MANAGEMENT AGREEMENT
AGREEMENT made this _ day of_____ 1997, by and between MedServ of
Connecticut, Inc., a Connecticut corporation with offices at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the "Manager") and Physicians Care for
Connecticut, Inc., a Connecticut corporation with offices at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Physicians Care").
WHEREAS, Physicians Care is organized under the laws of the State of
Connecticut and is licensed to do business as a health maintenance
organization ("HMO") and as a third party administrator that operates a
preferred provider and point of service plan ("POS") in Connecticut, and may
apply for similar licensure in other states;
WHEREAS, Physicians Care desires to purchase management and administrative
services to support its insurance business (the "Services");
WHEREAS, Manager has the resources and experience to provide the Services
and Manager desires to provide such Services to Physicians Care; and
WHEREAS, the parties mutually desire to provide or arrange for the
provision of quality and cost effective care to enrollees in Physicians Care's
health plans and to develop and operate Physicians Care on a financially sound
basis.
NOW, THEREFORE, in consideration of the mutual promises herein stated and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
I. AUTHORITY OF THE PARTIES
1.1 Engagement of Manager. Physicians Care hereby engages Manager
as its manager to operate Physicians Care in an efficient and cost-effective
manner and in a manner that promotes quality health care. Manager hereby
accepts the engagement.
1.2 Duties of Manager. Physicians Care, acting through its Board
of Directors in accordance with its Certificate of Incorporation and Bylaws,
shall at all times exercise ultimate authority over the policies, assets and
operations of Physicians Care and shall retain the ultimate authority and
responsibility regarding the powers, duties and responsibilities vested in
Physicians Care by law and regulation. Subject to the foregoing and all
other terms of this Agreement, Physicians Care hereby grants and delegates to
Manager the general authority to supervise and manage Physicians Care.
Manager's specific responsibilities include, but are not necessarily limited
to, those set forth in Section II herein.
1.3 Physicians Care Approvals. If Physicians Care is required or
permitted hereunder to take any action or give any approval, Manager shall be
entitled to rely upon the statements of one or more representative(s)
designated by resolutions adopted by Physicians Care's Board of Directors, to
act on its behalf. If no representative(s) are so designated, all necessary
actions shall be taken and approvals shall be given by the Board of Directors
or its authorized designees of Physicians Care on a timely basis.
1.4 Maintenance of Sound Operations. Physicians Care shall conduct
its affairs in accordance with the provisions of any state and federal laws
and regulations to which it is subject. Physicians Care shall honor all
legitimate debts and obligations to its creditors.
II. MANAGEMENT SERVICES
2.1 General Responsibilities and Services. Manager shall perform
all management, administrative and other services that are reasonably
necessary for Physicians Care's financial stability, Physicians Care's
competent and efficient operations, and implementation of Physicians Care's
policies as established by Physicians Care's Board of Directors, including
but not limited to those services set forth in the remainder of this Section
II. In addition, Manager shall provide Physicians Care all clerical services
reasonably required. Manager shall use its best efforts to act in a prompt,
competent and businesslike manner to perform its duties hereunder in good
faith. Manager shall cause Physicians Care to retain, in Physicians Care's
name and on Physicians Care's behalf and at Physicians Care's expense, such
accounting, actuarial, legal, and other purchased services as Physicians Care
shall reasonably require from time to time. Manager shall not be excused
from its obligations to provide management services hereunder on behalf of
Physicians Care except to the extent that Physicians Care refuses to expend
funds, execute agreements, or otherwise acts in a manner that prevents
Manager from performing its responsibilities under the Agreement.
2.2 Application for License and Permits/Regulatory Requirements.
Manager shall apply for and use its best efforts to obtain and maintain all
licenses, certificates, registrations and permits required in connection with
the management and operation of Physicians Care. Physicians Care shall
cooperate with Manager in applying for, obtaining, and maintaining such
licenses, certificates, registrations and permits. Manager shall notify
Physicians Care of changes in regulatory requirements applicable to
Physicians Care's business as soon as reasonably possible, which such notice
shall state the actions which must be undertaken by Physicians Care to comply
therewith.
2.3 Subscriber Agreements. Manager shall, in the name of and on
behalf of Physicians Care, negotiate and enter into agreements with employer
groups or individuals as necessary and/or appropriate.
2.4 Underwriting. Manager shall be responsible for providing or
securing underwriting services necessary to establish the annual per capita
revenue requirement for each
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product offered by Physicians Care and to complete any regulatory filing or
to obtain regulatory approval for the marketing and establishment of premium
for each product, including the rating and underwriting of accounts.
2.5 Member Materials. Manager shall be responsible for preparing
and revising, as appropriate, Physicians Care's member materials as necessary.
2.6 Grievance Procedure. Manager shall be responsible for
developing and implementing a written grievance and complaint procedure for
Physicians Care's members.
2.7 Provider Services and Records. Manager shall be responsible for
providing Physicians Care with necessary services related to provider and
enrollee services and records.
2.8 Marketing and Advertising. Manager shall be responsible for
developing and implementing a marketing plan for Physicians Care, including a
comprehensive public relations and advertising program.
2.9 Sales. Manager shall be responsible for selling Physicians
Care's products whether directly or through a network of brokers and to
document such sales through execution of Subscriber Agreements.
2.10 Accounting and Financial Support. Manager shall be responsible
for establishing and administering accounting procedures and controls, and
systems for the preparation of appropriate financial reports for the efficient
management and planning of Physicians Care's business operations, systems for
the billing of accounts and the collection of accounts receivable, and systems
to improve or expedite providers access to relevant enrollment, claims and
clinical information. The foregoing shall include, but shall not be limited to:
a. Manager shall be responsible for preparing and presenting to
Physicians Care an annual operating and capital budget with appropriate
membership, revenue, and detailed cost estimates by product line. Upon its
adoption, the budget shall serve as a guide for the operation of Physicians
Care during the year to which it is related. Final approval of a budget
shall rest with Physicians Care.
b. Manager shall cause to be delivered to Physicians Care certain
financial statements and reports, including the following:
(i) Within forty-five (45) days after the close of each month,
financial statements for the preceding month and the
fiscal year to date (unaudited but consistent with
generally accepted accounting principles ("GAAP"))
containing a statement of income and expenses in
reasonable detail, variances from budget by product line
and in aggregate and such other financial reports as
Physicians Care may reasonably request from time to time;
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(ii) Within one hundred and fifty (150)
days after the close of a fiscal year, financial
statements prepared in accordance with GAAP for the
preceding fiscal year, which shall be audited by an
independent certified public accounting firm chosen by
Physicians Care with the approval of Manager at
Physicians Care's expense, plus such other financial
reports as Physicians Care may reasonably request from
time to time;
(iii) Within time frames prescribed by
regulatory authorities, financial statements and other
such reports prepared in accordance with standards
prescribed or permitted by such regulatory authorities;
(iv) Monthly and year-to-date summary reports regarding the
utilization and cost of health services and supplies;
(v) Marketing reports; and
(vi) If specifically requested by the
Physicians Care's Board of Directors, report(s)
evaluating and making recommendations regarding the
performance by Manager of its obligations under this
Agreement, which report(s) shall be prepared at
Physicians Care's expense by a certified public
accounting firm chosen by Physicians Care.
c. Manager shall be responsible for developing and implementing
accounting procedures appropriate to Physicians Care's operation.
d. [Manager shall be responsible for preparing clinical reports
to assist providers in the evaluation of practice patterns for the following
categories: (i) by physician, (ii) by Member, (iii) by CPT-4 Code, (iv) by
diagnosis codes or (v) in such other format as may be reasonably requested by
Physicians Care.]
e. Manager shall be responsible for preparing such other reports
as Physicians Care shall reasonably request.
2.11 Claims Analysis and Statistical Reporting. As reasonably
required and requested by Physicians Care, Manager shall prepare and deliver
to Physicians Care reports setting forth various information and statistics
as to the claims filed with Physicians Care.
2.12 Participating Providers and Credentialing.
2.12.1 Manager shall, on behalf of Physicians Care, be
responsible for preparation and implementation of contracts with hospitals
and other Providers of health care services or organizations thereof with
which or with whom Physicians Care contracts, to provide health care services
to enrollees (such contracting Providers are sometimes collectively referred
to herein as
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"Providers"). Managers shall cause all contracts between Providers and
Physicians Care to contain terms required by law and consistent with the
Subscriber Agreements. Such contracts shall specify that Providers shall
not, under any circumstances, seek payment for covered services provided to
Physicians Care enrollees from such enrollees, except for co-payments,
deductibles or coinsurance amounts specified in an enrollee's agreement with
Physicians Care.
2.12.2 Manager shall coordinate its activities with the
credentialing program for Physicians Care.
2.13 Quality Standards. Manager shall manage Physicians Care and
shall cause other entities, including its subsidiaries and affiliates
providing services to Physicians Care under this Agreement, to perform their
responsibilities in a manner that enables Physicians Care to meet NCQA
accreditation standards and such other accreditation standards as requested
by Physicians Care's Board of Directors.
[2.14 Quality Management and Utilization Management. Manager shall be
responsible for development, recommendation and implementation of quality
management, utilization review, and similar programs.]
2.15 Management Information System. Manager shall be responsible
for providing or arranging for the provision of, a management information
system ("MIS") appropriate for the management of Physicians Care's
operations.
2.16 Planning and Product Development. Manager shall prepare
business plans for the Board of Directors of Physicians Care as requested by
the Board. Manager shall periodically survey the product design and benefits
of competitors and shall make recommendations regarding modification of
product design and introduction of new products.
2.17 Deposit and Disbursement of Funds.
2.17.1 Manager shall open and maintain bank accounts in
Physicians Care's name in accordance with requirements of state and federal
laws, shall deposit in such bank accounts all monies received arising from
the operation of Physicians Care and shall make disbursements from such
accounts on behalf of Physicians Care in such amounts and at such times as
the same are required. Signatories and approvals as to amounts on all checks
shall be in accordance with the duly adopted policies of Physicians Care's
Board of Directors.
2.17.2 Manager shall recommend to the Board of Directors
reasonable and prudent investment guidelines that comply with applicable
state and federal laws and shall have authority to invest any surplus funds
on behalf of Physicians Care subject to guidelines approved by the Board of
Directors of Physicians Care.
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2.18 Legal Actions and Counsel. Manager shall notify Physicians
Care immediately of any and all legal actions brought against Physicians
Care. In addition, Manager shall provide the services of a General Counsel
for Physicians Care as outlined in Section IV below.
2.19 Reports. Manager shall be responsible for the preparation and
provision of such reports as may be required by any regulatory agency having
jurisdiction over the operations of Physicians Care including, but not
limited to, those required by state governmental agencies, the Health Care
Financing Administration and the Internal Revenue Service.
2.20 Government Regulations. Manager shall use all reasonable
efforts, within the scope of its authority and responsibilities hereunder, to
ensure that Physicians Care complies with the requirements of any applicable
state or federal statute, ordinance, law, rule, regulation, or order of any
governmental or regulatory body having jurisdiction over Physicians Care,
including any applicable requirements relating to federal qualification.
2.21 Ancillary and Other Agreements. In Physicians Care's name and
at Physicians Care's expense, Manager shall negotiate and cause Physicians
Care to enter into such agreements as Manager may deem necessary or advisable
in accordance with Physicians Care Board policy, for the furnishing of those
goods and services necessary and appropriate for the maintenance and
operation of Physicians Care which are Physicians Care's responsibility under
this Agreement. Any such agreement which may involve a conflict of interest
shall be disclosed to and be subject to the prior approval of Physicians
Care's Board of Directors. Provided that such agreements are negotiated,
entered into and administered at arm's length, Manager shall be permitted to
enter into and perform such contracts with Physicians Care.
2.22 Capital Expenditures. Manager shall review and make
recommendations to Physicians Care concerning proposed capital expenditures.
2.23 Cooperation. Manager agrees to cooperate with Physicians Care
or any auditor, consultant, legal counsel, or other party engaged by
Physicians Care relating to Physicians Care products subject to this
Agreement. The Manager agrees to provide such parties at reasonable times
and upon reasonable notice with full and complete access to all books,
records, documents and other information relating to management activities
performed on behalf of Physicians Care.
III. SUPPORT SERVICES
3.1 General Responsibilities and Services. Manager shall provide
all clerical services reasonably required, including, but not limited to,
claims processing, member enrollment, and premium billing for Physicians
Care's HMO products. Manager shall use its best efforts to act in a prompt,
competent and businesslike manner to perform its duties hereunder in good
faith.
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3.2 Member Enrollment. Manager shall be responsible for
implementation and maintenance of such systems and procedures as directed by
Physicians Care to enroll and disenroll new employer groups and individuals
in a prompt manner, and to maintain a continuous record of enrollment. Such
systems and procedures shall be installed and be operational no later than
the earliest effective date of any Physicians Care Subscriber Agreement.
Such system must permit Physician Care providers to confirm enrollee
eligibility and products status electronically.
3.3 Claims Processing and Administration. Manager shall be
responsible for the development, implementation, and maintenance of such
systems and procedures as may be reasonably directed by Physicians Care and
as may be necessary for the appropriate review and timely payment or
disapproval of all claims, with timing of such payments as directed by
Physicians Care. [Such system shall use claim forms as approved by Physicians
Care and shall capture all information on such forms in the Manager's data
base. The system must also accommodate multiple payment rates for a single
service for a single provider and be capable of instituting multiple withholds
for a single provider based on primary care physician affiliation with a
particular risk unit. Such systems and procedures shall be installed and
operational no later than the earliest effective date of any Physicians Care
Subscriber Agreement. Such system must provide electronic submission and
payment of claims.]
3.4 Referral Authorization. Manager shall be responsible for
implementation and maintenance of such systems and procedures as directed by
Physicians Care to monitor and record authorization by Physicians Care
Primary Care Physicians for delivery of medical services to Physicians Care
enrollees, with the capability of using such authorization, information to
process and approve claims. Such system must permit Physicians Care
providers to submit such referral information to Physicians Care
electronically.
3.5 Data Base Management. Manager shall be responsible for
maintenance and management of a data base of Physicians Care's claims and
enrollment information, which data base shall be the exclusive property of
Physicians Care. Manager shall provide Physicians Care with access to such
data base including reproduction on disks or electronic transmissions to
Physicians Care of data as reasonably requested by Physicians Care.
3.6 Premium Billing and Collection of Accounts. Manager shall be
responsible for the development, implementation, and maintenance of billing
and collection procedures appropriate to Physicians Care's operation.
3.7 Deposit and Disbursement of Funds. Manager shall utilize bank
accounts designated by Physicians Care, shall deposit in such bank accounts
all monies received arising from premium billing on behalf of Physicians Care
and shall make disbursements from such accounts on behalf of Physicians Care
in such amounts and at such times as the same are required for payment of
claims. Signatories and approvals as to amounts on all checks shall be in
accordance with the duly adopted policies of Physicians Care's Board of
Directors.
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IV. PERSONNEL
4.1 Appointment. Manager shall hire, appoint, and supervise the
personnel specified below, and all other personnel reasonably necessary or
appropriate to carry out its obligations under this Agreement, all of whom
shall be employees or independent contractors of Manager. Such Manager
personnel shall have the authority to act on behalf of Physicians Care within
the scope of authority common to their positions in the industry, and the
authority granted to Manager under this Agreement, provided that they shall
at all times perform their duties in accordance with the Certificate of
Incorporation and Bylaws of Physicians Care and subject to the overall policy
direction established by Physicians Care's Board of Directors. The hiring,
assignment and termination of such personnel shall be solely within the
discretion of Manager.
4.2 [Specific Personnel. Manager shall hire[, or cause Physicians
Care to hire,] individuals to oversee the operations of Physicians Care and
arrange for the performance of services required to be performed by Manager
under this Agreement. Specifically, the parties agree that Manager shall
provide qualified individuals to fill the following positions; among others:
- Chief Executive Officer ("CEO"). The CEO shall be responsible to
Physicians Care's Board of Directors for the overall
administration, growth and performance of the Company.
- Associate Chief Executive Officer. The Associate Chief Executive
Officer shall assist the CEO in the discharge of his duties by
consulting on policies, performance goals, facilities planning
and general operations of the Company.
- Vice-President of Quality Management and
Utilization Management. The Vice-President of Quality
Management and Utilization Management will be responsible for
monitoring quantitative inpatient hospitalization and
outpatient ambulatory care experience and assuring that proper
utilization management techniques are being used. The
Vice-President of Quality Management and Utilization Management
shall also be responsible for the management of statistical
and qualitative information concerning patient outcomes and
physician/hospital practice patterns in accordance with the
Physicians Care's utilization standards.
- General Counsel. The General Counsel shall
concentrate on legal matters concerning procedures, entities,
regulations, and laws relating to the practice and business of
medicine. He shall also provide general legal services
required of corporate counsel on such matters as review,
negotiation, and drafting of contractual obligations, and
addressing members' communications and questions.
- Chief Financial Officer. The Chief Financial Officer shall be
responsible for the Company's overall financial plans, policies,
and accounting practices.
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- Chief Medical Officer. The Chief Medical Officer shall be
responsible for overseeing the medical practices, medical service
delivery and quality of care for Physicians Care's Members.
- Director of MIS. The Director of MIS shall be responsible for the
operation and maintenance of the in-house computer system and
information services of the Company.
- Vice President of Marketing and Sales. The Vice President of
Marketing and Sales shall be responsible for the overall
administration of marketing and sales activities.]
4.3 Obligations Relating to Management Personnel. Physicians Care
shall cooperate in good faith with the management personnel provided by
Manager pursuant to this Agreement as may be reasonably necessary for such
personnel to perform their duties.
4.4 Coordination of Personnel. At the discretion of Physicians Care
or Manager, provided that the requirements of Manager to operate Physicians
Care can be adequately met, the personnel appointed pursuant to this Section
may also serve another entity.
4.5 Consultative Staff. Manager may, at its discretion, utilize the
consultative services and support of the professional staff at its corporate
offices and may engage the services of consultants or independent contractors
other non-Manager personnel as may be necessary in carrying out Manager's
obligations hereunder. Compensation and expenses of Manager's professional
staff and all independent contractors providing services shall be the
responsibility of Manager and Physicians Care's sole obligation shall be to
pay the Management Fee to Manager and/or the direct costs as specified under
Section VI herein.
V. PROPERTY AND EQUIPMENT
5.1 Acquisition. Manager shall be responsible for purchasing,
leasing, renting, or otherwise acquiring on behalf of Physicians Care such
property, equipment and supplies for Physicians Care's office(s) as Manager
determines to be reasonably necessary to provide the services set forth in
this Agreement and as may be required to carry out Physicians Care's
contractual obligations with providers, enrollees or groups, subject to any
limitations or restrictions imposed by the Physicians Care Board of
Directors. [Title to all such property shall be held by Physicians Care.]
5.2 Repair and Maintenance. Manager shall be responsible for
negotiating, contracting for and supervising such repair and maintenance of
any property and equipment owned by Physicians Care as shall be necessary to
maintain such property and equipment in good working order.
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5.3 Utilities and Services. Manager shall be responsible for
negotiating and entering into such administrative arrangements and agreements
as it determines to be reasonably necessary or advisable for the furnishing
of utilities, services, concessions and supplies for the maintenance and
operation of Physicians Care, and as may be necessary for Manager to provide
the services set forth in this Agreement.
VI. INSURANCE
6.1 Types of Insurance and Costs. Manager shall be responsible for
purchasing and maintaining on behalf of Physicians Care, at Physicians Care's
expense, the insurance policies set forth in Exhibit 6.1 in such amounts,
with such companies, and on such terms and conditions upon which Manager and
Physicians Care shall mutually agree.
6.2 Manager's Insurance. Manager shall obtain and maintain
throughout the term of this Agreement, at its sole expense, workers'
compensation insurance and other appropriate insurance covering employees of
Manager who are utilized in carrying out Manager's obligations under this
Agreement and the other insurance policies set forth in Exhibit 6.2.
6.3 Notification of Changes in Insurance Coverage. Both parties
agree to provide the other with at least twenty (20) days prior notice of the
cancellation, non-renewal or modification of any of the insurance policies
set forth in either Exhibit 6.1 or Exhibit 6.2.
VII. COMPENSATION OF MANAGER
[7.1 Management Fee. Manager shall be entitled to the Management Fee
set forth in Exhibit 7.1, payable in monthly installments on the first day of
each month. Such Management Fee shall be reevaluated by the parties at least
thirty (30) days before the end of each calendar year and may be adjusted
accordingly for the next calendar year.]
7.2 Responsibility for Costs. Physicians Care shall be responsible
for reimbursement of Manager for costs incurred to start up operations in any
service area, and for certain services directly attributable to Physicians
Care's business and operations as set forth in Exhibit 7.2. Costs reimbursed
to Manager under this section are payable monthly on the last day of each
calendar month.
VIII. RECORDS
8.1 Ownership of Records. All information relating to the
operation of Physicians Care, including but not limited to, all books of
account, enrollment records, general administrative records, account and
Provider files, patient records, and information generated under and/or
contained in the MIS shall be and remain the sole property of Physicians
Care. Manager shall not possess any interest, title, lien or right to any
such data or records.
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8.2 Confidentiality of Records.
8.2.1 Manager shall use reasonable efforts to protect the
confidentiality of the records of Physicians Care and shall to the extent of
its authority and responsibility hereunder comply in all material respects
with all applicable laws and regulations relating to the records of
Physicians Care. In this connection, medical records and other privileged
enrollee information, and information subject to confidentiality agreements,
will not be disclosed by Manager except (i) with the consent of the
subscriber or the parties to the applicable confidentiality agreement, (ii)
pursuant to a court order, (iii) as necessary for quality assurance and
utilization review programs of Physicians Care, or (iv) when required by
applicable law.
8.3 Computer Programs. Physicians Care covenants and agrees that
any and all computer programs and computer software developed or utilized by
Manager in order to fulfill Manager's responsibilities specified herein shall
remain the property of Manager, or shall be used by Manager pursuant to
appropriate authorization, [and that Physicians Care shall not use such
programs and software for any purpose other than the activities of Physicians
Care without the express written consent of Manager;] provided, however, that
if Physicians Care funds the development cost of any such program, whether in
whole or in part, then such program shall be the property of Physicians Care
and Manager shall have a license to use such program, which license shall
automatically terminate upon termination of this Agreement for any reason.
8.4 Proprietary Material.
8.4.1 Physicians Care acknowledges that Manager, in providing
services under this Agreement, will by necessity divulge to and provide
Physicians Care with confidential proprietary plans, programs, formula,
methods and other products and information ("Proprietary Material") relating
to the business, services and activities of Manager in managing the business
and operations of Physicians Care including Proprietary Material developed in
the course of providing services hereunder. Physicians Care agrees that,
during the term of this Agreement and thereafter, Physicians Care shall take
reasonable steps to maintain the confidentiality of such Proprietary Material
and agrees not to disclose such Proprietary Material to anyone other than
Manager or other than is strictly necessary in the furtherance of Physicians
Care's business and operations. This provision shall not apply to any
information which is now in, or subsequently enters the public domain,
provided that Physicians Care has not, in violation of this provision,
disclosed or caused to be disclosed such information so as to make it enter
the public domain. Proprietary Material shall be and remain the property of
Manager.
8.5 Audit of Records. Manager shall allow auditors designated by
Physicians Care at Physicians Care's expense to audit all of Manager's books
and records relating to Manager's expenses under this Agreement and to the
fees paid to Manager under this Agreement so as to verify the accuracy of the
aggregate amount of fees paid to Manager pursuant to Article VI.
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IX. TERM OF AGREEMENT, TERMINATION
9.1 Term. The initial term of this Agreement shall commence on
____________ ("Effective Date") and shall continue until _____________ (the
"Initial Term") unless sooner terminated as provided herein. The Agreement
shall thereafter be extended upon the same terms and conditions for a
"Renewal Term" until terminated as provided herein. Notwithstanding the
foregoing, the Management Fee shall be reevaluated for each calendar year in
each Renewal Term pursuant to Section 6. 1.
9.2 Termination.
9.2.1 Termination during Renewal Term. This Agreement may be
terminated by either party by delivering written notice of such termination
to the other party upon [one (1) years prior written notice].
9.2.2 Termination Upon Mutual Consent. This Agreement may be
terminated at any time upon mutual consent of the parties.
9.2.3 Bankruptcy Termination. Either party may terminate this
agreement immediately upon the bankruptcy of the other party. As used in
this Section 9.2.3, bankruptcy of a party hereto shall mean the filing of a
petition commencing a voluntary case against it under the Bankruptcy Code; a
general assignment by it for the benefit of creditors; its insolvency, its
inability to pay its debts as they become due; the filing by it of any
petition or answer in any proceeding seeking for itself or consenting to, any
insolvency, receivership, or similar relief under any law or regulation.
9.3 Termination for Breach or Default. If either party fails
substantially to perform any of its material obligations hereunder (the
"Defaulting Party"), the other party ( the "Non-defaulting Party") shall have
the right to give the Defaulting Party a notice of default ("Notice of
Default"). The Notice of Default shall set forth the nature of the
obligation that the Defaulting Party has not performed. If, within the
thirty (30) day period following the giving of the Notice of Default, the
Defaulting Party in good faith commences to perform such obligation and cure
such default and thereafter prosecutes to completion with diligence and
continuity the curing thereof, it shall be deemed that the Notice of Default
was not given and the Defaulting Party shall lose no rights hereunder. If
within such thirty (30) day period the Defaulting Party does not commence in
good faith the curing of such default or does not thereafter prosecute to
completion with diligence and continuity the curing hereof, the
Non-defaulting Party shall have the right to terminate this Agreement at the
end of that thirty (30) day period. The right to terminate this Agreement
shall be in addition to any other remedy available to the Non-defaulting
Party, on account of any such breach or default. The waiver by either party
of a breach or violation of any provision of this Agreement shall not operate
as or be construed to be a waiver of any subsequent breach thereof
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9.4 Termination for Suspension or Revocation of Licensed Party.
Manager shall have the right to terminate this Agreement upon written notice
to Physicians Care if Physicians Care's Certificates of Authority to operate
Physicians Care are suspended or revoked or not renewed, except that in the
event that the loss of the Certificates is due to the actions of Manager,
Manager with the full cooperation of Physicians Care shall assume
responsibility for remedying the event which gave rise to the suspension,
revocation, or nonrenewal.
9.5 Cooperation Following Termination. Beginning on the date of
receipt of notice of termination for any reason by either party to this
Agreement, Manager shall upon written request of Physicians Care, continue to
provide services, equipment and supplies to Physicians Care in accordance
with this Agreement for a reasonable period of time, sufficient to enable
Physicians Care to engage another manager. During such period Manager shall
be entitled to payment in accordance with this Agreement.
[X. INDEMNIFICATION]
10.1 Indemnification of Manager. Physicians Care shall indemnify
and hold harmless Manager from and against any and all damages, liabilities,
actions, suits, proceedings, claims, demands, losses, costs and expenses
(including reasonable attorneys' fees) that shall or may arise out of or in
connection with certain acts or omissions by Physicians Care to the extent
not covered by insurance.
10.2 Indemnification of Physicians Care. Manager shall indemnify
and hold harmless Physicians Care from and against any and all damages,
liabilities, actions, suits, proceedings, claims, demands, losses, costs and
expenses (including reasonable attorneys' fees) that shall or may arise out
of or in connection with certain acts or omissions by Manager except where
Manager carries out in good faith the directives or policies of Physicians
Care's Board of Directors without negligence or willful misconduct, to the
extent not covered by insurance.
XI. GENERAL PROVISIONS
11.1 Assignment and Subcontracting. This Agreement shall be binding
upon and inure to the benefit of each of the parties' respective successors
and assigns, provided that such successor and/or assign is capable of
fulfilling and assumes the duties set forth in this Agreement, and the
parties hereto remain primarily liable for performance hereunder. Manager
shall be permitted, in its sole discretion, to fulfill or perform any of its
obligations under this Agreement by or through contracts or subcontracts with
third parties therefor at the sole expense of Manager; provided, however,
that Manager shall remain fully liable and responsible for the performance of
its duties and obligations under this Agreement. Except as set forth in this
Section 10.1 neither party shall in any manner inconsistent with this
Agreement, assign, subcontract or otherwise delegate its rights and
responsibilities under this Agreement unless the other party shall so consent
by prior written consent, which consent shall not be unreasonably withheld.
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11.2 Nonassumption of Liabilities. Manager shall not by entering
into and performing this Agreement, be or become liable for any of the
existing or future obligations, liabilities or debts of Physicians Care, and
Physicians Care shall not assume or become liable for any of the existing or
future obligations, liabilities or debts of Manager.
11.3 Impossibility of Performance. Neither Manager nor Physicians
Care shall be deemed to be in default of this Agreement if prevented from
performing any obligation hereunder for any reasons beyond its control,
including without limitation governmental laws and regulations, acts of God
or the public, flood or storm or strikes. In such case, the parties shall
negotiate in good faith with the goal or intent of preserving this Agreement
and the respective rights and obligations of the parties.
11.4 Interpretation. The validity, enforceability and
interpretation of any provision of this Agreement determined and governed by
the laws of the State of Connecticut. The invalidity or enforceability of
any terms or provisions hereof shall not unless, otherwise specified herein,
affect the validity or enforceability of any other term or provision of this
Agreement unless the term or provision is material and its invalidity or
unenforceability results in a substantial economic detriment to Physicians
Care or Manager.
11.5 Independent Contractors. Nothing in this Agreement shall affect
the separate identity of Physicians Care and Manager. Other than as provided
in this Agreement or other written agreement, it is not the intention of the
parties hereto to create a partnership or agency relationship. Nothing
contained in this Agreement is intended to cause either party to be the
partner or agent of the other or as limiting in any manner the parties in the
conduct of their respective businesses, ventures or activities.
11.6 Entire Agreement, Amendment. This Agreement, including its
Attachments and riders, contains all the terms and conditions agreed upon by
the parties hereto, and constitutes the entire understanding of the parties.
It supersedes all other agreements of the parties, oral or otherwise,
regarding the subject matter. This Agreement may not be amended or modified
in any material respect except by written instruction duly executed by the
parties hereto.
11.7 Notices. Any notice request, demand, waiver, consent, approval
or other communication which is required or permitted hereunder shall be in
writing and shall be deemed given only if delivered personally or sent by
registered or certified mail, postage prepaid, return receipt requested as
follows:
If to Manager:
MedServ of Connecticut, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
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If to Physicians Care:
Physicians Care For Connecticut, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
or to such other address as addressee may have specified in a notice duly
given to the sender in the manner provided herein, Such notice, request,
demand, waiver, consent, approval or other communication will be deemed to
have been given as of the date so delivered or mailed.
11.8 Heading. The headings contained herein are for convenience of
reference only and are not intended to define, limit, or describe the scope
or intent of any provision of this Agreement.
11.9 Waiver. The waiver by either party of any of the terms or
provisions of this Agreement shall not be deemed to constitute a waiver of
any of its other terms or provisions. No waiver of the provisions of this
Agreement shall be deemed to constitute a continuing waiver thereof unless
otherwise expressly provided herein.
11.10 Execution in Counterparts. This Agreement may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
11.11 Authority to Execute Agreement. The individual executing this
Agreement on behalf of each party is duly empowered to execute the Agreement
and bind said party to the terms hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
MEDSERV OF CONNECTICUT, INC.
By:____________________________________
Its:___________________________________
Date:
PHYSICIANS CARE FOR CONNECTICUT, INC.
By:_____________________________________
Its:_____________________________________
Date:
-16-
Exhibit 6.1
Insurance Policies For Physicians Care
Type of Policy Limits Policy Limits
--------------------- -------------
1. Insolvency Insurance
2. Directors and Officers Liability
Insurance
3. Property and Casualty Insurance
4. Malpractice Insurance
Exhibit 6.2
Insurance Policies For Manager
Type of Policy Policy Limits
-------------- -------------
1. Workers' Compensation Insurance
2. Malpractice Insurance
3. Property and Casualty Insurance
4. Business Interruption Insurance
(with Physicians Care listed as a named
insured on such policy)
