Management Agreement
THIS AGREEMENT made as of May 27th, 0000
X X X X X X X:
Southern Diagnostics, Inc. a company incorporated pursuant to the laws of the State of Colorado;
("SDI")
- and -
Banyan Corporation, a company incorporated pursuant to the laws of the State of Oregon and with offices located in the City of Los Angeles, in the State of California
( "BANYAN")
WHEREAS SDI acquired all of the issued and outstanding shares of Nationwide Diagnostic Solutions, Inc. (NDS), a diagnostic imaging business, located in the City of Phoenix, in the State of Arizona and conducting business nationwide;
AND WHEREAS NDS has or will dividend its entire client list to SDI, and SDI has or will enter a partnership or corporate arrangement with Premier Health LLC located in Boca Raton, Florida to form Premier SD LLC (the “Partnership”), which will conduct all future diagnostic imaging testing on behalf of SDI and SDI shall be responsible for the generation of business for the Partnership (the “Business”)
AND WHEREAS SDI is primarily a holding company and not an operational company and desires to retain BANYAN to provide operational and management services for the Business;
AND WHEREAS BANYAN has management capability and expertise required for the efficient operations and management of the Business and desires to acquire the operational and management services for the Business pursuant to the terms herein contained;
AND WHEREAS SDI and BANYAN are desirous of setting out the terms and conditions of Banyan acquiring the management and operations of the Business from SDI and for its duties and obligations relating to the management and operations of the Business pursuant to the terms and conditions as herein contained;
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants and agreements herein contained, the parties do hereby mutually covenant and agree as follows:
| 1. | Acquisition of Management Contract |
a. Subject to and in accordance with the terms and conditions hereof, Banyan covenants and agrees to acquire from SDI a ten year (10) year contract for providing management for the Business and a further option to extend this contract for an additional ten (10) year term at the expiration hereof (the “Option”) for the acquisition Price payable on the Closing Date.
i. Acquisition Price. The acquisition price (the “Acquisition Price”) for the acquisition of the management contract of the Business is Seven Hundred Thousand ($700,000) Dollars, payable in cash on the Closing date.
| 2. | Management. | |
| a. | BANYAN represents to SDI that BANYAN has the required
skills and experience to perform the duties and exercise the responsibilities
required for the efficient operation and management of the Business; |
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| b. | In carrying out these duties and responsibilities
BANYAN shall comply with all lawful and reasonable instructions as may
from time to time be given by individuals representing SDI; |
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| c. | In consideration for BANYAN’s agreement hereto
and BANYAN’s performance in accordance herewith, SDI agrees to retain
BANYAN as set out herein; |
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| d. | This agreement shall commence on the date the acquisition
of the Business by SDI concludes. |
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| 3. | Attention to Business. During the
term of this agreement, BANYAN shall devote sufficient time and attention,
including staffing the Business with as many full time employees as necessary
for the efficient operation and management of the Business and to attend
to such duties as may be assigned by SDI, and shall faithfully and diligently
serve and endeavour to further the interests of the Business. In particular,
BANYAN shall manage the Business pursuant to the terms and conditions
as set out herein. |
| 4. | Management Duties. BANYAN shall: |
i. Provide all administrative and clerical services for the Business;
ii. Manage and supervise the operation and maintenance of the Business;
iii. Promptly collect all income payable to the Business when such amounts become due and deposit all such amounts without deduction to the accounts of BANYAN;
iv. Institute and prosecute, in the name of SDI or BANYAN, as the case may be, and on its behalf, legal actions for the recovery of any amounts due to the Business;
v. Institute and prosecute lawsuits as may be required for the ongoing items that may arise, from time to time, for the operation of the Business;
vi. Administer and enforce all agreements that the Business are a party to;
vii. Do all things necessary to ensure compliance by BANYAN employees and patients of the Business in line with the requirements of the Business;
viii. Arrange and renew all insurance policies as is standard in the industry for the Business;
ix. Keep complete records and copies on all documentation in respect to deposits made to the account of BANYAN and SDI;
x. Prepare and file all documents or deductions required under such acts as The Xxxxxxx'x Compensation Act, the Income Tax Act and any such similar acts or legislation;
xi. Provide a complete set of bookkeeping records relating to the operation of the Business;
xii. Maintain bank accounts in the name of BANYAN and SDI and out of such bank account pay such operating expenses of the Business with statements of the amounts paid out of such bank account, keeping appropriate backup documentation with respect to such statements;
xiii. Maintain a chart of accounts and control procedure and systems in accordance with good accounting standards;
xiv. Maintain complete records and files;
xv. Prepare, on a regular basis, statements reporting the income and expenses of the Business;
xvi. Conduct and operate a marketing plan for the Business and formulate and carry out a promotional program and budget and to provide management, clerical and accounting services for this purpose.
xvii. Attend to the repair, maintenance or housekeeping of the Business.
xviii. Attend to the exterior and interior signs and other advertising media and devices and prevention of nuisances as may be required.
xxix. Ensure the conformance with legal or regulatory requirements of public authorities, insurance companies and rating bureaus;
xx. Attend to any breach of BANYAN employees covenants which may require action and do all things necessary to ensure compliance by the employees with their obligations as they relate to the Business.
xxi. Represent the Business in their relationship with public authority, local and civic organizations and service groups and with other organizations as required;
xxii. Settle minor claims against the Business in accordance with standard procedures as developed from time to;
xxiii. To retain, subject to consultation with the Board of Directors of SDI, lawyers, chartered accountants, appraisers, advertising agencies and consultants as may be required from time to time for the proper operation and maintenance of the Business.
| 4. | Expenditure of Funds BANYAN is authorized
to take all reasonable actions needed to carry out responsibilities under
this Agreement and manage the Business in a manner advantageous to the
Business, BANYAN and SDI. |
| 5. | Confidential Information
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| a. |
BANYAN acknowledges that it will acquire
knowledge and/or information about certain matters and things which are
confidential to SDI, whether in the course of or incidental to BANYAN’s
management of the Business, and which knowledge or information is the
exclusive property of SDI, including, without limitation: |
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| i.
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SDI financing details; |
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| ii. |
SDI joint venture details with Premier Health LLC
and Premier SD LLC; |
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| iii. |
marketing knowledge and/or information; |
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| iv. |
knowledge and/or information regarding competitors;
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| v. |
other intellectual property and/or data; and |
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| vi. |
such other knowledge and/or information as SDI may
from time to time own or otherwise have an interest in. |
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| b. |
BANYAN acknowledges that knowledge and/or
information, including such knowledge and/or information as referred to
herein, could be used to the detriment of SDI. Accordingly, BANYAN hereby
agrees to treat, in strictest confidence, all such knowledge and/or information
and agrees not to disclose or authorize disclosure of, same to any third
party either during or after the term of this Agreement, other than as
required in the ordinary course of business. |
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| c. |
BANYAN acknowledges that, without prejudice
to any and all rights of SDI, an injunction is the only effective remedy
to protect SDI’s rights as set out herein. |
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| d. |
BANYAN agrees that all records, files,
drawings, tapes, documents, tools, equipment and the like relating to
the business, work or investigations of the Business and prepared, used
or possessed by BANYAN, or under BANYAN’s control, during the term
of this agreement shall be and remain the sole and exclusive property
of SDI. |
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| e. |
Prior to the termination of this agreement,
BANYAN agrees to deliver promptly to SDI all such records, files, drawings,
tapes, documents, plans, tools and equipment. |
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| f. |
BANYAN, represents that it has no agreement
with or obligation to others in conflict with its obligations under this
Agreement. |
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| 6. | Remuneration In consideration
of BANYAN’s undertaking and the performance of the obligations contained
herein, SDI shall pay the following: |
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All
revenues as collected by BANYAN in the operations of the Business, less
all expenses of the Business, together with any legal costs incurred by
SDI as related to its involvement with the Business; |
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| 7. | Term and Termination |
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| a. |
Subject to the termination provisions
contained below, this agreement shall be for a term of ten (10) years
commencing on the date the acquisition of the Business by SDI closes;
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| b. |
BANYAN shall have an option to renew this
agreement for an additional 10 years on the expiration hereof provided
this agreement is in good standing, pursuant to the same terms and conditions
as herein contained. |
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| c. |
This Agreement may be terminated in the
following manner in the following circumstances: |
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| i.
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By BANYAN upon the giving of not less than 60 days
notice to SDI; |
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| ii. |
By BANYAN for cause including any material breach
of this Agreement by SDI |
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| iii. |
By SDI immediately in the event of any gross negligence,
fraud or any illegal act by BANYAN or the bankruptcy or insolvency of
BANYAN; |
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| iv. |
By SDI immediately in the event of a
change of the Board of Directors of Banyan Corporation or its subsidiaries
Chiropractic USA, Inc. or Diagnostic USA, Inc. without the prior written
approval of SDI; |
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| d. In
the event that SDI terminates this agreement pursuant to the provisions
contained in Article 7.c.iv above, SDI shall pay a termination fee to
BANYAN equivalent to the Acquisition Price less all amounts earned by
BANYAN hereunder from the commencement date hereof until the date of termination
(the “Termination Fee”). The Termination Fee shall be paid
to BANYAN over a 3 year term, and SDI shall deliver a Promissory Note
to Banyan evidencing this debt. If the amount earned by BANYAN pursuant
to this agreement exceeds the Acquisition Price, the Termination Fee shall
be One Hundred ($100.00) Dollars. |
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| 8. | Successors and Assigns.
Neither BANYAN nor SDI shall have the right to assign this Agreement or
any interest herein or subcontract the performance of any services without
the prior written consent of the other party. This Agreement shall enure
to the benefit of and be binding on the heirs, executors, administrators,
successors and permitted assigns of the parties hereto. |
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| 9. | Relationship. BANYAN shall
perform the Services as an independent contractor. Nothing contained in
this Agreement shall be deemed to create any association, |
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| partnership, joint venture, or relationship
of principal and agent or employer and employee between the parties hereto
or to provide either party with the right, power or authority, whether
express or implied, to create any such duty or obligation on behalf of
the other party. BANYAN also agrees that it will not hold itself out as
an affiliate of or partner, joint venturer, co-principal or co-employer
with SDI or with Premier SD LLC., by reason of the agreement and that
BANYAN will not knowingly permit any of its employees, agents or representatives
to hold themselves out as, or claim to be, officers or employees of SDI
by reason of the agreement. |
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| 10 | Severability. In the event
that any provision herein or part hereof shall be deemed void or invalid
by a court of competent jurisdiction, the remaining provisions, or parts
hereof, shall be and remain in full force and effect. |
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| 11. | Entire Agreement. This Agreement
constitutes the entire agreement between the parties hereto. Any and all
previous agreements, written or oral, express or implied between the parties
hereto or on their behalf are hereby terminated and cancelled and each
of the parties hereto hereby releases and forever discharges the other
of and from all manner of actions, causes of action, claims and demands
whatsoever under or in respect of any such agreement. |
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| 12. | Amendment. This Agreement
may be altered, modified or amended only by a written instrument, duly
executed by both parties and stating that the alteration, modification
or amendment is an addition to and subject to this Agreement. |
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| 13. | Non-Merger. Notwithstanding
any other provision in this Agreement to the contrary, the provisions
of paragraph 5 hereof shall survive termination of this Agreement and
shall not merge therewith. |
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| 14. | Notices |
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| a.
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Any notice required or permitted to be given to
BANYAN shall be sufficiently given if delivered to BANYAN personally or
if mailed by registered mail to BANYAN’s address last known to SDI.
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| b. |
Any notice required or permitted to be given to
SDI shall be sufficiently given if delivered to or mailed by registered
mail to SDI at it’s registered office. |
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| Any notice given pursuant to and in accordance
with this paragraph shall be deemed to be received by the recipient on
the third business day after mailing, if sent by registered mail, and
on the day of delivery, if delivered. |
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| 15. | Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the
State of Colorado. |
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written.
| SOUTHERN DIAGNOSTICS, INC. | ||
| Per: | "Xxxx Xxxxxx" | |
| BANYAN CORPORATION | ||
| Per: | "Xxxxxxx Xxxxxx" | |
