TERMINATION AGREEMENT
AGREEMENT, dated as of January 1, 1998 ("Agreement") by and among
Women's Medical & Diagnostic Center, Inc., a Florida corporation, with its
principal place of business at Office Park West, 000 X.X. 00xx Xxxxxxx,
Xxxxxxxxxxx, Xxxxxxx 00000 ("WMDC"), X. Xxxxx Xxxxxxx, Jr., Ph.D., M.D., a
Florida resident, residing at 0000 X.X. 0xx Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000
("Xxxxxxx") and Xxxxx X. Xxxxxx, M.D., a Florida resident, residing at 0000 X.X.
0xx Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000 ("Xxxxxx"). Xxxxxxx and Xxxxxx are jointly
referred to as Physicians. Xxxxxxx, Xxxxxx and WMDC are collectively referred to
as "Parties."
RECITALS
Physicians are each parties to separate employment agreements with WMDC
dated December 30, 1996 ("Physician Employment Agreements");
X. Xxxxx Xxxxxxx, Jr., M.D., P.A., a Florida professional association
("Xxxxxxx P.A."), entered into an Asset Purchase Agreement with WMDC dated
December 30, 1996 pursuant to which WMDC acquired certain fixed assets from the
Xxxxxxx P.A. utilized in the operation of the Xxxxxxx P.A.'s office in Lake
City, Florida ("Lake City Office");
Pursuant to the Physician Employment Agreements, Physicians were
entitled to certain Sign- On Bonuses and Non-Compete payments on the anniversary
date of the Physician Employment Agreements for a four-year period commencing
December 30, 1997; and
The Parties desire terminate the Physician Employment Agreements and
provide for Physicians to obtain certain assets utilized by WMDC at the Lake
City Office.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, the Parties agree as follows:
1. SIGN-ON BONUS AND NON-COMPETE PAYMENTS.
Upon execution of this Agreement WMDC will pay Physicians
$18,461.54 each, in full and complete satisfaction of the Non-Compete and
Sign-On Bonus payments that were due to be paid on December 30, 1997 under the
Physician Employment Agreements. No further Sign-On Bonus or Non-Compete
payments will be paid to Physicians under the Physician Employment Agreements
and Physicians hereby release and discharge WMDC from any further obligations to
make the Sign-On Bonus and Non-Compete payments on December 30, 1998, 1999 and
2000.
2. EMPLOYMENT TERMINATION.
Physicians' Employment Agreements will terminate February 28,
1998 at which time the Parties shall have no further obligations to each other
except for obligations accruing prior to February 28, 1998 and obligations,
promises or covenants, if any, which are expressly made herein to extend beyond
February 28, 1998.
3. TERM.
Between January 1, 1998 and February 28, 1998 (the "Term"),
Physicians will continue to provide Medical Services as defined in the Physician
Employment Agreements. In connection therewith, Physicians will exert their best
professional and personal efforts to improve the working environment,
professional quality and profitability of WMDC and will, in addition to the
Medical Services, continue to provide research support with respect to clinical
trials undertaken by WMDC on behalf of various pharmaceutical companies
("Clinical Research").
4. COMPENSATION.
(a) During the Term, Physicians will be an annualized salary
of $100,000, paid bi-weekly, less federal, state and local withholdings and
other deductions for benefits currently in effect or adjusted, based on changes
in WMDC's benefit plans.
(b) Physicians' compensation will be reduced by 10% if WMDC's
average clinic patient volume or average surgical patient volume falls below 90%
of the actual patient visits and surgical procedures between January 1 and June
30, 1997 ("Current Level"). Conversely, if WMDC increases patient scheduling
above the Current Level not due to specific requests by Physicians, Physicians'
salaries will be increased by 10% if Physicians' average clinic patient volume
or average surgical patient volume increases 110% above the Current Level. Any
salary adjustment will be made on or about April 1, 1998 and the average clinic
patient volume and average surgical patient volume for January 1, 1998 through
February 28, 1998 will be used to determine any salary adjustment for the Term.
Professional and ethical standards will govern the individual patients seen
should a conflict arise concerning the mix of patients in the daily schedule.
Scheduling times and number of patients seen at WMDC will be at the discretion
of Physicians provided Physicians maintain weekly WMDC office hours available
for patient encounters comparable to hours maintained in 1997.
5. EMPLOYMENT AGREEMENTS.
Except as modified by this Agreement, the Physician Employment
Agreements remain in full force and effect during the Term hereof; upon
expiration of the Term, the Physician Employment Agreements will terminate.
6. COVENANTS NOT TO COMPETE.
Notwithstanding the restrictions imposed upon Physicians
pursuant to Section 13(b) of the Physician Employment Agreements ("Covenants Not
to Compete"), effective March 1, 1998 Physicians will be permitted to maintain a
medical practice in Lake City and Gainesville, Florida and not be deemed to be
in violation of the Covenants Not to Compete. All other aspects of the Covenants
Not To Compete with respect to Ocala, Florida will remain in full force and
effect.
7. MEDICAL RECORDS
All medical records of patients to whom Physicians have
provided or will provide Medical Services on behalf of WMDC either in accordance
with the Physician Employment Agreements or through the Term of this Agreement
will remain the property of WMDC. At the request of Physicians, WMDC will notify
said patients that Physicians will be leaving the employ of WMDC and that WMDC
will forward duplicate copies of their medical records, in terms of arrangement
and legibility, at Physician's or Patient's costs, to Physicians in Lake City,
Florida, if authorized in writing by such patient to do so. [This Section is
subject to modification based on a review of Florida law.]
8. CONTINUITY OF PATIENT CARE.
The Parties agree that continuity of patient care is
paramount, notwithstanding any provisions in this Agreement to the contrary.
Accordingly, in the event that as of February 28, 1998 WMDC has not made
satisfactory arrangements for one or more physicians to provide Medical Services
to WMDC's patients, Physicians agree to provide such Medical Services on an
independent contractor basis or to extend the Term of this Agreement, as
mutually determined by the Parties.
9. CONTINUING MEDICAL EDUCATION.
In consideration of Physicians' contributions to the Clinical
Research efforts at WMDC, WMDC will authorize up to one day's attendance by each
Physician at a continuing medical education ("CME") seminar with hands-on
patient care for each Physician in the techniques of saline-infusion
hysterosonography prior to January 29, 1998. Out-of-pocket expenses including
travel and course registration fees are the responsibility of Physicians for
attendance at such CME seminar.
10. PRIOR BUSINESS-RELATED EXPENSES.
WMDC shall cause Physicians to be reimburse for all reasonable
business-related expenses occurring prior to December 1, 1997 for which
Physicians have not been reimbursed in accordance with WMDC's business-related
expenses reimbursement policy. All other outstanding unreimbursed expenses
submitted by Physicians to WMDC for which Physicians have not been reimbursed
will be reimbursed.
11. LAKE CITY OFFICE.
(a) In consideration of Physicians' faithful performance of
the terms and conditions of this Agreement during the Term, at the expiration of
the Term, WMDC will sell to Physicians, at the net book value, in accordance
with generally accepted accounting principles, the fixed assets located at the
Lake City Office. A Xxxx of Sale for such assets will be delivered to Physicians
on or about February 28, 1998.
(b) In addition to purchasing the fixed assets associated with
the Lake City Office, Physicians will assume liability for the office lease and
any and all equipment leases for equipment located at the Lake City Office. An
Assignment and Assumption Agreement will be executed by the Parties on or about
February 28, 1998.
12. ARBITRATION.
Any and all claims, disputes or controversies arising under,
out of or in connection with this Agreement or the Physician Employment
Agreements, or any breach thereof, shall be determined by binding arbitration in
the State of Florida, City of Gainesville (hereinafter "Arbitration"). The party
seeking determination shall subject any such dispute, claim or controversy
to either (i) JAMS/Endispute or (ii) the American Arbitration Association, and
the rules of commercial arbitration of the selected entity shall govern. The
Arbitration shall be conducted and decided by three (3) arbitrators. Each party
shall bear its own expenses, the expenses of its selected arbitrator and
one-half the expenses of the third arbitrator. Any application to compel
Arbitration, confirm or vacate an arbitral award or otherwise enforce this
Paragraph shall be brought in the Courts of the State of Florida.
13. COOPERATION.
In the event of any claims, suits or governmental
investigations, arising out of or relating to WMDC, in which Physicians, WMDC or
IntegraMed America, Inc.("INMD"), the parent company to WMDC, shall be named or
involved, whether pending during the Term of this Agreement or the Physician
Employment Agreements, Physicians, WMDC and INMD agree to cooperate fully with
each other in the defense of such suit, claim or investigation. Such cooperation
shall include, by way of example but not limitation, meeting with defense
counsel, the production of any documents in their possession for review,
participation in discovery, response to subpoenae and the coordination of any
individual defense with counsel for INMD, WMDC or Physicians. Physicians, WMDC
or INMD shall, as soon as practicable, deliver to each other copies of any
summonses, complaints, suit letters, subpoenae or legal papers of any kind,
served upon said party or the attorney for said party. This obligation to
cooperate in the defense of any such claims or suits shall survive the
termination, for whatever reason of this Agreement and nothing in this paragraph
shall obligate any party to pay any legal fees incurred by the other.
14. NOTICES.
All notices, requests, demands, and other communications
provided for in this Agreement or required among the Parties in connection with
this Agreement shall be in writing and shall be deemed to have been given at the
time when personally delivered, mailed at any United States Post Office via
certified mail, postage prepaid, return receipt requested, or sent by overnight
delivery service against receipt, addressed to the party at the address set
forth below or such other address as such party may designate by notice:
If to Physicians:
X. Xxxxx Xxxxxxx, Jr., Ph.D., M.D.
Xxxxx X. Xxxxxx, M.D.
0000 X.X. 0xx Xxxx
Xxxxxxxxxxx, XX 00000
If to WMDC:
Executive Director
Women's Medical & Diagnostic Center, Inc.
Office Park West
000 X.X. 00xx Xxxxxxx
Xxxxxxxxxxx, XX 00000
With a copy to:
Xx. Xxx Xxxxxx, Vice President
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
15. AMENDMENTS.
No modification, amendment, or addition to this Agreement, nor
waiver of any of its provisions, shall be valid or enforceable unless in writing
and signed by all Parties or the party to be charged. 16. ASSIGNMENT. No
assignment or delegation of this Agreement or the rights and obligations
hereunder shall be valid without the specific written consent of the Parties.
17. SEVERABILITY.
Each provision of this Agreement is intended to be severable,
and may be modified by any court of competent jurisdiction to the extent
necessary to make such provision valid and enforceable. If any term or provision
hereof shall be determined by a court of competent jurisdiction to be illegal or
invalid for any reason whatsoever in whole or in part, such provision shall be
severed from this Agreement and shall not affect the validity of the remainder
of this Agreement. 18. WAIVER; CONSENT. No consent or waiver, expressed or
implied, by any party hereto, of any breach or default by a party in the
performance by the other of is obligations hereunder, shall be valid unless in
writing, and no such consent or waiver shall be deemed or construed to be a
consent or waiver to or of any other breach or default on the performance by
such other party of the same or any other obligation or such party hereunder.
Failure on the part of either party to complain of any act or failure to act of
the other party or to declare the other party in default, irrespective of how
long such failure continues, shall not constitute a waiver by such party of its
rights hereunder. The granting of any consent or approval in any other instance
by or on behalf of Physicians or WMDC shall not be construed to waive or limit
the need for such consent in any other or subsequent instance. 19. CONFLICT. If
there is a conflict between this Agreement and the Physician Employment
Agreements, the provisions of this Agreement shall control. Any portion of the
Physician Employment Agreements not specifically superseded by the terms of this
Agreement remains in full force and effect, unless terminated pursuant to this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as the
date first above written.
X. XXXXX XXXXXXX, JR., PH.D., M.D.
/s/ X. Xxxxx Xxxxxxx, Jr., Ph.D., M.D.
--------------------------------------
X. Xxxxx Xxxxxxx, Jr., Ph.D., M.D.
XXXXX X. XXXXXX, M.D.
/s/ Xxxxx X. Xxxxxx, M.D.
------------------------------------
Xxxxx X. Xxxxxx, M.D.
WOMEN'S MEDICAL & DIAGNOSTIC CENTER, INC.
By:/s/ Xxx Xxxxxx
----------------------------
Xxx Xxxxxx, Vice President
