EXHIBIT 10.6
FORM OF
PHYSICIAN EMPLOYMENT AGREEMENT
THIS PHYSICIAN EMPLOYMENT AGREEMENT (the "AGREEMENT"), is made and
entered into this _____ day of ____________________, 199__, by and between
____________________________ , D.P.M. (hereinafter "PHYSICIAN EMPLOYEE"), whose
mailing address is and whose facsimile telephone number is , and
___________________________; a [State] [professional limited liability company]
(hereinafter the "GROUP PRACTICE") having its principal office at
___________________________ and whose facsimile telephone number is
___________________ and American Medical Providers, Inc., a Delaware
corporation, or one of its affiliates, successors or assigns (hereinafter
"ADMINISTRATOR") as a designated third party beneficiary hereof whose mailing
address ____________ and whose facsimile telephone number is _______________.
W I T N E S S E T H:
This Agreement is made and entered into under the following
circumstances:
(1) Whereas the Group Practice is engaged in the business of owning and
operating a medical practice; and
(2) Whereas the Group Practice desires, on the terms and conditions
stated herein, to employ the Physician Employee as a clinic physician
specializing in podiatric medicine and all related medical fields to the fullest
extent permitted by Physician Employee's license;
(3) Whereas the Physician Employee desires, on the terms and conditions
stated herein, to be employed by the Group Practice; and
(4) Whereas Group Practice and Administrator have entered into a
Management Services Agreement as of , 1997 attached hereto as Exhibit A (the
"MANAGEMENT SERVICES AGREEMENT"), and capitalized terms used herein but not
defined shall have the meanings ascribed to those terms in the Management
Services Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and of the
promises, covenants, terms and conditions contained herein, the parties hereto
agree as follows:
1. EMPLOYMENT AND TERM. The Group Practice hereby employs Physician
Employee, and Physician Employee hereby accepts employment with the Group
Practice commencing ______________________ (hereinafter the "EFFECTIVE DATE")
and continuing for a period of __________ (___) years and unless cancelled in
accordance with the terms of this Agreement continuing for successive _______
(___) year renewal periods thereafter (hereinafter the "TERM OF EMPLOYMENT").
The Term of Employment shall automatically renew unless either party gives
written notice of intent not to renew not less than two (2) months prior to the
applicable renewal
date (the ____________ anniversary of the Effective Date and each anniversary
date thereafter). The Term of Employment provided for in this Section 1 shall be
subject to earlier termination as provided for elsewhere in this Agreement.
The parties agree that with respect to the initial renewal of the Term
of Employment, either party may initiate renewal discussions and negotiations at
any time after the end of the 27th month of the Term of Employment and the
parties will agree to mutually schedule an initial negotiating meeting prior to
the 30th month of the Term of Employment and to proceed with negotiations in an
expeditious manner until the end of the 36th month or until notice of intent not
to renew is given by either party.
2. DUTIES AND QUALIFICATIONS. Physician Employee shall provide medical
services to patients at the Group Practice's office or offices located at as
listed on SCHEDULE A, or such other locations in the county or counties listed
on SCHEDULE A (the "COUNTY") or surrounding area as requested by Group Practice
and automatically agreed to by Physician Employee, in accordance with the laws
of the state listed on SCHEDULE A (the "STATE") and the principles of medical
ethics of the American Podiatric Medical Association.
During the Term of Employment, Physician Employee will practice medicine
only as an employee of the Group Practice, will practice medicine on a full-time
basis and will perform such other duties as are reasonably assigned to Physician
Employee from time to time by the Group Practice. Such duties shall include,
without limitation:
a. Physician Employee shall devote Physician Employee's full
professional time, attention, and energies to rendering professional services at
the Facility and at such other places in the County and its surrounding areas as
may be designated from time to time by Group Practice and to performing
administrative duties related to such professional practice;
b. Physician Employee shall provide "on duty" and "on call"
services on an equal rotating basis with other physician employees of Group
Practice, and shall provide "on call" services at those hospitals and other
facilities that are designated from time to time in Group Practice's business
plan or as otherwise agreed to by Physician Employee;
c. Physician Employee agrees to keep and maintain (or cause to be
kept and maintained) on a timely basis appropriate records relating to all
professional services rendered by Physician Employee hereunder and to attend to
all billing reports, claims, and correspondence required in connection with
Physician Employee's services rendered under this Agreement;
d. Physician Employee shall notify Group Practice immediately,
but in no event later than twenty-four (24) hours after receipt by Physician
Employee of any notice, claim or petition that might be covered under any
medical professional liability insurance covering Physician Employee or, in any
event, that might claim damages in excess of five percent (5%) of Physician
Employee's net worth.
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e. Physician Employee agrees to promote, to the extent permitted
by law and the applicable canons of professional ethics and applicable parts of
this Agreement, the professional practice of Group Practice;
f. Physician Employee will, to a reasonable extent, attend
professional conventions and post-graduate seminars and participate in
professional societies in conjunction with the covenants and agreements
contained herein, and will do all things reasonably desirable to maintain and
improve Physician Employee's professional skills;
g. Physician Employee shall be and remain duly licensed by the
State to practice medicine without restriction and shall comply with and be
controlled and governed by, and otherwise perform services hereunder in
accordance with, applicable law and the ethics and standards of care of the
medical community or communities in which Physician Employee shall from time to
time provide services; and
h. For the purpose of permitting the Group Practice and/or its
management services provider to purchase key man life insurance covering
Physician Employee and naming Group Practice and/or its management services
provider as exclusive beneficiaries, Physician Employee agrees to any action
reasonably required to obtain such insurance, including submitting to a physical
examination if required by any carrier proposing to provide such insurance.
i. Physician Employee shall at all times comply with the policies
and procedures adopted by the Group Practice from time to time, and shall
perform such other duties as Group Practice and Physician Employee may from time
to time mutually agree, which agreement shall not be unreasonably withheld.
j. Nothing herein shall authorize Group Practice to impose duties
or constraints of any kind which would require Physician Employee to infringe
the ethics of the medical profession or violate any local ordinance or other
law. Further, Physician Employee shall be permitted to invest Physician
Employee's personal assets and manage Physician Employee's personal investment
portfolio in such a form and manner as will not require any professional or
business services on Physician Employee's part to any third party, or conflict
with the provisions of Sections 15, 16 or 17 of this Agreement.
3. PROFESSIONAL JUDGMENT. Physician Employee will be free to exercise
Physician Employee's own judgment regarding the treatment of any particular
patient. Physician Employee, however, agrees to observe and comply with the
rules, regulations, policies and procedures of Group Practice as adopted from
time to time by the Group Practice.
4. STATUS OF PHYSICIAN EMPLOYEE. The parties expressly acknowledge that
Physician Employee, in the performance of services hereunder, is an employee of
Group Practice. Accordingly, Group Practice shall deduct from all compensation
paid to Physician Employee
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pursuant to this Agreement any sums required to be deducted by law or any other
requirement of any governmental body.
5. PROFESSIONAL FEES. Physician Employee acknowledges that Group
Practice shall be entitled to all fees generated by Physician Employee pursuant
to professional services rendered by Physician Employee, and all such fees shall
be and remain the property of Group Practice. Physician Employee expressly and
irrevocably transfers, assigns, and otherwise conveys to Group Practice all
right, title, and interest of Physician Employee in and to any fees, whether in
cash, goods, or other items of value, resulting from or incident to Physician
Employee's practice of medicine pursuant to this Agreement during the term
hereof and hereby appoints Group Practice as attorney-in-fact for collection of
same or otherwise enforcing Physician Employee's interests therein.
6. OUTSIDE PROFESSIONAL ACTIVITIES. Any fees or other honoraria received
by Physician Employee for speaking engagements or other outside professional
activities shall be the property of Group Practice, unless specifically excluded
on SCHEDULE A attached hereto or otherwise agreed to in writing.
7. SALARY. Physician Employee shall receive an annual salary of ($ .00)
payable in twelve (12) monthly installments.
[OPTIONAL 8. ANCILLARY PROFITS. During each year of the Term of Employment,
Physician Employee may receive a distribution of the profit from Ancillary
Services offered by the Group Practice, the frequency and amount of which shall
be determined in the sole discretion of the Group Practice.]
9. VACATION/PERSONAL TIME. Physician Employee shall be entitled to paid
leave for vacation, illness, disability, holiday and educational purposes as
provided on the attached SCHEDULE B. Physician Employee shall not be entitled to
any additional absences for any reason unless the Group Practice specifically
approves additional leave in writing. Unused holidays and days of vacation may
not be carried over from one fiscal year to another, and additional income will
not be given for vacation time or holidays not taken during any year. Group
Practice and Physician Employee shall mutually agree on the scheduling of
Physician Employee's vacation, holiday and leave time, and all vacation, holiday
and leave time shall be subject to Physician Employee's obligation to make
arrangements with Group Practice's other professional employees for on-call
coverage.
10. BENEFITS. In addition to any other rights Physician Employee may
have hereunder, Group Practice shall provide to Physician Employee, as an
Excluded Group Practice Expense, the benefits listed on the attached SCHEDULE B.
11. PROFESSIONAL MEETINGS AND CONTINUING MEDICAL EDUCATION. Physician
Employee shall be able to attend professional meetings and continuing medical
education conferences as
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provided on SCHEDULE B, but the cost of such meetings or conferences shall be
Exchuded Group Practice Expense.
12. PROFESSIONAL LIABILITY INSURANCE.
a. MINIMUM POLICY. Group Practice shall, at Physician Employee's
expense, at all times during the Term of Employment, maintain and keep in force
professional liability insurance "claims made" policies of standard form in the
State providing coverage for Physician Employee, Group Practice and
Administrator (if possible) with limits of not less than Two Hundred Thousand
Dollars ($200,000.00) per occurrence, and not less than Six Hundred Thousand
Dollars ($600,000.00) in the aggregate or such higher amount as may be deemed
reasonable and/or necessary for each single year. The policy shall be placed
with insurance companies authorized and licensed to issue such policies in the
State with an "A" or higher A.M. Best Rating and reasonably acceptable to Group
Practice, and shall name Physician Employee, Group Practice and Administrator
(if possible) as insured parties. Physician Employee shall cooperate fully with
Group Practice and such insurance companies in order to obtain such professional
liability insurance policy.
b. TAIL COVERAGE. Upon termination of Physician Employee's
employment with Group Practice for any reason other than death, disability or
retirement at age 65 or older, Physician Employee shall obtain at Physician
Employee's expense an extended reporting period or "tail" professional liability
insurance policy in an amount of not less than Two Hundred Thousand Dollars
($200,000.00) per occurrence and Six Hundred Thousand Dollars ($600,000.00) in
the aggregate or such higher amount as may be deemed reasonable and/or necessary
for not less than 5 years, such tail coverage policy to provide coverage of
Physician Employee, Group Practice and Administrator (if possible) for all
occurrences and events during Physician Employee's employment with Group
Practice.
c. INDEMNIFICATION. Physician Employee hereby agrees to defend,
indemnify and hold Group Practice harmless from and against any loss, claim,
suit, expense or obligation arising out of or resulting from Physician
Employee's actual or alleged malpractice in the performance of medical services
pursuant to this Agreement.
d. LOSS OF PROFESSIONAL LIABILITY INSURANCE. Group Practice may
immediately suspend Physician Employee from practice under this Agreement if,
due to any act or omission of Physician Employee, medical professional liability
insurance as specified in (a) above cannot be obtained for Physician Employee or
if Physician Employee's medical professional liability insurance is cancelled,
suspended, revoked or terminated, and Physician Employee shall not be reinstated
or permitted to practice at Group Practice's business until such time as the
medical professional liability insurance for Physician Employee is reinstated to
the satisfaction of Group Practice. Physician Employee will notify Group
Practice immediately, but in no event later than twenty-four (24) hours after
receipt by Physician Employee of any notice or information that
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Physician Employee's professional liability insurance has been or may be
cancelled, terminated, revoked or suspended.
13. TERMINATION. Notwithstanding any other provisions of this Agreement,
the Term of Employment shall terminate upon:
a. the death of Physician Employee; or,
b. upon Physician Employee's "disability" (for purposes of this
Agreement, the term "disability" shall mean the inability of Physician Employee,
arising out of any medically determinable physical or mental impairment, to
perform the services required of him hereunder for a period of sixty (60)
consecutive days during which sixty (60) day period Physician Employee's
compensation hereunder shall continue); or,
c. at Group Practice's option, immediately upon the existence of
"cause." For purposes of this Agreement, the term "cause" shall be defined as:
(1) failure of Physician Employee to perform the duties
required of him in this Agreement in a manner satisfactory to Group
Practice, in Group Practice's sole discretion; provided, however, that
the Term of Employment shall not be terminated pursuant to this
subparagraph (1) unless Group Practice first gives Physician Employee a
written notice ("Notice of Deficiency"). The Notice of Deficiency shall
specify the deficiencies in Physician Employee's performance of his
duties. Physician Employee shall have a period of thirty (30) days,
commencing on receipt of the Notice of Deficiency, in which to cure the
deficiencies contained in the Notice of Deficiency. In the event
Physician Employee does not cure the deficiencies to the satisfaction of
Group Practice, in its sole discretion, within such thirty (30) day
period, the Group Practice shall have the right to immediately terminate
the Term of Employment and this Agreement. The provisions of this
subparagraph (1) may be invoked by Group Practice any number of times
and cure of deficiencies contained in any Notice of Deficiency shall not
be construed as a waiver of this subparagraph (1) nor prevent the Group
Practice from issuing any subsequent Notices of Deficiency;
(2) any dishonesty by Physician Employee in his dealings
with the Group Practice, the commission of fraud by Physician Employee,
or negligence in the performance of the duties of Physician Employee,
all as determined by the Group Practice in accordance with adopted
procedures;
(3) the arrest or conviction (or plea of guilty or nolo
contendere) of Physician Employee of any felony or other crime involving
dishonesty or moral turpitude;
(4) any violation of any covenant or restriction contained
in Section 16 or Section 17 hereof;
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(5) unlawful use of narcotics or other controlled
substances, or use of alcohol or other drugs in a manner the Group
Practice determines to be adverse to the best interests of the Group
Practice;
(6) failure of Physician Employee to maintain Physician
Employee's license and authorization to practice as a physician in the
State;
(7) failure of Physician Employee to (a) obtain within two
(2) years of the Effective Date, and/or (b) maintain Physician
Employee's status as Board certified in podiatric medicine by a
certifying organization acceptable to Group Practice;
(8) if, due to any act or omission of Physician Employee,
the medical professional liability insurance required by Section 12(a)
of this Agreement cannot be obtained or maintained at standard cost, or
if, due to any act or omission of Physician Employee, such medical
professional liability insurance is cancelled, terminated or revoked.
For all purposes of this Agreement, termination for "cause" shall be
deemed to have occurred in the event of Physician Employee's resignation when,
because of existing facts and circumstances, subsequent termination for "cause"
can reasonably be foreseen.
Except as otherwise provided in this Agreement, in the event of
termination of this Agreement pursuant to this Section 13, Physician Employee or
Physician Employee's estate, as appropriate, shall be entitled to receive (in
addition to any fringe benefits payable upon death in the case of Physician
Employee's death) the compensation provided for in Section 7 hereof (prorated on
a daily basis) and any Ancillary Profits provided for in Section 8 hereof
(determined as provided in Section 8), up to and including the effective date of
termination. However, Group Practice reserves the right of setoff for any
damages resulting from the termination or for any amounts owed by Physician
Employee to Group Practice.
14. EFFECTS OF TERMINATION. In the event of termination of this
Agreement, 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 contained herein which are expressly made to extend beyond
the term of this Agreement, including, without limitation, confidentiality of
information, indemnities and Physician Employee's covenants not to compete and
to pay damages (which covenants and agreements shall survive the termination or
expiration of this Agreement). No compensation shall be payable to Physician
Employee following the effective date of Physician Employee's termination of
employment. The termination of this Agreement, for whatever reason, shall not
extinguish those obligations of Physician Employee specified in Sections 18 and
19 hereof, nor shall the same extinguish the right of either party to bring an
action, either in law or in equity, for breach of this Agreement by the other
party.
15. TRANSITION FOLLOWING NOTICE OF TERMINATION. Following any notice of
termination of employment hereunder, whether given by Group Practice or
Physician Employee, Physician
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Employee will fully cooperate with Group Practice in all matters relating to the
winding up of Physician Employee's pending work on behalf of Group Practice and
the orderly transfer of such work to the other professional employees of Group
Practice. On or after the giving of notice of termination hereunder and during
any notice period, Group Practice will be entitled to such full-time or
part-time services of Physician Employee as Group Practice may reasonably
require, and Group Practice will specifically have the right to terminate the
active services of Physician Employee at the time such notice is given and to
pay to Physician Employee the compensation due to him under this Agreement for
the duration of the notice period.
16. NON-COMPETITION. During the Term of Employment and for a continuous
period of one (1) year thereafter commencing upon expiration or termination of
the Term of Employment, regardless of any termination pursuant to Section 13 or
any voluntary termination or resignation by Physician Employee, Physician
Employee shall not without the written consent of Group Practice, individually
or jointly with others, directly or indirectly, whether for his own account or
for that of any other person or entity, own or hold any ownership or voting
interest in any person or entity engaged in a business the same as or similar to
any business of the Group Practice, or in a business which competes in any
manner whatsoever with the business of Group Practice or Group Practice's
facility (other than Business Interests as disclosed on SCHEDULE A and any
ownership interest in the Administrator) and which is located or intended to be
located anywhere within a radius of twenty (20) miles of any office of Group
Practice designated by Group Practice or at which Physician Employee has
practiced medicine in the last year; and Physician Employee shall not act as an
officer, director, employee, partner, independent contractor, consultant,
principal, agent, proprietor, or in any other capacity for, nor lend any
assistance (financial, managerial, professional or otherwise) or cooperation to,
nor perform any services for, any such person or entity engaged in a business
the same as or similar to any business of the Group Practice, or in a business
which competes in any manner whatsoever with the business of Group Practice or
Group Practice's facility (other than Business Interests as disclosed on
SCHEDULE A and any ownership interest in the Administrator).
17. NON-DISCLOSURE; NON-SOLICITATION. Except in the performance of his
duties hereunder, at no time during the Term of Employment or at any time
thereafter shall Physician Employee, individually or jointly with others, for
the benefit of Physician Employee or any third party, publish, disclose, use or
authorize anyone else to publish, disclose or use, any secret or confidential
material or information relating to any aspect of the business or operations of
the Group Practice or any information regarding the business methods, business
policies, procedures, techniques, or trade secrets, or other knowledge or
processes of or developed by Group Practice (and/or any other Physician Employee
or agent of Group Practice), any affiliate of the Group Practice, any entity in
which the Group Practice has an interest, including, without limitation, any
secret or confidential information relating to the business, customers,
financial position, trade or industrial practices, trade secrets, technology or
know-how of the Group Practice. Moreover, during the Term of Employment,
Physician Employee shall not act as an officer, director, employee, partner,
independent contractor, consultant, principal, agent, proprietor, owner or part
owner of, or in any other capacity for, nor lend any assistance (financial,
managerial or otherwise) or cooperation to, any person or entity (other than
Group
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Practice or the Administrator) which employs any person or hires or contracts
with, as a consultant or other independent agent or independent contractor, any
person or entity (other than Physician Employee) who was employed by or acted as
an agent for, consultant to, or independent contractor of the Group Practice,
any affiliate of the Group Practice, or any entity in which the Group Practice
has an interest, at any time during the Term of Employment, nor shall Physician
Employee employ any such person or induce or attempt to influence any such
person to terminate employment with Group Practice.
18. REASONABLENESS OF RESTRICTIONS; REFORMATION; ENFORCEMENT. The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in Sections 16 and 17 hereof (hereinafter the "RESTRICTIVE
COVENANTS") are reasonable and properly required for the adequate protection of
the Group Practice's interest. Physician Employee acknowledges that the Group
Practice will provide to Physician Employee confidential information concerning
the Group Practice's business methods and operating practices in reliance on the
covenants contained in the Restrictive Covenants. It is agreed by the parties
hereto that if any portion of the restrictions contained in the Restrictive
Covenants are held to be unreasonable, arbitrary or against public policy, then
the restrictions shall be considered divisible, both as to the time and to the
geographical area, with each month of the specified period being deemed a
separate period of time and each radius mile of the restricted territory being
deemed a separate geographical area, so that the lesser period of time or
geographical area shall remain effective so long as the same is not
unreasonable, arbitrary or against public policy. The parties hereto agree that
in the event any court of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory to be
unreasonable, arbitrary or against public policy, a lesser time period or
geographical area which is determined to be reasonable, nonarbitrary and not
against public policy may be enforced against Physician Employee. If Physician
Employee shall violate any of the covenants contained herein and if any court
action is instituted by the Group Practice to prevent or enjoin such violation,
then the period of time during which the Physician Employee's business
activities shall be restricted, as provided in this Agreement, shall be
lengthened by a period of time equal to the period between the date of the
Physician Employee's breach of the terms or covenants contained in this
Agreement and the date on which the decree of the court disposing of the issues
upon the merits shall become final and not subject to further appeal.
19. NO REMEDY AT LAW. With respect to the covenants and agreements of
Physician Employee set forth in the Restrictive Covenants, the parties agree
that a violation of such covenants and agreements will cause irreparable injury
to Group Practice for which Group Practice will not have an adequate remedy at
law, and that Group Practice shall be entitled, in addition to any other rights
and remedies it may have, at law or in equity, to obtain an injunction to
restrain Physician Employee from violating, or continuing to violate, such
covenants and agreements. In the event Group Practice does apply for such an
injunction, Physician Employee shall not raise as a defense thereto that the
Group Practice has an adequate remedy at law.
20. LIQUIDATED DAMAGES. The parties agree that in the event of
termination of this Agreement by Physician Employee other than at the expiration
of the Term of Employment or
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as a result of the violation of the terms of this Agreement by Physician
Employee, the direct costs and damages to Group Practice, though substantial,
would be difficult to precisely determine. Therefore, the parties agree that in
the event of such termination, Physician Employee shall pay to Group Practice,
not as a penalty, but as the parties' reasonable estimate of the direct costs
and other direct damages resulting to Group Practice in connection with such
termination, liquidated damages in an amount equal to the twelve (12) months of
Group Practice expenses attributable to Physician Employee next preceding the
termination of this Agreement, which amount is the best estimate of the expenses
to continue to be incurred while Physician Employee is fully replaced. Such
damages shall be payable on demand by Group Practice. Physician Employee and
Group Practice agree that the damages provided for herein are not the full
measure of damages that could be incurred by the Group Practice as a result of
Physician Employee's breach of the terms of this Agreement and nothing contained
in this Section 20 shall prevent Group Practice from seeking injunctive relief
to enforce the terms of this Agreement.
21. BILLING SERVICES. Group Practice shall have sole responsibility and
authority for preparation of xxxxxxxx for, and collection of income generated
from, Physician Employee's practice of medicine and the operation of the
Facility and, pursuant to this Agreement, the delegated authority to request,
demand, collect, receive and provide receipts for all income on behalf of
Physician Employee including any payment or reimbursement from governmental
agencies and insurance carriers on account of medical services provided to
patients of the Facility. Upon notification by Group Practice, Physician
Employee will utilize the Group Practice's provider numbers to xxxx on behalf of
Physician Employee for payment and reimbursement from governmental agencies and
insurance carriers. All funds collected from operation of the Facility and from
Physician Employee's practice of medicine hereunder shall be the sole property
of Group Practice and shall be deposited into Group Practice's account and Group
Practice shall have sole authority to make disbursements therefrom, including
refunds and repayment of payments received in error.
22. REPRESENTATIONS OF PHYSICIAN EMPLOYEE. Physician Employee hereby
makes the following representations to Group Practice, each of which is material
and is being relied on by Group Practice and shall be true as of the date hereof
and throughout the Term of Employment:
a. PHYSICIAN EMPLOYEE QUALIFICATIONS. Physician Employee is, and
will continue to be, duly licensed to practice medicine in the State, is Board
certified in podiatric medicine or if not currently certified then will obtain
such certification within two (2) years of the Effective Date, agrees to
participate and does participate in a continuing medical education program, and
agrees to obtain and maintain an American Podiatric Medical Association C.M.E.
certificate or its equivalent.
b. FACTUAL INFORMATION. Any and all factual information furnished
by Physician Employee to Group Practice is true and accurate in every material
respect as of the date on which such information was furnished.
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c. PROFESSIONAL CONDUCT. Physician Employee has and will continue
to conduct his professional activities in accordance and compliance with any and
all laws, regulations and ethical and professional standards applicable thereto.
d. AUTHORITY. Physician Employee has full power and authority to
enter into this Agreement and perform all obligations hereunder. The execution
and performance of this Agreement by Physician Employee will not constitute a
breach or violation of any covenant, agreement or contract to which Physician
Employee is a party or by which Physician Employee is bound.
e. NO CONFLICT. Physician Employee represents, warrants and
covenants that during the term of this Agreement and any extensions thereof,
Physician Employee will not enter into any understanding, agreement or contract
or engage in any conduct that would conflict with or be in violation of the
Management Services Agreement dated between Group Practice and Administrator or
this Agreement, or that would be to the detriment of the Group Practice, and
will sign an annual no conflict statement to that effect. Physician Employee
will inform the Group Practice if he or she is in violation of this Section
22(e) at any time and will respond to reasonable inquiry by the Group Practice
as to such Physician Employee's compliance hereunder.
23. PRIOR ACTS AND OMISSIONS OF PHYSICIAN EMPLOYEE. Physician Employee
represents and warrants to Group Practice that, as of the Effective Date, there
is no pending or threatened litigation or proceeding against Physician Employee
relating to Physician Employee's practice of medicine except as listed on the
attached SCHEDULE C. Group Practice shall not, and this Agreement is not
intended to and shall not be construed in any way as to cause Group Practice to,
assume any liabilities of Physician Employee for the acts or omissions of
Physician Employee relating to periods prior to the Effective Date, and
Physician Employee shall indemnify and hold Group Practice harmless from and
against any liability in respect thereof.
24. PATIENT RECORDS, BOOKS, OFFICE EQUIPMENT, ETC.
a. PATIENT RECORDS. As between the Physician Employee and the
Group Practice, all patient records shall at all times be and remain Group
Practice's property and all possessory rights to the patient records shall
remain with the Group Practice and Physician Employee shall have no such
possessory rights to patient records except as required by law and further;
provided, however, that upon termination of this Agreement, Group Practice shall
provide Physician Employee, at Physician Employee's expense, access to and
copies of such records relating to medical services performed at Group
Practice's business by Physician Employee during the term hereof, if so
requested by the patient or if required by Physician Employee in defense of any
professional liability claim.
b. EQUIPMENT AND SUPPLIES. Group Practice shall provide for
Physician Employee's use of all professional instruments, books, office
equipment and other property reasonably necessary, in Group Practice's
discretion, for Physician Employee's practice of
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medicine under this Agreement. All instruments, equipment, furniture,
furnishings, supplies, samples, forms, charts, logs, brochures, patient records,
policies and procedures, contracts and any other property, materials or
information furnished by Group Practice are and shall remain the sole property
of Group Practice. Upon termination of this Agreement, Physician Employee shall
return all such property to Group Practice. The use of any equipment not
provided by the Group Practice will be subject to the approval of the Group
Practice.
25. ASSIGNABILITY. This Agreement and the rights and duties created
hereunder shall not be assignable or delegable by Physician Employee. Group
Practice may, at Group Practice's option and without consent of Physician
Employee, assign its rights and duties hereunder to any successor entity or
transferee of Group Practice's assets.
26. NOTICES. All notices or other communications provided for herein to
be given or sent to a party by the other party shall be deemed validly given or
sent if in writing and mailed, postage prepaid, by registered or certified
United States mail or hand delivered or sent by facsimile, addressed to the
parties at their addresses hereinabove set forth. Any party may give notice to
the other parties at any time, by the method specified above, of a change in the
address at which, or the person to whom, notice is to be addressed.
27. SEVERABILITY. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant or provision
hereof. In the event that any provision of this Agreement shall be determined to
be invalid or unenforceable, such provision shall be deemed limited by
construction in scope and effect to the minimum extent necessary to render the
same valid and enforceable, and, in the event such a limiting construction is
impossible, such invalid or unenforceable provision shall be deemed severed from
this Agreement, but every other provision of this Agreement shall remain in full
force and effect.
28. WAIVER. The failure of a party to enforce any term, provision or
condition of this Agreement at any time or times shall not be deemed a waiver of
that term, provision or condition for the future, nor shall any specific waiver
of a term, provision or condition at one time be deemed a waiver of such term,
provision or condition for any future time or times.
29. PARTIES. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their heirs, personal representatives,
legal representatives, and proper successors and assigns, as the case may be.
30. GOVERNING LAW. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State, without giving effect to
the principles of comity or conflicts of laws thereof. Each party hereto agrees
to submit to the personal jurisdiction and venue of the state and federal courts
having jurisdiction over the County and the State, for a resolution of all
disputes arising in connection with the interpretation, construction, and
enforcement of this Agreement, and hereby waives the claim or defense therein
that such courts constitute an inconvenient forum.
12
31. CAPTIONS. The captions of this Agreement have been assigned thereto
for convenience only, and shall not be construed to limit, define or modify the
substantive terms hereof.
32. ENTIRE AGREEMENT; COUNTERPARTS. This Agreement constitutes the
entire agreement between the parties hereto concerning the subject matter
hereof, and supersedes all prior agreements, memoranda, correspondence,
conversations and negotiations. This Agreement may be executed in several
counterparts that together shall constitute but one and the same Agreement.
33. COSTS OF ENFORCEMENT. In the event it is necessary for any party to
retain the services of an attorney or to initiate legal proceedings to enforce
the terms of this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party, in addition to all other remedies, all costs of
such enforcement, including reasonable attorneys' fees and costs and including
trial and appellate proceedings.
34. GENDER, ETC. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
35. THIRD-PARTY BENEFICIARY. The parties acknowledge and agree that
Administrator has entered into a Management Services Agreement with the Group
Practice in the form attached as SCHEDULE B and that Physician Employee and
Administrator, together with certain other parties, have entered into a Business
Purchase Agreement, with Group Practice in reliance on or in expectation of the
covenants of Physician Employee contained in Sections 16 and 17 hereof.
Physician Employee acknowledges and agrees that Administrator has entered into
the Business Purchase Agreement, purchased assets and incurred expenses in order
to fulfill its obligations pursuant to the Management Services Agreement, and
otherwise detrimentally relied upon Physician Employee's agreement to perform
his obligations pursuant to terms of this Agreement, and that the
Administrator's agreement to pay the consideration described in the Business
Purchase Agreement was made in reliance on Physician Employee's commitment to
provide services as an employee of the Group Practice pursuant to terms of this
Agreement for the Term of Employment. Accordingly, Group Practice and Physician
Employee agree that Administrator is a specific intended third-party beneficiary
of such covenants, who shall be independently entitled to the benefit thereof
and shall have an independent right to enforce same. In addition, Group Practice
and Physician Employee covenant and agree for the benefit of Administrator that
this Agreement shall not be terminated, modified or amended nor any of the Group
Practice's rights hereunder waived without the prior written consent of
Administrator.
Physician Employee acknowledges and agrees that in the event of
termination of this Agreement, and in connection with any violation of this
Agreement on the part of Physician Employee, Group Practice may, upon request of
Administrator, assign any cause of action and/or rights that it may have
hereunder to the Administrator, including Group Practice's rights, if any, to
recover liquidated damages from Physician Employee.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands on the
date first written above.
PHYSICIAN EMPLOYEE:
____________________________
GROUP PRACTICE:
_____________________, [State]
[professional limited liability company]
By: ___________________________________
_________________, President
ACKNOWLEDGED:
AMERICAN MEDICAL PROVIDERS, INC.,
a Delaware corporation
By: __________________________________
Printed Name: __________________________________
Title: __________________________________
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EXHIBIT A
MANAGEMENT SERVICES AGREEMENT
Exhibit A - 1
SCHEDULE A
A. State _____________________________________
B. County(ies) _____________________________________
C. Office Location(s) _____________________________________
_____________________________________
_____________________________________
D. List of Outside _____________________________________
Professional Activities _____________________________________
_____________________________________
E. List of Business _____________________________________
Interests _____________________________________
_____________________________________
A - 1
SCHEDULE B
A. Vacation/Personal Time ______ weeks/year
B. Benefits
Retirement Plan $ ____________________
Stock Purchase Plan $ ____________________
Insurance - Life $ ____________________
Insurance - Health $ ____________________
Insurance - Disability $ ____________________
C. Professional Meetings/ ______ weeks/year
Continuing Medical Education
B - 1
SCHEDULE C
PENDING LITIGATION
[NONE]
C - 1
