FACILITIES AND MANAGEMENT SERVICES AGREEMENT
Exhibit
10.6
THIS FACILITIES AND MANAGEMENT SERVICES
AGREEMENT is entered into and made effective as of March 1,
2009, by and between Xxxxx Xxxxxx Xxxxx, M.D. and Xxxxx Xxxxxx Xxxxx, MD, Inc.,
a California Professional Corporation, hereinafter collectively referred to as
(“Doctor”) and MySkin, Inc., a California Corporation
(“Company”).
W
I T N E S S E T H:
WHEREAS, Doctor is a validly
existing California professional corporation owned by a duly licensed physician
engaged in the practice of medicine; and
WHEREAS, Company is a duly
filed and validly existing California corporation which desires to provide
facilities and management services including, without limitation, capital,
facilities, equipment, personnel and management expertise (“Management
Services”) for Doctor’s practice of medicine utilizing Company’s existing
facilities located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000
("Premises"), and such other locations as may be agreed upon by the parties;
and
WHEREAS, Doctor desires to
obtain such Management Services as are reasonably necessary and appropriate for
the management of the non-medical aspects of Doctor’s practice of medicine in
the Premises, and desires Company to provide such services.
NOW THEREFORE, for and in
consideration of the agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the parties
hereto agree as follows:
1. Definitions.
For
the purposes of this Agreement, the following terms shall have the following
meanings ascribed thereto, unless otherwise clearly required by the context in
which such term is used.
1.1 Agreement. The
term "Agreement" shall mean this Facilities and Management Services Agreement
between Doctor and Company and any written amendments hereto, as may from time
to time be adopted by the Parties hereto, as hereinafter
provided.
1.2 Company. The
term "Company" shall mean MySkin, Inc., a California Corporation, and any
affiliates owned principally by the Company.
1.3 Doctor. The
term "Doctor" shall mean Xxxxx Xxxxxx Xxxxx, M.D., individually or the
California professional corporation, of which he/she is the majority
shareholder.
1.4 Licensed
Personnel The term “Licensed Personnel” shall mean licensed medical
employees as described in Section 4.2 hereof.
1.5 Practice. The
term “Practice” shall mean the medical practice of Doctor in which of the
Professional Services are provided on the Premises as described
herein.
1.6 Practice
Account. The term "Practice Account" shall mean the bank
account established as described in Sections 3.11 herein
below.
1.7 Practice
Expenses. The term “Practice Expenses” shall mean the expenses
incurred by the Doctor in the provision of Professional Services as described in
Section 3.12 herein below.
1.8 Premises. The
term "Premises" shall mean the medical office(s) leased by Company for the
Practice of Doctor.
1.9 Professional
Services. The term "Professional Services" shall mean certain
medical services, specifically including laser hair removal, laser skin
enhancement procedures and other cosmetic medical procedures provided by and/or
supervised by Doctor in the Premises using Company’s facilities, medical
equipment and the employment, training, and supervision of Licensed
Personnel.
1.10 Management
Account. The term “Management Account” shall mean the bank
account established as described in Section 3.13 herein below.
1.11 Management
Expenses. The term “Management Expenses” shall mean the
expenses incurred by the Company in the provision of Management Services as
described in Section 3.14 herein below.
1.12 Management Fee. The
term "Management Fee" shall mean Company's compensation as described in Section
5 hereof.
1.13 Management
Services The term “Management Services” shall mean
management and support services, specifically including the Premises
and utilities for the Practice, furniture and equipment, employment of
non-licensed personnel, advertising and promotional services, office supplies,
etc.
1.14 Term. The
term "Term" shall mean the initial and any renewal periods of duration of this
Agreement as described in Section 6.1 hereof.
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2
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Appointment and
Authority.
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2.1 Appointment. Doctor
hereby appoints Company as its exclusive agent for the provision of Management
Services related to the Practice, and Company hereby accepts such appointment,
subject at all times to the provisions of this Agreement.
2.2 Authority of
Company. Consistent with the provisions of this Agreement,
Company shall have the responsibility and commensurate authority to provide
Management Services for Doctor’s Practice, including, without limitation, the
provision of office space, equipment, utilities, supplies, support services,
non-licensed personnel, marketing, billing and collection services, financial
record keeping, and other business management services as provided herein.
Company, is hereby expressly authorized to provide all such services in a manner
deemed reasonably appropriate to meet the day-to-day requirements of the
Practice. Company, at its discretion, shall perform some or all of
the Management Services specified hereunder, however, may delegate functions and
duties to such other individuals or entities Company deems to be qualified
to perform such.
2.3 Authority of
Doctor. Doctor shall be solely responsible for the supervision
and control over the provision of all Professional Services of the Practice,
including all treatment, procedures and other medical services which shall be
provided and performed by Doctor or by licensed health care personnel supervised
by Doctor, as Doctor, in its sole discretion, deems appropriate and in
accordance with all applicable federal, state and local laws, rules and
regulations.
3 Obligations of
Company.
3.1 Office
Facilities. Company shall provide the Premises, which
shall be improved and furnished office space adequate for the
Practice.
3.2 Equipment. Company
shall provide the equipment deemed by the parties hereto to be reasonably
necessary and appropriate for the provision of Professional Services on the
Premises. Company shall repair and maintain the Premises and equipment provided
pursuant to this Agreement. Doctor shall not acquire any title or
ownership interest in the Premises or any equipment of the Company made
available pursuant to this Agreement.
3.3 Utilities and Related
Premises Services. Company shall provide necessary
electricity, gas, water, telephone, sewage, waste collection, cleaning (interior
and exterior), pest extermination, heating and air-conditioning maintenance, and
similar services reasonably necessary and appropriate for the Practice. Company
shall provide disposal of all medical and non-medical wastes generated at the
Premises including disposal of any bio-hazardous waste and any other medical
waste that require special disposal.
3.4 Supplies. Company
shall provide office and other business supplies as are reasonably necessary and
appropriate for the provision of Professional Services in the
Premises. Company shall order on behalf of Doctor all patient care
supplies and medications shall in accordance with the specifications of Doctor
with respect to brand names, dosages, quantities and other
specifications.
3.5 Support Services. Company
shall provide all laundry, linen, printing, stationery, forms, postage,
duplication or photocopying services, medical record maintenance services, and
other similar support services as are reasonably necessary and appropriate for
the provision of Professional Services on the Premises.
3.6 Licenses and
Permits. Company shall on behalf of and in the name of Doctor,
apply for, obtain and maintain all federal, State and local licenses and
regulatory permits required for or in connection with the operation of the
Practice and the equipment provided by the Company for use in the
Premises. For any licenses and permits relating to the practice of
medicine which require the approval or direct action of the Doctor, Doctor
agrees to cooperate with Company as reasonably required to obtain such licenses
or permits.
3.7 Personnel. Company
shall employ or otherwise retain all administrative, clerical, and other
non-licensed personnel as Doctor and Company deem reasonably necessary and
appropriate for the operation of the Practice. Company shall have the
responsibility for the payment of salaries and fringe benefits, and for
withholding of income tax, unemployment insurance, social security, or any other
withholding pursuant to any applicable law or governmental requirement. In
recognition of the fact that the personnel retained by Company to provide
services pursuant to this Agreement may from time to time perform services for
others, this Agreement shall not prevent Company from performing such services
for others or restrict Company from using its personnel to provide services to
others, provided such activity does not cause any material detriment to the
Practice.
3.8 Marketing. In
accordance with applicable laws and applicable ethical standards and
restrictions, and subject to Doctor’s approval, Company shall establish and
implement, at its expense, a marketing and public relations program promoting
Professional Services. Company shall establish signs on or about the Premises
identifying the operations of the Practice.
3.9 License to Use Tradenames
and Trademarks of Company. Doctor’s use of any
trademark, trade name, service xxxx, insignia, slogan, emblem, symbol, design or
other identifying characteristic owned by or associated with Company, or any of
its subsidiaries or affiliates (collectively, “Company Marks”) shall be subject
to the written approval of Company. Doctor acknowledges both before and after
the expiration of this Agreement the exclusive right of Company to use or to
grant to others the right or license to use any Company Marks. Doctor
acknowledges that the use of such Company Marks by Doctor are granted at the
absolute discretion of Company, and such use shall terminate immediately upon
written notice from Company. Except as specifically authorized by this
Agreement, Doctor agrees to not use Company Marks nor imitate or infringe upon
any of the foregoing in whole or in part.
Upon
the termination of this Agreement for any cause whatsoever, Doctor shall
forthwith cease any use of such Company Marks in any signs, advertising and
promotional material in order to comply with the provisions of this
Section. Upon termination of this Agreement, Doctor shall immediately
file a Cancellation of Fictitious Name Permit with the Medical Board which uses
the Company name, or name similar thereto.
3.10 Collection
Policies. Company shall on behalf of Doctor establish
and maintain collection policies and procedures, and shall use Company's best
efforts to timely collect for all billable Professional Services provided in the
Practice. Company and Doctor shall establish a fee schedule for all billable
Professional Services. The parties shall consult regarding any
changes in such fee schedule prior to implementation of such
changes.
In
connection with this Section and throughout the Term, Doctor hereby grants
a Special Power of Attorney to Company and appoints Company as Doctor's true and
lawful agent and attorney-in-fact, and Company hereby accepts such special power
of attorney and appointment, for the following purposes:
3.10.1 To xxxx
Doctor's patients, in Doctor's name and on Doctor's behalf, for all billable
Professional Services provided in the Practice.
3.10.2 To
collect and receive, in Doctor's name and behalf, all accounts receivable
generated in the Practice and to deposit all amounts collected in the Practice
Account, as defined hereinafter. In connection herewith, Doctor covenants to
immediately transfer and deliver to Company all funds received for Professional
Services from patients or any third party payors.
3.10.3 To
take custody of, endorse in the name of Doctor, and deposit into the Practice
Account any notes, checks, money orders, and any other instruments received
in payment of the accounts receivable for Professional Services of the
Practice.
Upon request of Company, Doctor
shall execute and deliver to Company or the financial institution wherein the
Practice Account is maintained, any additional documents or instruments as may
be reasonably necessary to evidence or effect the Special Power of Attorney
granted to Company by Doctor pursuant to this Section 3.11 or pursuant to
Section 3.15 hereof.
3.11 Practice
Account. Doctor hereby appoints Company as Doctor's true and
lawful agent and attorney-in-fact, and grants Company a Special Power of
Attorney to have full authority to deposit all funds and revenues generated from
the provision of Professional Services of the Practice, and to make withdrawals
and sign checks for disbursements for the purpose of making payment of any and
all Practice Expenses, including disbursement to the Management Account and all
other disbursements as defined herein. Company shall open and maintain a bank
account designated as “Practice Account” for the deposits and disbursement of
funds of the Practice. The Practice Account shall be opened in the
Doctor’s name and under the Doctor’s employment identification number (“EIN”) as
issued by the Internal Revenue Service.
3.12 Practice
Expenses. Company shall pay from the Practice Account all
costs and expenses reasonably related to the Practice, including but not limited
to compensation benefits and employment costs associated with all Licensed
Personnel, professional liability insurance, medical supplies and all such other
direct and indirect expenses reasonably incurred by Doctor in the provision of
Professional Services for the Practice (collectively, “Practice
Expenses”).
3.13 Management
Account. Company shall open and maintain a separate bank
account designated as “Management Account” for the deposits and disbursement of
funds of the Company. The Management Account shall be opened in the
Company’s name and under the Company’s EIN as issued by the Internal Revenue
Service.
3.14 Management
Expenses. Company shall pay from the Management Account all
costs and expenses reasonably related to the provision of any Management
Services, including but not limited to office rent, utilities and other
occupancy costs, compensation benefits and employment costs associated with all
non-licensed personnel, general liability insurance, equipment lease and
maintenance costs, advertising and promotion, support personnel and contracted
consultants, office supplies, and all such other direct and indirect expenses
reasonably incurred by Company respecting the provision of the Management
Services for the Practice (collectively, "Management
Expenses").
3.15 Accounting and Financial Records. Company
shall establish and administer accounting procedures and systems for the
preparation, and safekeeping of records and books of account relating to the
provision of Professional Services of the Practice, all of which shall be
prepared and maintained in accordance with generally accepted accounting
principles consistently applied for a cash basis accounting
system. Company shall prepare and deliver to Doctor reports
reflecting the financial status of the Practice.
3.16 Patient
Records. Company shall maintain procedures and policies for
the timely filing and maintenance of all patient records generated in the
Practice in accordance with all applicable State and federal laws relating to
the maintenance and confidentiality of patient records. All patient
records shall be the property of Doctor, but shall be maintained by, and in the
custody of Company to the extent necessary for Company to fulfill its
obligations under this Agreement. Company, to the extent lawfully permitted,
shall have access to such patient records, for the purpose of making necessary
copies, in the event this Agreement is terminated.
3.17 Indemnification by
Company. Company does hereby indemnify, hold harmless, and
agrees to defend Doctor and its officers, employees, and agents from and against
any claims, obligations, demands, causes of action, losses, liabilities,
damages, costs and expenses, including reasonable attorney's fees (collectively
"Claims") arising out of or connected with the negligence or fault of Company,
its employees, agents, contractors or Company's performance of its obligations
within its scope of responsibility hereunder.
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4.
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Obligations of
Doctor .
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4.1 Organization/Operation. Doctor,
individually, and Doctor’s professional corporation, shall at all times during
the Term (i) be and remain legally organized to provide Professional
Services in a manner consistent with all State and federal laws; (ii) be duly
authorized to conduct business in the State of California; and (iii) maintain
adequate medical supervision by licensed physicians of all Professional Services
provided by the Practice.
4.2 Licensed Personnel of
Doctor. Doctor shall be solely responsible for the selection,
employment, training, and supervision of all licensed health care personnel,
including, but not limited to physician assistants, nurses and medical
assistants, as Doctor deems reasonably necessary and appropriate for Doctor's
operation of the Practice, collectively, "Licensed Personnel", while performing
Professional Services on the Premises. All Licensed Personnel shall at all times
hold and maintain a valid and unlimited license to practice in the State.
Payment of the compensation and related costs of such personnel shall be paid
from the Practice Account.
4.3 Special
Consideration/Non-Competition . Doctor hereby acknowledges
that Company will incur substantial costs in providing the Premises, equipment,
supplies, support services, non-licensed personnel, marketing, management and
other items and services that are the subject matter of this
Agreement. Accordingly, Doctor covenants and agrees that during the
term of this Agreement and any extension thereof, plus one (1) year thereafter,
Doctor or any physician employee or contractor of Doctor, shall neither directly
or indirectly (a) solicit or employ any employee or independent contractor of
the Practice or Company without prior written approval of the Company, and (b)
disclose, communicate or disclose to, or use for the direct or indirect benefit
of any other person or entity any confidential information regarding Company's
business methods, business policies, procedures, techniques, or trade secrets or
other knowledge or processes developed by Company, made known to Doctor or
learned or acquired by Doctor hereunder.
If any
restriction contained in this Section is held by any court or regulatory
body to be unenforceable or unreasonable, a lesser restriction shall be enforced
in its place and the remaining restrictions set forth herein shall be enforced
independently of each other.
4.4 Doctor's Insurance. Company,
on behalf of and at Doctor’s expense, shall obtain and maintain throughout the
Term hereof appropriate professional liability insurance covering Doctor and all
of Doctor's Licensed Personnel in the minimum amount of One Million Dollars
($1,000,000) for each occurrence and Three Million Dollars ($3,000,000) annual
aggregate, and such amounts as may be reasonable (collectively, "Professional
Insurance"). The insurance policy or policies shall provide for at least thirty
(30) days advance written notice from the insurer as to any alteration of
coverage, cancellation, or proposed cancellation of coverage for any cause.
Doctor shall notify Company of all legal actions or proceedings instituted
by or against Doctor arising out of or related to Doctor's operation of the
Practice.
4.5 Indemnification by Doctor. Doctor
does hereby indemnify, hold harmless, and agrees to defend Company and its
officers, employees, and agents from and against any claims, obligations,
demands, causes of action, losses, liabilities, damages, costs and expenses,
including reasonable attorney's fees (collectively "Claims") arising out of or
connected with the negligence or fault of Doctor, its employees, agents,
contractors or Doctor's performance of its obligations
hereunder.
5 Management Fee.
5.1 Calculation of Management Fee. Doctor
and Company mutually acknowledge that Company is making a substantial investment
in entering into this Agreement. Payment of the Management Fee is
acknowledged as the parties negotiated agreement as to the reasonable, fair
market value of the facilities and services, management and other items and
services furnished by Company pursuant to this Agreement, considering the nature
of the services required, the risks assumed by Company, and the capital being
made available to Doctor by Company on a non-recourse basis. In order
to properly reflect the adequacy of compensation for the range of services
provided by Company, it is mutually agreed that the Management Fee shall be
reviewed at least annually for possible renegotiation based upon the extent of
management services to be provided.
Doctor
shall reimburse Company for the actual, documented costs of all Management
Services, as set forth in Exhibit A, provided by the Company to the Doctor in
accordance with this Agreement. Additionally, for the billing and
collection services, and support and management services described herein that
will be provided by Company, as well as for its efforts in providing the office
space and equipment for the Doctor, Doctor shall pay Company a fixed monthly fee
(the “Service Fee”) as set forth in Exhibit A. Reimbursement of
Company’s costs plus the Service Fee are referred to herein collectively as the
“Management Fee” and shall be payable by Doctor to Company in accordance with
this Section 5.1, as well as pursuant to Exhibit “A,” hereto, payable on the
fifth day of each month during the Term.
In the
event that the accumulated Gross Collected Revenues are insufficient to allow
payment of all Practice Expenses and the Management Fee incurred, then the
amount payable for the Management Fees accrued may be accumulated at the
discretion of the Company and payable in any future month(s) that funds become
available from the Practice Account, however, the Management Fee shall by
payable solely from the Practice Account. Doctor shall incur no liability for
repayment other than from such funds.
5.2 INTENTIONALLY
LEFT BLANK
5.3 Loans to Practice
Account. In the event that funds are required to be advanced
by Company to provide for working capital for the operation of the Practice,
such funds shall be reimbursed to Company from the Practice Account as soon as
available. Any loan amounts which are not repaid to Company within thirty (30)
days from disbursement by Company shall bear interest at the rate of eight
percent (8%) on the unpaid balance until repaid. Any amounts advanced shall be
reimbursed to Company solely from the Practice Account from funds generated from
the Practice, and Doctor shall incur no liability for repayment other than from
such funds.
5.4 Right to Inspect
Records. Doctor shall upon reasonable notice to Company have
the right to inspect the records related to this Agreement to ascertain the
Collected Revenues, Practice Expenses, and calculation of Company's Management
Expenses and Management Fee. Payment of the Management Fee is acknowledged as
the parties' negotiated agreement as to the reasonable, fair market value of the
facilities and services, management and other items and services furnished by
Company pursuant to this Agreement, considering the nature of the services
required and the risks assumed by Company.
6 Term and Termination.
6.1 Initial and Renewal
Terms. This Agreement shall be effective as of March 1, 2009,
for a period of One (1) year therefrom, and shall be automatically extended for
additional one (1) year periods unless terminated pursuant to Section
6.2. Either party hereto may, without cause, terminate this Agreement
by providing at least sixty (60) days written notice to the other party prior to
such termination.
6.2 Termination. This
Agreement may be terminated upon the first to occur of any of the following
events:
6.2.1 Termination by
Agreement. In the event Doctor and Company shall mutually
agree in writing, this Agreement may be terminated on the date specified in such
written agreement.
6.2.2 Bankruptcy. In
the event that either party becomes insolvent, or if any petition under federal
or State law pertaining to bankruptcy or insolvency or for a reorganization or
arrangement or other relief from creditors shall be filed by or against either
party, or if any assignment, trust, mortgage, or other transfer shall be made of
all or a substantial part of the property of either party, or if either party
shall make or offer a compromise in its debts with its creditors, or if a
receiver, trustee, or similar officer or creditor's committee shall be appointed
to take charge of any property of or to operate or wind up the affairs of either
party, then the other party may by written notice immediately terminate this
Agreement.
6.2.3 Specific Doctor
Breaches. At Company's option, in the event that any of the
following occurs with respect to Doctor’s physician shareholder, that he shall
(i) die or be involuntarily inducted into the active military services of the
United States, (ii) fail by omission or commission in any substantial manner to
provide Professional Services in a competent manner, (iii) fail to meet any of
the qualifications set forth in Section 4.1 hereof, (iv) has his
license to practice medicine revoked, suspended, canceled or limited in any
manner, (v) is convicted of a felony or any crime of moral turpitude, or
(vi) refuses to deliver to the Company all revenues received respecting the
provision of Professional Services of the Practice.
6.2.4 Company
Breaches. At Doctor's option, in the event Company
(i) fails to make timely payments of the obligations it has undertaken or
(ii) is in default of any material obligations having an impact upon
Doctor, then Doctor may by written notice to Company terminate this Agreement if
Company has failed to cure such default within thirty (30) days of Doctor's
written notice of such violation, provided if such breach cannot by its nature
be reasonably cured within thirty (30) days then Company shall have such time as
may be reasonable to cure the breach.
6.2.5 Action by Medical
Board or Other Authority with Legal
Jurisdiction. While both parties believe that this Agreement
is in full compliance with the California Business and Professional Code and
Code of Regulations, the interpretation of the Codes and other relevant acts are
subject to change. In the event the Medical Board for the State or
other authority with legal jurisdiction shall, solely by virtue of this
Agreement, initiate an action to revoke the license of any physician retained by
Doctor to practice medicine in the State, or initiate any action against the
Company, either party hereto may, by written notice to the other party,
immediately request that the Agreement be amended in a mutually acceptable
manner. Any amendment shall be made in the lawful manner which
results in the least changes to the parties' expectations
hereunder. In the event the offending provisions of the Agreement
cannot be cured as to the legality of such provisions to the satisfaction of
both parties, then either party may terminate this Agreement upon ten (10) days
written notice, and such termination shall be conducted as set forth in Section
6 of this Agreement.
6.2.6 Default. In
the event either party shall give written notice to the other that such other
party has substantially defaulted in the performance of any material duty or
material obligation imposed upon it by this Agreement, and such default shall
not have been cured within thirty (30) days following the giving of such written
notice, the party giving such written notice shall have the right to immediately
terminate this Agreement unless the defaulting party shall, within said thirty
(30) day period, have made a good faith effort to initiate corrective action and
it is contemplated that such corrective action will be completed within the
following thirty (30) day period.
6.3 Effects of
Termination. Upon termination of this Agreement, as
hereinabove provided, neither party shall have any further obligations hereunder
except for (i) obligations accruing prior to the date of termination, and
(ii) obligations, promises, or covenants set forth herein or in those
collateral agreements of even date herewith that are expressly made to extend
beyond the Term, including, without limitation, indemnities, non-compete and
fees which provisions shall survive the expiration or termination of this
Agreement.
6.4 Continued Professional
Services. Following any notice of termination hereunder,
whether given by Company or Doctor, Doctor and Company will fully cooperate with
each other in all matters relating to the performance or discontinuance of
Professional Services, as appropriate.
7 Miscellaneous
Provisions.
7.1 Exhibits, Schedules and Other
Instruments. As used herein, the expression "this Agreement"
means the body of this Agreement and all exhibits, certificates, and schedules;
and the expressions "herein," "hereof," and "hereunder" and other words of
similar import refer to this Agreement and such exhibits, certificates,
and schedules as a whole and not to a particular part or subdivision
thereof unless otherwise clearly indicated.
7.2 Independent Relationship. It
is mutually understood and agreed that Doctor and Company, in performing their
respective duties and obligations under this Agreement, are at all times acting
and performing as independent contractors with respect to each other, and
nothing in this Agreement is intended nor shall be construed to create an
employer/employee relationship or a joint venture relationship, or to allow
Company to exercise control or direction of any nature, kind, or description
over the manner or method by which Doctor performs Professional
Services.
7.3 Notices. Any
notice, demand, or communication required, permitted, or desired to be given
shall be deemed effectively given (i) when personally delivered, (ii)
three (3) business days next following the day the notice is, mailed by prepaid
certified mail, return receipt requested, or (iii) the next business day
following deposit with a reputable overnight courier, addressed as
follows:
Doctor: 000
Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX
00000
Company: 000
Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX
00000
or to
such other address, and to the attention of such other person or officer as any
party may designate, with copies thereof to the respective counsel thereof as
notified by such party. Rejection or other refusal to accept or the
inability to deliver because of a changed address of which no notice was given
in accordance with the provisions hereof, shall be deemed to be receipt of the
notice sent.
7.4 Legal Fees and Costs. In
the event either party brings any action for relief against the other,
declaratory or otherwise, arising out of this Agreement (including actions to
enforce and interpret this Agreement), the losing party shall pay to the
prevailing party, in addition to any other relief to which such party shall be
entitled, a reasonable sum for attorneys fees incurred in bringing such suit
and/or enforcing any judgment granted therein, all of which shall be deemed to
have accrued upon the commencement of such action and shall be paid whether or
not such action is prosecuted to judgment. Any judgment or order
entered in such action shall contain a specific provision providing for the
recovery of attorney fees and costs incurred in enforcing such judgment, in
addition to any other relief to which such party shall be
entitled.
7.5 Choice of Law and Venue. THIS
AGREEMENT HAS BEEN EXECUTED AND DELIVERED IN AND SHALL BE INTERPRETED,
CONSTRUED, ENFORCED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA, AND THAT THE COURTS OF THAT STATE SHALL BE THE EXCLUSIVE COURTS
OF JURISDICTION AND VENUE FOR ANY LITIGATION, SPECIAL PROCEEDING OR OTHER
PROCEEDING AS BETWEEN THE PARTIES THAT MAY BE BROUGHT, OR ARISE OUT OF, IN
CONNECTION WITH, OR BY REASON OF THIS AGREEMENT. EACH PARTY HEREBY
CONSENTS TO THE JURISDICTION OF SUCH COURTS.
7.6 Assignment. Except
as may be herein specifically provided to the contrary, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective legal representatives, successors, and assigns; provided, however,
that Doctor shall not assign, transfer or pledge his rights and obligations
under this Agreement or collaterally assign or hypothecate this agreement
without the prior written consent of Company. Company shall have the
right to (i) assign its rights and obligations hereunder to any affiliated
third party and (ii) collaterally assign its interest in this Agreement and
its right to collect Management Fees hereunder to any financial institution or
other third party without the consent of Doctor. Company must provide
ten days prior written notice to Doctor prior to assigning this
Agreement.
7.7 Waiver of Breach. The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to constitute, a waiver of any
subsequent breach of the same or another provision hereof.
7.8 Enforcement. All
claims and disputes relating to this Agreement shall be subject to confidential
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then obtaining and with one
arbitrator. Written notice of demand for arbitration shall be filed
with the other party to the Agreement and with the American Arbitration
Association, within a reasonable time after the dispute has
arisen. In the event either party resorts to legal action to enforce
the arbitration results or any other provision of this Agreement,
the prevailing party shall be entitled to recover the costs of such action
so incurred, including, without limitation, reasonable attorneys'
fees.
7.9 Gender and Number. Whenever
the context of this Agreement requires, the gender of all words herein shall
include the masculine, feminine, and neuter, and the number of all words herein
shall include the singular and plural. The term "person" when used
herein shall mean an individual, partnership, joint venture, corporation, trust,
government entity, and association.
7.10 Additional Assurances. Except
as may be herein specifically provided to the contrary, the provisions of this
Agreement shall be self-operative and shall not require further agreement by the
parties; provided, however, at the request of either party, the other party
shall execute such additional instruments and take such additional acts as are
reasonable and as the requesting party may deem necessary to effectuate this
Agreement.
7.11 Consents, Approvals,
and Exercise of Discretion. Except as may be herein
specifically provided to the contrary, whenever this Agreement requires any
consent or approval to be given by either party, or either party must or may
exercise discretion, the parties agree that such consent or approval shall not
be unreasonably withheld or delayed, and such discretion shall be reasonably
exercised in good faith.
7.12 Force
Majeure. Neither party shall be liable or deemed to be in
default for any delay or failure in performance under this Agreement or other
interruption of service deemed to result, directly or indirectly, from acts of
God, civil or military authority, acts of public enemy, war, accidents, fires,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party.
7.13 Severability. In
the event any provision of this Agreement is held to be invalid, illegal,
or unenforceable for any reason and, in any respect, if the extent of such
invalidity, illegality or unenforceability does not destroy the basis of the
bargain herein such invalidity, illegality, or unenforceability shall in no
event affect, prejudice, or disturb the validity of the remainder of this
Agreement, which shall be in full force and effect, and enforceable in
accordance with its terms as if such provisions had not been included, or had
been modified as provided below, as the case may be. To carry out the
intent of the parties hereto as fully as possible, the invalid, illegal or
unenforceable provision(s), if possible, shall be deemed modified to the minimum
extent necessary and possible to render such provision(s) valid and
enforceable.
7.14 Future Laws and
Regulations. To carry out the intent of the parties to comply
with all laws and regulations affecting and governing this Agreement, the
parties hereto agree that, if any laws or regulations are enacted after the
effective date of this Agreement that cause any portion of this Agreement to be
illegal, invalid, or unenforceable, the parties shall modify the affected terms
to comply with the enacted laws and regulations. However, if the
parties fail to modify this Agreement to conform with those laws and
regulations, or if any opinions issued by a court interpreting governing laws or
regulations find any portion of this Agreement illegal, invalid, or
unenforceable, section 7.13 of this Agreement shall govern.
7.15 Divisions and Headings. The
division of this Agreement into articles, sections, and subsections and the use
of captions and headings in connection therewith are solely for convenience and
shall not affect in any way the meaning or interpretation of this
Agreement.
7.16 Amendments and Agreement
Execution. This Agreement and amendments thereto shall be in
writing and executed in multiple copies on behalf of Doctor by its duly
authorized representative and on behalf of Company by its duly authorized
representative. Each multiple copy shall be deemed an original, but
all multiple copies together shall constitute one and the same
instrument.
7.17 Time of
Essence. Time shall be of the essence with respect to this
Agreement.
7.18 Entire Agreement/Amendment. This
Agreement supersedes all previous written or oral agreements, negotiations, and
understandings, and constitutes the entire agreement of whatsoever kind or
nature existing between or among the parties respecting the within subject
matter and no party shall be entitled to benefits or subject to obligations
other than those specified herein. As between or among the parties,
no oral statements or prior written material not specifically incorporated
herein shall be of any force and effect; the parties specifically acknowledge
that in entering into and executing this Agreement, the parties rely solely upon
the representations and agreements contained in this Agreement and no
others. All prior representations or agreements, whether written or
verbal, not expressly incorporated herein are superseded. This
Agreement may not be amended, supplemented, canceled or discharged except by
written instrument executed by all parties hereto. This Agreement may
be executed in two or more counterparts, each and all of which shall be deemed
an original and all of which together shall constitute one
instrument. It shall not be necessary that the signatures of all of
the parties appear on each counterpart; it shall be sufficient that the
signature of each party appear on one or more counterparts.
7.19 Rules of
Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement, and the parties hereby agree
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 or any amendments or exhibits, certificates and
schedules hereto. The term "include" or "including" shall mean
without limitation by reason of enumeration.
7.20 Third
Parties. None of the provisions of this Agreement shall be for
the benefit of third parties or enforceable by any third party. Any
agreement to pay an amount and any assumption of a liability herein contained,
expressed or implied, shall only be for the benefit of the parties hereto and
such agreement or assumption shall not inure to the benefit of the any third
party, including an obligee.
IN
WITNESS WHEREOF, Doctor and Company have executed this Agreement in multiple
originals as of the date written above.
Doctor:
By__/s/ Xxxxx Xxxxxx
Agner__________
Its:
President
Company:
By___/s/ Marichelle
Stoppenhagen___
Its:
President
EXHIBIT
“A”
MANAGEMENT
FEE CALCULATION
Company
and Doctor acknowledge and mutually agree that during the initial twelve (12)
months of this Agreement, in consideration for the value of Management Services
provided, Company shall be paid a Management Fee as set forth in this Exhibit A
and as described in Section 5 of this Agreement, in an amount to reimburse for
all Management Expenses incurred directly or indirectly, including but not
limited to: office rent and occupancy costs, lease and maintenance of equipment,
utilities, employment of non-licensed personnel, general liability insurance,
office and other supplies, advertising and promotion, and other related
expenses.
In
addition to such reimbursement of Management Expenses, a monthly service fee
equal to Forty Percent (40%) of Gross Collected Revenue, shall be calculated and
payable monthly, with a minimum amount of Five Thousand Dollars ($2,500) per
month (“Service Fee”). Gross Collected Revenue shall be defined as the gross
amount of all sums collected from the Professional Services performed and
medical supplies provided by or on behalf of Doctor in the Practice, and shall
not include revenue collected by Company from customers of Company for
non-medical services or products provided. Payment of the Management Fee shall
be payable on or before the 15th day of
each month of this Agreement following the month services were
performed.
In
order to properly reflect the adequacy of compensation payable for the range of
services provided by Company, it is mutually agreed that the Management Fee
shall be reviewed for possible renegotiation at least annually.
