EXHIBIT 10.14
ADMINISTRATIVE SERVICES AGREEMENT
"Yonkers/Briarcliff"
This Administrative Services Agreement ("Agreement") is entered into as
of October 8, 2001 ("Effective Date") by and among NEW YORK RADIATION THERAPY
MANAGEMENT SERVICES, INCORPORATED, a New York corporation ("MANAGEMENT
SERVICES") and YONKERS RADIATION MEDICAL PRACTICE, P.C., a New York professional
corporation (the "PC").
RECITALS
A. The PC is a New York professional corporation that engages in
the business of providing or arranging for the provision of health care services
at Briarcliff Manor (the "Practice"), The PC has entered into and throughout the
term of this Agreement may (if MANAGEMENT SERVICES does not do so itself as
provided herein) continue to enter into arrangements with insurers, HMOs and
other third-party payors ("Payors") to provide or arrange for the provision of
health care services to persons covered by those Payors ("Enrollees").
B. The PC has entered into written employment agreements with
physicians and other health care providers and health care professionals
("Employed Providers") licensed to practice in the State of New York. The PC may
also enter into independent contractor agreements with various physicians and
other health care providers and health care professionals ("Contracting
Providers") to assist the PC in providing or arranging for the provision of
health care services to Enrollees and other patients of the PC (collectively,
"Patients").
C. MANAGEMENT SERVICES engages in the business of providing
certain administrative and support services concerning the day-to-day affairs of
radiation therapy offices.
D. The PC desires to secure certain administrative and support
services from MANAGEMENT SERVICES in connection with its operation of the
Practice at Briarcliff Manor (the "Offices").
E. This Agreement shall be in addition to and have no effect on
the Administrative Services Agreement between PC and MANAGEMENT SERVICES at any
other location.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
I. RESPONSIBILITIES OF THE PC
1.1. Sole Responsibility for All Medical and Professional Matters.
All medical and professional matters relating to the provision of radiation
therapy or oncology services at the Offices shall be the sole responsibility of
the PC.
1.2. Patient Referrals. The parties agree that the benefits to the
PC hereunder do not require, are not payment for, and are not in any way
contingent upon the admission, referral or any other arrangements for the
provision of any item or service offered by MANAGEMENT SERVICES.
II. RESPONSIBILITIES OF MANAGEMENT SERVICES
2.1. General Responsibility. MANAGEMENT SERVICES shall have general
responsibility for providing fiscal services, administrative services, and other
strategic and tactical support services to the PC with respect to the Practice
at Briarcliff Manor. MANAGEMENT SERVICES shall perform all required functions in
accordance with sound management techniques. Notwithstanding MANAGEMENT
SERVICES's general and specific rights and responsibilities set forth in this
Agreement, the PC shall have full authority and control with respect to all
medical, professional and ethical determinations over the PC's Practice to the
extent required by federal, state and local laws, rules and regulations.
MANAGEMENT SERVICES shall not engage in activities which constitute the practice
of medicine under applicable laws. MANAGEMENT SERVICES shall neither exercise
control over nor interfere with the physician-patient relationship, which shall
be maintained strictly between the physicians employed by or contracting with
the PC and the PC's Patients.
2.2. Responsibilities with Regard to Selected Patient-Related
Matters.
(a) MANAGEMENT SERVICES shall assist the PC, in
accordance with criteria established by the PC, in the development and
implementation of appropriate quality assurance programs, including development
of performance and utilization standards, sampling techniques for case review,
and preparation of appropriately documented studies. Notwithstanding the
foregoing, MANAGEMENT SERVICES shall not perform any duties that constitute the
corporate practice of medicine in New York and all other states in which an
Office at which the PC provides patient medical services is located.
(b) MANAGEMENT SERVICES shall provide advice on the
establishment of fee schedules and coding services, consultation with PC with
respect to coding personnel in an effort to be mutually satisfied with the
selection of those personnel and consultation with PC on the establishment of
new procedures to implement the coding services with training and consultation
for ongoing performance.
(c) MANAGEMENT SERVICES shall provide advice on business
strategy development including growth and development and the development of
performance objectives.
(d) MANAGEMENT SERVICES shall provide services reasonably
necessary for enhancing public relations for the PC's health care services and
shall submit any public relations programs for prior review and revision, if
necessary, and approval by the PC. Such public relations shall comply with
applicable laws and regulations governing the use of promotional activities by
the medical profession and with applicable standards of medical ethics.
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2.3. Responsibilities with Regard to Selected Financial Matters.
(a) Billing. MANAGEMENT SERVICES shall submit on a timely
basis all bills and necessary documentation required by Patients and Payors in
order to obtain payment in connection with the PC's delivery of health care
services at the Practice or its arrangement for the delivery of such services.
In seeking such payment, MANAGEMENT SERVICES shall act as the PC's exclusive
agent in billing and collecting professional fees, charges and other amounts
owed to the PC. In this connection, the PC hereby appoints MANAGEMENT SERVICES,
during the term of this Agreement, as the PC's true and lawful attorney-in-fact,
with power of substitution, for the following purposes relating to the Practice:
(i) To xxxx the PC's Patients on the PC's
behalf.
(ii) To collect accounts receivable generated by
such xxxxxxxx on the PC's behalf, including, where deemed appropriate by
MANAGEMENT SERVICES and approved in advance by the PC, settling and compromising
claims, assigning such accounts receivable to a collection agency or the
bringing of legal action against a Patient or Payor on the PC's behalf.
(iii) To receive payments on behalf of the PC from
Patients and Payors, to cause such payments to be deposited into appropriate
depository accounts (each such depository account, a "Collections Account") and
to write checks against or otherwise withdraw such payments to pay the PC
Expenses (as hereinafter defined).
(b) Accounting. MANAGEMENT SERVICES shall direct and
maintain the operation of an appropriate accounting system with respect to the
PC's operation of the Practice which shall perform all bookkeeping and
accounting services required for the operation of the Practice, including the
maintenance, custody and supervision of business records, ledgers and reports;
the establishment, administration and implementation of accounting procedures,
controls and systems. Such accounting system shall allow MANAGEMENT SERVICES to
prepare the reports specified in Section 2.3(c).
(c) Reporting. MANAGEMENT SERVICES shall present to the
PC reports on the financial condition of the PC on the basis set forth below in
clauses (i) and (ii) and such other reports that the PC may reasonably request,
including daily activity reports, weekly analyses, alternative delivery system
reports, backlog reports and the like. MANAGEMENT SERVICES also shall provide
such reports as may be required by any regulatory agency having jurisdiction
over the operations of the PC.
The reports initially required to be delivered to the PC under
this Section 2.3(c) with respect to the Practice are as follows:
(i) As soon as possible after the close of each
month, a balance sheet and a related statement of revenues and expenses showing
the results of the PC's operations
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for the preceding month of the fiscal year and the year to date.
(ii) As soon as possible after the close of each
fiscal year, a balance sheet and related statement of revenues and expenses
showing the results of the PC's operations during that fiscal year.
(d) Malpractice Insurance. It is understood that the PC
and its Employed Providers shall, at the PC's cost, at all times be covered by
malpractice insurance with coverage in usual and customary amounts for
practitioners of the same profession and specialties in New York and, if
applicable, other states. The PC shall ensure that its written agreements with
Contracting Providers who are physicians require such Contracting Providers to
at all times be covered by malpractice insurance in amounts that are usual and
customary for practitioners of the same profession and specialty in New York
and, if applicable, other states. Such malpractice policies shall name
MANAGEMENT SERVICES as an additional insured.
(e) Employed Providers. MANAGEMENT SERVICES shall assist
the PC in the administration of any employee benefit plans established by the
PC.
(f) Managed Care Agreements. MANAGEMENT SERVICES shall
negotiate and administer all managed care agreements on behalf of the PC and
shall consult with the PC on all professional and clinical matters relating
thereto.
III. FINANCIAL ARRANGEMENTS
3.1. Service Fee. For the services to be provided hereunder by
MANAGEMENT SERVICES, the PC shall pay to MANAGEMENT SERVICES a monthly Service
Fee of $29,950. The parties agree that the Service Fee represents the fair
market value of the services provided by MANAGEMENT SERVICES hereunder and that
the parties shall meet annually to reevaluate the value of services provided by
MANAGEMENT SERVICES and shall establish the fair market value thereof for
purposes of this Section 3.1.
3.2. Security Agreement; the PC Expenses. To secure the PC's
payment obligations hereunder, the PC is concurrently herewith entering into a
security agreement, in form acceptable to MANAGEMENT SERVICES, to grant to
MANAGEMENT SERVICES a security interest in the accounts receivable of the PC and
all of the PC's rights to receive payments under managed care contracts. The PC
shall cooperate with MANAGEMENT SERVICES and execute all reasonably necessary
documents in connection with the granting of such security interest.
All payments on behalf of the PC from Patients and Payers shall be
deposited into one or more Collection Accounts. To the extent the PC receives
any such payments, the PC shall direct such payments to MANAGEMENT SERVICES for
deposit in one or more Collection Accounts.
3.3. Arbitration. Any controversy or claim arising out of or
relating to this
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Agreement or the transactions contemplated hereby, including any controversy or
claim arising out of or relating to the parties' decision to enter into this
Agreement or the transactions contemplated hereby, shall be settled by binding
arbitration. Each party shall select an arbitrator who has at least three (3)
years experience in health care or medical practice management or in health care
or medical practice dispute resolution. The arbitration proceedings shall be
confidential and the arbitrators may issue appropriate protective orders to
safeguard each party's confidential information. Such protective orders shall be
enforceable by any court of competent jurisdiction. Except as specifically
provided in this section, the arbitration shall be conducted in accordance with
the rules of conciliation and arbitration of the American Arbitration
Association. The two arbitrators shall agree upon any issue no later than thirty
(30) days after the date the second arbitrator has been engaged, and shall take
into account the principles and objectives set forth in paragraph (b) below. If
the two arbitrators cannot agree on a determination, then within five (5) days
thereafter the two arbitrators shall select a third arbitrator, who shall have
the same qualifications required for the first two arbitrators. No later than
thirty (30) days after the date the third arbitrator is engaged, he or she shall
determine which of the two positions best satisfies the provisions of the
contract and the intent of the parties, taking into account the principles and
objectives set forth in paragraph (b) below. The third arbitrator shall have no
right to propose a middle ground between the two or to make any modification of
the proposals of either party. The third arbitrator's determination shall be
final and binding on all parties. The cost and expense of the third arbitrator
shall be shared equally between the parties. If either party fails to engage an
arbitrator as required hereunder, the arbitrator selected by the other party
shall conduct the arbitration and make the final decision in accordance with
this Section 3.3.
IV. REPRESENTATIONS AND WARRANTIES; COVENANTS
4.1. Representations and Warranties and Covenants of the PC.
(a) The PC hereby represents and warrants to MANAGEMENT
SERVICES as follows:
(i) The PC is and shall remain during the term
of this Agreement a professional corporation duly organized, validly existing
and in good standing under the laws of the State of New York, actively engaged
in the practice of medicine, and possessing full corporate power and authority
to own its properties and to conduct the business in which it engages.
(ii) The PC has full corporate power and
authority to execute and deliver this Agreement and to engage in the
transactions and obligations contemplated by this Agreement. Upon its execution,
this Agreement shall constitute a valid and binding obligation of the PC,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, moratorium, or other similar laws affecting generally
the rights of creditors and by principles of equity. The party executing this
Agreement on behalf of the PC is duly authorized to do so.
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(iii) The consummation of the transactions
contemplated by this Agreement will not: result in a breach of the terms,
provisions, or conditions of or constitute a default under the Articles of
Incorporation, By-Laws or other enabling or governing instruments of the PC or
any agreement to which the PC is a party or by which it is bound; or, to the
best knowledge of the PC, constitute a violation of any applicable law or
regulation.
(b) The PC hereby covenants to MANAGEMENT SERVICES that
it shall not, without the prior written consent of MANAGEMENT SERVICES, take any
action to terminate or nullify, or release any Employed Provider from the terms
of any noncompetition covenant set forth in any employment agreement between the
PC and such Employed Provider.
4.2. Covenants and Warranties of MANAGEMENT SERVICES. MANAGEMENT
SERVICES hereby represents and warrants to the PC as follows:
(a) MANAGEMENT SERVICES is and shall remain during the
term of this Agreement a corporation which is duly organized, validly existing
and in good standing under the laws of the State of New York, possessing full
corporate power and authority to own its properties and to conduct the business
in which it engages.
(b) MANAGEMENT SERVICES has full corporate power and
authority to execute and deliver this Agreement and to engage in the
transactions and obligations contemplated by this Agreement. Upon its execution,
this Agreement shall constitute a valid and binding obligation of MANAGEMENT
SERVICES, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, moratorium, or other similar laws affecting
generally the rights of creditors and by principles of equity. The party
executing this Agreement on behalf of MANAGEMENT SERVICES is duly authorized to
do so.
(c) The consummation of the transactions contemplated by
this Agreement will not: result in any breach of the terms, provisions or
conditions of or constitute a default under the Certificate of Incorporation,
Bylaws or other enabling or governing instruments of MANAGEMENT SERVICES or any
agreement to which MANAGEMENT SERVICES is a party or by which it is bound; or,
to the best knowledge of MANAGEMENT SERVICES, constitute a violation of any
applicable law or regulation.
V. TERM AND TERMINATION
5.1 Initial and Renewal Term. The term of this Agreement will be
for an initial period of five (5) years after the Effective Date, and shall be
automatically renewed for successive one (1) year periods thereafter
(collectively, the "Term"), provided that neither MANAGEMENT SERVICES nor the PC
shall have given notice of termination of this Agreement at least ninety (90)
days before the end of the initial term or any renewal term, or unless otherwise
terminated as provided in Section 5.2 of this Agreement.
5.2 Termination.
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(a) Termination by the PC. The PC may immediately
terminate this Agreement at its discretion, upon written notice as follows:
(i) If MANAGEMENT SERVICES becomes insolvent by
reason of its inability to pay its debts as they mature; is adjudicated bankrupt
or insolvent; files a petition in bankruptcy, reorganization or similar
proceeding under the bankruptcy laws of the United States or shall have such a
petition filed against it which is not discharged within thirty (30) days; has a
receiver or other custodian, permanent or temporary, appointed for its business,
assets or property; makes a general assignment for the benefit of creditors; has
its bank accounts, property or accounts attached; has execution levied against
its business or property; or voluntarily dissolved or liquidates or has a
petition filed for corporate dissolution and such petition is not dismissed with
thirty (30) days;
(ii) If the MANAGEMENT SERVICES fails to comply
with any material provision of this Agreement, or any other agreement with the
PC, and does not correct such failure within sixty (60) days after written
notice of such failure to comply is delivered by the PC specifying the nature of
the breach in reasonable detail.
(b) Termination by MANAGEMENT SERVICES. MANAGEMENT
SERVICES may terminate this Agreement without cause and solely in its discretion
for any reason whatsoever upon thirty (30) days written notice to PC and may
also immediately terminate this Agreement at its discretion upon written notice
as follows:
(i) If the PC becomes insolvent by reason of its
inability to pay its debts as they mature; is adjudicated bankrupt or insolvent;
files a petition in bankruptcy, reorganization or similar proceeding under the
bankruptcy laws of the United States or shall have such a petition filed against
it which is not discharged within thirty (30) days; has a receiver or other
custodian, permanent or temporary, appointed for its business, assets or
property; makes a general assignment for the benefit of creditors; has its bank
accounts, property or accounts attached; has execution levied against its
business or property; or voluntarily dissolves or liquidates or has a petition
filed for corporate dissolution and such petition is not dismissed with thirty
(30) days; or
(ii) If the PC fails to comply with any material
provision of this Agreement with MANAGEMENT SERVICES, and does not correct such
failure within sixty (60) days after written notice of such failure to comply is
delivered by MANAGEMENT SERVICES specifying the nature of the breach in
reasonable detail.
(c) Termination by Agreement. In the event the PC and
MANAGEMENT SERVICES shall mutually agree in writing, this Agreement may be
terminated on the date specified in such written agreement.
(d) Legislative, Regulatory or Administrative Change. In
the event there
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shall be a change in the Medicare or Medicaid statutes, federal statutes, state
statutes, case laws, administrative interpretations, regulations or general
instructions, the adoption of new federal or state legislation, or a change in
any third-party reimbursement system, any of which are reasonably likely to
materially and adversely affect the manner in which either party may perform or
be compensated for its services under this Agreement or which shall make this
Agreement or any related agreements unlawful or unenforceable, or which would be
reasonably likely to subject either party to this Agreement, or any member,
shareholder, officer, director, employee, agent or affiliated organization to
any civil or criminal penalties or administrative sanctions, the parties shall
immediately use their best efforts to enter into a new service arrangement or
basis for compensation for the services furnished pursuant to this Agreement
that complies with the law, regulation, or policy, or which minimizes the
possibility of such penalties, sanctions or unenforceability, and that
approximates as closely as possible the economic position of the parties prior
to the change. If the parties are unable to reach a new agreement within a
reasonable time, then either party may submit the issue to arbitration pursuant
to Section 3.3 for the purpose of reaching an alternative arrangement that is
equitable under the circumstances.
5.3 Effects of Termination. Upon termination of this Agreement, as
provided in this Article V, neither party shall have any further obligations
hereunder except for (i) obligations accruing prior to the date of termination,
including, without limitation, payment of the Service Fee relating to services
provided prior to the termination of this Agreement, (ii) obligations, promises,
or covenants set forth herein that are expressly made to extend beyond the Term,
including, without limitation, insurance, indemnities and non-competition
provisions, which provisions shall survive the expiration or termination of this
Agreement. In effectuating the provisions of this Section 5.3, the PC
specifically acknowledges and agrees that if this Agreement terminates pursuant
to Sections 5.2(b) or (d), MANAGEMENT SERVICES shall continue for a period not
to exceed ninety (90) days to collect and receive on behalf of the PC on an
exclusive basis all cash collections from accounts receivable in existence at
the time this Agreement is terminated, it being understood that (a) such cash
collections may be used to compensate MANAGEMENT SERVICES for services rendered
prior to the termination of this Agreement, (b) MANAGEMENT SERVICES shall not be
entitled to collect accounts receivable after the termination date of this
Agreement is terminated pursuant to Section 5.2(a), and (c) the MANAGEMENT
SERVICES shall deduct for such cash collections any other amounts owed to
MANAGEMENT SERVICES under this Agreement, including, without limitation, any
reasonable costs incurred by MANAGEMENT SERVICES in carrying out the
post-termination procedures and transactions contemplated herein. MANAGEMENT
SERVICES shall remit remaining amounts from such collection activities, if any,
to the PC. Upon the expiration or termination of this Agreement for any reason
or cause whatsoever, MANAGEMENT SERVICES shall surrender to the PC all books and
records pertaining to the PC's Patient medical records and PC Records (as
defined in Section 7.2).
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VI. RESTRICTIVE COVENANTS
6.1. Covenant Regarding Proprietary Information. In the course of
the relationship created pursuant to this Agreement, the PC will have access to
certain methods, trade secrets, processes, ideas, systems, procedures,
inventions, discoveries, concepts, software in various stages of development,
designs, drawings, specifications, models, data, documents, diagrams, flow
charts, research, economic and financial analysis, developments, procedures,
know-how, policy manuals, financial data, form contracts, marketing ad other
techniques, plans, materials, forms, copyrightable materials and trade
information regarding the operations of MANAGEMENT SERVICES and/or of its
Affiliates (collectively, the "Protected Parties"). The foregoing, together with
the existence and terms of this Agreement, are referred to in this Agreement as
"Proprietary Information". The PC shall maintain all such Proprietary
Information in strict secrecy and shall not divulge such information to any
third parties, except as may be necessary for the discharge of its obligations
under this Agreement. The PC shall take all necessary and proper precautions
against disclosure of any Proprietary Information to unauthorized persons by any
of its officers, directors, employees or agents. All officers, directors,
employees and agents of the PC who will have access to all or any part of the
Proprietary Information may be required to execute an agreement, at the
reasonable request of MANAGEMENT SERVICES, valid under the law of the
jurisdiction in which such agreement is executed, and in a form acceptable to
MANAGEMENT SERVICES and its counsel, committing themselves to maintain the
Proprietary Information in strict confidence and not to disclose it to any
unauthorized person or entity. The Protected Parties not party to this Agreement
are hereby specifically made third party beneficiaries of this Section 6.1, with
the power to enforce the provisions hereof. Upon termination of this Agreement
for any reason, the PC and each of its Employed Providers and Contracting
Providers shall cease all use of any of the Proprietary Information and, at the
request of MANAGEMENT SERVICES, shall execute such documents as may be necessary
to evidence the PC's abandonment of any claim thereto. The parties recognize
that a breach of this Section 6.1 cannot be adequately compensated in money
damages and therefore agree that injunctive relief shall be available to the
Protected Parties as their respective interests may appear.
The obligations of the PC under this Section 6.1 shall not apply to
information: (i) which is a matter of public knowledge on or becomes a matter of
public knowledge after the Effective Date of this Agreement, other than as a
breach of the confidentiality terms of this Agreement or as a breach of the
confidentiality terms of any other agreement between the PC and MANAGEMENT
SERVICES or its Affiliates; or (ii) was lawfully obtained by the PC on a
nonconfidential basis other than in the course of performance under this
Agreement and from some entity other than MANAGEMENT SERVICES or its Affiliates
or from some person other than one employed or engaged by MANAGEMENT SERVICES or
its Affiliates, which entity or person has no obligation of confidentiality to
MANAGEMENT SERVICES or its Affiliates.
6.2. Covenants Not to Compete During the Term. The parties
recognize that the services to be provided by MANAGEMENT SERVICES shall be
feasible only if the PC operates an active medical practice to which the PC and
Employed Providers devote full time
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and attention. To that end:
(a) Restrictive Covenants by the PC. During the term of
this Agreement, the PC shall not establish, operate or provide physician or
other health care services at any medical office, clinic or other health care
facility providing services substantially similar to those provided by the PC
pursuant to this Agreement anywhere other than at the Offices and as may be
approved in writing by MANAGEMENT SERVICES. The PC shall also not enter into any
management or administrative services agreement or arrangement with any person
or entity other than MANAGEMENT SERVICES without MANAGEMENT SERVICES's prior
written approval.
(b) Restrictive Covenants by Employed Providers. All
employment contracts between the PC and its Employed Providers shall name
MANAGEMENT SERVICES as a third-party beneficiary to the contract and shall not
be revised without the prior written consent of MANAGEMENT SERVICES. The
contracts shall include noncompetition agreements with its Employed Providers
who are physicians, the substance and form of which is set forth as Exhibit A
hereto, and which the PC will enforce.
6.3. Covenant Not to Compete Following Termination. For three (3)
years following the termination of this Agreement by MANAGEMENT SERVICES
pursuant to Section 5.2, the PC shall not enter into any management or
administrative services agreement or any similar arrangement with any person or
entity for the provision of the same or similar services as MANAGEMENT SERVICES
provides to the PC under this Agreement.
6.4. Covenant Not to Solicit. During the term of this Agreement and
for three (3) years following the termination of this Agreement, the PC shall
not:
(a) Directly or indirectly solicit, recruit or hire, or
induce any party to solicit, recruit or hire any person who is an employee of,
or who has entered into an independent contractor arrangement with, MANAGEMENT
SERVICES or any Affiliate of MANAGEMENT SERVICES (excluding any person who
performs patient services);
(b) Directly or indirectly, whether for itself or for any
other person or entity, call upon, solicit, divert or take away, or attempt to
solicit, call upon, divert or take away any of MANAGEMENT SERVICES's customers,
business, or clients; or
(c) Disrupt, damage, impair or interfere with the
business of MANAGEMENT SERVICES.
6.5. Enforcement. MANAGEMENT SERVICES and the PC acknowledge and
agree that since a remedy at law for any breach or attempted breach of the
provisions of this Article VI or of Article VII shall be inadequate, either
party shall be entitled to specific performance and injunctive or other
equitable relief in case of any such breach or attempted breach, in addition to
whatever other remedies may exist by law. All parties hereto also waive
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any requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief. If any provision of
Article VI or Article VII relating to the restrictive period, scope of activity
restricted and/or other provisions described therein shall be declared by a
court of competent jurisdiction to exceed the maximum time period, scope of
activity restricted or geographical area such court deems reasonable and
enforceable under applicable law, the time period, scope of activity restricted
and/or area of restriction held reasonable and enforceable by the court shall
thereafter be the restrictive period, scope of activity restricted and/or the
territory applicable to the restrictive covenant provisions in this Article VI
or Article VII. The invalidity or non-enforceability of this Article VI or
Article VII in any respect shall not affect the validity or enforceability of
the remainder of this Article VI or Article VII or of any other provisions of
this Agreement.
VII. INFORMATION AND RECORDS
7.1. Ownership of Records. At all times during and after the term
of this Agreement, including any extensions or renewals hereof, all business
records, including but not limited to, business agreements, books of account,
general administrative records and all information generated under or contained
in the management information system pertaining to MANAGEMENT SERVICES's
obligations hereunder, and other business information of any kind or nature,
except for Patient medical records and the PC's Records (as defined in Section
7.2), shall be and remain the sole property of MANAGEMENT SERVICES; provided
that after termination of this Agreement the PC shall be entitled to reasonable
access to such records and information, including the right to obtain copies
thereof, for any purpose related to patient care or the defense of any claim
relating to patient care or the business of MANAGEMENT SERVICES or the PC.
7.2. The PC's Business and Financial Records. At all times during
and after the term of this Agreement, the financial, corporate and personnel
records and information relating exclusively to the business and activities of
the PC, as distinguished from the business and activity of MANAGEMENT SERVICES,
hereinafter referred to as "the PC's Records," shall be and remain the sole
property of the PC.
7.3. Access to Records. Each party shall be entitled, upon request
and with reasonable advance notice, to obtain access to all records of the other
party directly related to the performance of such party's obligations pursuant
to this Agreement; provided, however, that such right shall not allow for access
to records that must necessarily be kept confidential. Either party, at its
expense, shall have the right to make copies of any records to which it has
access pursuant to this Section.
7.4. Confidentiality of Records. MANAGEMENT SERVICES and the PC
shall adopt procedures for maintaining the confidentiality of the records
relating to the operations of MANAGEMENT SERVICES and the PC which do not
constitute Proprietary Information, which information is not otherwise available
to third parties publicly or by law, and shall comply with all applicable
federal and state statutes and regulations relating to such records. Patient
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medical records and other privileged Patient information shall not be disclosed
or utilized by the PC or MANAGEMENT SERVICES or their agents or employees except
as required or permitted by applicable laws and regulations.
VIII. MISCELLANEOUS
8.1. Independent Contractor Status of Parties. In the performance
of the work, duties and obligations under this Agreement, it is mutually
understood and agreed that each party is at all times acting and performing as
an independent contractor with respect to the other and that no relationship of
partnership joint venture or employment is created by this Agreement. Neither
party, nor any other person performing services on behalf of such party pursuant
to this Agreement, shall have any right or claim against the other party for
Social Security benefits, workers' compensation benefits, disability benefits,
unemployment insurance benefits, health benefits, vacation pay, sick leave or
any other employee benefits of any kind.
8.2. No Waiver. The waiver by any party to this Agreement of any
breach of any term or condition of this Agreement shall not constitute a waiver
of subsequent breaches. No waiver by any party of any provision of this
Agreement shall be deemed to constitute a waiver of any other provision.
8.3. Notices. If, at any time after the execution of this
Agreement, it shall become necessary or convenient for one of the parties to
serve any notice, demand or communication upon the other party, such notice,
demand, or communication shall be in writing and shall be served personally, by
nationally recognized overnight courier which provides confirmation of delivery,
or by depositing the same in the United States mail, registered or certified,
return receipt requested, postage prepaid and to such address as either party
may have furnished to the other party in writing as the place for the service of
notice. Any notice so mailed shall be deemed to have been given three (3) days
after the same has been deposited in the United States mall; when delivered if
the same has been given personally; or the next business day if the same has
been delivered to a nationally recognized overnight courier service.
8.4. Assignment. Neither party may sell, transfer, assign, or
otherwise convey its rights or obligations under this Agreement without the
prior written consent of the other, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, MANAGEMENT SERVICES shall have the
right to (a) assign its rights and/or delegate all or any of its obligations to
any of its Affiliates; and/or (b) subcontract some portion of its obligations
hereunder to a third party which is not an Affiliate of MANAGEMENT SERVICES, in
each case without the consent of the PC.
8.5. Successors and Assigns. Subject to the provisions of this
Agreement respecting assignment, the terms, covenants and conditions contained
herein shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto.
8.6. Severability. Nothing contained in this Agreement shall be
construed to require
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the commission of an act contrary to law, and whenever there is any conflict
between any provision of this Agreement and any statute, law, ordinance or
regulation, the latter shall prevail. In such event, and in any case in which
any provision of this Agreement is determined to be in violation of a statute,
law, ordinance or regulation, the affected provision(s) shall be limited only to
the extent necessary to bring it within the requirements of the law and, insofar
as possible under the circumstances, to carry out the purposes of this
Agreement. The other provisions of this Agreement shall remain in full force and
effect, and the invalidity or unenforceability of any provision hereof shall not
affect the validity and enforceability of the other provisions of this
Agreement, nor the availability of all remedies in law or equity to the parties
with respect to such other provisions.
8.7. Third Parties. Except as provided in Article VII, nothing in
this Agreement shall be construed to create any duty to, any standard of care
with reference to or any liability to anyone not a party to this Agreement.
8.8. Headings. The headings used in this Agreement are for
convenience of reference only and shall have no force or effect in the
construction or interpretation of the provisions of this Agreement.
8.9. Time of the Essence. Time is of the very essence of each and
all of the agreements, covenants and conditions of this Agreement.
8.10. Governing Law. This Agreement shall be deemed made, executed
and entered into and shall be governed by and construed in accordance with the
internal laws of the State of Florida.
8.11. Language Construction. The language in all parts of this
Agreement shall be construed, in all cases, according to its fair meaning, and
not for or against either party hereto. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
8.12. Indemnification. The PC shall indemnify, hold harmless and
defend MANAGEMENT SERVICES, its officers, directors, shareholders, employees,
agents and independent contractors (the "MANAGEMENT SERVICES Group") from and
against any and all liabilities, losses, damages, claims, causes of action, and
expenses (including reasonable attorneys' fees and disbursements (a "MANAGEMENT
SERVICES Loss")), caused or asserted to have been caused, directly or
indirectly, by or as a result of the performance of medical services or any
other acts or omissions by MANAGEMENT SERVICES and/or its partners, agents,
employees and/or subcontractors (other than MANAGEMENT SERVICES) during the term
hereof except with respect to any MANAGEMENT SERVICES Loss which is the result
of any gross negligence or willful misconduct by a member of the MANAGEMENT
SERVICES Group. MANAGEMENT SERVICES shall indemnify, hold harmless and defend
the PC, its
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officers, directors, partners employees, agents and independent contractors (the
"the PC Group") from and against any and all liabilities, losses, damages,
claims, causes of action, and expenses (including reasonable judgment attorneys'
fees and disbursements) (a "the PC Loss"), caused or asserted to have been
caused, directly or indirectly, by or as a result of the performance of any acts
of omissions by MANAGEMENT SERVICES and/or its shareholders, agents, employees
and/or subcontractors during the term hereof except with respect to any the PC
Loss which is the result of any gross negligence or willful misconduct by a
member of the PC Group.
8.13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
(Briarcliff Manor) and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether written or oral, between
or among parties regarding the subject matter of this Agreement.
8.14. Incorporation by Reference. All exhibits and other attachments
to this Agreement are incorporated by reference into this Agreement by such
reference.
8.15. Amendments Only in Writing. This Agreement may not be amended
or modified in any respect whatsoever, except by an instrument in writing signed
by the parties hereto.
8.16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original and all of which
shall constitute one and the same agreement. This Agreement shall not become
effective until it has been executed by all of the parties hereto.
8.17. Commercial Impracticability. No party to this Agreement shall
be liable for any failure to perform its obligations hereunder where such
failure results from any cause beyond that party's reasonable control,
including, for example, an act of God, labor disturbance such as a strike or
walkout, war, riot, fire, storm, accident, government regulation or
interference, or mechanical, electronic or communications failure.
8.18. Election of Remedies. The respective rights of the parties to
this Agreement shall be cumulative. Each party shall have all other rights and
remedies consistent with this Agreement as law and equity may provide. No
exercise by any party of one right or remedy shall be deemed to be an exclusive
election of rights or remedies.
8.19. Survival. The provisions of Articles III, IV, V, VI, VII and
VIII shall survive any termination of this Agreement.
8.20. Third Party Beneficiaries. Except with respect to Affiliates
of MANAGEMENT SERVICES, nothing in this Agreement shall be construed to create
any duty to, any standard of care with reference to, or any liability to any
Person not a party to this Agreement. The Affiliates of MANAGEMENT SERVICES are
intended third party beneficiaries of this Agreement.
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8.21 Affiliate. An "Affiliate" of an entity means (i) any person or
entity directly or indirectly controlled by such entity; (ii) any person or
entity directly or indirectly controlling such entity; (iii) any subsidiary of
such entity if the entity has a fifty percent (50%) or greater ownership
interest in the subsidiary; or (iv) such entity's parent entity if the parent
has a fifty percent (50%) or greater ownership interest in the entity. For
purposes of this Agreement, the PC is not an Affiliate of MANAGEMENT SERVICES.
IN WITNESS WHEREOF, MANAGEMENT SERVICES and the PC have caused this
Agreement to be executed by their duly authorized respective officers as of the
Effective Date.
Signed in
the presence of:
/s/ Xxxxx Xxxxxxxxx NEW YORK RADIATION THERAPY
--------------------------- MANAGEMENT SERVICES,
Printed name: Xxxxx Xxxxxxxxx INCORPORATED
(witness 1)
/s/ XXXXX X. XXXXXX By: /s/ Xxxxx Xxxxxxxxx
--------------------------- --------------------
Printed name: XXXXX X. XXXXXX Xxxxx Xxxxxxxxx
(witness 2) Chief Financial Officer
/s/ XXXXXX XXXXXXXX YONKERS RADIATION MEDICAL
--------------------------- PRACTICE, P.C.
Printed name: XXXXXX XXXXXXXX
(witness 1) By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
/s/ XXXXX X. XXXXXX Xxxxxx X. Xxxxxxxx, M.D.
--------------------------- President
Printed name: XXXXX X. XXXXXX
(witness 2)
STATE OF FLORIDA )
)
COUNTY OF XXX )
The foregoing instrument was acknowledged before me this 29 day of
October, 2001 by Xxxxx Xxxxxxxxx, the Chief Financial Officer of New York
Radiation Therapy Management Services, Incorporated, a New York corporation
organized under the laws of the State of New
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York, on behalf of the corporation, and by Xxxxxx X. Xxxxxxxx, M.D., the
President of Yonkers Radiation Medical Practice, P.C., a New York professional
corporation organized under the laws of the State of New York, on behalf of the
corporation.
Signature: /s/ XXXXX X. XXXXXX
--------------------
Printed name: XXXXX X. XXXXXX
Notary Public
[SEAL]
XXXXX XXXXXXXXX XXXXXX
MY COMMISSION # CC 883146
EXPIRES: February 26, 2004
Bonded Thru Notary Public Underwriters
AdministrativeServicesAgreementBriarcliff
GDS 10/18/01
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EXHIBIT A
NONCOMPETITION AGREEMENT
NON-COMPETITIVE AND RESTRICTIVE AGREEMENTS.
A. During the term of this Agreement and any renewal
period, Physician shall not undertake any professional service except as
directed and authorized by [Employer] and shall not engage in any profession
other than the rendition of the professional services as directed by [Employer].
B. In the event of the termination of this Agreement for
any reason, Physician agrees not to directly or indirectly engage in the
practice of radiation therapy or oncology, or otherwise compete with [Employer],
or any of its physician providers, by practicing as a radiation therapist or
oncologist (i) at any hospital in which physician providers of [Employer]
regularly admit patients, or (ii) within any county in which [Employer] or any
of its Affiliates operate an Office, for a period of two (2) years after the
date of such actual termination of this Agreement. The purpose of this covenant
is to protect [Employer] from the irreparable harm it will suffer if Physician
competes with [Employer] after having been introduced to [Employer]'s personnel
and patients and after learning special medical procedures used by [Employer's
physician providers, [Employer]'s business procedures, office and practice
policies, and the special and confidential professional procedures developed by
[Employer].
C. The parties agree that in the event of any breach or
attempted breach of any of the covenants set out in section B (the "Covenant Not
to Compete"), [Employer] will be entitled to equitable relief by way of
injunction or otherwise, in addition to any remedy at law which may be
available. The parties agree that any violation or threatened violation by
Physician of the Covenant Not to Compete will cause [Employer] to suffer
irreparable harm. The parties agree that [Employer]'s remedy of an injunction is
not the exclusive remedy for breach of the Covenant Not to Compete and that a
court may grant such additional relief as is reasonable.
D. In the event Physician breaches the Covenant Not to
Compete, in addition to the injunctive relief to which [Employer] shall be
entitled under the law, Physician shall immediately repay to [Employer] any
amounts paid by [Employer] pursuant to section 3.B hereof after the termination
of this Agreement, and all severance or termination pay, if any, paid pursuant
to this Agreement. [Employer] may offset against any amounts owed Physician
pursuant to this Agreement any amounts Physician owes [Employer] pursuant to
paragraph E below for breach of the Covenant Not to Compete.
E. In addition to the injunctive relief to which
[Employer] is entitled under the law and in addition to the payments provided
for in paragraph D above and in order to compensate [Employer] for the damages
it will incur in recruiting and compensating a
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replacement radiation oncologist and for the lost business it will suffer, in
the event of a breach by Physician of the Covenant Not to Compete, Physician
shall also pay to [Employer], as liquidated damages, a sum equal to a percentage
of the gross xxxxxxxx of [Employer] for the twelve month period immediately
preceding the termination of this Agreement. The percentage shall be that formed
by dividing the number one by the number equal to the total number of physician
providers of [Employer], including Physician, on the date of termination of this
Agreement. The parties agree that, in the event of the breach by Physician of
the Covenant Not to Compete, the actual amount of damages which would be
incurred by [Employer] would be difficult to ascertain and prove, and that
therefore the liquidated damages sum set forth herein would be reasonable and
appropriate.
F. In the event the Covenant Not to Compete shall be
determined by a court of competent jurisdiction to be unenforceable by reason of
its geographic or temporal restrictions being too great, or by reason that the
range of activities covered is too great, or for any other reason, section B
shall be interpreted to extend over the maximum geographic area, period of time,
range of activities or other restrictions as to which it may be enforceable.
AdministrativeServicesAgreementBriarcliff
GDS 10/18/01
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