutes succeeding thereto, and all Laws pertaining to such program including (a) all federal statutes (whether set forth in Title XIX of the Social Security Act or elsewhere) affecting such program; (b) all state statutes and plans for medical assistance enacted in connection with such program and federal rules and regulations promulgated in connection with such program; and (c) all applicable provisions of all rules, regulations, manuals, orders and requirements of all Government Authorities promulgated in connection with such program (whether or not having the force of Law), in each case as the same may be amended, supplemented or otherwise modified from time to time.
“Medicare” shall mean, collectively, the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act and any statutes succeeding thereto, and all Laws pertaining to such program including (a) all federal statutes (whether set forth in Title XVIII of the Social Security Act or elsewhere) affecting such program; and (b) all applicable provisions of all rules, regulations, manuals, orders and requirements of all Governmental Authorities promulgated in connection with such program (whether or not having the force of Law), in each case as the same may be amended, supplemented or otherwise modified from time to time.
“New Physician” shall have the meaning set forth in Section 3.7.
“One Year Extension” shall have the meaning set forth in Section 6.1.
“Operational Expenses” shall mean, for any fiscal period, all of the expenses and costs (other than the Company Expenses and the Practice Expenses) incurred by the Company (or any of its Affiliates) in connection with the provision of Management Services to the Practice pursuant to this Agreement, determined on an accrual basis of accounting in accordance with GAAP, including, but not limited to, the following:
(a) salaries, payroll taxes, benefits (including, without limitation, any deferred compensation) and other costs (including, without limitation, costs pertaining to training and education) relating to the employment or engagement by the Company (or any of its Affiliates) of all Administrative Employees and Clinical Employees;
(b) obligations of the Company (or its Affiliates) under the leases or subleases for the Cancer Centers (including, without limitation, the Leases);
(c) medical and office supply expenses;
(d) utility expenses and all other costs relating to the Cancer Centers, including, without limitation, costs of repairs, maintenance, telephone, janitorial services and refuse disposal;
(e) the cost and expense of FF&E, Required Improvements and all costs and expenses associated therewith;
(f) insurance premiums and deductibles for the insurance described in Sections 8.1 and 8.2;
(g) all liability expense, other than medical malpractice liability expense;
(h) the Billing and Collection Fee;
(i) depreciation expense with respect to any capital assets acquired after March 1, 2005 used in the operation of the Cancer Centers all determined in accordance with GAAP; and
(j) such other costs and expenses expressly set forth in the Annual Budget as Operational Expenses.
“Patients” shall mean all individuals seeking Radiation Oncology Services from the Practice or any Physician in the Communities.
“Parties” shall mean the Company and the Practice collectively.
“Party” shall mean any party to this Agreement.
“Payor Instruction Letter” shall have the meaning set forth in Section 5.7.
“Permits” shall have the meaning set forth in Section 7.1(d)(ii).
“Person” shall mean any individual, entity or group, including, without limitation, any corporation, limited liability company, limited or general partnership, joint venture, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.
“Physician” shall mean each individual who (a) is duly licensed to practice medicine in the State of Florida and (b) provides Radiation Oncology Services under the direction of the Practice.
“Practice” shall have the meaning set forth in the preamble.
“Practice Area” shall mean that area within the same Communities and/or a twenty (20) mile radius of each Cancer Center.
“Practice Expense” shall mean any cost or expense of the Practice which is not an Operational Expense or a Company Expense including, without limitation, the following:
(a) all salaries, benefits (including deferred compensation and health insurance) and other costs relating to the employment or engagement of a Physician (including physician independent contractors);
(b) all federal, state or local income and employment taxes of the Practice and the costs of preparing its federal, state or local income and employment tax returns;
(c) all costs of membership in professional associations and continuing professional education expenses, including subscriptions, for the Physicians;
(d) all medical malpractice liability judgments assessed against the Practice (to the extent not covered by insurance);
(e) all direct personal expenses of Physicians, including travel and entertainment expenses;
(f) licensure fees and board certification fees;
(g) all dues and fees for hospital and medical staff memberships of the Physicians;
(h) the cost and expense to retain qualified locum tenums to provide comprehensive Radiation Oncology Services to all Patients seeking such treatment at the Cancer Centers;
(i) the Practice Review Expense; and
(j) such other costs and expenses expressly set forth in the Annual Budget as Practice Expenses.
“Practice Lockbox Account” shall have the meaning set forth in Section 5.7.
“Practice Revenues” shall mean, for any fiscal period, (a) all revenue recognized (net of adjustments, refunds, recoupment claims, repayments, fines, penalties, assessments, levies, disgorgements, restitutions or otherwise to any federal, state or local governmental agency or other payor) by or on behalf of the Practice or the Professional Staff as a result of the provision of Radiation Oncology Services and (b) all revenue recognized (net of adjustments, refunds, recoupment claims, repayments, fines, penalties, assessments, levies, disgorgements, restitutions or otherwise to any federal, state or local governmental agency or other payor) by the Practice or the Professional Staff in their capacity as employees of the Practice and rendered incident to this Agreement, whether received in an inpatient or outpatient setting and whether rendered to health maintenance organizations, preferred provider organizations, Medicare, Medicaid or Patients, including, but not limited to, payments received under any capitation arrangement.
“Practice Review Expense” shall have the meaning set forth in Section 5.5.
“Practice Taxes” shall have the meaning set forth in Section 8.2(b).
“Professional Staff” shall mean the Physicians together with the Clinical Employees.
“Radiation Oncology Services” shall mean all radiation oncology services, of a routine and emergency nature, presently or hereafter provided by the Practice or the Professional Staff at the Cancer Centers and the performance of all services ancillary thereto.
“Receivable” shall mean, as of any date of determination thereof, with respect to the Practice, all accounts and any and all rights to payment of money or other forms of consideration of any kind now owned or hereafter acquired (whether classified under the Uniform Commercial Code as accounts, chattel paper, general intangibles or otherwise) arising out of the sale or lease of goods or the provision of Radiation Oncology Services including, but not limited to, accounts receivable, proceeds of any letters of credit naming the Practice or the Physicians as beneficiary, chattel paper, insurance proceeds, contract rights, notes, drafts, instruments, documents, acceptances and all other debts, obligations and liabilities in whatever form from any other Person.
“Required Improvement” shall mean all servicing, repair, cleaning and maintenance and repairs of the FF&E to ensure it is in good condition and repair and adequate for the provision of Radiation Oncology Services by the Practice, including, but not limited to, maintenance of all radiation equipment by adequately trained and licensed professionals, in accordance, in all materials respects, with all Laws pertaining to hazardous materials.
“Retained Amount” shall have the meaning set forth in Section 5.1.
“Secured Obligations” shall have the meaning set forth in Section 5.6(a).
“Xxxxx Laws” shall have the meaning set forth in Section 7.1(d).
“Third-Party Payors” shall mean any governmental entity, insurance company, health maintenance organization, preferred provider organization employer or other Person or similar entity that is obligated to make payments with respect to a Receivable.
“Uniform Commercial Code” shall mean the Uniform Commercial Code as the same may be in effect from time to time in the State of Florida; provided that if, by reason of applicable Law, the validity or perfection of any security interest in any Collateral granted under this Agreement is governed by the Uniform Commercial Code as in effect in a jurisdiction other than Florida, then as to the validity or perfection, as the case may be, of such security interest, “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from time to time in such other jurisdiction.
SECTION 1.2 Rules of Construction. Unless the context otherwise requires:
(a) an accounting term defined by GAAP that is not otherwise defined herein shall have the meaning assigned to it in accordance with GAAP;
(b) “or” is not exclusive;
(c) words in the singular include the plural, and words in the plural include the singular;
(d) the words “include” and “including” shall be deemed to mean “include, without limitation,” and “including, without limitation”;
(e) “herein,” “hereof,” “hereto,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular article, section, paragraph or clause where such terms may appear;
(f) references to sections mean references to such section in this Agreement, unless stated otherwise; and
(g) the use of any gender shall be applicable to all genders.
ARTICLE II OBLIGATIONS OF THE COMPANY
SECTION 2.2 Furniture, Fixtures, Equipment and Supplies.
(a) The Company agrees to provide to the Practice those supplies and items of furniture, fixtures and equipment as are sufficient in nature, quality and quantity for the proper delivery of Radiation Oncology Services to Patients at the Cancer Centers and which are necessary and/or appropriate for the Practice’s operations at the Cancer Centers during the Term, or as are reasonably requested by the Practice, and in each case as are contemplated by the Annual Budget (all such items of furniture, fixtures, equipment and supplies are collectively referred to hereinafter as the “FF&E”). Title to the existing, additional and replacement FF&E shall be in the name of the Company, any Affiliate of the Company, or any of their respective nominees or a leasing company. The Company shall be responsible for ensuring that all (x) Required Improvements and (y) capital improvements to the FF&E that are contemplated by the Annual Budget, are promptly made as may be necessary to maintain the FF&E in good working condition and repair. The cost and expense of such Required Improvements shall be deemed an Operational Expense.
(b) The Practice acknowledges that neither the Company nor any of its Affiliates makes any representation or warranty, express or implied, as to the fitness, suitability or adequacy of any furniture, fixtures, equipment, inventory or supplies, which are leased or provided pursuant to this Agreement, for the conduct of a medical practice or for any other particular purpose. The Practice shall not, and shall cause each Physician not to, make any changes, alterations or additions to the FF&E without the prior written consent of the Company, which consent shall not be unreasonably withheld.
reflecting in reasonable detail anticipated revenues and expenses, sources and uses of capital for the Cancer Centers, anticipated personnel staffing and support services arrangements and anticipated ancillary services. The Annual Budget shall be subject to review and approval of the Practice. In the event that the Company and the Practice are unable to approve any Annual Budget within thirty (30) days of the beginning of the fiscal year to which such Annual Budget relates, such dispute shall be settled by the Joint Governing Board and the Annual Budget in respect of the preceding fiscal year shall be deemed the Annual Budget for such new fiscal year pending the determination of the Joint Governing Board. Neither Party shall be permitted to make any expenditure that is: (a) not included in the Annual Budget if such expenditure is greater than $25,000 individually or in the aggregate with all other expenditures that were not included in the Annual Budget and all other expenditures that exceed their identified amount in the Annual Budget (but only to the extent of such excess); or (b) set forth in the Annual Budget if such expenditure is greater than $25,000 of the amount approved for such expenditure in the Annual Budget individually or in the aggregate with all other expenditures that exceed their identified amount in the Annual Budget (but only to the extent of such excess) and all other expenditures that were not included in the Annual Budget. The Annual Budget for any fiscal year may be amended or modified by a written agreement executed by each of the Parties.
(a) Accounting, bookkeeping and accounts payable processing.
(b) Materials management, including purchase and stocking of office and medical supplies at levels reasonably necessary for the provision of Radiation Oncology Services.
(c) Human resources management, including recruitment of any necessary additional Clinical Employees and Administrative Employees that are contemplated by the Annual Budget, or as mutually agreed by the Parties.
(d) Provide qualified support sufficient to assure the proper and efficient functioning of all hardware and software components of the information systems utilized in connection with the Cancer Centers.
(e) Provide financial auditing services reasonably necessary for billing purposes and for compliance with Medicare and Medicaid, managed care contracts, and other federal, state, or private payor reimbursement programs or plans.
(f) Evaluate, negotiate and administer all managed care contracts and other third-party payor contracts on behalf of the Practice, all such contracts being subject to approval by the Practice.
(g) Provide ongoing assessment of business activity, including patient satisfaction.
(h) Order and purchase all medical and office supplies required in the day-to-day operation of the Practice at the Cancer Centers and contemplated by the Annual Budget, or as mutually agreed by the Parties.
(i) Provide a computer management information system, including on-site and off-site computer hardware and software license and support costs, for the provision of Billing and Collection Services.
(j) Provide such other services as are reasonably necessary for the Practice to assure the efficient delivery of Radiation Oncology Services.
(k) Recognizing the Practice will be responsible for the ultimate decisions regarding coding and billing procedures, xxxx and collect all global fees for services furnished to Patients. The Practice hereby irrevocably appoints the Company its lawful attorney-in-fact, with full authority in the place and stead of the Practice and in the name of the Practice, the Company or otherwise, and with full power of substitution in the premises (which power of attorney, being coupled with an interest, is irrevocable for so long as this Agreement shall be in effect), for the following purposes:
(i) to xxxx Patients in the Cancer Centers and Practice’s name and on the Practice’s behalf, and in the name and on behalf of all Physicians;
(ii) to xxxx in the Cancer Centers and Practice’s name and on the Practice’s behalf, and in the name and behalf of all Physicians, all claims for reimbursement or indemnification from insurance companies, Medicare and Medicaid, and all other Third-Party Payors or Medicare Administrative Contractors for all goods and services provided by the Practice or the Professional Staff;
(iii) to collect Receivables in the Cancer Centers and Practice’s name and on the Practice’s behalf, and in the name and on behalf of all Physicians;
(iv) to settle, compromise or release in whole or in part any amounts owing on the Receivables;
(v) to receive, on behalf of the Cancer Centers and Practice and all Physicians, payments from Patients, insurance companies and all other payors with respect to services rendered by the Practice and Professional Staff, and the Practice shall forward any such payments received by it or any Physician to the Company for deposit;
(vi) other than with respect to Government Receivables where applicable, to take possession of and endorse, in the name of the Cancer Centers and Practice or in the name of any Physician, any notes, checks, money orders, insurance payments and any other instruments received as payment of such Receivable;
(vii) to direct all Third-Party Payors, other than Medicare or Medicaid, to deposit all payments with respect to Receivables in the Company Lockbox Account by wire transfer; and
(viii) to initiate (subject to the approval of the Joint Governing Board) and pursue legal proceedings in the name of the Cancer Centers and Practice, to collect any accounts and moneys owed to the Cancer Centers and Practice or any Physician, to enforce the rights of the Cancer Centers and Practice as creditor under any contract or in connection with the rendering of any service, and to contest adjustments and denials by Governmental Agencies (or their fiscal intermediaries) as third-party payors.
The Practice, and only the Practice, will perform all of the medical functions associated with the provision of the Radiation Oncology Services. The Company will have no authority, directly or indirectly, to perform, and will not perform, any medical function. The Company may, however, advise the Practice as to the relationship (if any) between its performance of medical functions and the overall administrative and business functioning of its practice. To the extent that any Clinical Employees assist the Practice in performing medical functions, such Clinical Employees shall be subject to the professional direction and supervision of the Practice and, in the performance of such medical functions, shall not be subject to any direction or control by, or create any liability on behalf of the Company, except as may be specifically authorized in writing by the Company.
(a) The Company shall employ and provide to the Cancer Centers and Practice all personnel (other than the Physicians) (i) that the Company determines, after consultation with the Practice, to be reasonably necessary for the effective operation of the Practice and (ii) whose salaries, benefits (including deferred compensation) and other costs of employment are contemplated by the Annual Budget, including, without limitation: (1) all nurses, therapists, physicists, medical records personnel and other medical support personnel
(referred to collectively as the “Clinical Employees”); (2) all business office personnel (i.e., clerical, secretarial, bookkeeping and revenue collection personnel) as are necessary for the maintenance of patient records, scheduling of Radiation Oncology Services, collection of Receivables and maintenance of the financial records of the Cancer Centers to the extent directly related to the provision of Radiation Oncology Services at the Cancer Centers (referred to collectively as the “Administrative Employees”); and (3) an office administrator to manage and administer, subject to the terms and conditions hereof, all of the day-to-day routine business functions and services of the Cancer Centers. The Company shall not unreasonably withhold its consent to requests by the Practice for additional personnel. The Company shall determine the salaries and fringe benefits of all such personnel provided under this Section consistent with the Annual Budget.
(i) The Clinical Employees shall constitute and be treated as leased employees of the Practice under Chapter 15, Section 60.(B) of the Medicare Benefits Policy Manual (CMS Pub. 100-2), as amended from time to time, and the Practice shall have, and agrees to exercise, such supervision and control over the Clinical Employees as may be required by CMS so that the Practice may xxxx Medicare for the services of the Clinical Employees under the Physicians’ or the Practice’s, as the case may be, Medicare provider number(s).
(ii) Each Clinical Employee shall be (1) appropriately licensed, certified or registered, as the case may be, by the State of Florida, as appropriate, to assist the Physicians in the provision of Radiation Oncology Services; and (2) qualified by virtue of his training and/or experience to assist the Physicians in the provision of Radiation Oncology Services.
(b) The Company shall be responsible for the assignment of all such personnel to perform services at the Cancer Centers; provided, however, that the Company shall, at the Practice’s reasonable request, reassign or replace any non-physician medical support personnel who are not, in the Practice’s judgment, adequately performing the required services. Neither the Practice nor the Company shall discriminate against such personnel on the basis of race, religion, age, sex, disability or national origin in violation of any applicable Law.
(c) Notwithstanding anything to the contrary contained herein, at all times during the term of this Agreement, the Clinical Employees and the Administrative Employees shall be deemed employees or independent contractors of the Company and not the Practice.
of the Lease, (b) exclusively for the provision of Radiation Oncology Services and ancillary services, such as imaging, laboratory, cyclotron, and support services, and (c) in compliance with all applicable Laws and standards of medical care. It is expressly acknowledged by the Parties that the medical practice or practices conducted at the Cancer Centers shall be conducted solely by Physicians associated with the Practice, and no other physician or medical practitioner shall be permitted to use or occupy the Cancer Centers without the prior written consent of the Company.
SECTION 2.8 Files and Records.
(a) Subject to the succeeding paragraph, the Company shall maintain all files and records relating to the operation of the Cancer Centers and Practice, including, but not limited to, customary financial records and patient files. The Company shall use its best efforts to manage all files and records in compliance with all applicable Laws, and all files and records shall be located so that they are readily accessible for patient care, consistent with ordinary records management practices. The Practice shall have reasonable access to such records during the term of this Agreement and for a period of five years after the termination or expiration of the term of this Agreement.
(b) The Practice shall supervise the preparation of, and direct the contents of, patient medical records, all of which shall be and remain confidential and the property of the Practice. The Practice shall establish and enforce procedures to ensure that the Professional Staff properly prepare and complete medical records for all Patients as required by applicable Law, the medical staff bylaws, rules and regulations of the Company and its Affiliates, and the rules and regulations of any Third-Party Payors with which the Company (or any Affiliate of the Company) may contract or affiliate from time to time. All such patient records shall be maintained for the periods required by, and subject to the other requirements of, applicable Law. The Company shall have reasonable access to such records and, subject to applicable Laws and accreditation policies, the Company shall be permitted to retain true and complete copies of such records.
patient satisfaction. The Company shall develop systems to track revenues, expenses, utilization, quality improvement, Practice and Physician productivity and patient satisfaction. The Company shall arrange for or provide business and financial management consultation and advice reasonably requested by the Practice and directly related to the operations of the Practice pursuant to this Agreement.
SECTION 2.12 Managed Care Contracting.
(a) The Company shall review all proposed managed care contracts and provide recommendations to the Practice regarding whether the participation in such managed care contract is consistent with the Annual Budget. The Practice shall execute only such managed care contracts as may be consistent with the Annual Budget (unless otherwise approved by the Company) and shall (and shall cause the Professional Staff to) abide by the terms of any such contract. Notwithstanding the foregoing, no Party shall execute a managed care contract pertaining to Radiation Oncology Services to be provided at the Cancer Centers without the other Party’s prior written consent (which consent shall not be unreasonably withheld).
(b) The Practice shall ensure that: (i) each Physician participates (without interruption or suspension) in Medicare, Medicaid, TRICARE, workers’ compensation, other federal and state reimbursement programs, and the payment plan of any commercial insurer, health maintenance organization, preferred provider organization, or other health benefit plan or program with which the Practice may contract or affiliate from time to time and (ii) the Professional Staff complies with appropriate utilization control and review mechanisms and quality improvement policies implemented by the Company or by appropriate managed care programs, Third-Party Payors, governmental agencies and accreditation bodies, including without limitation, Joint Commission, ACR and ACCC.
SECTION 2.13 Restrictive Covenants of the Company.
(a) The Company shall not provide space, furnishings, facilities, equipment, supplies, services or personnel similar to those provided to the Practice under this Agreement, directly or indirectly, to any Person or entity (other than the Practice) in connection with the provision of Radiation Oncology Services to patients in the Practice Area, without providing the Practice with appropriate prior written notice and the opportunity to provide such Radiation Oncology Services on terms no less favorable than those proposed to be offered to such Person.
(b) The Company shall not take any action to disparage or criticize the Practice or any of its employees, officers, directors, owners or customers.
(c) Each Party hereby agrees that the provisions of this Section 2.13 are independent of all other covenants or agreements between the Parties and shall remain enforceable regardless of any claim or determination with respect to, or breach of, any other agreement between the Parties.
(d) Each Party hereby acknowledges that in the event of any breach or threatened breach by the Company of any of the provisions of this Section 2.13, the Practice would not have an adequate remedy at Law and could suffer substantial and irreparable damage. Accordingly, the Company hereby agrees that, in such event, the Practice shall be entitled, and
notwithstanding any election by the Practice to claim damages, to obtain a temporary and/or permanent injunction (without proving a breach therefor) to restrain any such breach or threatened breach or to obtain specific performance of any such provisions, all without prejudice to any and all other remedies that the Practice may have at Law or in equity.
(e) Any term or provision of this Section 2.13 that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Section 2.13 or affecting the validity or enforceability of any of the terms and provisions of this Section 2.13 in any other jurisdiction. Each of the Parties hereby agrees that the provisions set forth in this Section 2.13 are reasonable under the circumstances, and further agrees that, if in the opinion of any court of competent jurisdiction any provision herein is determined to be excessively broad as to duration, activity, subject or otherwise incompatible with applicable Law, said court is authorized and requested to modify such provision so as to cause it to be not excessively broad or incompatible with applicable Law, and to enforce such provision as modified.
(f) For purposes of this Section 2.13, the term “Practice” shall mean, collectively, the Practice and its Affiliates.
ARTICLE III
SECTION 3.2 Professional Standards.
(a) The professional services provided by the Practice and the Professional Staff shall be performed solely by or under the supervision of a Physician licensed to practice medicine in the State of Florida, as appropriate, and shall at all times be provided in accordance with applicable ethical standards and Laws applying to the medical profession (or with any standards to which by contract it has agreed to abide). The Practice shall, with the assistance of the Company if so requested, resolve any utilization management or quality improvement issues (as described more fully in Section 3.11) which may arise in connection with the Practice.
(b) If any disciplinary actions or professional liability actions are initiated against the Practice or any Professional Employee, the Practice shall immediately inform the Company of such action and the underlying facts and circumstances and provide the Company, promptly upon receipt thereof but in any event within five (5) Business Days, with copies of all documents received by the Company with respect to any such action. The Company shall similarly inform the Practice of any such disciplinary actions or professional liability actions initiated against the Practice or any Professional Staff of which it first becomes aware and provide the Practice, promptly upon receipt thereof but in any event within five (5) Business Days, with copies of all documents received by the Company with respect to any such action.
(c) The Practice shall establish and maintain procedures to assure the consistency and quality of all professional medical services provided by the Practice, and the Company shall render administrative assistance to the Practice as requested in furtherance thereof. The Practice shall in good faith cooperate with inspections and on-site surveys of the Practice as may be conducted by any Governmental Authority, accrediting organization or other Third-Party Payor.
SECTION 3.4 Restrictive Covenants of the Practice.
(a) The Practice acknowledges and agrees that the services to be provided by the Company hereunder are feasible only if the Practice operates a vigorous medical practice to which the Physicians devote their full time, attention and best efforts. Accordingly, the Practice agrees that it shall not, without the prior written consent of the Company, during the term of this Agreement and for a period of three (3) years following the termination of this Agreement, other than pursuant to this Agreement, on its behalf or on behalf of any other Person, directly or indirectly,
(i) solicit, recruit or employ any Person who has been employed or otherwise retained by the Company at any time during the twelve (12) months immediately preceding such solicitation or recruitment or cause or seek to cause such Person to leave the employ of the Company, excluding however individuals who at the time are employed by BHS or any of its Affiliates; or
(ii) solicit any supplier, lender, lessor or any other Person which has a business relationship with the Company with a view to cause, or seek to cause, such Person to take action which is intended to or could reasonably likely adversely affect the Company’s relationship with such Person.
(b) The Practice shall not take any action to disparage or criticize the Company or, as applicable, any of its employees, officers, directors, owners or customers.
(c) The Practice shall cause each Physician (other than any locum tenens engaged by the Practice) to enter into an agreement concerning the restrictions set forth in this Section 3.4. Such agreements shall expressly name the Company as a third-party beneficiary.
(d) Each Party hereby agrees that the provisions of this Section 3.4 are independent of any and all other covenants or agreements by and among such Parties and shall remain enforceable regardless of any claim or determination with respect to, or breach of, any other agreement between such Parties.
(e) Each Party hereby acknowledges that in the event of any breach or threatened breach by the Practice of any of the provisions of this Section 3.4, the Company would have no adequate remedy at Law and could suffer substantial and irreparable damage. Accordingly, the Practice hereby agrees that, in such event, the Company shall be entitled, and notwithstanding any election by the Company to claim damages, to obtain a temporary and/or permanent injunction (without proving a breach therefor) to restrain any such breach or threatened breach or to obtain specific performance of any such provisions, all without prejudice to any and all other remedies which the Company may have at Law or in equity.
(f) Any term or provision of this Section 3.4 which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Section 3.4 or affecting the validity or enforceability of any of the terms and provisions of this Section 3.4 in any other jurisdiction. Each of the Parties hereby agrees that the provisions set forth in this Section 3.4 are reasonable under the circumstances, and further agrees that if in the opinion of any court of competent jurisdiction any provision herein is determined to be excessively broad as to duration, activity, subject or otherwise incompatible with applicable Law, said court is authorized and requested to modify such provision so as to cause it to be not excessively broad or incompatible with applicable Law, and to enforce such provision as modified.
(g) For purposes of this Section 3.4, the term “Company” shall mean, collectively, the Company and its Affiliates (including, but not limited to, entities with which the Company and its Affiliates have management arrangements or to which any of them provides management services).
(h) The Practice shall cause each Physician to agree to provide radiation oncology medical services exclusively for the Company at the Cancer Centers, and will NOT provide any such services to any non-owned outpatient cancer centers, nor compete with any Cancer Centers, within the Practice Area, unless with the written consent of the Company. The Practice represents and warrants that it is a party to a professional services agreement with BHS, executed prior to 2005, that requires the Practice to provide radiation oncology medical services to any cancer centers owned, operated, leased or managed by BHS or an Affiliate. Contingent on the accuracy of such representation, the Parties hereby agree that any cancer centers owned, operated, leased or managed by BHS or any of its Affiliates are excluded from the non-compete provisions of this Section, and, accordingly, the Company hereby grants consent for the Practice to provide such professional services at those centers. The Parties hereby agree that the Riverside Cancer Center and the Southside Cancer Center are also excluded from the non-compete
provisions of this Section, and accordingly, the Company hereby grants consent for the Practice to provide such professional services at Riverside Cancer Center and the Southside Cancer Center.
event that the Practice reasonably objects to any policy or procedure implemented by the Company, such objection shall be resolved by the Joint Governing Board. In the event that the Joint Governing Board shall be unable to resolve any such dispute, such dispute shall be submitted to arbitration in accordance with Article XI.
SECTION 3.10 Billing Information and Collection Policy.
(a) The Practice shall promptly provide the Company with all billing information requested by the Company (including, but not limited to, appropriate provider numbers, the name of the Patient, the date of service, and the nature and extent of services provided) and any supporting medical information necessary to enable the Company to xxxx and collect the Cancer Centers and Practice’s charges pursuant hereto. The Practice shall cause each Physician to provide the Company with billing codes and complete descriptions supporting all procedures performed by such Physician, and shall comply with all reasonable requests by the Company to supplement such coding or descriptions for billing purposes.
(b) All professional fee schedules for services shall be mutually agreed to by the Practice and the Company. No discount, fee reduction, writeoff, or other waiver of the agreed fees shall be made by the Company without express authorization of the Practice, which authorization shall not be unreasonably withheld.
any entity with whom the Company (or any Affiliate of the Company) and the Practice contracts with respect to the provision of Radiation Oncology Services at the Cancer Centers, including, but not limited to, Third-Party Payors.
ARTICLE IV
OBLIGATIONS OF THE JOINT GOVERNING BOARD
(a) The Joint Governing Board shall maintain ultimate authority over the following areas: (i) Approval of all marketing and other advertising of the services performed at the Cancer Centers; (ii) Approval of the fee schedule and collection policies for all Physician and other services rendered by the Practice; (iii) Approval of Practice provided services based upon the pricing, access to and quality of such services; (iv) Approval of the establishment or maintenance of relationships with institutional health care providers and Third Party Payors and discounted fee schedules, including capitated fee arrangements; (v) Development of long-term strategic planning objectives of the Practice as they relate to this Agreement; (vi) Resolution of the Annual Budget if required pursuant to Section 2.3 of this Agreement; (vii) Determination of the priority of major capital expenditures incurred for the benefit of the Practice; and (viii) Approval of variations to the term of and damages for competition contained in any Physician Employment Agreement; approval of decisions to hire additional Physicians where such hire represents an expansion into different services by the Practice’s medical practice; however, the Practice shall make all other decisions relating to physician hiring and termination as specifically set forth in its governing documents. The Joint Governing Board shall make and approve all decisions, that: (1) relate to an obligation by the Practice for borrowed money, an obligation by the Practice secured by any security interest or any other indebtedness of the Practice; (2) relate to the disposition, sale, conveyance or transfer of any of Practice’s assets or properties; (3) result in a deviation or change in the approved Annual Budget; (4) result in a commitment by the Practice that exceeds one year; (5) result in a commitment by the Practice to expend greater than $10,000 in the aggregate for such commitment in any given year; or (6) is deemed to be a Joint Governing Board decision as set forth herein.
(b) The Joint Governing Board meetings shall be held as mutually agreed, but at least quarterly. Meetings shall be open to any Physician in the Practice, except that the Joint Governing Board may require Physicians who are not equity-holders in the Practice to leave a meeting if the Joint Governing Board wishes to discuss sensitive matters including, but not limited to, matters relating to the potential expulsion or employment termination grounds of a Physician.
(c) The Joint Governing Board, on an annual basis, shall review the Practice’s compensation arrangements with its physicians to confirm compliance with applicable Law.
(a) types and levels of Radiation Oncology Services to be provided;
(b) recruitment of Physicians to the Practice, including the specific qualifications and specialties of recruited Physicians;
(c) acquisition of, affiliation with, or merger with any other medical practices in the Community in accordance with Section 3.14;
(d) fee schedules; and
(e) any other function or decision that the parties agree is related solely to the practice of medicine
ARTICLE V FINANCIAL ARRANGEMENT
SECTION 5.1 Allocation of Distribution Pool and Management Fee.
(a) The Distribution Pool shall be allocated as follows:
(i) on a monthly basis, *** of the Distribution Pool shall be retained by the Practice until such time as the amount retained by the Practice equals *** of Practice Revenues, and *** thereafter (“Retained Amount”); and
(ii) notwithstanding the foregoing, in any Contract Year in which the Distribution Pool exceeds ***, *** of the Distribution Pool in excess of *** shall be included in the Retained Amount; and
(iii) on a monthly basis, the balance of the Distribution Pool shall be paid to the Company for the provision of the Management Services (the “General Management Services Fee”).
The amounts to be paid to the Company pursuant to the General Management Services Fee shall be payable monthly during the term of this Agreement within twenty (20) days after the end of each calendar month.
(b) Payment of the General Management Services Fee is not intended to permit the Company to share in the Practice’s fees, but is acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the equipment, support services, personnel, office space, management, administration and other items and services furnished by Company pursuant to this Agreement, considering the nature and volume of the services required and the respective risks assumed by the Company and the Practice. Payment of the General Management Services Fee is not intended to be, and shall not be interpreted to constitute, the payment of remuneration for referrals.
(c) Set forth on Exhibit A is a calculation of the Distribution Pool using operating results of the Practice for the year ended December 31, 2011, and a calculation of the Distribution Pool on a pro forma basis with adjustments for potential changes in monthly census.
(a) When determining the amount of any payments to be made pursuant to Section 5.1 and Section 5.2, the Company shall be permitted to estimate monthly revenues and expenses in accordance with the Annual Budget.
(b) In the event that Practice Revenues are insufficient to pay all of the Operational Expenses for any period, all Operational Expenses shall be paid in full prior to the payment of the General Management Services Fee.
SECTION 5.5 Review of Financial Arrangements by the Practice. The Practice shall have the right, at its own cost and expense, to review the Company’s calculations of all payments, fees and expenses owed by or due to any Party or a third party under this Agreement (such costs and expenses to review the Company’s calculations are referred to herein as the
“Practice Review Expense”). Upon reasonable notice to the Company, the Practice shall have the right to review the Company’s calculations or allocation of any such payments, fees or expenses and the Company shall provide the Practice, with all documents, reports, records and supporting materials used in determining such amounts. Such documents shall be delivered to the Practice within a reasonable period of time after such request, but in any event within fifteen (15) Business Days. Not later than twenty (20) Business Days following the delivery of such documents to the Practice, the Practice may furnish the Company with written notification of any dispute concerning any items shown thereon or omitted therefrom, together with a detailed explanation in support of the Practice’s position in respect thereof. The Company and the Practice shall consult to resolve any dispute for a period of fifteen (15) Business Days following such notification to the Company. If such fifteen (15) Business Day consultation period expires and the dispute has not been fully resolved, the matter shall be referred to any accounting firm which has not provided accounting services to any Party or its Affiliates within the prior three years and is chosen by the Joint Governing Board (the “Accountants”), which shall resolve the dispute and render its decision (together with a brief explanation of the basis therefor) to the Practice and the Company not later than twenty (20) Business Days following submission of the dispute to it. The decision of such Accountants shall be a final determination of such amounts. In the event that the Accountants resolve all disputes presented to it in the manner proposed by one of the Parties, the fees and expenses of the Accountants relating to the resolution of such dispute shall be paid by the other Party. In all other events, the fees and expenses of the Accountants shall be shared in the same proportion that the Company’s position, on the one hand, and the Practices’ position, on the other, initially presented to the Accountants bears to the final resolution as determined by the Accountants.
SECTION 5.6 Collateral Security.
and deliver, in its sole discretion, all or any of the Collateral, in one or more parcels, at public or private sale, at the Company’s main office or elsewhere, for cash, upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Company may deem satisfactory. If any of the Collateral is sold by the Company upon credit or for future delivery, the Company shall not be liable for the failure of the purchaser to purchase or pay for the same and, in the event of any such failure, the Company may resell such Collateral. In no event shall the Practice be credited with any part of the proceeds of sale of any Collateral until and to the extent cash payment in respect thereof has actually been received by the Company. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of the Practice, and the Practice hereby expressly waives all rights of redemption, stay or appraisal, and all rights to require the Company to marshal any assets in favor of the Practice or any other party or against or in payment of any or all of the Secured Obligations, that it has or may have under any rule of Law now existing or hereafter adopted. No demand, presentment, protest, advertisement or notice of any kind (except any notice required by Law, as referred to below), all of which are hereby expressly waived by the Practice, shall be required in connection with any sale or other disposition of any part of the Collateral. If any notice of a proposed sale or other disposition of any part of the Collateral shall be required under applicable Law, the Company shall give the Practice at least 10 days’ prior notice of the time and place of any public sale and of the time after which any private sale or other disposition is to be made. The Company shall not be obligated to make any sale of Collateral if it shall determine not to do so, regardless of the fact that notice of sale may have been given. The Company may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Upon each public sale and, to the extent permitted by applicable Law, upon each private sale, the Company may purchase all or any of the Collateral being sold, free from any equity, right of redemption or other claim or demand, and may make payment therefor by endorsement and application (without recourse) of the Secured Obligations in lieu of cash as a credit on account of the purchase price for such Collateral.
purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Company or such officer or be answerable in any way for the misapplication thereof.
(e) The Company; Standard of Care. The Company will hold all items of the Collateral at any time received under this Agreement in accordance with the provisions hereof. The obligations of the Company as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement. The powers conferred on the Company hereunder are solely to protect its interest in the Collateral, and shall not impose any duty upon it to exercise any such powers. Except for treatment of the Collateral in its possession in a manner substantially equivalent to that which the Company accords its own property of a similar nature, and the accounting for moneys actually received by it hereunder, the Company shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to the Collateral. The Company shall not be liable to the Practice (i) for any loss or damage sustained by the Practice, or (ii) for any loss, damage, depreciation or other diminution in the value of any of the Collateral that may occur as a result of or in connection with or that is in any way related to any exercise by the Company of any right or remedy under this Agreement, any failure to demand, collect or realize upon any of the Collateral or any delay in doing so, or any other act or failure to act on the part of the Company, except to the extent that the same is caused by its own gross negligence or willful misconduct.
(f) Further Assurances; Attorney-in-Fact. The Practice agrees that it will join with the Company to execute and, at the Company’s expense, file and refile under the Uniform Commercial Code such financing statements, continuation statements and other documents and instruments in such offices as the Company may reasonably deem necessary or appropriate, and wherever required or permitted by Law, in order to perfect and preserve the Company’s security interest in the Collateral, and hereby authorizes the Company to file financing statements and amendments thereto relating to all or any part of the Collateral without the signature of the Practice where permitted by Law, and agrees to do such further acts and things (including, without limitation, making any notice filings with state tax or revenue authorities required to be
made by account creditors in order to enforce any Receivables) and to execute and deliver to the Company such additional conveyances, assignments, agreements and instruments as the Company may reasonably require or deem advisable to perfect, establish, confirm and maintain the security interest and Lien provided for herein, to carry out the purposes of this Agreement or to further assure and confirm unto the Company its rights, powers and remedies hereunder.
In addition to the powers set forth in Section 2.4(k), the Practice hereby irrevocably appoints the Company its lawful attorney-in-fact, with full authority in the place and stead of the Practice and in the name of the Practice, the Company or otherwise, and with full power of substitution in the premises (which power of attorney, being coupled with an interest, is irrevocable for so long as this Agreement shall be in effect), from time to time in the Company’s discretion after the occurrence and during the continuance of an Event of Practice Default (except for the actions described in clause (i) below, which may be taken by the Company without regard to whether any such a default has occurred) to take any action and to execute any instruments that the Company may deem necessary or advisable to accomplish the purpose of carrying out the provisions of the Company’s security interest in the Receivables, including, without limitation: (i) to sign the name of the Practice on any financing statement, continuation statement, notice or other similar document that, in the Company’s opinion, should be made or filed in order to perfect or continue perfected the security interest granted under this Agreement; (ii) to ask, demand, collect, xxx for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral; (iii) to receive, endorse and collect any checks, drafts, instruments, chattel paper and other orders for the payment of money made payable to the Practice representing any interest or other amount payable in respect of any of the Collateral and to give full discharge for the same; (iv) to pay or discharge taxes, Liens or other encumbrances levied or placed on or threatened against the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be determined by the Company in its sole discretion, any such payments made by the Company to become Secured Obligations of the Practice to the Company, due and payable immediately and without demand; (v) to file any claims or take any action or institute any proceedings that the Company may deem necessary or advisable for the collection of any of the Collateral or otherwise to enforce the rights of the Company with respect to any of the Collateral; and (vi) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with any and all of the Collateral as fully and completely as though the Company were the absolute owner of the Collateral for all purposes, and to do from time to time, at the Company’s option and the Practices’ expense, all other acts and things deemed necessary by the Company to protect, preserve or realize upon the Collateral and to more completely carry out the purposes of this Agreement.
If the Practice fails to perform any covenant or agreement contained in this Agreement after written request to do so by the Company (provided that no such request shall be necessary at any time after the occurrence and during the continuance of an Event of Practice Default), the Company may itself perform, or cause the performance of, such covenant or agreement and may take any other action that it deems necessary and appropriate for the maintenance and preservation of the Collateral or its security interest therein, and the reasonable expenses so incurred in connection therewith shall be payable by the Company.
execute all instruments as the Practice may reasonably request in order to notify the Third-Party Payors of such termination.
ARTICLE VI
(a) The Practice is involuntarily suspended, excluded or terminated from participation in the Medicare or Medicaid programs.
(b) The Practice withdraws from participation in the Medicare or Medicaid programs as a result of regulatory investigation or the Practice is excluded from entering into healthcare provider agreements with any material portion of the managed care or healthcare insurance industry.
(c) A majority of the members of the Joint Governing Board determines that (i) the Practice is not providing care in a manner that meets the prevailing standard of care in the community or (ii) the Practice or any Physician has materially breached professional standards in a way that endangers the health or safety of any Patient or employee of the Company (or any Affiliate of the Company) and the Practice fails, after sixty (60) days’ notice from the Joint Governing Board, to take action which the Joint Governing Board deems reasonably acceptable.
(d) The Practice shall apply for or consent to the appointment of a receiver, trustee or liquidator of it or all or a substantial part of its assets, file a voluntary petition in bankruptcy, be unable to pay its debts as they come due, make a general assignment for creditors or take advantage of any insolvency Law, have liabilities that exceed its assets, or be “insolvent” as defined in the federal Bankruptcy Code or under any insolvency Law of the State of Florida, or any order, judgment or decree shall be entered by any court of competent jurisdiction, on the application of a creditor, adjudicating it as bankrupt or insolvent or approving a petition seeking its reorganization or appointment of a receiver, trustee, or liquidator of it or all or a substantial part of its assets.
(e) The Practice ceases to perform its duties and responsibilities hereunder or breaches any material term or condition of this Agreement (including, without limitation, Section 3.4) and, in the reasonable opinion of the Company, such cessation or breach remains uncured for a period of 60 days after the Practice’s receipt of a written notice specifying such breach.
(f) The Practice revokes any instructions to a Third Party Payor related to the Third Party Payor Instruction Letter or revokes or modifies any instructions to the Depository Bank in connection with the Practice Lockbox Agreement as set forth in Section 5.7, except as specifically permitted by the provisions of Section 5.7 or 5.8.
(g) The Practice ceases to engage or employ at least one Physician to provide Radiation Oncology Services at each of the Cancer Centers on a fulltime basis.
(h) The Practice ceases to engage or employ at least twelve (12) full-time equivalent medical oncologists, and the Company provides the Practice with ninety (90) days’ written notice of termination.
(a) The Company shall apply for or consent to the appointment of a receiver, trustee or liquidator of it or all or a substantial part of its assets, file a voluntary petition in bankruptcy, be unable to pay its debts as they come due, make a general assignment for creditors or take advantage of any insolvency Law, have liabilities that exceed its assets, or be “insolvent” as defined under the federal Bankruptcy Code or under any insolvency law in any state in which the Company does business, or any order, judgment or decree shall be entered by any court of competent jurisdiction, on the application of a creditor, adjudicating it as bankrupt or insolvent or approving a petition seeking its reorganization or appointment of a receiver, trustee, or liquidator of it or all or a substantial part of its assets.
(b) The Company fails to make any payment within ten (10) days of when such payment is due to the Practice hereunder and such failure continues for more than ten (10) days after the Company’s receipt of a written notice specifying such breach.
(c) Except as provided in Section 6.3(b), the Company ceases to perform its duties and responsibilities hereunder or breaches any material term or condition of this Agreement (including, without limitation, Section 2.13) and, in the reasonable opinion of the Practice, such cessation or breach remains uncured for a period of sixty (60) days after the Company’s receipt of a written notice specifying such breach.
(d) The Company is involuntarily suspended, excluded or terminated from participation in Medicare or Medicaid.
(e) The Company withdraws from participation in Medicare or Medicaid as a result of regulatory investigation or the Company is excluded from entering into healthcare provider agreements with a material portion of the managed care or healthcare insurance industry.
SECTION 6.5 Duties And Remedies Upon Expiration Or Termination.
(a) Except as necessary to provide care to any Patient undergoing treatment at any Cancer Centers at the time of the expiration or earlier termination of this Agreement, upon the expiration or earlier termination of this Agreement, the Practice and the Company hereby agree to perform, in addition to their obligations provided for elsewhere in this Agreement and continuing after such expiration or termination of this Agreement, such steps as are otherwise customarily required to wind up their relationship under this Agreement in as orderly a manner as possible. Except as specifically set forth herein, upon the expiration or earlier termination of this Agreement, neither Party shall have any further obligation hereunder with the exception of obligations accruing prior to the date of such expiration or earlier termination and obligations, promises and covenants contained herein which extend beyond the terms hereof including, without limitation, any indemnities, restrictive covenants and access to books and records. Upon the expiration or earlier termination of this Agreement, the financial arrangements set forth in Article V shall be pro-rated between the Parties to reflect any partial fiscal year. From and after any expiration or earlier termination, each Party shall provide the other with reasonable access to books and records then owned by it to permit such requesting Party to satisfy legal reporting and contractual obligations which may be required of it.
(b) In addition to the foregoing, upon termination of this Agreement by the Company pursuant to Section 6.2, the Practice shall immediately (i) quit and surrender the Cancer Centers in as good condition as reasonable use and wear thereof will permit and (ii) (and shall cause the Physicians to) remove from the Cancer Centers all personal property of the Practice and of any Physician and shall, at its own expense, repair any damage caused to the Cancer Centers by reason of such removal. If the Practice shall fail to do so, the Company may, without notice and without prejudice to any other remedy available, enter and take possession of
the Cancer Centers and remove such personal property without being liable to prosecution or any claim for damage suffered by the Practice or the Physicians.
(c) If the Practice or a Physician remains in possession or control of any Cancer Centers beyond the expiration or termination of this Agreement, without the written consent of the Company, such possession or control shall not be deemed to create any rights whatsoever in the Practice.
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE PRACTICE
(d) Compliance With Laws; Licenses.
(i) To the knowledge of the Practice, the conduct of the operations of the Practice (including the conduct of any Physician or any other practice
employee) has not violated, and as presently conducted does not violate, in any material respect any Laws, including, but not limited to, the Clinical Laboratories Improvements Act of 1988, or any other promulgations, interpretative advice or guidance of any court or Governmental Authority or agency, including, but not limited to, the Occupational Safety and Health Administration, the CMS or any medical industry standards, nor has the Practice received any notice of any such violation which remains outstanding.
(ii) The Practice has all licenses, certificates, permits, approvals, franchises, notices and authorizations (“Permits”) required for the conduct of its operations as currently conducted and as proposed to be conducted (including, without limitation, accreditations and certifications as a provider of healthcare services eligible to receive payment and compensation and to participate under Medicare and Medicaid). To the Practice’s knowledge, all of such Permits are in full force and effect, the Practice has not engaged in any activity which would cause or permit revocation, modification, cancellation or suspension of any such Permit, and no action or proceeding looking to or contemplating the revocation, modification, cancellation or suspension of any such Permit is pending or threatened. The Practice has no knowledge of any default or claimed or purported or alleged default or state of facts which, with or without the giving or receipt of notice or the passage of time or both, would constitute a default by the Practice under, or give rise to a right of revocation, modification, cancellation or suspension of, any such Permit.
(iii) The Practice qualifies as (and will continue to qualify during the term of this Agreement as) a “group practice” as defined in the federal physician self referral law at 42 USC § 1395nn and applicable regulations (collectively, the “Xxxxx Laws”) and any similar state laws. Without limiting the generality of the foregoing:
a. Each physician who is an employee and/or shareholder of the Practice (each, an “ICON Physician”) furnishes (and will continue to furnish during the term of this Agreement) substantially the full range of patient care services that such ICON Physician routinely furnishes, including medical care, consultation, diagnosis, and treatment, through the joint use of shared office space, facilities, equipment, and personnel.
b. “Substantially all” of the “patient care services” (as those terms are defined and explained in 42 C.F.R. § 411.352(d)) of the ICON Physicians are furnished (and will continue to be furnished during the term of this Agreement) through the Practice and billed under a billing number assigned to the Practice, and the amounts received are treated (and will continue to be treated during the term of this Agreement) as receipts of the Practice.
c. The overhead expenses of, and income from, the Practice is distributed (and will continue during the term of this Agreement to be distributed) to the ICON Physicians according to methods that are determined before the receipt of payment for the services giving rise to the overhead expense or producing the income.
d. The Practice is (and will continue during the term of this Agreement to be) a unified business that has a centralized decision-making by a body representative of the Practice that maintains effective control over the Practice’s assets and liabilities (including, but not limited to, budgets, compensation, and salaries) and consolidated billing, accounting, and financial reporting.
e. No ICON Physician directly or indirectly receives (or will directly or indirectly receive during the term of this Agreement) compensation based on the volume or value of referrals by such ICON Physician, and no ICON Physician receives (or will receive during the term of this Agreement) any profit or bonus distributions that is determined in any manner that is directly related to the volume or value of referrals of “designated health services” (as defined in 42 C.F.R. § 411.351) (“DHS”) by such ICON Physician.
f. The ICON Physicians personally conduct (and will continue to conduct during the term of this Agreement) no less than 75 percent of the physician-patient encounters of the Practice.
(iv) Any DHS (including certain items of “durable medical equipment,” as defined in 42 C.F.R. § 411.355(b)(4) (“DME”), and infusion pumps that are DME (including external ambulatory infusion pumps) but excluding all other DME and parenteral and enteral nutrients, equipment, and supplies) furnished or provided by the Practice as a result of referrals of patients for such DHS by the ICON Physicians to the Practice (collectively, the “Ancillary Services”) meet (and will continue to meet during the term of this Agreement) the requirements of 42 C.F.R. § 411.355(b). Without limiting the generality of the foregoing, the Ancillary Services are (and will continue during the term of this Agreement to be):
a. furnished personally by an ICON Physician or by an individual who is supervised by an ICON Physician, and such supervision complies with all applicable Medicare payment and coverage rules for such Ancillary Services;
b. furnished either in the “same building” (as defined in 42 C.F.R. § 411.351) and pursuant to the requirements set forth in 42 C.F.R. § 411.355(b)(2)(i); or a “centralized building” (as defined in 42 C.F.R. § 411.351) that is used by the Practice for the provision of some
or all of the Practice’s clinical laboratory services or some or all of the Practice’s DHS (other than clinical laboratory services);
c. billed only by the Company under a billing number assigned to the ICON Physician or the Practice, and the billing arrangement meets the requirements of 42 C.F.R. § 424.80(b)(6); and
d. furnished in the location where the service is actually performed upon a patient or where an item is dispensed to a patient in a manner that is sufficient to meet the applicable Medicare payment and coverage rules.
(v) All financial arrangements that are “financial relationships,” as defined at 42 C.F.R. 411.354, between the Practice and any physician(s) or other entity(ies) who refer and or will refer patients to the Practice and/or who generate or will generate other business for the Practice are (and will continue to be during the term of this Agreement) commercially reasonable and consistent with the fair market value for the services provided in such financial relationships and satisfy (and will continue to satisfy during the term of this Agreement) one or more applicable exceptions to the Xxxxx Laws and any similar state laws.
(e) Litigation; Investigations. There are no suits, claims, proceedings, investigations or reviews which are pending or, to the knowledge of the Practice, threatened against or affecting the Practice, any Physician, any director or officer (in their capacity as such) of the Practice or any properties or assets used by the Practice in conducting its businesses. To the knowledge of the Practice, no investigation or review by any Governmental Authority, agency or court or other regulatory body (including trade associations) with respect to either the Practice or any Physician or other practice employee is pending or threatened or probable of initiation, nor has any Governmental Authority, agency or court or other regulatory body (including trade associations) indicated to the Practice an intention to conduct the same, and there is no action, suit or proceeding pending or, to the knowledge of the Practice, threatened against or affecting the Practice or any Physician or other Practice employee, at Law or in equity, or before any Governmental Authority or other regulatory body (including trade associations).
agreement, financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any government or public office, and the Practice has not filed or consented to the fling of any such statement or notice, except Uniform Commercial Code financing statements naming the Company as secured party.
(i) Receivables. Each Receivable is, or at the time it arises will be, a bona fide, valid and legally enforceable indebtedness of the account debtor according to its terms, arising out of or in connection with the sale, lease or performance of goods or services by the Practice.
(d) Compliance With Laws; Licenses.
(i) To the knowledge of the Company, the conduct of the operations of the Company has not violated, and as presently conducted does not violate, any Laws, including, but not limited to, any promulgation, interpretative advice or guidance of any court or Governmental Authority or agency, including, but not limited to, the Occupational Safety and Health Administration, the CMS or any medical industry standards, nor has the Company received any notice of any such violation that remains outstanding.
(ii) The Company has all licenses, certificates, permits, approvals, franchises, notices and authorizations (“Company Permits”) required for the conduct of its operations as currently conducted. To the Company’s knowledge, all Company Permits are in full force and effect, the Company has not engaged in any activity that would cause or permit revocation, modification, cancellation or suspension of any such Company Permit, and no action or proceeding looking to or contemplating the revocation, modification, cancellation or suspension of any such Permit is pending or threatened. The Company has no knowledge of any default or claimed or purported or alleged default or state of facts that, with or without the giving or receipt of notice or the passage of time or both, would constitute a default by the Company under, or give rise to a right of revocation, modification, cancellation or suspension of, any Company Permit.
(e) Litigation; Investigations. Except as provided in Schedule 6.2(e), there are no suits, claims, proceedings, investigations or reviews pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its directors or officers (in their capacity as such) of the Company or any properties or assets used by the Company in conducting its businesses. To the knowledge of the Company, no investigation or review by any Governmental Authority, agency or court or other regulatory body (including trade associations) with respect to the Company or any of its employees is pending or threatened or probable of initiation, nor has any Governmental Authority, agency or court or other regulatory body (including trade associations) indicated to the Company an intention to conduct the same, and there is no action, suit or proceeding pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its employees, at Law or in equity, or before any Governmental Authority or other regulatory body (including trade associations).
(f) Disclosure. No representation, warranty or statement made by the Company in this Agreement contains any untrue statement of a material fact, or omits to state a material fact required to be stated herein or necessary to make the statements contained herein, in light of the circumstances under which they were made, not misleading. All representations and warranties as to the Company shall be deemed to include the Company and all of its Affiliates.
ARTICLE VIII OTHER OBLIGATIONS OF THE PARTIES
(b) Existence. The Practice will preserve and keep in full force and effect its corporate existence.
(f) Compliance with Law. The Practice will comply, in all material respects, with all Laws which it reasonably believes are applicable with respect to the conduct of its businesses and its operations.
the State of Florida and shall maintain such licenses in good standing, (iii) have, and will maintain in good standing, unrestricted federal and state registrations authorizing them to prescribe controlled substances in the State of Florida or Georgia, as appropriate, and (iv) be board certified or board eligible in radiation oncology, and shall maintain such certifications in good standing.
(a) The Company shall pay (i) all taxes (if any) assessed and levied against the Company’s property and assets located within or associated with the Cancer Centers and (ii) all lawful claims that, if unpaid, might become a Lien upon any of its properties located within or associated with the Cancer Centers; provided, however, that the Company shall not be required to pay any such unsecured (or secured, only if secured by operation of Law) tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings and as to which the Company has maintained adequate reserves with respect thereto in accordance with GAAP. The Company shall be solely responsible for the payment of all such taxes and claims (referred to as “Company Taxes”) that may be imposed on the Company with respect to this Agreement.
(b) The Practice shall pay (i) all taxes (if any) assessed and levied against the Practice’s property and assets and (ii) all lawful claims that, if unpaid, might become a Lien upon any of its properties; provided, however, that the Practice shall not be required to pay any such unsecured (or secured, only if secured by operation of Law) tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings and as to which the Practice has maintained adequate reserves with respect thereto in accordance with GAAP. The Practice shall be solely responsible for the payment of all such taxes and claims (referred to as “Practice Taxes”) that may be imposed on the Practice with respect to this Agreement.
(b) Corporate Existence. The Company shall preserve and keep in full force and effect its existence.
ARTICLE IX INSURANCE AND INDEMNIFICATION
the insurer to the Practice. All payments in respect of the insurance described in this Section 9.2 shall be deemed Operational Expenses.
ARTICLE X
CONFIDENTIAL INFORMATION; ACCESS TO RECORDS
(a) In the event of any controversy or claim, whether based on contract, tort, statute, or other legal or equitable theory (including but not limited to any claim of fraud, misrepresentation, or fraudulent inducement) arising out of or related to this Agreement (“dispute”) arises and cannot be resolved by negotiation or by the Joint Governing Board, the Parties agree to submit the dispute to mediation by a mediator mutually selected by the Parties. If the Parties are unable to agree upon a mediator, then the mediator shall be appointed by the American Arbitration Association. In any event, the mediation shall take place within thirty (30) days of the date that a Party gives the other Party written notice of its desire to mediate the dispute.
(b) If not thus resolved by mediation, the dispute shall be resolved by arbitration pursuant to this Section 11.1 and the then-current rules and supervision of the American Arbitration Association, and shall be subject to binding arbitration in accordance with applicable sections of the Florida Code of Civil Procedure.
(c) The duties to mediate and arbitrate shall extend to any director, officer, employee, shareholder, principal, agent trustee in bankruptcy or otherwise, Affiliate, subsidiary, third-party beneficiary, or guarantor of a Party making or defending any claim which would otherwise be subject to this Section 11.1.
(d) The arbitration shall be held in Jacksonville, Florida, before a single arbitrator. The arbitrator’s decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The arbitrator shall not have the power to award punitive, exemplary, or consequential damages, or any damages excluded by or in excess of any damage limitations expressed in this Agreement or any subsequent agreement between the Parties.
(e) In order to prevent irreparable harm, the arbitrator may grant temporary or permanent injunctive or other equitable relief for the protection of property rights.
(f) Issues or arbitrability shall be determined in accordance with the federal substantive and procedural Laws relating to arbitration; all other aspects of the Agreement shall be interpreted in accordance with and the arbitrator shall apply and be found to follow the substantive Laws of the State of Florida. The prevailing party in such action, in addition to any other award made by the arbitrator, shall be entitled to an award of reasonable attorney’s fees and costs incurred in prosecuting such action and the enforcement of any judgment entered in such action, all in the amount to be determined by the arbitrator in accordance with the rules of the American Arbitration Association.
(g) If court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses, and attorney’s fees which are reasonably incurred by the other Party.
(h) The arbitrator may order the Parties to exchange copies of nonrebuttal exhibits and copies of witness lists in advance of the arbitration hearing. However, the arbitrator shall have no other power to order discovery or depositions unless and then only to the extent that all Parties otherwise agree in writing.
(i) Neither a Party, a witness, nor the arbitrator may disclose the facts of the underlying dispute or the contents or results of any negotiation, mediation, or arbitration hereunder without prior written consent of all Parties, unless and then only to the extent required to enforce or challenge the negotiated agreement or the arbitration award, as required by Law, or as necessary for financial and tax reports and audits.
(j) Notwithstanding anything to the contrary in this Section 11.1, in the event of alleged violation of a Party’s property or equitable rights (including but not limited to unauthorized disclosure of confidential information), that Party may seek temporary injunctive relief from any court of competent jurisdiction pending appointment of an arbitrator. The Party requesting such relief shall simultaneously file a demand for mediation and arbitration of the dispute, and shall request the American Arbitration Association to proceed under its rules of expedited procedures. In no event shall any such court-ordered temporary injunctive relief continue for more than thirty (30) days.
(k) If any part of this Section 11.1 is held to be unenforceable, it shall be severed and shall not affect either the duties to mediate and arbitrate hereunder or any other part of this Section 11.1.
ARTICLE XII
express mail for next day delivery; and on the third day after mailing, if mailed to the Party to whom notice is to be given, by first class mail, registered, return receipt requested, postage prepaid and addressed as follows:
To Company: |
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Oncure Medical Corp. |
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000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000 |
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Xxxxxxxxx, XX 00000 |
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Attn: President |
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With a copy to: |
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Xxxxxxx X. Xxxxx, Esq. |
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Bass, Xxxxx & Xxxx PLC |
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000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 |
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Xxxxxxxxx, XX 00000 |
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To Practice: |
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Integrated Community Oncology Network |
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Xxxxx X. Xxxxxxx, M.D., Manager |
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0000 Xxxxxxxxxx Xxxx. Xxxxx, Xxxxx 0000 |
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Xxxxxxxxxxxx, XX 00000 |
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With a copy to: |
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M. Xxxxxxx Xxxxx, Jr., Esq. |
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Xxxxx Xxxxxx & Xxxxx |
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1800 Wachovia Bank Tower |
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000 Xxxxx Xx. |
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Xxxxxxxxxxxx, XX 00000 |
Signature Page Follows
IN WITNESS WHEREOF, the Parties hereby execute this Agreement as of the Effective Date.
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ONCURE MEDICAL CORP. | |
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By: |
/s/ Xxxxxx X. XxXxxx, Xx. |
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Xxxxxx X. XxXxxx, Xx. |
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President & CEO |
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INTEGRATED COMMUNITY ONCOLOGY NETWORK, LLC | |
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By: |
/s/ Xxxx Xxxxx, M.D. |
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Xxxx Xxxxx, M.D. |
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Manager of the Radiation Oncology |
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Department |
[Signature Page to ICON MSA]
EXHIBIT A
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EXHIBIT B
PAYOR INSTRUCTION LETTER
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[DATE] |
[Name of Payor] [Address of Payor]
Re: |
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Federal Tax Identification Number: |
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Medicare Provider Number: |
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Medicaid Provider Number: |
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Unique Provider Identification Number: |
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To Whom It May Concern:
You are directed to make:
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All wire transfers directly to the following account: |
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[NAME OF DEPOSITORY BANK] |
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ABA # |
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Account # (Sweeping Account) |
(2) |
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All explanation of benefits, remittance advises, and other forms of payment, including checks, to the following address: |
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[DEPOSITORY BANK] as Company Lockbox Bank |
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P.O. Box (Practice Lockbox) |
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Reference: |
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Account # (Sweeping Account) |
Thank you for your cooperation in this matter.
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Name: |
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Title: |