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SERVICE AGREEMENT
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PROMEDCO OF TEMPLE, INC.
AND
PHYSICIANS OF KING'S DAUGHTERS, P.A.
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EFFECTIVE SEPTEMBER 1, 1996
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TABLE OF CONTENTS
1. RESPONSIBILITIES OF THE PARTIES..................................1
1.1 General Responsibilities of the Parties................1
1.2 KDCP's Matters.........................................1
1.3 Patient Referrals......................................1
2. POLICY COUNCIL...................................................1
2.1 Formation and Operation of the Policy Council..........1
2.2 Duties and Responsibilities of the Policy Council......2
3. OBLIGATIONS OF PROMEDCO-TEMPLE...................................3
3.1 Management and Administration..........................4
3.2 Administrator..........................................8
3.3 Expansion of Clinic....................................8
3.4 Events Excusing Performance............................8
3.5 Compliance With Applicable Laws........................8
3.6 Capital Needs..........................................8
4. OBLIGATIONS OF KDCP..............................................8
4.1 Professional Services..................................8
4.2 Employment Of Physician Employees......................9
4.3 Non-Clinic Expenses....................................9
4.4 Medical Practice.......................................9
4.5 Professional Insurance Eligibility.....................9
4.6 Employment Of Non-Physician Employees..................9
4.7 Events Excusing Performance............................9
4.8 Compliance With Applicable Laws.......................10
4.9 Restrictions on Use of Clinic Facility................10
4.10 KDCP Employee Benefit Plans..........................10
4.11 Physician Powers of Attorney.........................11
4.12 Spokesperson.........................................11
5. RECORDS.........................................................11
5.1 Patient Records.......................................11
5.2 Other Records.........................................11
5.3 Access to Records.....................................11
6. FACILITIES TO BE PROVIDED BY PROMEDCO-TEMPLE....................11
6.1 Facilities............................................11
6.2 Use of Facilities.....................................12
7. FINANCIAL ARRANGEMENTS..........................................12
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7.1 Payments to KDCP and ProMedCo-Temple...........................12
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7.2 Distribution...........................................12
7.3 Clinic Expenses........................................12
7.4 Accounts Receivables...................................12
8. INSURANCE AND INDEMNITY..........................................13
8.1 Insurance to Be Maintained by ProMedCo-Temple..........13
8.2 Insurance to be Maintained by KDCP.....................13
8.3 Tail Insurance Coverage................................13
8.4 Additional Insured.....................................14
8.5 Indemnification........................................14
9. RESTRICTIVE COVENANTS AND LIQUIDATED DAMAGES....................14
9.1 Restrictive Covenants by KDCP..........................14
9.2 Restrictive Covenants By Medical Professionals.........14
9.3 Physician Shareholder and Physician Employee
Liquidated Damages.....................................15
9.4 Enforcement.............................................16
9.5 Termination of Restrictive Covenants....................16
10. TERM.............................................................16
10.1 Term and Renewal.......................................16
10.2 Termination by KDCP....................................17
10.3 Termination by ProMedCo-Temple.........................18
10.4 Actions After Termination..............................18
11. DEFINITIONS......................................................20
11.1 Adjustments ...........................................20
11.2 Clinic ................................................20
11.3 Clinic Expenses .......................................20
11.4 Clinic Expenses shall not include......................22
11.5 Clinic Facility .......................................22
11.6 Distribution Funds ....................................23
11.7 Effective Date ........................................23
11.9 KDCP Employees ........................................23
11.10 Medical Professional .................................23
11.11 Net Clinic Revenues ..................................23
11.12 Opening Balance Sheet ................................23
11.13 Physician Employees ..................................23
11.14 Physician Extenders ..................................23
11.15 Physician Shareholders ...............................23
11.16 Plan and Agreement for Reorganization ................24
11.17 ProMedCo..............................................24
11.18 ProMedCo IPO Date.....................................24
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11.19 ProMedCo IPO Price..................................24
11.20 ProMedCo-Temple Distribution .......................24
11.21 Risk Pool Surpluses ................................24
11.22 Technical Employees ................................24
12. GENERAL PROVISIONS.............................................24
12.1 Independent Contractor...............................24
12.2 Other Contractual Arrangement........................25
12.3 Proprietary Property.................................26
12.4 Cooperation..........................................26
12.5 Licenses, Permits and Certificates...................26
12.6 Compliance with Rules, Regulations and Laws..........26
12.7 Generally Accepted Accounting Principles (GAAP)......27
12.8 Notices..............................................27
12.9 Attorneys' Fees......................................27
12.10 Severability........................................27
12.11 Arbitration.........................................27
12.12 Construction of Agreement...........................27
12.13 Assignment and Delegation...........................28
12.14 Confidentiality.....................................28
12.15 Waiver..............................................28
12.16 Headings............................................28
12.17 No Third Party Beneficiaries........................28
12.18 Time is of the Essence..............................28
12.19 Modifications of Agreement for
Prospective Legal Events............................28
12.20 No Right of Off-Set.................................29
12.21 Whole Agreement.....................................29
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SERVICE AGREEMENT
Service Agreement ("Agreement") dated September 18, 1996, between
ProMedCo of Temple, Inc., a Delaware corporation ("ProMedCo-Temple"), and
Physicians of King's Daughters, P.A., a Texas professional association ("KDCP").
RECITALS:
Subject to the terms and conditions hereof, KDCP desires to engage
ProMedCo-Temple to provide to KDCP management services, facilities, personnel,
equipment and supplies necessary to operate the Clinic (as defined herein) and
ProMedCo-Temple desires to accept such engagement.
The parties agree as follows:
1. RESPONSIBILITIES OF THE PARTIES
1.1 GENERAL RESPONSIBILITIES OF THE PARTIES. ProMedCo-Temple shall
provide KDCP with offices, facilities, equipment, supplies, non-professional
support personnel, and management and financial advisory services.
ProMedCo-Temple shall neither exercise control over nor interfere with the
physician-patient relationship, which shall be maintained strictly between the
physicians of KDCP and their patients.
1.2 KDCP'S MATTERS. KDCP shall maintain sole discretion and authority
over the financial matters relative to its corporate existence. It shall set
compensation levels for KDCP Employees. KDCP will also be responsible for all
other matters pertaining to the operation of KDCP.
1.3 PATIENT REFERRALS. The parties agree that the benefits to KDCP do
not require, are not payment for, and are not in any way contingent upon the
admission, referral or any other arrangement for the provision of any item or
service offered by ProMedCo-Temple to any of KDCP's patients in any facility or
laboratory controlled, managed or operated by ProMedCo-Temple.
2. POLICY COUNCIL
2.1 FORMATION AND OPERATION OF THE POLICY COUNCIL. A Policy Council
will be established which shall be responsible for the major policies which will
serve as the basis for operations of the Clinic. The Policy Council shall
consist of six members. ProMedCo-Temple shall designate, at its sole discretion,
three members of the Policy Council. Members of the Policy Council designated by
ProMedCo-Temple and/or KDCP shall be entitled to attend and vote by proxy at any
meetings of the Policy Council so long as at least one such representative is
present in person. KDCP at its sole discretion shall designate three members.
Except as may otherwise be provided, the act of a majority of the six members of
the Policy Council shall be the act of the Policy Council.
2.2 DUTIES AND RESPONSIBILITIES OF THE POLICY COUNCIL. During the term
of this Agreement, the Policy Council shall have the following duties and
responsibilities.
(a) ANNUAL BUDGETS. All annual capital and operating budgets prepared by
ProMedCo- Temple, as set forth in Section 3 and employing ProMedCo-Temple's
financial expertise, shall be subject to the review and approval of the Policy
Council, provided; however, ProMedCo-Temple shall have final approval of any
capital expenditure required by ProMedCo-Temple.
(b) ADMINISTRATOR. The selection and retention of the Administrator pursuant to
Section 3.1 shall be subject to the reasonable approval of the Policy Council.
If KDCP is dissatisfied with the services provided by the Administrator, KDCP
shall refer the matter to the Policy Council. ProMedCo-Temple and Policy Council
shall in good faith determine whether the performance of the Administrator could
be brought to acceptable levels through counsel and assistance, or whether the
Administrator should be terminated. ProMedCo-Temple shall have the ultimate
authority to terminate the Administrator.
(c) ADVERTISING. All advertising, marketing, and public relations shall be
subject to the prior review and approval of the Policy Council, in compliance
with applicable laws and regulations governing professional advertising and in
accordance with the standards and medical ethics of the American Medical
Association and the Texas Medical Association.
(d) ANCILLARY SERVICES. The Policy Council shall approve Clinic provided
ancillary services based upon the pricing, access to and quality of such
services.
(e) CAPITAL IMPROVEMENTS AND EXPANSION. The Policy Council shall determine the
priority for any renovation, expansion plans and major equipment expenditures
with respect to the Clinic based upon economic feasibility, physician support,
productivity and market conditions. Any capital expenditure in excess of $20,000
shall require the approval of the Policy Council; all others may be made by
ProMedCo-Temple at its discretion in the exercise of prudent business
judgement..
(f) EXCEPTIONS TO INCLUSION IN THE NET REVENUE CALCULATION. The exclusion of any
revenue from Net Clinic Revenues, whether now or in the future, shall be subject
to the approval of the Policy Council.
(g) GRIEVANCE ISSUES. Subject to the provisions of Section 1.2 of this
Agreement, the Policy Council shall consider and make final decisions regarding
grievances pertaining to matters not specifically addressed in this Agreement as
referred to it by KDCP's Board or ProMedCo-Temple.
(h) PATIENT FEES. In consultation with KDCP and ProMedCo-Temple, the Policy
Council shall review and adopt the fee schedule for all physician and ancillary
services rendered by the Clinic.
(i) PHYSICIAN HIRING. The Policy Council, with information and
analysis provided by
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ProMedCo-Temple, shall determine the number and type of physicians required for
the efficient operation of the Clinic and KDCP shall determine the individual
physicians to be hired to fill such positions. The approval of ProMedCo-Temple
shall be required for any variations to the restrictive covenants in any
physician employment contract.
(j) PROVIDER AND PAYOR RELATIONSHIPS. The Policy Council shall make the
decisions regarding the establishment and maintenance of relationships with
institutional health care providers and payors. The Policy Council shall be
responsible for approving the allocation of capitation risk pools between the
professional and institutional components of these pools to the extent
applicable under a payor agreement. ProMedCo-Temple and KDCP may choose to use
actuarial data from a nationally recognized actuarial firm as agreed to by both
parties, for the purposes of allocating capitation funds, for those professional
services provided directly by KDCP.
(k) STRATEGIC PLANNING. The Policy Council, with the assistance of
ProMedCo-Temple, shall develop long-term strategic planning objectives.
3. OBLIGATIONS OF PROMEDCO-TEMPLE
During the term of this Agreement, ProMedCo-Temple shall provide or
arrange for the services set forth in this Section 3, the cost of all of which
shall be included in Clinic Expenses. ProMedCo-Temple is hereby expressly
authorized to perform its services in whatever manner it deems reasonably
appropriate, in accordance with policies approved by the Policy Council, and
including without limitation, performance of some functions at locations other
than the Clinic Facility. KDCP will not act in a manner which would prevent
ProMedCo-Temple from efficiently managing the Clinic Facility operations in a
businesslike manner. KDCP, through KDCP Employees, will provide all medical
services. ProMedCo-Temple will have no authority, directly or indirectly, to
perform, and will not perform, any medical function. ProMedCo-Temple may,
however, advise KDCP as to the relationship between its performance of medical
functions and the overall administrative and business functioning of the Clinic.
3.1 MANAGEMENT AND ADMINISTRATION. During the term of this Agreement,
KDCP hereby appoints ProMedCo-Temple as the sole and exclusive manager and
administrator of all non-medical functions and services related to KDCP's
services at the Clinic. KDCP shall perform all medical services, and
ProMedCo-Temple shall have no authority, directly or indirectly, to perform, and
will not perform, any medical function. Without limiting the generality of the
foregoing, ProMedCo- Temple shall provide the following administrative,
management and marketing services as may be required in conjunction with KDCP's
services at the Clinic. ProMedCo-Temple shall hire and supervise an
Administrator, subject to the reasonable approval of the Policy Council, to
manage and administer all of the day-to-day business functions of
ProMedCo-Temple, including without limitation:
3.1.1 ANNUAL BUDGETS. Financial planning and preparation
of annual budgets.
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Annually and at least 30 days prior to the commencement of each fiscal
year, ProMedCo- Temple shall prepare and deliver to KDCP capital and
operating budgets reflecting in reasonable detail anticipated revenues
and expenses, sources and uses of capital to maintain and enhance
KDCP's medical practice and Clinic services.
3.1.2 FINANCIAL STATEMENTS. ProMedCo-Temple shall prepare
monthly and fiscal year unaudited financial statements containing a
balance sheet and a statement of income for Clinic operations, which
shall be delivered to KDCP within thirty (30) days after the close of
each calendar month. The fiscal year statement shall be reviewed by a
certified public accountant as selected by ProMedCo-Temple in
connection with the audit of the financial statements of ProMedCo. If
KDCP desires an audit in addition to the audit provided by
ProMedCo-Temple, such an audit would be at KDCP's expense.
3.1.3 NON-PROFESSIONAL PERSONNEL. ProMedCo-Temple will provide
all personnel reasonably necessary for the conduct of Clinic operations
with the exception of Physician Extenders and Technical Employees.
ProMedCo-Temple shall determine and cause to be paid the salaries,
fringe benefits and any sums for income taxes, unemployment insurance,
social security taxes or any other withholding amounts required by
applicable law or governmental authority, of all such personnel. Such
personnel shall be under the direction, supervision and control of
ProMedCo-Temple, with those personnel performing patient care services
subject to the professional supervision of KDCP. If KDCP is
dissatisfied with the services of any person, KDCP shall consult with
ProMedCo-Temple. ProMedCo-Temple shall in good faith determine whether
the performance of that employee could be brought to acceptable levels
through counsel and assistance, or whether such employee should be
terminated. All of ProMedCo-Temple's obligations regarding staff shall
be governed by the overriding principle and goal of providing high
quality medical care. At ProMedCo-Temple's option some or all of the
non-physician personnel may be carried on the books of KDCP as KDCP's
employees in which event the costs associated with such employees will
be a Clinic Expense.
3.1.4 QUALITY ASSURANCE. ProMedCo-Temple will assist KDCP in
fulfilling its obligation to its patients to maintain high quality
medical and professional services, including patient satisfaction
programs, employee education, outcomes analysis, clinical protocol
development and to implement a risk management program.
3.1.5 FACILITIES AND EQUIPMENT. ProMedCo-Temple will ensure
the proper cleanliness of the premises, maintenance and cleanliness of
the equipment, furniture and furnishings located on the premises.
3.1.6 INVENTORY CONTROL AND PURCHASING SUPPLIES.
ProMedCo-Temple shall order and purchase inventory and supplies, and
such other ordinary, necessary or appropriate materials which
ProMedCo-Temple shall deem to be necessary in the operation of the
Clinic, to deliver quality Clinic services in a cost effective manner.
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3.1.7 MANAGED CARE CONTRACTING. ProMedCo-Temple will be
responsible for marketing, negotiation, and administering all managed
care contracts, subject to the provisions of Section 2.2(j); provided,
however, no contract or arrangement regarding the provision of clinical
services shall be entered into without KDCP's consent.
3.1.8 BILLING AND COLLECTIONS. ProMedCo-Temple shall ▇▇▇▇
patients and collect all fees for services performed inside or outside
the Clinic Facility or arrange for such billing and collection. KDCP
hereby appoints ProMedCo-Temple, for the term hereof, to be its true
and lawful attorney-in-fact for the following purposes (i) to ▇▇▇▇
patients in KDCP's name and on its behalf, (ii) to collect accounts
receivable resulting from such billing in KDCP's name and on its
behalf, (iii) to receive payments from Blue Cross and Blue Shield,
Medicare, Medicaid, payments from health plans, and all other third
party payors; (iv) to receive the cash proceeds of any accounts
receivable; (v) to take possession of and endorse in the name of KDCP
(and/or in the name of an individual physician, such payment intended
for purpose of payment of a physician's ▇▇▇▇) any notes, checks, money
orders, insurance payments and other instruments received in payment of
accounts receivable; and (vi) in accordance with policies adopted by
the Policy Council, to initiate legal proceedings in the name of KDCP
to collect any accounts and monies owed to the Clinic, to enforce the
rights of KDCP as creditors under any contract or in connection with
the rendering of any service, and to contest adjustments and denials by
governmental agencies (or its fiscal intermediaries) as third-party
payors. All adjustments made for uncollectible accounts, professional
courtesies and other activities that do not generate a collectible fee
shall be done in a reasonable and consistent manner acceptable to
ProMedCo-Temple's independent certified public accountants.
3.1.9 DEPOSIT OF NET CLINIC REVENUES. During the term of this
Agreement, all Net Clinic Revenues collected resulting from the
operations of the Clinic shall be deposited directly into a bank
account of which KDCP shall be the owner ("Account"). ProMedCo- Temple
and KDCP shall maintain their accounting records in such a way as to
clearly segregate Net Clinic Revenues from other funds of
ProMedCo-Temple or KDCP. KDCP hereby appoints ProMedCo-Temple as its
true and lawful attorney-in-fact to deposit in the Account all revenues
collected. KDCP covenants, and shall cause all KDCP Employees to
covenant, to forward any payments received with respect to Net Clinic
Revenues for services provided by KDCP and KDCP Employees to
ProMedCo-Temple for deposit. ProMedCo- Temple shall have the right to
withdraw funds from the Account and all owners of the Account shall
execute a revocable standing transfer order ("Transfer Order") under
which the bank maintaining the Account shall periodically transfer the
entire balance of the Account to a separate bank account owned solely
by ProMedCo-Temple ("ProMedCo-Temple Account"). KDCP and
ProMedCo-Temple hereby agree to execute from time to time such
documents and instructions as shall be required by the bank maintaining
the Account and mutually agreed upon to effectuate the foregoing
provisions and to extend or amend such documents and instructions. Any
action by KDCP that interferes with the operation of this Section,
including, but not limited to, any failure to deposit or allow
ProMedCo-Temple to deposit any Net Clinic Revenues into the Account,
any withdrawal of any funds from the Account not authorized by the
express terms of this Agreement, or any revocation of or
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attempt to revoke the Transfer Order (otherwise than upon expiration or
termination of this Agreement), will constitute a breach of this
Agreement and will entitle ProMedCo-Temple, in addition to any other
remedies that it may have at law or in equity, to seek a court ordered
assignment of the following rights:
(a) To collect accounts receivable resulting from
the provision of services to
patients of KDCP and the KDCP Employees;
(b) To receive payments from patients, third party payor
plans, insurance companies, Medicare, Medicaid and
all other payors with respect to services rendered by
KDCP and its KDCP Employees;
(c) To take possession of and endorse any notes, checks,
money orders, insurance payments and any other
instruments received as payment of such accounts
receivable; and
(d) To collect all revenues of the Clinic.
3.1.10 MANAGEMENT INFORMATION SYSTEMS/COMPUTER SYSTEMS.
ProMedCo-Temple shall supervise and provide information systems that
are necessary and appropriate for the operation of the Clinic.
3.1.11 LEGAL AND ACCOUNTING SERVICES. ProMedCo-Temple shall
arrange for or render to KDCP such business and financial management
consultation and advice as may be reasonably required or requested by
KDCP and directly related to the operations of the Clinic.
ProMedCo-Temple shall not be responsible for rendering any legal or tax
advice or services or personal financial services to KDCP or any
employee or agent of KDCP.
3.1.12 NEGOTIATION AND PAYMENT OF PREMIUMS FOR ALL INSURANCE
PRODUCTS HELD BY KDCP. ProMedCo-Temple shall negotiate for and cause
premiums to be paid with respect to the insurance provided for in
Section 8. Premiums and deductibles with respect to such policies shall
be a Clinic Expense.
3.1.13 PHYSICIAN RECRUITING. ProMedCo-Temple shall assist KDCP
in recruiting additional physicians, carrying out such administrative
functions as may be appropriate such as advertising for and identifying
potential candidates, checking credentials, and arranging interviews;
provided, however, KDCP shall interview and make the ultimate decision
as to the suitability of any physician to become associated with the
Clinic. All physicians recruited by ProMedCo-Temple and accepted by
KDCP shall be the sole employees of KDCP to the extent such physicians
are hired as employees. Any expenses incurred in the recruitment of
physicians, including, but not limited to, employment agency fees,
relocation and interviewing expenses shall be Clinic Expenses approved
by the Policy Council.
3.1.14 SUPERVISION OF ANCILLARY SERVICES. ProMedCo-Temple
shall operate and
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supervise such ancillary services as approved by the Policy Council.
3.1.15 STRATEGIC PLANNING ASSISTANCE. ProMedCo-Temple shall
assist with and implement the strategic plan as approved by the
Policy Council.
3.1.16 ADVERTISING AND PUBLIC RELATIONS. From time to time
ProMedCo-Temple shall recommend to the Policy Council various
advertising and public relations initiatives which shall not be
implemented without Policy Council approval.
3.1.17 FILES AND RECORDS. ProMedCo-Temple shall supervise and
maintain custody of all files and records relating to the operation of
the Clinic, including but not limited to accounting, billing, patient
medical records, and collection records. Patient medical records shall
at all times be and remain the property of KDCP and shall be located at
Clinic facilities so that they are readily accessible for patient care.
The management of all files and records shall comply with applicable
state and federal statutes. ProMedCo-Temple shall use its reasonable
efforts to preserve the confidentiality of patients' medical records
and use information contained in such records only for the limited
purpose necessary to perform the services set forth herein, provided,
however, in no event shall a breach of said confidentiality be deemed a
default under this Agreement.
3.2 ADMINISTRATOR. The selection and retention of the Administrator,
subject to the provisions of Section 2.2(b).
3.3 EXPANSION OF CLINIC. ProMedCo-Temple will pursue various programs
to increase revenue and profitability including assisting KDCP in adding
additional office based procedures, ancillary services and adding additional
satellite office(s) as determined by the Policy Council to be beneficial to the
Clinic. ProMedCo-Temple will also assist in recruiting new physicians and
developing relationships and affiliations with other physicians, hospitals,
networks, HMOs, etc. To assist in the continued growth and development of the
Clinic within a 30 mile radius of Temple, Texas, ProMedCo-Temple may acquire
other physician practices for incorporation into KDCP. KDCP will cooperate with
ProMedCo-Temple in such expansion efforts and use its reasonable efforts to
assist ProMedCo-Temple with respect thereto. Without limiting the generality of
the foregoing, neither party not enter into any agreements with respect to any
such matter without the prior approval of the Policy Council.
3.4 EVENTS EXCUSING PERFORMANCE. ProMedCo-Temple shall not be liable to
KDCP for failure to perform any of the services required herein in the event of
strikes, lock-outs, calamities, acts of God, unavailability of supplies, or
other events over which ProMedCo-Temple has no control for so long as such
events continue, and for a reasonable amount of time thereafter.
3.5 COMPLIANCE WITH APPLICABLE LAWS. ProMedCo-Temple shall comply
with all applicable federal, state and local laws, regulations and restrictions
in the conduct of its obligations under this Agreement.
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3.6 CAPITAL NEEDS. ProMedCo-Temple shall be responsible for the
capital necessary to maintain, expand and grow KDCP, subject to the approval of
the Policy Committee.
4. OBLIGATIONS OF KDCP
4.1 PROFESSIONAL SERVICES. KDCP shall provide professional services to
patients in compliance at all times with ethical standards, laws and regulations
applying to the medical profession. KDCP shall also ensure that each physician
associated with KDCP is licensed by the State of Texas. In the event that any
disciplinary actions or medical malpractice actions are initiated against any
such physician, KDCP shall immediately inform the Administrator of such action
and the underlying facts and circumstances. KDCP shall carry out a program to
monitor the quality of medical care practiced, with ProMedCo-Temple's
assistance. KDCP will cooperate with ProMedCo- Temple in taking steps to resolve
any utilization review or quality assurance issues which may arise in connection
with the Clinic.
4.2 EMPLOYMENT OF PHYSICIAN EMPLOYEES. KDCP shall have complete control
of and responsibility for the hiring, compensation, supervision, evaluation and
termination of its Physician Shareholders and Physician Employees, although at
the request of KDCP, ProMedCo-Temple shall consult with KDCP regarding such
matters. KDCP shall enforce formal employee agreements from each of its
Physician Shareholders and Physician Employees, hired or contracted,
substantially in the form attached to the Plan and Agreement for Reorganization
as Appendix 2.9B-2.
4.3 NON-CLINIC EXPENSES. KDCP shall be solely responsible for the
payment of all costs and expenses incurred in connection with KDCP operations
which are not Clinic Expenses, including, but not limited to, accounting and
other professional services fees, salaries and benefits, retirement plan
contributions, health, disability and life insurance premiums, payroll taxes,
membership in professional associations, continuing medical education, licensing
and board certification fees for its Physician Employees and Physician Extenders
and automobile and cellular telephone expenses of KDCP Physician Employees and
Physician Extenders.
4.4 MEDICAL PRACTICE. KDCP shall use and occupy the Clinic Facility
exclusively for the practice of medicine, and shall comply with all applicable
local rules, ordinances and all standards of medical care. It is expressly
acknowledged by the parties that the medical practice or practices conducted at
the Clinic Facility shall be conducted solely by physicians associated with
KDCP, and no other physician or medical practitioner shall be permitted to use
or occupy the Clinic Facility without the prior written consent of the Policy
Council.
4.5 PROFESSIONAL INSURANCE ELIGIBILITY. KDCP shall cooperate in the
obtaining and retaining of professional liability insurance by assuring that its
Physician Shareholders and Physician Employees are insurable, and participating
in an ongoing risk management program.
4.6 EMPLOYMENT OF NON-PHYSICIAN EMPLOYEES. There will be certain
Technical Employees that perform technical functions for KDCP. These Technical
Employees will remain in the employ of KDCP. As provided in Section 3.1.3,
ProMedCo-Temple will provide payroll and
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administrative services for such Technical Employees which shall be a Clinic
Expense.
4.7 EVENTS EXCUSING PERFORMANCE. KDCP shall not be liable to
ProMedCo-Temple for failure to perform any of the services required herein in
the event of strikes, lock-outs, calamities, acts of God, unavailability of
supplies, or other events over which KDCP has no control for so long as such
events continue, and for a reasonable amount of time thereafter.
4.8 COMPLIANCE WITH APPLICABLE LAWS. KDCP shall comply with all
applicable federal, state and local laws, regulations and restrictions in the
conduct of its obligations under this Agreement.
4.9 RESTRICTIONS ON USE OF CLINIC FACILITY. KDCP shall at all times
during the term of this Agreement comply with the policy of ProMedCo-Temple
stated in Section 6.2 herein.
4.10 KDCP EMPLOYEE BENEFIT PLANS.
(a) As of the Effective Date of this Agreement, KDCP has in effect the employee
welfare benefit plans (as such term is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and the employee
pension benefit plans (as such term is defined in Section 3(2) of ERISA), as set
forth in Exhibit 3.22 to the Plan and Agreement for Reorganization.
(b) KDCP shall not enter into any new "employee benefit plan" (as defined in
Section 3(3) of ERISA) without the express written consent of ProMedCo- Temple.
Except as otherwise required by law, KDCP shall not materially amend, freeze,
terminate or merge any employee welfare or employee benefit plan without the
express written consent of ProMedCo-Temple unless such action is contemplated by
the Plan and Agreement for Reorganization. KDCP agrees to make such changes to
any employee welfare or employee benefit plan, including the freeze,
termination, or merger of such plan, as may be approved by ProMedCo-Temple.
(c) Expenses incurred in connection with any KDCP Plan or other employee benefit
plan maintained by KDCP, including without limitation the compensation of
counsel, accountants, corporate trustees and other agents shall not be included
in Clinic Expenses.
(d) The contribution and administration expenses for Medical Professionals shall
be an expense of KDCP. ProMedCo-Temple shall make contributions or payments with
respect to any KDCP Plan, as a Clinic Expense, on behalf of eligible Technical
Employees or other non-Medical Professionals employed by KDCP at
ProMedCo-Temple's request pursuant to ss. 3.1.3.
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(e) ProMedCo-Temple shall have the sole and exclusive authority to adopt, amend,
or terminate any employee benefit plan for the benefit of its employees.
ProMedCo-Temple shall have the sole and exclusive authority to appoint the
trustee, custodian, and administrator of any such plan.
4.11 PHYSICIAN POWERS OF ATTORNEY. KDCP shall require all KDCP
Employees to execute and deliver to ProMedCo-Temple powers of attorney,
satisfactory in form and substance to ProMedCo-Temple and KDCP, appointing
ProMedCo-Temple as attorney-in-fact for each for the purposes set forth in
Sections 3.1.8 and 3.1.9, which powers of attorney shall immediately terminate
upon termination of this Agreement.
4.12 SPOKESPERSON. KDCP shall serve as spokesperson for ProMedCo-Temple
and ProMedCo in Clinic, ProMedCo-Temple and ProMedCo development activities. The
parties agree that such Physician Shareholders as the Policy Council shall
appoint, shall serve in this capacity on behalf of KDCP.
5. RECORDS
5.1 PATIENT RECORDS. Upon termination of this Agreement, KDCP shall
retain all patient medical records maintained by KDCP or ProMedCo-Temple in the
name of KDCP. KDCP shall, at its option, be entitled to retain copies of
financial and accounting records relating to all services performed by KDCP.
5.2 OTHER RECORDS. All records relating in any way to the operation
of the Clinic which are not the property of KDCP under the provisions of Section
5.1 above, shall at all times be the property of ProMedCo-Temple.
5.3 ACCESS TO RECORDS. During the term of this Agreement, and
thereafter, KDCP or its designee shall upon 24 hours notice have reasonable
access during normal business hours to KDCP's and ProMedCo-Temple's financial
records, including, but not limited to, records of collections, expenses and
disbursements as kept by ProMedCo-Temple in performing ProMedCo-Temple's
obligations under this Agreement, and KDCP may copy any or all such records.
6. FACILITIES TO BE PROVIDED BY PROMEDCO-TEMPLE
6.1 FACILITIES. ProMedCo-Temple hereby agrees to provide or arrange as
a Clinic Expense the offices and facilities for Clinic operations, including but
not limited to, the Clinic Facility and all costs of repairs, maintenance and
improvements, utility (telephone, electric, gas, water) expenses, normal
janitorial services, related real or personal property lease cost payments and
expenses, taxes and insurance, refuse disposal and all other costs and expenses
reasonably incurred in conducting operations in the Clinic Facility during the
term of this Agreement.
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6.2 USE OF FACILITIES. Voluntary abortions will not be performed in
facilities that are owned or leased by ProMedCo-Temple or any of its affiliates
in whole or in part. ProMedCo-Temple and KDCP agree that KDCP, as an independent
contractor, is a separate organization that retains the authority to direct the
medical, professional, and ethical aspects of its medical practice. If a
Physician Shareholder or a Physician Employee performs abortion procedures in
any facility, ProMedCo- Temple shall not receive any ProMedCo-Temple
Distribution from the revenue generated from such procedures.
7. FINANCIAL ARRANGEMENTS
7.1 PAYMENTS TO KDCP AND PROMEDCO-TEMPLE. KDCP and ProMedCo-Temple
agree that the compensation set forth herein is being paid to ProMedCo-Temple in
consideration of a substantial commitment made by ProMedCo-Temple hereunder and
that such fees are fair and reasonable. As payment for its services rendered to
KDCP, each month ProMedCo-Temple shall be paid the amount of all Clinic Expenses
and the ProMedCo-Temple Distribution. All Net Clinic Revenues after deduction of
Clinic Expenses, and the ProMedCo-Temple Distribution, shall be referred to as
the "KDCP Distribution." In the event ProMedCo or ProMedCo-Temple shall be
obligated pursuant to the Plan and Agreement for Reorganization or other
documents related thereto to make payments to any of the Physician Employees of
KDCP and shall have failed to make such payments, the amount of such payments
not made shall be added to the KDCP Distribution until paid in full.
7.2 DISTRIBUTION. The amounts to be paid to ProMedCo-Temple under this
Section 7.2 shall be payable monthly. ProMedCo-Temple shall pay to KDCP, in
accordance with the provisions of Section 7.4, the KDCP Distribution amounts on
or about the 15th day of such following month. Some amounts may need to be
estimated, with adjustments made as necessary the following month. Any audit
adjustments would be made after completion of the fiscal year audit.
7.3 CLINIC EXPENSES. Commencing on the Effective Date, ProMedCo-Temple
shall pay all Clinic Expenses as they fall due (including without limitation the
expenses of any Non-Physician Personnel carried on the books of KDCP at the
requirement of ProMedCo-Temple), provided, however, that ProMedCo-Temple may, in
the name of and on behalf of KDCP, contest in good faith any claimed Clinic
Expenses as to which there is any dispute regarding the nature, existence or
validity of such claimed Clinic Expenses. ProMedCo-Temple hereby agrees to
indemnify and hold KDCP harmless from and against any liability, loss, damages,
claims, causes of action and reasonable expenses of KDCP resulting from the
contest of any Clinic Expenses.
7.4 ACCOUNTS RECEIVABLES. Except for the first month of this Agreement,
on approximately the 15th day of each month, ProMedCo-Temple shall purchase the
accounts receivable of KDCP arising during the previous month, by payment of
cash, or other readily available funds into an account of KDCP. The
consideration for the purchase shall be an amount equal to the KDCP Distribution
for such previous month. Although it is the intention of the parties that
ProMedCo- Temple purchase and thereby become owner of the accounts receivable of
KDCP, in case such purchase shall be ineffective for any reason, KDCP, as of the
Effective Date of this Agreement, grants
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and shall cause each KDCP Employee to grant to ProMedCo-Temple a first priority
lien on and security interest in and to any and all interest of KDCP and such
KDCP Employees in any accounts receivable generated by the medical practice of
KDCP and the KDCP Employees or otherwise generated through the operations of the
Clinic, and all proceeds with respect thereto, to secure the payment to
ProMedCo-Temple of all such accounts receivable, and this Agreement shall be
deemed to be a security agreement to the extent necessary to give effect to the
foregoing. In addition, KDCP shall cooperate with ProMedCo-Temple and execute
and deliver, and cause each KDCP Employee to execute and deliver, all necessary
documents in connection with the pledge of such accounts receivable to
ProMedCo-Temple or at ProMedCo-Temple's option, its lenders. All collections in
respect of such accounts receivable shall be deposited in a bank account at a
bank designated by ProMedCo-Temple. To the extent KDCP or any KDCP Employee
comes into possession of any payments in respect of such accounts receivable,
KDCP or such KDCP Employee shall direct such payments to ProMedCo-Temple for
deposit in bank accounts designated by ProMedCo-Temple.
8. INSURANCE AND INDEMNITY
8.1 INSURANCE TO BE MAINTAINED BY PROMEDCO-TEMPLE. Throughout the term
of this Agreement, ProMedCo-Temple will use reasonable efforts to provide and
maintain, as a Clinic Expense, comprehensive professional liability insurance
for all professional employees of ProMedCo- Temple and KDCP with limits for KDCP
Medical Professionals required by ss. 8.2 as reasonably determined by
ProMedCo-Temple in its national program, comprehensive general liability
insurance and property insurance covering the Clinic Facility and operations.
8.2 INSURANCE TO BE MAINTAINED BY KDCP. Unless otherwise determined by
the Policy Council, throughout the term of this Agreement, KDCP shall maintain
comprehensive professional liability insurance with limits of not less than
$1,000,000 per claim and with aggregate policy limits of not less than
$1,000,000 per physician with limits for specialists of not less than $3,000,000
per physician with a separate limit for KDCP. KDCP shall be responsible for all
liabilities (including without limitation deductibles and excess liabilities)
not paid within the limits of such policies. ProMedCo-Temple shall have the
option of providing such professional liability insurance through an alternative
program, provided such program meets the requirements of the Insurance
Commissioner of the State of Texas and is approved by the Policy Council.
8.3 TAIL INSURANCE COVERAGE. KDCP will cause each individual physician
associated with the Clinic to enter into an agreement with KDCP that upon
termination of such physician's relationship with KDCP, for any reason, tail
insurance coverage will be purchased by the individual physician. Such
provisions shall be contained in employment agreements, restrictive covenant
agreements or other agreements entered into by KDCP and the individual
physicians, and KDCP hereby covenants with ProMedCo-Temple to enforce such
provisions relating to the tail insurance coverage or to provide such coverage
at the expense of KDCP.
8.4 ADDITIONAL INSURED. KDCP and ProMedCo-Temple agree to use their
reasonable efforts to have each other named as an additional insured on the
other's respective professional liability insurance programs at
ProMedCo-Temple's expense.
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8.5 INDEMNIFICATION. KDCP shall indemnify, hold harmless and defend
ProMedCo-Temple, its officers, directors and employees, from and against any and
all liability, loss, damage, claim, causes of action, and expenses (including
reasonable attorneys' fees), to the extent not covered by insurance, caused or
asserted to have been caused, directly or indirectly, by or as a result of the
performance of medical services or any other acts or omissions by KDCP and/or
its shareholders, agents, employees and/or subcontractors (other than
ProMedCo-Temple) during the term hereof, including any claim against
ProMedCo-Temple by a KDCP Employee, which claim arises out of such KDCP
Employees' employment relationship with KDCP or as a result of services
performed by such KDCP Employee, and which claim would typically be covered by
worker's compensation. ProMedCo-Temple shall indemnify, hold harmless and defend
KDCP, its officers, directors and employees, from and against any and all
liability, loss, damage, claim, causes of action, and expenses (including
reasonable attorneys' fees), to the extent not covered by insurance, caused or
asserted to have been caused, directly or indirectly, by or as a result of the
performance of any intentional acts, negligent acts or omissions by
ProMedCo-Temple and/or its shareholders, agents, employees and/or subcontractors
(other than KDCP) during the term of this Agreement.
9. RESTRICTIVE COVENANTS AND LIQUIDATED DAMAGES
The parties recognize that the services to be provided by
ProMedCo-Temple shall be feasible only if KDCP operates an active medical
practice to which the physicians associated with KDCP devote their full time and
attention. To that end:
9.1 RESTRICTIVE COVENANTS BY KDCP. During the term of this Agreement,
KDCP shall not, without the prior written consent of ProMedCo-Temple, establish,
operate or provide physician services at any medical office, clinic or other
health care facility providing services substantially similar to those provided
by KDCP pursuant to this Agreement anywhere within a radius of 30 miles of the
Clinic Facility, or within a radius of 30 miles of any current or future medical
office, clinic or other health care facility from which KDCP provides medical
services.
9.2 RESTRICTIVE COVENANTS BY MEDICAL PROFESSIONALS. KDCP shall:
(a) Current Medical Professionals. Enforce employment agreements, in a form
satisfactory to ProMedCo-Temple, with its current Medical Professionals; and
(b) Future Medical Professionals. Obtain and enforce formal employment
agreements from each of its future Medical Professionals in the form attached to
the Plan and Agreement for Reorganization;
pursuant to which each of the Medical Professionals agrees that unless (i) KDCP
is in default under the employment agreement or (ii) the employment of the
Medical Professional is terminated without cause, during the term of such
Medical Professional's employment agreement, and for a period of two years after
any termination of employment with KDCP, such Medical Professional will not
establish, operate or provide physician services at any medical office, clinic
or outpatient and/or ambulatory treatment or diagnostic facility providing
services substantially similar to those provided by KDCP
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pursuant to this Agreement within a radius of 30 miles of the Clinic Facility or
within a radius of 30 miles of any current or future medical office, clinic or
other health care facility from which KDCP provides medical services and that
ProMedCo-Temple shall have third-party rights to enforce such agreements.
9.3 PHYSICIAN SHAREHOLDER AND PHYSICIAN EMPLOYEE LIQUIDATED DAMAGES.
(a) RELEASE FROM RESTRICTIVE COVENANTS. The restrictive covenants described in
Section 9.2 of this Agreement will provide that the Physician Shareholders and
Physician Employees (existing or future) may be released from such restrictive
covenants by paying Liquidated Damages in the amount of one times such
physician's income related to the Clinic, as reported to the Internal Revenue
Service for the previous 12 months.
(b) LIQUIDATED DAMAGES IN CERTAIN EVENTS. In addition, if a Physician
Shareholder or Physician Employee received any ProMedCo-Temple consideration
pursuant to the Plan and Agreement for Reorganization, and said Physician
Shareholder or Physician Employee terminates his or her employment agreement
with KDCP for any reason (other than death, Retirement or Total Disability as
defined in the employment agreement between such Physician Shareholder and KDCP)
prior to the fifth anniversary of the Closing under the Plan and Agreement for
Reorganization, or is terminated with or without cause by KDCP prior to the
fifth anniversary of the Closing under the Plan and Agreement for
Reorganization, then KDCP (or if the Physician Shareholder or Physician Employee
has received any of the consideration paid to KDCP by ProMedCo-Temple under the
Plan and Agreement for Reorganization, said Physician Shareholder or Physician
Employee) shall pay KDCP $300,000 in liquidated damages which amount may be paid
in cash, in ProMedCo Stock valued at $14.00, as adjusted to reflect stock
splits, stock dividends, reverse stock splits or other similar changes in
capitalization, or a combination thereof; provided however, in the event fewer
than 10% of the Physician Employees employed by KDCP as of the date of this
Agreement shall have been terminated without cause, at the time a Physician
Employee is terminated without cause, the liquidated damages provision shall not
be applicable. KDCP shall retain such payments in a separate fund (the
"Recruitment Fund") to be used first to defray all costs incurred by KDCP or
ProMedCo-Temple in the enforcement of the employment agreement for that
departing physician and second for recruiting, relocating and funding the
compensation for a replacement physician for that departing physician and/or
additional physicians.
9.4 ENFORCEMENT. ProMedCo-Temple and KDCP acknowledge and agree that
since a remedy at law for any breach or attempted breach of the provisions of
this Section 9 shall be inadequate, either party shall be entitled to specific
performance and injunctive or other equitable relief in case of any such breach
or attempted breach, in addition to whatever other remedies may exist by law.
All parties hereto also waive any requirement for the securing or posting of any
bond
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in connection with the obtaining of any such injunctive or other equitable
relief. If any provision of Section 9 relating to territory or time described
therein shall be declared by a court of competent jurisdiction to exceed the
maximum time period, scope of activity, restricted or geographical area such
court deems reasonable and enforceable under applicable law, the time period,
scope of activity, restricted and/or area of restriction deemed to be reasonable
and enforceable by the court shall thereafter be the time period, scope of
activity, restricted and/or area of restriction applicable to the restrictive
covenant provisions in this Section 9. The invalidity of non-enforceability of
this Section 9 in any respect shall not affect the validity of enforceability of
the remainder of this Section 9 or of any other provisions of this Agreement
unless the invalid or non-enforceable provisions materially affect the benefits
either party would otherwise be entitled to receive under this Section 9 or any
other provision of this Agreement.
9.5 TERMINATION OF RESTRICTIVE COVENANTS. Notwithstanding anything to
the contrary contained herein, if this Agreement is terminated pursuant to
Section 10.2 herein, the employment agreement term contained in this Section 9
shall be null and void and of no force or effect.
10. TERM RENEWAL; TERMINATION;
10.1 TERM AND RENEWAL. The term of this Agreement shall commence on the
Effective Date hereof and shall continue for 40 years, after which it shall
automatically renew for five-year terms unless either party provides the other
party with at least 12 months but not more than 13 months written notice prior
to any renewal date.
10.2 TERMINATION BY KDCP. KDCP may terminate this Agreement as
follows:
(i) In the event of the filing of a petition in voluntary bankruptcy or an
assignment for the benefit of creditors by ProMedCo-Temple, or upon other action
taken or suffered, voluntarily or involuntarily, under any federal or state law
for the benefit of debtors by ProMedCo-Temple, except for the filing of a
petition in involuntary bankruptcy against ProMedCo-Temple which is dismissed
within 30 days thereafter, KDCP may give notice of the immediate termination of
this Agreement.
(ii) In the event ProMedCo-Temple shall materially default in the performance of
any duty or obligation imposed upon it by this Agreement or any agreement
between ProMedCo-Temple or ProMedCo with KDC and such default shall continue for
a period of 90 days after written notice thereof has been given to
ProMedCo-Temple by KDCP; or ProMedCo-Temple shall fail to remit the payments due
as provided in Section 7.2 hereof or under other agreements between
ProMedCo-Temple or ProMedCo and KDC and such failure to remit shall continue for
a period of 30 days after written notice thereof, KDCP may terminate this
Agreement. Termination of this Agreement pursuant to this Section 10.2(ii) by
KDCP shall require the affirmative vote of 75% of the Physician Shareholders.
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(iii) In the event the ProMedCo IPO Date shall not have occurred by September
30, 2001 and ProMedCo shall not have satisfied demands from all shareholders of
KDCP holding ProMedCo Stock who have made demand therefor (the "Demanding
Stockholders") to repurchase such stock at a purchase price determined by the
method described in this clause (iii); this right of termination shall expire 30
days after the value of the ProMedCo Stock is determined pursuant to the
following procedures or ProMedCo fails to timely comply with such procedures:
(A) Within 45 days of ProMedCo's receipt of repurchase demands pursuant to this
clause (iii) from the Demanding Stockholders who hold a majority in interest of
the ProMedCo stock held by the Demanding Stockholders, ProMedCo shall submit to
the Demanding Stockholders an appraisal (the "ProMedCo Appraisal") of the value
its stock as of September 30, 2001 on a per share basis (the "ProMedCo Stock
Value") made by a reputable appraiser; if the ProMedCo Appraisal is acceptable
to Demanding Stockholders holding a majority of the ProMedCo stock held by the
Demanding Stockholders, the ProMedCo Stock Value shall be as set forth in the
ProMedCo Appraisal; (B) if the Demanding Stockholders holding a majority of the
ProMedCo stock held by Demanding Stockholders, notify ProMedCo within 14 days of
receipt of the ProMedCo Appraisal that they disagree with the ProMedCo Stock
Value set forth therein, the Demanding Stockholders shall have 30 days to submit
to ProMedCo an appraisal (the "Demanding Stockholder Appraisal") of ProMedCo
Stock Value made by a reputable appraiser selected by the Demanding
Stockholders; if the Demanding Stockholder Appraisal is acceptable to ProMedCo,
the ProMedCo Stock Value shall be as set forth in the Demanding Stockholder
Appraisal; if the Demanding Stockholder Appraisal is not delivered to ProMedCo
within 44 days of the date the ProMedCo Appraisal is delivered to the Demanding
Stockhholders, ProMedCo Stock Value shall be as set forth in the ProMedCo
Appraisal; (C) if ProMedCo notifies the Demanding Stockholders within 14 days of
its receipt of the Demanding Stockholder Appraisal that the Demanding
Stockholder Appraisal is not acceptable, the appraisers who conducted the
ProMedCo Appraisal and the Demanding Stockholder Appraisal shall select a third,
independent appraiser who, within 30 days, shall appraise the ProMedCo Stock to
determine the ProMedCo Stock Value, and such appraisal shall be binding on the
parties.
10.3 TERMINATION BY PROMEDCO-TEMPLE. ProMedCo-Temple may terminate
this Agreement as follows:
(i) In the event of the filing of a petition in voluntary bankruptcy or an
assignment for the benefit of creditors by KDCP, or upon other action taken or
suffered, voluntarily or involuntarily, under any federal or state law for the
benefit of debtors by KDCP, except for the filing of a petition in involuntary
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bankruptcy against KDCP which is dismissed within 30 days thereafter,
ProMedCo-Temple may give notice of the immediate termination of this Agreement.
(ii) In the event KDCP shall materially default in the performance of any duty
or obligation imposed upon it by this Agreement or in the event a majority of
the Physicians Shareholders shall materially default in the performance of any
duty or obligation imposed upon them by this Agreement or by their employment
agreements with KDCP, and such default shall continue for a period of 90 days
after written notice thereof has been given to KDCP and such Physician
Shareholders by ProMedCo-Temple, ProMedCo-Temple may terminate this Agreement.
10.4 ACTIONS AFTER TERMINATION. In the event that this Agreement shall
be terminated, the KDCP Distribution and the ProMedCo-Temple Distribution shall
be paid through the effective date of termination. In addition, the various
rights and remedies herein granted to the aggrieved party shall be cumulative
and in addition to any others such party may be entitled to by law. The exercise
of one or more rights or remedies shall not impair the right of the aggrieved
party to exercise any other right or remedy, at law. Upon termination of this
Agreement, KDCP shall:
10.4.1 ASSET REPURCHASE. Purchase from ProMedCo-Temple at book
value the intangible assets set forth on the Opening Balance Sheet, as
adjusted through the last day of the month most recently ended prior to
the date of such termination in accordance with GAAP to reflect
amortization or depreciation of the intangible assets, which
amortization shall be for a period not in excess of 40 years.
10.4.2 REAL ESTATE. Purchase from ProMedCo-Temple all real
estate, if any, associated with the Clinic and owned by ProMedCo-Temple
at the then book value thereof.
10.4.3 IMPROVEMENTS. Purchase all improvements, additions or
leasehold improvements which have been made by ProMedCo-Temple as
reflected on ProMedCo- Temple's books as of the last day of this
Agreement and which relate solely to the performance of its obligations
under this Agreement or the properties subleased by ProMedCo-Temple, if
any.
10.4.4 DEBTS. Assume or otherwise discharge all ordinary and
necessary debt, contracts, payables and leases which are obligations of
ProMedCo-Temple and which relate principally to the performance of its
obligations under this Agreement or the properties subleased by
ProMedCo-Temple, if any.
10.4.5 EQUIPMENT; INVENTORIES; ACCOUNTS RECEIVABLE; ETC.
Purchase from ProMedCo-Temple at book value as reflected on ProMedCo-
Temple's books as of the last day of this Agreement:
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(i) EQUIPMENT. All of the equipment acquired by
ProMedCo-Temple pursuant to the Plan and Agreement
for Reorganization, including all replacements and
additions thereto made by ProMedCo-Temple with the
approval of the Policy Council pursuant to the
performance of its obligations under this Agreement;
(ii) INVENTORY. All stock, including inventory and
supplies, tangibles and intangibles of ProMedCo-
Temple relating to KDCP operations;
(iii) ACCOUNTS RECEIVABLE. All uncollected accounts
receivable theretofore purchased by ProMedCo-Temple
pursuant to Section 7.4 hereof at the book
value thereof on ProMedCo-Temple's books; and
(iv) OTHER ASSETS. All other assets of ProMedCo-Temple
relating to the operations of KDCP.
10.4.6 CLOSING OF REPURCHASE. KDCP shall pay cash for the
repurchased assets or may use shares of ProMedCo no par common stock
valued at 75% of the ProMedCo IPO Price, adjusted to reflect stock
splits and the like, or if the ProMedCo IPO Date shall not have
occurred, valued at $14.00 per share. The amount of the purchase price
shall be reduced by the amount of debt and liabilities of
ProMedCo-Temple assumed by KDCP and shall be reduced by any payment
ProMedCo-Temple has failed to make under this Agreement. KDCP and any
physician associated with KDCP shall execute such documents as may be
required to assume the liabilities set forth in Section 10.4.4 and to
remove ProMedCo-Temple from any liability with respect to such
repurchased Stocks and with respect to any property leased or subleased
by ProMedCo-Temple. The closing date for the repurchase shall be
determined by KDCP, but shall in no event occur later than 180 days
from the date of the notice of termination. The termination of this
Agreement shall become effective upon the closing of the sale of the
assets and KDCP shall be released from the Restrictive Covenants
provided for in Section 9 on the closing date. From and after any
termination, each party shall provide the other party with reasonable
access to books and records then owned by it to permit such requesting
party to satisfy reporting and contractual obligations which may be
required of it.
11. DEFINITIONS
For the purposes of this Agreement, the following definitions shall
apply:
11.1 ADJUSTMENTS shall mean any adjustments to KDCP's gross ▇▇▇▇▇▇▇▇
for uncollectible accounts, discounts, PCA, Medicare and Medicaid disallowances,
workers' compensation discount, employee/dependent health care benefit programs,
professional courtesies, and other activities that do not generate a collectible
fee. Any adjustments shall be based on a reasonable historical basis or a
reasonable prospective basis should a new payor agreement apply and shall be
periodically modified during the year to reflect he annual adjustments. Final
Adjustments and any resulting payments owed by one party to the other shall be
made within 30 days after completion of the fiscal year audit.
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11.2 CLINIC shall mean the medical care services, including, but not
limited to the practice of medicine, and all related healthcare services
provided by KDCP and the KDCP Employees, utilizing the management services of
ProMedCo-Temple and the Clinic Facility, regardless of the location where such
services are rendered.
11.3 CLINIC EXPENSES shall mean the amount of all expenses incurred in
the operation of the Clinic including, without limitation:
(i) Salaries, benefits (including contributions under any ProMedCo benefit
plan), and other direct costs of all employees of ProMedCo-Temple and Technical
Employees attributable to KDCP;
(ii) Direct costs, including benefits, of all employees or consultants of
ProMedCo or affiliates of ProMedCo-Temple who, with approval of the Policy
Council, provides services at or in connection with KDCP required for improved
performance, such as work management, purchasing, information systems, charge
and coding analysis, managed care sales, negotiating and contracting, financial
analysis, and business office consultation; provided, however, only that portion
of such employee's or consultant's costs without ▇▇▇▇-up by ProMedCo that is
allocable to Clinic will be a Clinic Expense;
(iii) Obligations of ProMedCo-Temple or ProMedCo under leases or subleases
related to Clinic operations;
(iv) Interest Expense on indebtedness incurred by ProMedCo-Temple or ProMedCo to
finance or refinance any of its obligations hereunder or services provided
hereunder, irrespective of whether such funds are provided by ProMedCo or
borrowed from outside sources with funds provided by ProMedCo; funds borrowed
from outside sources will be charged at the rate charged by the lender and funds
borrowed from ProMedCo will be charged at a floating rate equal to the then
current blended borrowing rate of ProMedCo.
(v) Personal property and intangible taxes assessed against ProMedCo-Temple's
assets used in connection with the operation of Clinic commencing on the date of
this Agreement;
(vi) All insurance expenses for insurance maintained by ProMedCo-Temple pursuant
to ss. 8.1 for ProMedCo's operations and for the KDCP Employees, as well as any
deductibles and non-insured expenses relating to claims covered by such
insurance.
(vii) Other expenses incurred by ProMedCo-Temple in carrying out its obligations
under this Agreement, including, but not limited to, recruitment expenses for
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new Physician Employees and legal and accounting expenses necessary for the
operations and expansion of KDCP; however, legal and accounting expenses
required by KDCP for its corporate needs not requested by ProMedCo or
ProMedCo-Temple shall be excluded.
(viii) Amortization of intangible asset value resulting from the employment of,
merger with, or other acquisition of, additional physicians in the KDCP service
area approved by the Policy Council.
(ix) Pagers for Physician Employees.
11.4 CLINIC EXPENSES SHALL NOT INCLUDE:
(i) Corporate overhead charges or any other expenses of ProMedCo or any
corporation affiliated with ProMedCo other than the kind of items listed above;
(ii) Any federal or state income taxes;
(iii) Any expenses which are expressly designated herein as expenses or
responsibilities of KDCP and/or KDCP Employees other than Technical Employees;
(iv) Any amortization or depreciation expense resulting from the amortization or
depreciation expenses incurred as shown on ProMedCo's financial statements, in
connection with the acquisition and execution of the Plan and Agreement for
Reorganization and the execution of this Agreement or any depreciation expenses
associated with acquisition of physicians as set forth in ss. 11.3(viii) hereof;
(v) Any on-going expenses relating to the obligations listed in Exhibit A to
this Agreement assumed by ProMedCo-Temple pursuant to the Plan and Agreement for
Reorganization.
(vi) Any debt service or interest expense on indebtedness incurred by ProMedCo-
Temple or ProMedCo to finance the consideration paid under the Plan and
Agreement for Reorganization;
(vii) Any liabilities, judgments or settlements assessed against KDCP or
Physician Shareholders in excess of any insurance policy limits.
11.5 CLINIC FACILITY shall mean the clinic facilities located at ▇▇▇▇ ▇.▇.
H. K. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and the clinic facilities located at (i)
Neurology & Headache Center of King's Daughters Clinics, ▇▇▇▇ ▇.▇. H. K. ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
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(ii) Dermatology Center of King's Daughters Clinics, ▇▇▇▇ ▇.▇. H. K. ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (iii) Womens Center of King's Daughters
Clinics, ▇▇▇▇ ▇.▇. H. K. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (iv)
Killeen Clinic, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and (v) Belton Family
Practice Clinic, ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and (vi) any substitute
facility or additional facility location, whether within or without ▇▇▇▇▇▇▇,
Lampasas, Burnet, Williamson, Milam or Falls Counties, Texas as approved by the
Policy Council.
11.6 DISTRIBUTION FUNDS shall mean those amounts remaining after Clinic
Expenses have been deducted from Net Clinic Revenue.
11.7 EFFECTIVE DATE shall mean 12:01 a.m. on September 1, 1996.
11.8 KDCP CAPITATION shall mean any capitation payments received by
KDCP from any HMO or other managed care payor for health care services provided
by KDCP.
11.9 KDCP EMPLOYEES shall mean all Medical Professionals and Technical
Employees employed by KDCP at the relevant dates.
11.18 RETIREMENT means total permanent withdrawal from the practice of
medicine to pursue activities not related in any way to the provision of health
care services.
11.10 MEDICAL PROFESSIONAL shall mean Physician Shareholders, Physician
Employees and Physician Extenders.
11.11 NET CLINIC REVENUES shall mean KDCP's gross ▇▇▇▇▇▇▇▇, including
Risk Pool Surpluses, ancillaries and any other revenues that have historically
been recorded by KDCP, less Adjustments.
11.12 OPENING BALANCE SHEET shall mean the balance sheet of
ProMedCo-Temple as of the Effective Date (as defined in the Plan and Agreement
for Reorganization), prepared in accordance with GAAP (except for the absence of
certain note information), and substantially in the form of the attached Exhibit
B subject to adjustments in the Consideration (as defined in the Plan and
Agreement for Reorganization).
11.13 PHYSICIAN EMPLOYEES shall mean any physician employed by KDCP and
providing medical services to patients on behalf of KDCP, who are not Physician
Shareholders.
11.14 PHYSICIAN EXTENDERS shall mean all non-physician professional
employees who provide direct patient care for which a billed charge is
generated.
11.15 PHYSICIAN SHAREHOLDERS shall mean any physician who is a
shareholder of KDCP, both as of the date of this Agreement (which said Physician
Shareholders are parties to this Agreement) and at any future point in time.
11.16 PLAN AND AGREEMENT FOR REORGANIZATION shall mean the Plan and
Agreement for Reorganization dated as of September 13, 1996 between King's
Daughters Clinics, P.A., a Texas corporation ("KDC") the shareholders of which
are the same as KDCP, ProMedCo and ProMedCo- Temple.
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11.17 PROMEDCO shall mean ProMedCo, Inc., a Texas corporation which is
sole shareholder of ProMedCo-Temple.
11.18 PROMEDCO IPO DATE shall mean the date on which ProMedCo first
sells stock to the public pursuant to its initial public offering.
11.19 PROMEDCO IPO PRICE shall mean the price per share at which
ProMedCo offers ProMedCo Stock to the public at its initial public offering.
11.20 PROMEDCO-TEMPLE DISTRIBUTION shall mean 15% of Distribution
Funds.
11.21 RISK POOL SURPLUSES shall mean all hospital incentive funds,
specialists incentive funds, and funds from shared risk pools under any
risk-sharing arrangements. Risk Pool Surpluses shall be calculated by
aggregating all risk pools applicable, including making any deductions for pools
that are in a deficit position.
11.22 TECHNICAL EMPLOYEES shall mean technicians who provide services
in the diagnostic areas of KDCP's practice, such as employees of the Clinic
laboratory, radiology technicians and cardiology technicians. All Technical
Employees shall be KDCP employees.
12. GENERAL PROVISIONS
12.1 INDEPENDENT CONTRACTOR. It is acknowledged and agreed that KDCP
and ProMedCo- Temple are at all times acting and performing hereunder as
independent contractors. ProMedCo- Temple shall neither have nor exercise any
control or direction over the methods by which KDCP or the KDCP Employees
practice medicine. The sole function of ProMedCo-Temple hereunder is to provide
all management services in a competent, efficient and satisfactory manner.
ProMedCo- Temple shall not, by entering into and performing its obligations
under this Agreement, become liable for any of the existing obligations,
liabilities or debts of KDCP unless otherwise specifically provided for under
the terms of this Agreement. ProMedCo-Temple will in its management role have
only an obligation to exercise reasonable care in the performance of the
management services. Neither party shall have any liability whatsoever for
damages suffered on account of the willful misconduct or negligence of any
employee, agent or independent contractor of the other party. Each party shall
be solely responsible for compliance with all state and federal laws pertaining
to employment taxes, income withholding, unemployment compensation contributions
and other employment related statutes regarding their respective employees,
agents and servants.
12.2 OTHER CONTRACTUAL ARRANGEMENT.
(a) The parties acknowledge and agree that they have been advised and consent to
the fact that ProMedCo-Temple, or its affiliates (i) may have, prior to the date
of this Agreement, discussed proposals with respect to, or (ii) may, from time
to time hereafter, enter into agreements with one or more KDCP Employees to
provide consulting, medical direction, advisory or similar services relating to
activities of
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ProMedCo-Temple or its affiliates in clinical areas. The parties agree that such
agreements, if any, shall be entered into at the sole discretion of the parties
thereto and subject to such terms and conditions to which such parties may
agree, and any compensation payable to or by ProMedCo-Temple, on the one hand,
and such KDCP Employees, on the other hand, shall not constitute Net Clinic
Revenues, or KDCP Compensation, and shall otherwise not be subject to the
provisions of this Agreement.
(b) Each current Physician Shareholder, by his execution of this Agreement as
provided on the signature page hereof, agrees that neither the negotiation nor
the entry into any agreement or arrangement of a type described in Section
12.2(a) above shall constitute a breach of any fiduciary or other duty owned by
any KDCP Employee to another, or by ProMedCo-Temple, to KDCP or any Physician
Shareholder. Accordingly, KDCP and each Physician Shareholder hereby waive any
right to disclosure of the negotiations, proposals or terms of any such
agreement, arrangement or right to participate in and/or share revenues derived
from any such agreement or arrangement with any KDCP Employee, and hereby
forever release and discharge KDCP, the Physician Shareholders, ProMedCo-Temple,
and their respective representatives (including, but not limited to, their
respective attorneys, accountants, affiliates, shareholders, officer, directors,
employees and agents) from any and all actions, claims, charges, suits, damages
and liabilities of any kind whatsoever arising from or by reason of the
participation of any KDCP Employee in any agreement or arrangement with
ProMedCo-Temple, or their affiliates of a type described in Section 12.2(a)
above or from or by reason of the failure of ProMedCo-Temple, any KDCP Employee
or their respective representatives to disclose the negotiation, existence or
terms of any such agreement or arrangement. In keeping with the private nature
of these matters, the Physician Shareholders further agree that such
negotiations, proposals or terms of agreement are to be kept confidential
between a KDCP Employee on the one hand, and ProMedCo-Temple, on the other hand,
and shall not be disclosed by them or their representatives, except as required
by applicable law.
12.3 PROPRIETARY PROPERTY.
12.3.1 Each party agrees that the other party's proprietary
property shall not be possessed, used or disclosed otherwise than may
be necessary for the performance of this Agreement. Each party
acknowledges that its violation of this Agreement would cause the other
party irreparable harm, and may (without limiting the other party's
remedies for such breach) be enjoined at the instance of the other
party. Each party agrees that upon termination of this Agreement for
any reason, absent the prior written consent of the other party, it
shall have no right to and shall cease all use of the other party's
proprietary property, and shall return all such proprietary property of
the other party in its possession to the other party.
12.3.2 ProMedCo-Temple shall be the sole owner and holder of
all right, title and interest, to all intellectual property furnished
by it under this Agreement, including, but not
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limited to the trade name "ProMedCo," all computer software, copyright,
services ▇▇▇▇ and trademark right to any material or documents
acquired, prepared, purchased or furnished by ProMedCo-Temple pursuant
to this Agreement. KDCP shall have no right, title or interest in or to
such material and shall not, in any manner, distribute or use the same
without the prior written authorization of ProMedCo-Temple, provided,
however, that the foregoing shall not restrict KDCP from distributing
managed care information brochures and materials without the prior
written approval of ProMedCo-Temple provided no Proprietary Property of
ProMedCo-Temple is contained therein. Notwithstanding the preceding,
however, ProMedCo-Temple agrees that KDCP shall be entitled to use on a
nonexclusive and nontransferable basis for the term of this Agreement
the name "KDCP Family Practice" as may be necessary or appropriate in
the performance of KDCP's services and obligations hereunder.
12.4 COOPERATION. Each of the parties shall cooperate fully with the
other in connection with the performance of their respective duties and
obligations under this Agreement.
12.5 LICENSES, PERMITS AND CERTIFICATES. ProMedCo-Temple and KDCP shall
each obtain and maintain in effect, during the term of this Agreement, all
licenses, permits and certificates required by law which are applicable to their
respective performance pursuant to this Agreement.
12.6 COMPLIANCE WITH RULES, REGULATIONS AND LAWS. ProMedCo-Temple and
KDCP shall comply with all federal and state laws and regulations in performance
of their duties and obligations hereunder. Neither party, nor their employees or
agents, shall take any action that would jeopardize the other party's
participation, if applicable, in any federal or state health program including
Medicare and Medicaid. ProMedCo-Temple and KDCP shall take particular care to
ensure that no employee or agent of either party takes any action intended to
violate Section 1128B of the Social Security Act with respect to soliciting,
receiving, offering or paying any remuneration (including any kickback, bribe,
or rebate) directly or indirectly, overtly or covertly, in cash or in kind in
return for referring an individual to a person for the furnishing or arranging
for the furnishing of any item or service for which payment may be made in whole
or in part under Title XVIII or XIX of the Social Security Act, or for
purchasing, leasing, ordering, or arranging for or recommending purchasing,
leasing, or ordering any good, facility, service, or item for which payment may
be made in whole or in part under Title XVIII or XIX of the Social Security Act.
12.7 GENERALLY ACCEPTED ACCOUNTING PRINCIPLES (GAAP). All financial
statements and calculations contemplated by this Agreement will be prepared or
made in accordance with generally accepted accounting principles consistently
applied unless the parties agree otherwise in writing.
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12.8 NOTICES. Any notices required or permitted to be given hereunder
by either party to the other may be given by personal delivery in writing or by
registered or certified mail, postage prepaid, with return receipt requested.
Notices shall be addressed to the parties at the addresses appearing on the
signature page of the Agreement, but each party may change such party's address
by written notice given in accordance with this Section. Notices delivered
personally will be deemed communicated as of actual receipt; mailed notices will
be deemed communicated as of three days after mailing.
12.9 ATTORNEYS' FEES. ProMedCo-Temple and KDCP agree that the
prevailing party in any legal dispute among the parties hereto shall be entitled
to payment of its attorneys' fees by the other party.
12.10 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction or applicable state or federal law and their
implementing regulations to be invalid, void or unenforceable, the remaining
provisions will nevertheless continue in full force and effect.
12.11 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement or the breach thereof will be settled by binding arbitration
in accordance with the rules of commercial arbitration of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Such
arbitration shall occur within ▇▇▇▇ County, Texas, unless the parties mutually
agree to have such proceedings in some other locale. The arbitrator(s) may in
any such proceeding award attorneys' fees and costs to the prevailing party.
12.12 CONSTRUCTION OF AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas. The parties
agree that the terms and provisions of this Agreement embody their mutual
interest and agreement and that they are not to be construed more liberally in
favor of, nor more strictly against, any party hereto.
12.13 ASSIGNMENT AND DELEGATION. ProMedCo-Temple shall have the right
to assign its rights hereunder to any person, firm or corporation controlling,
controlled by or under common control with ProMedCo-Temple and to any lending
institution, for security purposes or as collateral, from which ProMedCo-Temple
or ProMedCo obtains financing for itself and as agent. Except as set forth
above, neither ProMedCo-Temple nor KDCP shall have the right to assign their
respective rights and obligations hereunder without the written consent of the
other party. KDCP may not delegate any of KDCP's duties hereunder, except as
expressly contemplated herein; however, ProMedCo-Temple may delegate some or all
of ProMedCo-Temple' s duties hereunder to the extent it concludes, in its sole
discretion, that such delegation is in the mutual interest of the parties
hereto.
12.14 CONFIDENTIALITY. The terms of this Agreement and in particular
the provisions regarding compensation, are confidential and shall not be
disclosed except as necessary to the performance of this Agreement or as
required by law.
12.15 WAIVER. The waiver of any provision, or of the breach of any
provision of this
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Agreement must be set forth specifically in writing and signed by the waiving
party. Any such waiver shall not operate or be deemed to be a waiver of any
prior or future breach of such provision or of any other provision.
12.16 HEADINGS. The subject headings of the articles and sections of
this Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any of its provisions.
12.17 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express
or implied, is intended or shall be construed to confer upon any person, firm or
corporation other than the parties hereto and their respective successors or
assigns, any remedy or claim under or by reason of this Agreement or any term,
covenant or condition hereof, as third party beneficiaries or otherwise, and all
of the terms, covenants and conditions hereof shall be for the sole and
exclusive benefit of the parties hereto and their successors and assigns.
12.18 TIME IS OF THE ESSENCE. Time is hereby expressly declared to be
of the essence in this Agreement.
12.19 MODIFICATIONS OF AGREEMENT FOR PROSPECTIVE LEGAL EVENTS. In the
event any state or federal laws or regulations, now existing or enacted or
promulgated after the effective date of this Agreement, are interpreted by
judicial decision, a regulatory agency or legal counsel for both parties in such
a manner as to indicate that the structure of this Agreement may be in violation
of such laws or regulations, or in the event the Texas State Board of Medical
Examiners or other authority with legal jurisdiction shall, solely by virtue of
this Agreement, initiate an action to revoke, suspend, or restrict the license
of any physician retained by KDCP to practice medicine in the State of Texas,
KDCP and ProMedCo-Temple shall amend this Agreement as necessary. To the maximum
extent possible, any such amendment shall preserve the underlying economic and
financial arrangements between KDCP and ProMedCo-Temple. In the event it is not
possible to amend this Agreement to preserve in all material respects the
underlying economic and financial arrangements between KDCP and ProMedCo-Temple,
this Agreement may be terminated by written notice by either party within 90
days from date of such interpretation or action, termination to be effective no
sooner than the earlier of 180 days from the date notice of termination is given
or the latest possible date specified for such termination in any regulatory
order or notice. Termination pursuant to this Section 12.19 by KDCP shall
require the affirmative vote of a majority of Physician Shareholders.
12.20 NO RIGHT OF OFF-SET. Notwithstanding any provision of this
Agreement to the contrary, neither ProMedCo-Temple nor ProMedCo shall have any
right of off-set with respect to payments to be made to such Physician Employee
hereunder arising out of obligations of such Physician Employees under the Plan
and Agreement for Reorganization and related agreements.
12.21 WHOLE AGREEMENT; MODIFICATION. A contract in which the amount
involved exceeds $50,000 in value is not enforceable unless the Agreement is in
writing and signed by the party to be bound or by that party's authorized
representative. The rights and obligations of the parties hereto shall be
determined solely from written agreements. Documents and instruments, and any
prior oral
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agreements between the parties are superseded by and merged into such writings.
This Agreement (As amended in writing from time to time), the exhibits, and the
schedules delivered pursuant hereto represent the final agreement between the
parties hereto and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements by the parties. There are no
unwritten oral agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
PROMEDCO OF TEMPLE, INC.
By:
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PHYSICIANS OF KING'S DAUGHTERS, P.A.
By:
Name:
Title:
Address: ▇▇▇▇ ▇.▇. ▇. ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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Acknowledgment and Agreement by Physician Shareholders
to abide by the terms of the Service Agreement
▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇ ▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇, M.D.
Gopal Guttickonda, M.D.
▇▇▇▇▇▇ ▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, D.O.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇., M.D.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, D.P.M.
▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
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▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., M.D.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, M.D.
▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇▇, D.O.
▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇▇▇▇, M.D.
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GUARANTY
ProMedCo, Inc., a Texas corporation which is the sole shareholder of
ProMedCo of Temple, Inc., a Delaware corporation ("ProMedCo-Temple"), hereby
guarantees the performance of ProMedCo-Temple under the above Service Agreement.
PROMEDCO, INC.
By
Its
Name