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MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement") dated as of September 8, 1999,
(the "Effective Date") by and between Xxxxxxxx Xxxxx, Inc., a Florida
corporation ("MANAGER") and Medical Technology Laboratories, Inc., a Florida
corporation ("LAB") (singularly "party", collectively "parties").
RECITALS:
A. LAB owns and operates a Medicare-certified clinical blood laboratory
operating in Pinellas County, Florida (the "laboratory").
B. MANAGER is in the business of providing management services.
C. LAB desires to obtain the professional assistance of MANAGER in
performing the management functions of its organization on the terms and subject
to the conditions set forth herein.
D. MANAGER and LAB have determined the fair market value of services to be
rendered and, based on this fair market value, have established a relationship
which permits all parties to devote their skills and expertise to the
appropriate responsibilities to be performed by the parties.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, which includes the RECITALS hereto, LAB hereby agrees to
appoint MANAGER to provide the Management Services (as hereinafter defined), and
MANAGER agrees to provide such Management Services, on the terms and conditions
provided in this Agreement.
ARTICLE 1
1.1 "Affiliate" of a corporation means (a) any person or entity directly or
indirectly controlled by, or under common control with, such corporation, (b)
any person or entity directly or indirectly controlling such corporation.
1.2 "Management Services" shall be those services provided by MANAGER to
LAB pursuant to this Agreement, including, but not limited to, the following:
(a) Implements LAB's policies and procedures.
(b) Approves and supports the implementation of marketing and sales
plans to expand base business as approved by LAB.
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(c) Approves sales proposals to assure profitability and compliance
with all regulations as approved by LAB.
(d) Directs quality control and quality assurance programs to
maintain necessary certification and licenses.
(e) Continue training programs to maintain the highest personnel
performance standards.
(f) Directs and coordinates the Laboratory services performed,
including, but not limited to drawing, collecting, processing and
testing of specimens, timely reporting of testing results to
physicians, timely and accurate processing and transition of
bills to the proper payor source, management of materials and
supplies necessary to continue operations and proper performance
of all assets required to operate business.
(g) Confers with LAB and reviews activity, operating and sales
reports to determine changes in programs or operations.
(h) Implements compliance related directives throughout the
Laboratory, which outline policy, program or operational changes.
(i) Coordinates with compliance officer to assure strict compliance
to all laws, rules and regulations for all aspects of the
Laboratory.
ARTICLE 2
2.1 Independent Relationship. LAB and MANAGER intend to act and perform as
independent contractors. This Agreement does not create a partnership, joint
venture, agency or employment relationship between the parties. Each party shall
be responsible solely for and shall comply with all state and federal laws
pertaining to employment taxes, income withholding, unemployment compensation
contributions and other employment related statutes applicable to that party.
2.2 MANAGER Matters. Matters involving the internal agreements and finances
of MANAGER, including whether MANAGER=s services to LAB are provided by
MANAGER=s employees or subcontractors (including, without limitation, any
wholly-owned subsidiary of MANAGER), and payroll and accounts payable
administration, shall remain the sole responsibility of MANAGER.
2.3 No Patient Referrals. The parties agree that the benefits to MANAGER
hereunder do not require, are not payments to induce, and are not in any way
contingent upon, the referral of patients or any other arrangement for the
provision of any item or service offered by LAB, or its Affiliates, to the
patients of LAB in any facility controlled, managed or operated by LAB or its
Affiliates. Neither party hereto shall refer any patient or referral source
directly or indirectly to the other party during the term of this Agreement. The
parties to this Agreement agree that no payments made hereunder are made in
return for, or to induce any person to:
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(a) Refer an individual to anyone for the furnishing or arranging for
the furnishing of items or services for which payment may be made
in whole or in part under Medicare or Medicaid, or
(b) Purchase, lease, order, or arrange for or recommend purchasing,
leasing or ordering any good, facility, services, or item for
which payment may be made in whole or in part under Medicare or
Medicaid.
2.4 Effects of Certain Legislative Changes. During the term of this
Agreement, and notwithstanding any other provisions of this Agreement, the
parties hereto agree that, if any federal, state or local government or agency
passes, issues, promulgates, or modifies any law, court decision, rule,
regulation, standard or interpretation ("Legislative Amendment") that affects
the operations of the laboratory, the parties will abide by said Legislative
Amendment. Further, the parties agree that the Agreement shall be construed as
if amended to comply therewith, unless the parties agree that such Legislative
Amendment requires specific modification of this Agreement, in which case the
parties shall cooperate in negotiating the required modification(s).
ARTICLE 3
APPOINTMENT FOR MANAGEMENT SERVICES
3.1 LAB hereby appoints MANAGER as its sole and exclusive provider of all
Management Services. MANAGER agrees that the purpose and intent of this
Agreement is to relieve LAB to the maximum extent possible of such aspects of
LAB's operation, with MANAGER assuming responsibility and all necessary
authority to perform the Management Services. MANAGER shall consult with LAB's
appointed representative prior to making decisions, which financially affect the
laboratory. MANAGER shall further be available to consult with the board of
directors, officers and department heads of LAB concerning matters pertaining to
the organization of the staff, the fiscal policy of LAB, the relationship of LAB
with its employees, and, in general, important matters of concern in the
business affairs of LAB as reasonably requested. MANAGER shall assist LAB in the
preparation of, and shall review, financial statements of LAB on a monthly basis
with LAB and shall advise LAB with respect thereto. MANAGER shall direct and
manage activities of Laboratory with the objective of obtaining optimum
efficiency and economy of operations while maximizing profits by performing the
duties described in Section 1.2 personally or through LAB supervisors.
3.2 LAB will maintain responsibility for all compliance related matters and
will implement any procedures or policies it deems necessary to remain compliant
with all state and federal rules and regulations. The cost of said compliance
matters shall be included in the current operating expenses of the laboratory.
LAB will consult with MANAGER prior to implementing any changes that may have a
material effect.
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ARTICLE 4
OBLIGATIONS AND REPRESENTATIONS OF LAB AND MANAGER
4.1 Representations of LAB.
4.1.1 LAB represents that it is certified by Medicare and the
State of Florida to operate a clinical blood laboratory, and
that LAB shall use all reasonable efforts to maintain, in
good standing, such certification. Prior to executing this
Agreement, LAB shall provide MANAGER with a copy of LAB's
current certification.
4.1.2 LAB represents that, to its knowledge, there are no pending
or threatened legal actions or investigations by
governmental authorities other than those listed in Exhibit
4.1.2 that would affect the ongoing operations of the
laboratory.
4.2 Representations of MANAGER. Manager represents that there are no
pending or threatened legal proceedings or investigations, which would prohibit
MANAGER from performing the duties outlined herein, or which would adversely
affect MANAGER'S ability to perform such duties.
4.3 Compliance with Laws. Both parties agree to comply with all federal,
state, county and municipal laws, rules, ordinances and regulations applicable
to the operation of the laboratory.
4.4 Cooperation with Management Functions. LAB shall direct its employees
and agents to cooperate in every manner reasonably requested by MANAGER in
connection with MANAGER performing its obligations hereunder. All LAB employees
shall be instructed that they are to answer to MANAGER during the term of the
Agreement, provided that:
(a) nothing shall prevent LAB from communicating with such employees
in order to determine how matters are proceeding with respect to
this Agreement or the operation of the laboratory.
(b) MANAGER conducts itself in accordance with employment practices
and standards acceptable to LAB and in accordance with this
Agreement.
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4.5 Required Disclosures. If either party becomes aware of any of the
following events, it shall notify the other party within twenty-four (24) hours
pursuant to Section 9.18.
4.5.1 Any legal proceeding against either party relating to
either party is threatened or filed in any federal or state
court;
4.5.2 Either party (or any Affiliate thereof) becomes the subject
of any new audit or similar proceeding by any federal,
state, or local agency, or any Medicare or Medicaid carrier
or intermediary;
4.5.3 LAB's Medicare certification as a laboratory provider is
suspended, revoked, terminated, or made subject to an
investigation or terms of probation of other restrictions;
4.5.4 An event occurs that substantially interrupts all or a
portion of LAB's operations.
4.5.5 LAB or MANAGER receives notice that its professional or
general liability insurance is to be modified or canceled;
4.5.6 Either party or any Affiliate thereof is sanctioned by the
Medicare or Medicaid programs or excluded from participating
in those programs;
4.5.7 Either party files a petition for voluntary bankruptcy
(other than the currently pending chapter 11 case of LAB) or
a third party files an involuntary bankruptcy petition
against either LAB or MANAGER.
4.6 Indemnity.
4.6.1 Claims Covered. Each party shall defend, indemnify and hold
harmless the other party, the other party's Affiliates, and
their officers, directors, shareholders, partners, employees
and agents, and shall pay, as incurred, all damages, costs,
fees and expenses (including reasonable attorney's fees)
(collectively, ALosses") associated with any claim, action,
suit or other proceeding that results from any breach by the
indemnifying party of any representation, warranty or other
obligation contained in this Agreement. In addition, MANAGER
shall defend, indemnify and hold harmless LAB and its
Affiliates, officers, directors, shareholders, partners,
employees and agents, and shall pay, as incurred, all Losses
arising from MANAGER=S actions and omissions in providing
the Management Services.
4.6.2 Indemnity Procedures. The party to be indemnified shall (a)
provide to the indemnifying party notice of any claim of
indemnity promptly after receiving knowledge of same, (b)
reasonably cooperate in the defense and settlement of the
claim, and (b) tender sole control of the defense or
settlement of such claim to the indemnifying party;
provided, however, that (1) the indemnifying party shall not
admit or impose any liability upon the indemnified party, or
its Affiliates, without the prior written consent of the
indemnified party, or its Affiliates (as the case may be);
(2) the indemnifying party shall not enter into any
settlement without prior written notice to the indemnified
party, (3) the indemnified party may participate in the
defense of any claim with counsel of its choice (and at its
sole expense), and (4) the indemnified party may prohibit
indemnifying party from entering into any proposed
settlement, in which case the indemnifying party's indemnity
obligation under this Section shall be limited to the amount
for which the indemnifying party would have been liable had
the indemnified party consented to the proposed settlement.
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4.7 Confidentiality. Each party agrees that all information relating
to the LAB and the laboratory (collectively, AConfidential
Information") is considered to be disclosed to the other in
confidence. Neither party will disclose any information that it
receives from the other party relating to any of the foregoing,
or use the same for its own benefit or for the benefit of any
third party, except (a) for the purposes of complying with the
terms of this Agreement and (b) either party may disclose
confidential information to SouthTrust Bank, National
Association, and any participant in the loans heretofore obtained
by LAB and its Affiliates from SouthTrust, unless that
information becomes publicly known, was already known to the
party receiving it, or the party receiving it is granted
permission to disclose such information by the other party. In
furtherance of the foregoing, MANAGER agrees that, if this
Agreement is terminated by either party (other than in connection
with the Closing, as hereinafter defined), MANAGER will not use
any of the Confidential Information in any manner which is
competitive with the operations or activities of LAB in any
market currently served by LAB. The parties agree to make
appropriate arrangements with their respective personnel to
ensure the implementation of this undertaking. This Section 4.7
shall survive the termination or expiration of this Agreement and
any letter of intent or asset purchase agreement which may be
entered into by the parties hereto, except to the extent
expressly provided in any subsequent written agreement entered
into by the parties hereto.
ARTICLE 5
CLOSING CONTINGENCY
Scheduled Closing. The parties acknowledge that this Agreement is being
entered into in connection with the MANAGER's intention to acquire certain
assets of LAB on the terms and subject to the conditions provided for in a
letter of intent between the parties dated as of the date hereof (the "Letter of
Intent"). The Letter of Intent provides for the good faith negotiation of an
asset purchase Agreement (the "Asset Purchase Agreement") within 10 days after
the date hereof, and sets forth the conditions precedent to the parties'
respective obligations to close the transaction contemplated in the Letter of
Intent. The parties acknowledge further that one of the conditions precedent to
closing is the receipt and validation of the MANAGER's Medicare Provider Number,
which MANAGER hereby agrees to take all reasonable actions, and to use its best
efforts, to obtain as quickly as possible following the execution and delivery
of this Agreement. If for any reason the closing of the transaction contemplated
in the Letter of Intent (the "Closing") shall not have occurred within ninety
(90) days after the date hereof, LAB may immediately give MANAGER ten (10) days
notice of the termination of this Agreement and that the MANAGER is to withdraw
from all functions being carried out under this Agreement and the parties will
make reasonable efforts to facilitate an appropriate transition in such event.
If MANAGER is not able to obtain a Medicare Provider Number within ninety (90)
days, but LAB has reasonable assurances, determined in its sole discretion, from
the government agency issuing such licenses that a provider number will be
issued within a reasonable time, then LAB may extend the Closing date under the
Asset Purchase Agreement, provided, that, from and after such 90th day, MANAGER
provides its own working capital to support the operation of the laboratory and
shall no longer use the accounts receivable of LAB generated prior to the
execution of this Agreement to fund the laboratory's operations.
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If the Asset Purchase Agreement is terminated in accordance with its terms
by MANAGER, MANAGER shall give LAB ten (10) days advance written notice of such
termination and MANAGER's withdrawal from all functions being carried out under
this Agreement, and the parties will make reasonable efforts to facilitate an
appropriate transition in such event.
5.1 Return of Materials Upon Termination. Upon any termination of this
Agreement, MANAGER shall promptly return to LAB all materials in its possession
or control involving any Confidential Information, knowledge or data including,
but not limited to, any papers, files, records, proposals, policy or procedural
manuals, forms, documents, or financial records, products, or sales records.
MANAGER agrees to represent to LAB in writing, at any time upon request, that it
has complied with the provisions of this Section 5.1 requiring the return of
materials.
5.2 Reasonableness of Restrictive Covenants/Irreparable Injury. The parties
acknowledge and agree that (a) the Confidential Information is of unique and
special character that gives this information a special and proprietary value to
LAB; (b) the restrictive covenants contained herein (and, in particular, in
Section 4.7 hereof) are necessary to protect the legitimate business interests
of LAB and a violation of these restrictive covenants would cause irreparable
injury and loss to LAB; and (c) the restrictive covenants contained in this
Agreement are reasonable with respect to duration, scope, and their effects on
LAB and public health, safety, and welfare.
5.3 Non-Competition. The parties acknowledge and agree that the Asset
Purchase Agreement will provide for a non-competition agreement to be executed
and delivered by LAB at the Closing, pursuant to which LAB will agree that,
effective upon consummation of the Closing and continuing for a period of two
(2) years thereafter, without the prior written consent of MANAGER, it will not,
directly or indirectly, as an agent, consultant or independent contractor or in
any other capacity: (a) engage in any business or activity that is competitive
with the operation of the laboratory; (b) accept employment with or render
services to a competitor of the laboratory; (c) contact, solicit or attempt to
solicit or accept business that is competitive with the operation of the
laboratory from any of MANAGER's customers; or (d) own or operate a medical
laboratory.
5.4 Construction. If a court of competent jurisdiction determines the
restrictive covenants, or provision thereof, are unreasonable, or are otherwise
unenforceable, the parties desire such court to enforce such covenant, or
portion thereof, to the fullest extent permissible by the laws of the State of
Florida. The invalidity or unenforceability of any provision of the restrictive
covenants shall not limit or impair the operation or validity of any other
provision of the restrictive covenants. The restrictive covenants have been
mutually agreed upon by each of the parties, both as to its substance and its
form, and there shall not be applied a rule of law or construction whereby the
restrictive covenants or any of their provisions are construed in favor of or
against either party by reason of who prepared the restrictive covenants.
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ARTICLE 6
FINANCIAL ARRANGEMENTS
6.1 Management Services. During the term of this Agreement, MANAGER and LAB
shall collect the outstanding accounts receivable of LAB in the ordinary course
of business. The net proceeds of accounts receivable created prior to the
effective date of this Agreement (the "Existing AR") will be applied ninety-five
percent (95%) to pay current operating expenses as listed in Exhibit B hereof
and five percent (5%) payable to LAB; provided, that MANAGER shall be entitled
to apply such net proceeds from the Existing AR to current operating expenses
only to the extent that new accounts receivable created during the term of this
Agreement ("New AR"), as of the date of such application, equal or exceed 150%
of the amount of the collections from Existing AR, which have been used to fund
operating expenses of the laboratory, calculated on a cumulative basis.
6.2 The Letter of Intent provides (and the Asset Purchase Agreement will
provide) that (a) all New AR that are outstanding as of the Closing will be
included in the assets to be acquired by the MANAGER pursuant to the Asset
Purchase Agreement, and (b) the amount of the Existing AR collected during the
term of this Agreement and used to fund operating expenses as provided above
will be added to the purchase price to be paid by MANAGER to LAB and will be
payable in the manner and at the times described in the Letter of Intent and in
the Asset Purchase Agreement.
6.3 To assure the availability of sufficient funds with which to maintain
the operation of the laboratory, MANAGER will, at the Effective Date of this
Agreement, deposit in LABS operating bank account the sum of $100,000.00. Said
funds shall be drawn upon as needed by MANAGER at MANAGER's sole discretion to
make up any deficiency between accounts receivable collections and operating
expenses of LAB. Should said amount be fully utilized by MANAGER, then MANAGER
will deposit (from its own funds) additional funds (or will otherwise utilize
its own funds) as required for continuing operations of the LAB.
6.4 During the term of this Agreement, all cash collected from accounts
receivable shall be deposited in LAB's bank account, which the parties hereby
agree may be part of a cash management system involving a lockbox account system
maintained by SouthTrust. Disbursements from said account shall require the
signatures of both LAB and MANAGER; however, LAB shall transfer to an account
controlled by MANAGER (but to be used solely for paying operating expenses of
the laboratory) the sum of $30,000.00 from such accounts receivable collections,
to be utilized at the sole discretion of MANAGER for the payment of operating
expenses, and upon receipt from MANAGER of an accounting of amounts disbursed
from said account acceptable to LAB, shall replenish said account from
collections from Existing AR or NEW AR. MANAGER will provide an accounting of
all disbursements from said account to LAB on a weekly basis during the term of
this Agreement.
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6.5 During the term of this Agreement, purchase orders for materials and
services required to operate the laboratory that are less than $40,000.00 for
laboratory reagents and supplies and $10,000.00 for all other items shall
require the approval of MANAGER. Any purchase orders in excess of the amounts
set forth above shall require the approval of both LAB and MANAGER. MANAGER
shall indemnify and hold harmless LAB from and against any liability of any kind
arising from any purchase order (regardless of amount) authorized by MANAGER
without the prior written consent of LAB.
6.6 The Asset Purchase Agreement will provide that after the Closing, LAB
shall have access to the computer systems and other information (and personnel
as mutually agreed) required to collect the then remaining Existing AR.
6.7 The Asset Purchase Agreement will provide that after the Closing, cash
collected from the New AR purchased by MANAGER pursuant to the Asset Purchase
Agreement, will continue to be deposited in the LAB's bank account. MANAGER
shall determine the amount of said deposits on a daily basis and notify LAB of
said amounts. LAB shall then pay said amounts to MANAGER within three (3) days
of receipt of said notification. Notwithstanding the foregoing, the Asset
Purchase Agreement and the other documents referred to therein will permit LAB,
its successors and assigns, to set-off any amounts owed by MANAGER to such party
against amounts owed by LAB to MANAGER pursuant to this provision.
6.8 Both parties agree that the amount of accrued, but unpaid, wages due
employees and the amount of accrued, but unpaid, rent due on the effective date
of this Agreement (aggregating $204,753.55) shall be considered operating
expenses and listed on Exhibit 6.8, and will be paid from the sources of funds
described above. However, at the Closing, said amounts, to the extent paid
during the term of this Agreement, shall be deducted from all amounts due
pursuant to Section 6.2.
6.9 [RESERVED]
6.10 LAB shall provide MANAGER, on Exhibit 6.10, with the amount of all
unpaid wages, rents and outstanding checks as of the date of this Agreement.
6.11 MANAGER will not enter into any contracts or agreements on behalf of
LAB without LAB=s prior written consent.
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ARTICLE 7
INSURANCE
7.1 Insurance to be Maintained. Throughout the Term, both parties hereto
shall maintain such insurances as are reasonably requested by the other party
and, in any event, insurance in such amounts and from reputable insurers as
necessary to cover their respective activities under this Agreement. Each party
has consulted with its applicable insurance agency and all carriers to inform
them of the relationship between the parties and has secured adequate and
appropriate insurance and coordination thereof. The parties will work together
with their applicable insurance agents and carriers and when appropriate and
possible will have one another named as insureds on applicable policies and
otherwise follow good insurance practices.
ARTICLE 8
TERM AND TERMINATION
8.1 Term of Agreement. The term of this Agreement shall commence on the
Effective Date and shall extend until the first to occur of the following: (a)
the occurrence of the Closing, (b) notice is given by either party of the
termination of the Asset Purchase Agreement in accordance with its terms, (c)
September 21, 1999, unless the Asset Purchase Agreement has been executed and
delivered by all parties thereto on or prior to such date, or (d) this Agreement
is terminated in accordance with Section 8.2 below.
8.2 Termination. This Agreement may be terminated as follows:
8.2.1 In the event of the filing of a petition in voluntary
bankruptcy or an assignment for the benefit of creditors by
LAB, or upon other action taken or suffered, voluntarily,
under any federal or state law for the benefit of creditors
by LAB, except for (a) the filing of a petition in
involuntary bankruptcy against LAB which is dismissed within
thirty (30) calendar days thereafter, or (b) a voluntary
bankruptcy case (including the currently pending chapter 11
case of LAB) which provides for the sale of assets
contemplated in the Letter of Intent and in which the
Bankruptcy Court approves this Agreement, either party may
give written notice of the immediate termination of this
Agreement in accordance with Section 9.18 herein.
8.2.2 In the event that either party shall default in the
performance of any material duty or obligation imposed upon
it by this Agreement, or otherwise breach any provision of
this Agreement, and such default or breach shall continue
for a period of ten (10) calendar days after written notice
thereof has been given to the breaching party, the
non-breaching party may give notice of the immediate
termination of this Agreement in accordance with Section
9.18 herein.
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8.2.3 Immediate Termination. Unless otherwise expressly provided
herein, this Agreement may be terminated immediately by
either party by written notice pursuant to Section 9.18
herein upon the occurrence of any of the following events:
(a) any attempted assignment of this Agreement by either
party without the prior written consent of the other;
(b) either party fails to make any of the required
disclosures provided for in Section 4.5 herein;
(c) LAB's Medicare certification as a laboratory is
revoked, suspended, restricted, or limited in any way;
(d) either party is sanctioned by the Medicare or Medicaid
programs or excluded from participating in those
programs.
8.2.4 Termination by LAB. This Agreement may be terminated
immediately by LAB, by written notice to MANAGER pursuant to
Section 9.18, if:
(a) MANAGER fails to fund any short fall in operating
expenses pursuant to Section 6.3;
(b) MANAGER has not obtained its Medicare Provider Number
within 90 days after the Effective Date of this
Agreement; or
(c) MANAGER fails to create and maintain a level of New AR
in an amount at least equal to 150% of the amount of
collections on Existing AR for the first thirty (30)
days and 150% thereafter which have been used to fund
operating expenses of the laboratory in accordance with
this Agreement.
ARTICLE 9
GENERAL PROVISIONS
9.1 Time is of the Essence. In construing and applying the terms and
provisions of this Agreement, time shall be of the essence in each instance.
9.2 Execution. This Agreement shall be deemed to have been "Executed" when
the last party to sign this Agreement has affixed his, her or its signature at
the end of this Agreement. Notwithstanding the foregoing, the Effective Date of
this Agreement is the date first written above.
9.3 Good Faith. All parties to this Agreement specifically agree to act in
good faith in interpreting this Agreement and in carrying out their respective
duties and obligation hereunder.
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9.4 Florida Law. This Agreement shall be construed pursuant to the laws of
the State of Florida.
9.5 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the respective parties hereto, their legal representatives,
successors and assigns, provided, however, notwithstanding any provision of this
Agreement to the contrary, no party may assign any of its rights, obligations or
interest in this Agreement without the prior written consent of all parties to
this Agreement.
9.6 Further Assurances. Each party shall execute any reasonable additional
documents or instruments which are provided to the party by another party or
parties and which are reasonably necessary to (i) carry out or facilitate the
understanding represented by this Agreement or (ii) more clearly establish the
rights of one or more parties under this Agreement.
9.7 Paragraph Headings. Each paragraph heading contained in this Agreement
is used for convenience purposes only and is not intended to define, expound
upon or limit the provisions, which immediately follow such paragraph heading.
9.8 Singular and Plural. Any reference to a word in this Agreement shall
include the plural, singular, masculine, feminine and/or neuter, unless the
context in which the word appears clearly indicates to the contrary, in which
instance such context shall control interpretation of the word.
9.9 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be considered an original, and all of which
shall constitute but a single agreement notwithstanding that each such
counterpart is executed on a different date.
9.10 Preparation of Agreement. Because each party has participated fully in
the drafting and preparation of this Agreement, the Agreement shall not be
construed more strongly against any party.
9.11 Representation by Independent Legal Counsel. Each party to this
Agreement hereby acknowledges and confirms that he, she or it has had an
opportunity to retain independent legal counsel to independently advise that
party of the legal consequences of the Agreement to that party. Each party to
the Agreement further acknowledges and confirms that each party to the Agreement
received the strong recommendation by all other parties to the Agreement that
each party should retain separate and independent legal counsel to advise each
party of the legal consequences of the Agreement to that party.
9.12 Costs and Attorneys= Fees. If the obligations of the party(s)
expressed in this Agreement are the subject of arbitration and/or litigation,
the prevailing party(s) in such arbitration and/or litigation shall be entitled
to recover from any other party(s) who loses to the prevailing party(s) in such
arbitration and/or litigation all reasonable costs and expenses of such
arbitration and/or litigation, including reasonable attorneys' fees and costs of
appeal. The authority presiding over such arbitration and/or litigation shall
determine which party(s), if any, is the prevailing party(s) and which party(s),
if any, is the losing party(s).
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9.13 Merger. All prior negotiations and oral agreements between the parties
with respect to the subject matter hereof hereby are merged and extinguished
into this Agreement. Notwithstanding the foregoing, the Letter of Intent shall
survive the execution of this Agreement and shall not be merged into this
Agreement.
9.14 Survival. Unless otherwise expressly provided in this Agreement, all
rights, obligations and other terms and conditions specifically stated in this
Agreement shall survive the execution of this Agreement.
9.15 Severability. If any one or more of the provisions contained in this
Agreement for any reason are held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
9.16 Dispute Resolution. In the event of any dispute between the parties
arising out of this Agreement resulting in litigation, it is agreed that the
venue of any such litigation shall be in the Circuit Court of the 6th Judicial
Circuit in and for Pinellas County and that the prevailing party shall be
entitled to collect from the losing party all of its costs and expenses
including reasonable attorneys= fees.
9.17 Any notice that may be required under the terms of the Agreement shall
be made in writing and mailed by certified mail or overnight courier to the
parties at the following address.
If to LAB:
Xxxx Xxxxxx
Medical Technology Laboratories, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
If to MANAGER:
Xxxxxxxx Xxxxx, Inc.
Xxxxx X. Xxxxxx, Xx.
000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
XXXXXXXX XXXXX, INC. (MANAGER)
a Florida corporation
Attest: ____________________________ By: _______________________________
, Secretary
Its: ______________________________
MEDICAL TECHNOLOGY LABORATORIES, INC.
(LAB)
a Florida corporation
Attest: _____________________________ By: _______________________________
, Secretary
Its: ______________________________
