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EXHIBIT 10.39
MANAGEMENT AGREEMENT
PARTIES: AMERIPATH TEXAS, INC. ("AmeriPath")
DFW 5.01(A) (the "Practice")
EFFECTIVE DATE: SEPTEMBER 1, 1997 (the "Effective Date")
RECITALS:
- AmeriPath is a corporation engaged in the business of operating a
pathology laboratory and is a wholly-owned subsidiary of AmeriPath, Inc., a
corporation engaged in the business of providing administrative and management
services, facilities and equipment to pathology groups;
- The Practice (i) is a Texas non-for profit corporation certified to
practice medicine by the Texas Board of Medicine pursuant to Section 5.01(a) of
the Texas Medical Practice Act, (ii) operates under the name AmeriPath Dallas
and (iii) is comprised of medical practitioners who engage in the practice of
pathology and other medical specialties ("Practice Providers");
- The Practice desires to enter into this Agreement to engage AmeriPath
to provide comprehensive business management services and facilities to enhance
the efficiency of its operations and to allow its Practice Providers to
concentrate fully on providing quality medical services;
- The Practice has designated a Managing Physician to oversee the day
to day operations of the Practice's business and to make administrative and
certain other decisions on its behalf;
- The Practice and AmeriPath desire to enter into this agreement (the
"Agreement") to provide a statement of their respective rights and
responsibilities during its Term (as defined in Section VI-A herein below).
FOR GOOD AND VALUABLE CONSIDERATION, AmeriPath and the Practice agree
as follows:
I. PRELIMINARY STATEMENTS
A. RECITALS. The recitals set forth above are true and accurate
and are incorporated as part of this Agreement.
B. DEFINITIONS. Many capitalized terms used in this Agreement are
defined in Attachment I to this Agreement; however, capitalized terms used in
this Agreement are also defined in the text of this Agreement, and in
Attachments II through VI hereof.
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C. ATTACHMENTS. All attachments to this Agreements are
incorporated into this Agreement by reference. The attachments to this Agreement
are the following:
Attachment I: Definitions
Attachment II: Appointment of AmeriPath as Attorney in Fact
Attachment III: Restrictive Covenants
Attachment IV: Medical Offices
Attachment V: Miscellaneous Contractual Provisions
II. AMERIPATH SERVICES
AmeriPath shall on behalf of Practice and as a Practice Expense,
provide the Practice and the Practice Providers with the following services:
A. STRATEGIC PLANNING AND GOALS. AmeriPath shall prepare, in
consultation with the Managing Physician, an annual Operating Plan (as defined
in Section IV-B), reflecting in reasonable detail anticipated Practice Revenues,
Practice Expenses, Allocated Expenses and Practice Provider staffing. The
Operating Plan shall include, among other things, information relating to the
growth and enhancement of the Practice, a budget for the Practice and the Base
Fee and Performance Fee to be paid to AmeriPath..
B. EXPANSION OF PRACTICE. AmeriPath shall assist the Practice in
developing relationships and affiliations with physicians and other specialists,
hospitals, networks, health maintenance organizations and preferred provider
organizations. Subject to the terms of this Agreement, each of the Practice and
AmeriPath shall cooperate and use their respective best efforts to expand the
Practice.
C. Managed Care Relationships. AmeriPath, together with the
Managing Physician, shall evaluate, negotiate, and administer managed care
contracts and other third party payor contracts on behalf of the Practice and
its Practice Providers.
D. Facility Relationships. AmeriPath, together with the Managing
Physician, shall evaluate, negotiate, and administer all hospital and other
medical facility contracts on behalf of the Practice and its Practice Providers.
E. Establishment of Fees. AmeriPath shall recommend, but shall
not set, fees, charges, premiums or other amounts due in connection with
services and goods provided by the Practice. The Steering Committee (see Section
IV) may adopt recommendations in its reasonable discretion on behalf of the
Practice and its Practice Providers. The Practice shall retain sole authority to
decide how physician compensation will be divided among individual physicians.
F. Practice Management Services. AmeriPath shall, in consultation
with the Managing Physician, assess business activity including product line
analysis, outcomes monitoring
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and customer satisfaction. AmeriPath shall develop systems to track revenues,
expenses, cost accounting, utilization, quality assurance, physician
productivity and customer satisfaction.
G. PERSONNEL. AmeriPath shall, on behalf of Practice as a
Practice Expense, employ and provide all personnel necessary to provide Practice
services (other than Practice Providers), in accordance with the Practice's
operational needs and the Operating Plan then in effect. AmeriPath shall employ
and provide the AmeriPath benefits package to all personnel (other than Practice
Providers) rendering services in connection with the Practice. AmeriPath shall
provide the following personnel services to the Practice:
1. NON-MEDICAL PERSONNEL. AmeriPath shall employ
non-medical personnel (i.e., managerial, clerical,
secretarial, bookkeeping and collection personnel) as
determined by AmeriPath, and as necessary for the
Practice's effective operation, as contemplated by
the Operating Plan. AmeriPath shall provide personnel
for the maintenance of patient records, billing,
collection and maintenance of the financial records.
AmeriPath shall determine the assignments, salaries
and fringe benefits of all the non-medical personnel.
AmeriPath will consult with the Managing Physician
but retains decision-making authority regarding all
such matters. Non-medical personnel may perform
services from time to time for other individuals or
entities. AmeriPath may utilize employees or
independent contractors, in its discretion.
2. LICENSED TECHNICAL PERSONNEL. AmeriPath shall employ
and provide to the Practice licensed technical
personnel other than Practice Providers ("Licensed
Technical Personnel"). Licensed Technical Personnel
shall be retained as determined by the Managing
Physician, in consultation with the Steering
Committee, in the exercise of his professional
judgment to be reasonably necessary for the effective
operation of the Practice, as contemplated by the
Operating Plan. AmeriPath shall facilitate the
recruitment and retention of all Licensed Technical
Personnel. Although AmeriPath may employ Licensed
Technical Personnel, the Managing Physician, or its
designee, shall have the right to interview, make
determinations to hire, and terminate Licensed
Technical Personnel. All Licensed Technical Personnel
providing services in connection with the Practice
shall be under the direct control and supervision of
the Practice and its Practice Providers.
3. PRACTICE PROVIDERS. AmeriPath shall perform
administrative services relating to the recruitment
of new Practice Providers. Selection of new Practice
Providers shall be the sole responsibility of the
Practice. The hiring of new Practice Providers shall
require the prior written approval of AmeriPath only
with respect to economic and practice management
issues. All Practice Providers shall be employees of
the Practice (if such personnel
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are hired as employees) and not of AmeriPath.
AmeriPath shall provide technical support to the
Practice's risk management program. Additionally,
AmeriPath shall advise, make arrangements for the
purchase of, and manage the Practice's professional
liability coverage program.
H. FACILITIES, UTILITIES, LICENSES, PERMITS AND OTHER RELATED
EXPENSES. AmeriPath shall own, lease or sublease on behalf of the Practice,
Medical Offices necessary for the operation of the Practice pursuant to the
Operating Plan.. The Medical Offices provided as of the Effective Date shall be
those listed on Attachment IV. AmeriPath shall provide, manage and maintain the
Medical Offices in good condition and repair, including the provision of routine
janitorial and maintenance services. AmeriPath shall provide on behalf of the
Practice utilities and shall pay other related expenses, consistent with the
Operating Plan. AmeriPath shall assist the Practice and its Practice Providers
in obtaining required laboratory permits and licenses. The Practice shall have
exclusive use of both existing and new Medical Offices during the Term.
I. FURNITURE, FIXTURES AND EQUIPMENT. AmeriPath shall provide
necessary and appropriate furniture, fixtures and equipment ("FF&E") on behalf
of the Practice in accordance with the Operating Plan. Nothing in this Agreement
shall be construed to affect or limit in any way the professional discretion of
the Practice to select and use equipment, furnishings, inventory, and supplies
which the Managing Physician deems necessary and appropriate for the practice of
medicine. AmeriPath shall, on behalf of the Practice, provide for all repairs
and maintenance of the FF&E and shall, at the reasonable request of the Managing
Physician, acquire new or replacement FF&E. Title to existing, new and
replacement FF&E shall be in the name of AmeriPath or a leasing company. The
Practice shall have exclusive use of both existing and new FF&E provided by
AmeriPath during the Term.
THE PRACTICE ACKNOWLEDGES THAT AMERIPATH MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE FITNESS, SUITABILITY OR ADEQUACY
OF ANY FURNITURE, FIXTURES, EQUIPMENT, INVENTORY, OR SUPPLIES LEASED OR PROVIDED
PURSUANT TO THIS AGREEMENT FOR THE CONDUCT OF A MEDICAL PRACTICE OR FOR ANY
OTHER PARTICULAR PURPOSE.
J. BUSINESS OFFICE AND SUPPORT SERVICES. AmeriPath shall, in
consultation with the Managing Physician, provide computer, bookkeeping, billing
and collection, accounts receivable and accounts payable services necessary for
the management of the Practice pursuant to this Agreement and in accordance with
the Operating Plan. AmeriPath shall also order and purchase on behalf of the
Practice medical and office supplies required in the day-to-day operation of the
Practice as determined by the Managing Physician consistent with the Operating
Plan. However, the Practice shall order, purchase, stock, and monitor the
inventory of pharmaceuticals and other medical supplies, substances, or items
whose purchase, maintenance, or security require licensure as a health-care
provider or require a permit, registration, certification, or identification
number that requires licensure or certification as a health-care provider.
AmeriPath shall provide access to management information systems services to the
Practice, including risk contracting systems
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services. AmeriPath shall also arrange laundry, waste collection, and other
necessary operational services in accordance with applicable laws.
K. PROFESSIONAL AND CONSULTING SERVICES. AmeriPath shall arrange
for or render business and financial management consultation and advice
reasonably requested by the Managing Physician and directly related to the
operations of the Practice pursuant to this Agreement. Except as contemplated by
the Operating Plan, AmeriPath shall not be responsible for any services
requested by or rendered to any individual, employee or agent of the Practice,
or any Practice Provider, not directly related to Practice operations.
L. PATIENT AND FINANCIAL RECORDS. AmeriPath shall maintain files
and records relating to the operation of the Practice, including, but not
limited to, customary financial records and patient files. The management of all
files and records shall comply with applicable Federal, state and local statutes
and regulations, regarding their confidentiality and retention. Files and
records shall be located to be readily accessible for patient care, consistent
with customary records management practices. AmeriPath shall have reasonable
access to files and records, and, subject to applicable laws, shall be permitted
to retain copies of them. The Practice shall be responsible for the preparation
of, and direct the contents of, patient medical records. All patient medical
records shall remain the property of the Practice. The Practice shall be
responsible for proper documentation of medical services provided by the
Practice and the Practice Providers.
M. FINANCIAL STATEMENTS. AmeriPath shall prepare Practice profit
and loss and income statements, in accordance with the manner and form in which
AmeriPath normally keeps its accounts, books and records, and in accordance with
applicable laws. The statements shall reflect Practice Revenues generated by or
on behalf of the Practice and shall contain a comparison of actual and budgeted
Practice Revenues and expenses. AmeriPath shall provide the Managing Physician
with monthly statements within thirty (30) days after the end of each month and
shall provide a year-end statement within ninety (90) days after the end of the
calendar year.
III . Practice Obligations
A. EXCLUSIVITY. The Practice and the Practice Providers agree
that during the Term of this Agreement they will not retain, engage or employ,
directly or indirectly, any other entity or individual to provide the services
for which it is contracting with AmeriPath.
B. PROFESSIONAL STANDARDS. Medical services shall be performed
solely by, or under the direct supervision of, the Practice Providers. The
Practice shall have complete and absolute control over the methods by which the
Practice, the Practice Providers and Non-Independent Professional Personnel
practice medicine and/or render the professional services which they are
licensed to provide under the laws of the states in which they are practicing.
The Practice shall require that Practice Providers comply with applicable
ethical standards, laws and regulations. The Practice shall, with the assistance
of AmeriPath (if so requested by the Managing Physician), resolve utilization
review or quality assurance issues which may arise. In the event that
disciplinary actions or professional liability actions are initiated against any
Practice Provider, the Practice shall
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immediately inform AmeriPath of the action and the underlying facts and
circumstances. The Practice shall implement and maintain a program to monitor
the quality and utilization of medical care, and AmeriPath shall render
administrative assistance to the Practice, as requested by the Managing
Physician.
C. MANAGED CARE ARRANGEMENTS. The Practice shall cooperate with
AmeriPath in the development and operation of managed care arrangements. The
Practice shall participate as a provider and in the administrative operation of
integrated delivery systems and managed care arrangements. The Practice and its
Practice Providers agree to comply with the quality assurance and utilization
review programs of managed care arrangements.
D. CONTINUING MEDICAL EDUCATION. The Practice shall ensure that
each of its Practice Providers participates in continuing medical education
activities, as necessary to remain current in their respective specialties,
including, but not limited to, the minimum continuing medical education
requirements imposed by applicable laws and policies of applicable specialty
boards.
E. PHYSICIAN POWERS OF ATTORNEY AND BILLINg. The Practice shall
appoint AmeriPath to act as agent in the billing and collection of all Practice
Revenues, and shall require all Practice Providers to appoint AmeriPath as
attorney-in-fact for the Practice and each Practice Provider, as more
specifically set forth in Attachment II. The Practice shall cooperate and shall
cause its Practice Providers to cooperate with AmeriPath in all matters relating
to the billing and collection of all Practice Revenues. In this regard, each
Practice Provider shall review and approve the reports and other information
required to support complete and accurate bills. Additionally, the Practice and
its Practice Providers will provide such necessary support to appeal or contest
any denials of claims or other regulatory issues.
F. ADDITIONAL PRACTICE PROVIDERS. When the Practice desires to
add or change a Practice Provider, AmeriPath shall provide a business analysis
of the prospective change in the composition of the Practice. Additional
Practice Providers (the "Additional Practice Providers") shall be added to the
Practice as follows: the Practice shall review and approve the credentials and
the medical practices of the prospective Additional Practice Provider. AmeriPath
shall review the business operations, financial condition and results of
operations of the prospective Additional Practice Provider and shall provide
such information to the Managing Physician. The decision to admit an Additional
Practice Provider shall be subject to the approval of the Steering Committee, as
more particularly described in Section IV.A. hereof.
G. ADDITIONAL PRACTICES. AmeriPath may, in its discretion, seek
to add additional practices (each such Practice being an "Additional Practice")
to this Agreement. If AmeriPath desires to add an Additional Practice, AmeriPath
shall provide to the Steering Committee a business analysis of the Additional
Practice, including business operations, financial condition and results of
operations. The decision to admit an Additional Practice shall be subject to the
approval of the Steering Committee, as more particularly described in Section
IV.A. hereof. After an agreement to add an Additional Practice has been reached,
the Practice and AmeriPath shall enter into an amendment (the "New Practice
Amendment") to this Agreement. The New Practice
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Amendment shall include the understanding of the parties with respect to
AmeriPath's compensation and other issues agreed upon by the Steering Committee
and the Additional Practice. The New Practice Amendment shall obligate the
Additional Practice to be bound by the New Practice Amendment.
H. RESTRICTIVE COVENANTs. The Practice and each Practice Provider
shall comply with the terms, conditions and provisions of the Restrictive
Covenants set forth in Attachment III. AmeriPath and its parent company,
AmeriPath, Inc., shall be third party beneficiaries of the Restrictive Covenants
and shall have the right to enforce them independently and without the consent,
action or approval of the Practice or any Practice Provider. Additionally, the
Practice and the Practice Providers agree to fully cooperate with AmeriPath
should it desire to enforce the Restrictive Covenants.
I. PRACTICE EXPENSES. The Practice shall be solely responsible
for the payment of all Practice Expenses.
J. PRACTICE ORGANIZATIONAL DOCUMENTS. The Practice agrees that it
shall not, without the written consent of AmeriPath: (a) modify or amend the
Practice Organizational Documents (as defined in Attachment I); (b) admit New
Practice Providers, except as provided for in this Agreement; (c) remove the
Managing Physician; (d) sell all or substantially all its assets or capital
stock; or (e) terminate or cancel any hospital contracts (or similar contracts
for the provision of services) under this Agreement. Further, the Practice
agrees that it shall consult with AmeriPath prior to the termination or release
of any Practice Provider from his or her obligations.
K. STAFFING OF FACILITIES BY THE PRACTICE. To the extent that the
Practice or the Practice Providers are responsible for staffing facilities
provided by AmeriPath, the Practice shall provide adequate staffing to ensure
that medical services are provided in a manner consistent with applicable
community and medical specialty standards. From time to time AmeriPath may
acquire new facilities that it wishes the Practice to staff. The Practice agrees
that in the event AmeriPath acquires or develops a new facility that it wishes
the Practice to staff, the Practice will use its best efforts to staff the
facility. The parties agree that the Operating Plan will be revised as necessary
to accommodate staffing of the new facility.
L. EQUIPMENT. The Practice shall advise AmeriPath on the
maintenance, repair and proper operation of medical equipment. This obligation
shall relate to the medical functionality of the equipment. Upon receipt of such
advice, AmeriPath shall cause the medical equipment to be maintained in good
operating condition.
M. SUPERVISION OF LICENSED TECHNICAL PERSONNEL. The Practice
shall be responsible for the supervision of Licensed Technical Personnel. As
such, it shall provide Licensed Technical Personnel with appropriate training
and medical supervision. The Practice shall determine the responsibilities of
Licensed Technical Personnel and the manner in which they provide services.
Licensed Technical Personnel shall report to such Practice Providers as
designated by the Practice and the Practice Providers shall evaluate such
Licensed Technical Personnel.
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IV. STEERING COMMITTEE
A. CREATION AND GENERAL DUTIES OF STEERING COMMITTEE. AmeriPath and the
Practice shall establish a Steering Committee composed of three members, one of
whom shall be the Managing Physician and two of whom shall be designated by
AmeriPath (one of such two AmeriPath designees to be a physician). The Steering
Committee shall meet periodically and at the reasonable request of any member.
The Steering Committee shall consider, review, determine and approve (by simple
majority of two of the three members) the following matters as they relate to
the operation of the Practice: (i) the Operating Plan; (ii) employment and
recruitment of additional Practice Providers and the addition of Additional
Practices; (iii) long term strategic planning; (iv) establishment and
maintenance of relationships with health care providers and payors; (v) the fee
schedule for services and items provided by the Practice; and (vi) approval of
all marketing and advertising of services performed by the Practice or Practice
Providers; provided, however, that with respect to all decisions relating to the
practice of medicine and the provision of medical services, including but not
limited to, the matters set forth (ii) and (v) above, the Managing Physician
must concur with the majority decision of the Steering Committee, or if the
Managing Physician does not concur, the decision of the Managing Physician will
control.
B. OPERATING PLAN. One of the Steering Committee's primary
responsibilities shall be the approval of a Practice Operating Plan (the
"Operating Plan"). AmeriPath shall, not less often than one time each fiscal
year, develop a proposed Operating Plan. The proposed Operating Plan shall be
submitted to the Steering Committee for approval. When Approved by the Steering
Committee, both AmeriPath and the Managing Physician shall, as their
responsibilities are allocated in this Agreement, use their best efforts to
implement the Operating Plan. The Operating Plan shall set forth the estimated
income and expenditures of the Practice for the period covered, such income and
expenditures to be set forth in reasonable detail. The Practice shall retain
sole authority for proposing the compensation levels and manner of distribution
of physician income among individual physicians. Such proposals shall be
included in the budget of the Practice which shall be incorporated into the
Operating Plan as approved by the Steering Committee. The Operating Plan shall
include Practice Expenses, Allocated Expenses and AmeriPath compensation. The
Steering Committee may revise, from time to time, the Operating Plan as it
determines to be necessary or desirable (as revised, the "Revised Operating
Plan"). AmeriPath and the Managing Physician shall be authorized without the
need for further approval by AmeriPath, the Steering Committee or the Practice
Providers, to make the expenditures and incur the obligations provided for in a
Revised Operating Plan. Additionally, AmeriPath or the Managing Physician may
make expenditures and incur obligations that differ from an Operating Plan, but
are incurred in the ordinary course of business. For example, an increase in
professional liability premiums shall create a variance in the Operating Plan
which may be incurred without a revision to the Operating Plan.
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V. FINANCIAL MATTERS
A. AMERIPATH COMPENSATION.
1. GENERAL. The compensation provided herein is expected
to provide AmeriPath with fair market value payment
commensurate with the services it provides, its
capital investment, use of its tradename and its
expertise in laboratory and professional practice
management. AmeriPath shall receive compensation, as
provided in the Operating Plan and in accordance with
this Section V.
2. PRACTICE EXPENSES AND ALLOCATED EXPENSES. All
Practice Expenses (as defined in Attachment I
hereto), including the compensation of Practice
Providers, shall be the sole responsibility of
Practice and shall be paid by the Practice out of its
first available Practice Revenues. Allocated Expenses
(as defined in Attachment I hereto) incurred by
AmeriPath in the course of the performance of its
duties under this Agreement on behalf of or as agent
for the Practice shall be paid to AmeriPath.
Allocated Expenses may include an allocable portion
of reasonable corporate overhead of AmeriPath.
Allocated Expenses shall be billed to the Practice at
their actual cost to AmeriPath. An operating budget
for Practice Expenses and Allocated Expenses shall be
reviewed at least annually and shall be set forth in
the Operating Plan.
3. MANAGEMENT FEE. AmeriPath shall be paid a base
management fee (the "Base Fee") for its services
performed and to be performed pursuant to this
Agreement. The Base Fee shall be a flat amount and
shall be reviewed annually and shall be set forth in
the Operating Plan. The Base Fee shall be paid to
AmeriPath as provided in the Operating Plan, subject
only to the prior payment of Practice Expenses and
Allocated Expenses. Any portion of the Base Fee that
is not paid when due shall accrue and be paid with
the next available Practice Revenues.
4. PERFORMANCE FEE. On an annual basis, the Steering
Committee shall determine a set of performance goals
and objectives for AmeriPath in the performance of
its duties under this Agreement. Such goals and
objectives may include, among other things, the
identification and recruitment of Additional Practice
Providers, the retention of Practice Providers, the
procurement or expansion of managed care or other
contracts or the achievement of operating
efficiencies. AmeriPath may be paid a performance fee
(the "Performance Fee") based on the achievement of
such specified goals and objectives. The amount of
such Performance Fee shall be as set forth in the
Operating Plan.
B. REIMBURSEMENT OF EXPENSES. AmeriPath may, from time to time,
incur Practice Expenses which are a part of the Operating Plan, a Revised
Operating Plan, or are Practice
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Expenses incurred in the ordinary course of business. AmeriPath shall be
entitled to be reimbursed by the Practice for these expenses when incurred.
C. PRACTICE BANK ACCOUNt, Payment of Fees and Payment of
Expenses. The Practice shall establish a bank account for the deposit of all
Practice Revenues (the "Practice Bank Account"). AmeriPath shall have a security
interest in the Practice Bank Account pursuant to this Section V. Additionally,
it is understood and agreed that AmeriPath may assign its security interest and
all other interests that it may have in the Practice Bank Account to its lender
or lenders. Should AmeriPath assign its interest, its assignee shall have a
first lien on the Practice Bank Account. AmeriPath shall have access to the
Practice Bank Account solely for the purposes stated herein. In connection
herewith and throughout the Term, Practice hereby grants to AmeriPath an
exclusive special power of attorney for the purposes herein and appoints
AmeriPath as Practice's exclusive true and lawful agent and attorney-in-fact,
and AmeriPath hereby accepts such special power of attorney and appointment, to
deposit into the Practice Bank Account all funds, fees, and revenues generated
from the Practice's provision of medical services and collected by AmeriPath,
and to make withdrawals from Practice Bank Account for payments specified in
this Agreement and as requested from time-to-time by Practice. Notwithstanding
the exclusive special power of attorney granted to AmeriPath hereunder, Practice
may, with notice to AmeriPath, draw checks on the Practice Bank Account;
provided, however, that Practice shall neither draw checks on the Practice Bank
Account nor request AmeriPath to do so if the balance remaining in the Practice
Bank Account after such withdrawal would be insufficient to enable AmeriPath to
pay on behalf of Practice any Practice Expense attributable to the operations of
Practice or to the provision of medical services, and/or any other obligations
of Practice. Disbursements made from the Practice Bank Account consent shall be
consistent with the type and amount of expenditures authorized by the Operating
Plan. Limits on authority to sign checks and purchase orders shall be mutually
agreed upon by AmeriPath and the Managing Physician.
D. COLLATERAL. As collateral security for the payment of all
amounts owed to AmeriPath pursuant to this Agreement, Practice grants to
AmeriPath a security interest in all tangible and intangible assets of the
Practice, including Practice Revenues which may be created or arise during the
Term, together with all proceeds regardless of the manner in which the
entitlement to payment for Practice Revenues exists whether as accounts,
accounts receivable, notes receivable or other evidence of entitlement to the
Practice Revenues and all of its rights, title and interest (including right to
control the same), if any, in the Bank Account and the sums on deposit
(collectively, the "Collateral") to the extent the same are not otherwise
assigned to AmeriPath. In granting this security interest, the Practice agrees
to the following: (i) this Agreement shall create and constitute a valid and
perfected first priority security interest in the Collateral enforceable against
all parties; (ii) the Practice has and shall continue to have good indefeasible
and merchantable title to and ownership of the Collateral free and clear of all
liens, other than liens created by AmeriPath or any AmeriPath Affiliate; (iii)
this grant of a security interest in the Collateral shall not result in a
violation of any other agreement to which Practice is or becomes a party; and
(iv) the Practice shall take all action necessary to perfect AmeriPath's
security interest in the Collateral, including the execution of financing
statements and authorization to file the same in the appropriate recording
office. AmeriPath and the Practice agree to execute such further
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documents and instruments as may be deemed necessary or desirable, in
AmeriPath's sole discretion, to effect the provisions of this Section.
E. REMEDIES FOR NON-PAYMENT. AmeriPath shall have all rights and
remedies of a secured party and all rights, remedies, securities and liens of
the Practice with respect to the Collateral including, but not limited to,
extending the time of payment of, compromising, or settling for cash, credit, or
otherwise upon any terms, any part or all of the Collateral, but shall not be
liable for any failure to collect or enforce the payment thereof. AmeriPath is
authorized by the Practice, except as otherwise prohibited by applicable law, to
take possession of, and endorse in the name of the Practice any notes, checks,
money orders, drafts, cash, insurance payments and any other instruments
received in payment of the Collateral, or any part thereof; to collect, xxx for
and give satisfactions for moneys due on account of the Collateral; and to
withdraw any claims, suits or proceedings pertaining to, or arising out of,
AmeriPath's and/or the Practice's rights to the Collateral. AmeriPath's costs of
collection and enforcement, including attorneys' fees and out-of-pocket
expenses, shall be borne solely by the Practice. The Practice agrees that
AmeriPath shall be permitted to place its representatives in the Medical
Offices, with full authority to take possession of and retain for AmeriPath the
books and records of the Practice with reference to the Practice's operations
pursuant to this Agreement with respect to the Collateral.
F. RIGHT OF OFFSET. Notwithstanding any other provision in this
Agreement, AmeriPath is entitled to offset against any sums owed by AmeriPath to
the Practice any amounts payable or reimbursable to AmeriPath under this
Agreement.
G. LEGAL LIMITATION ON ASSIGNMENT. This Agreement shall not
constitute an assignment of Practice Revenues to the extent that such assignment
is prohibited under applicable law. To the extent Practice Revenues are not
assignable, the Practice agrees that it shall promptly deliver non-assigned
Practice Revenues to AmeriPath.
VI. TERMS AND TERMINATIONS
A. TERM. The initial term of this Agreement shall be for a period
of forty (40) years commencing on September 1, 1997 and ending on August 31,
2037 (the "Initial Term"). This Agreement shall be extended for separate and
successive five (5) year periods (each such five (5) year period shall be
referred to as an "Extended Term" and the Initial Term and any Extended Term
shall be referred to in this Agreement as the "Term") unless either party
provides the other party notice not less than sixty (60) days prior to the end
of the Initial Term or an Extended Term, unless the Practice has defaulted under
the terms of this Agreement. The same terms and conditions of this Agreement
shall apply to an Extended Term unless the Practice and AmeriPath mutually agree
to alter the terms and conditions hereof with a writing signed by each party
hereto. All New Practice Amendments shall terminate at such time as this
Agreement terminates.
B. TERMINATION. A party (the "Terminating Party") may terminate
this Agreement on the basis of the following:
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1. The other party breaches any material term or
condition of this Agreement, and the breach continues for sixty (60) days after
the receipt of written notice specifying the breach by the party which did not
perform or breached.
2. AmeriPath may terminate this Agreement if the
Practice or the Managing Physician is suspended or prohibited from participating
in the Medicare or Medicaid programs or excluded from entering into healthcare
provider agreements with any material portion of the managed care or healthcare
insurance industry; or (ii) the Practice or the Managing Physician, breaches any
material term of this Agreement, including the restrictive covenants provided in
Attachment III.
C. EFFECTS OF AND OBLIGATIONS UPON TERMINATION. Upon the
termination or expiration of this Agreement: (i) neither party shall be
discharged from any previously accrued obligation which remains outstanding;
(ii) any sums of money owing by one party to the other shall be paid
immediately, prorated through the effective date of termination or expiration;
(iii) the Practice shall return to AmeriPath all originals and copies of any
Confidential Information in the possession of the Practice or any other person
or entity to whom it has delivered originals and/or copies; (iv) the Practice
and AmeriPath shall perform matters as are necessary to wind up their activities
under this Agreement in an orderly manner, including providing to the Practice
patient billing records on paper or electronic data; and (v) each party shall
have the right to pursue other legal or equitable relief as may be available
depending upon the circumstances of the termination.
VII. REPRESENTATIONS AND WARRANTIES
A. REPRESENTATIONS AND WARRANTIES OF THE PRACTICE. The Practice
represents and warrants to AmeriPath the following:
1. The Practice is a professional association duly
organized, validly existing and in good standing
under the laws of the State of Texas.
2. The Practice has all necessary power to own all of
its properties and assets and to carry on its
business as now being conducted.
3. The Managing Physician has the authority on behalf of
the Practice to execute, deliver and perform this
Agreement and all other agreements and documents
executed and delivered by the Practice pursuant to
this Agreement.
4. The Practice has the authority to execute, deliver
and perform this Agreement and all other agreements
and documents executed and delivered by it pursuant
to this Agreement.
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5. The Practice has taken all action required by law,
its Practice Organizational Documents, or otherwise
to authorize the execution, delivery and performance
of this Agreement and the related documents.
6. The execution and delivery of this Agreement does not
violate any provisions of the Practice Organizational
Documents or any agreement, instrument, order,
arbitration award, judgment or decree to which the
Practice is a party or by which it is bound.
7. This Agreement has been duly executed and delivered
by the Practice and constitutes the legal, valid and
binding obligation of the Practice, enforceable in
accordance with its terms.
B. REPRESENTATIONS AND WARRANTIES OF AMERIPATh. AmeriPath
represents and warrants to the Practice as follows:
1. AmeriPath is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Texas.
2. AmeriPath has all necessary power to own all of its
properties and assets and to carry on its business as
now being conducted.
3. AmeriPath has the corporate authority to execute,
deliver and perform this Agreement and all agreements
executed and delivered by it pursuant to this
Agreement.
4. AmeriPath has taken all action required by its
Articles of Incorporation, its Bylaws or otherwise to
authorize the execution, delivery and performance of
this Agreement and related documents.
5. The execution and delivery of this Agreement does not
and, subject to the consummation of the transactions
contemplated by this Agreement, shall not, violate
any provisions of the Articles of Incorporation or
Bylaws of AmeriPath or any agreement, instrument,
order, arbitration award, judgment or decree to which
AmeriPath is a party or by which it is bound, which
would adversely affect the ability of AmeriPath to
perform its obligations under this Agreement.
6. This Agreement has been duly executed and delivered
by AmeriPath and constitutes the legal, valid and
binding obligation of AmeriPath, enforceable against
AmeriPath in accordance with its terms.
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VIII. LEGAL COUNSEL
The Practice agrees to retain legal counsel recommended by AmeriPath
with respect to matters in which the interests of the Practice are not adverse
to AmeriPath or its business in any significant respect and further agrees to
waive any conflicts of interest in transactional matters which may exist for
such recommended legal counsel with respect to AmeriPath.
IX. MEDICAL PRACTICE ISSUES
A. PRACTICE OF MEDICINE. The parties acknowledge that AmeriPath
is not authorized or qualified to engage in any activity which constitutes the
practice of medicine and nothing required herein to be shall be construed as the
practice of medicine by AmeriPath. To the extent any act or service required to
be performed or provided by AmeriPath is construed or deemed by any governmental
authority, agency or court to constitute the practice of medicine, AmeriPath
shall be released from any obligation to provide such act or service and the
provision for such required act or service shall be deemed waived and forever
unenforceable without otherwise affecting the terms of this Agreement.
B. INSURANCE. The Practice shall provide, or arrange for the
provision of, and maintain throughout the Term, for the Practice and each
Practice Provider professional liability/malpractice insurance coverage in the
minimum amount of $1,000,000 per occurrence and $3,000,000 annual aggregate (or
such other amount as required by law, prevailing in the community, or required
by managed care companies) and workers' compensation insurance coverage in the
minimum amounts required by applicable law. The Practice shall maintain general
liability insurance and other insurance of the type generally maintained by
business involved in the same business as the Practice. The Practice shall, at
its sole cost and expense, pay the premium costs of all insurance coverage
during the Term of this Agreement and, upon request by AmeriPath, provide
AmeriPath with evidence of such coverage.
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Practice and AmeriPath have duly executed this Agreement on the day and
year indicated above.
DFW 5.01(a)
By:
--------------------------------
Name:
--------------------------------
Its:
--------------------------------
AMERIPATH TEXAS, INC.
By:
--------------------------------
Name:
--------------------------------
Its:
--------------------------------
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ATTACHMENT I
DEFINITIONS
Agreement means this agreement and any subsequent amendments thereto, including,
NEW PRACTICE AMENDMENTS.
ALLOCATED EXPENSES means the expenses relating to the operations of the
facilities of the Practice and the administrative expenses incurred by AmeriPath
on behalf of the Practice in the performance of AmeriPath's duties under this
Agreement, including the following: billing services (including personnel),
marketing, advertising, promotion, allocated corporate overhead, legal expenses,
service of laboratory and other expenses as may be approved from time to time by
the Steering Committee, all as permitted to be incurred in accordance with this
Agreement and any New Practice Amendment (as defined in Section III.G.)
BASE FEE has the meaning ascribed to it in Section V.A.3.
CONFIDENTIAL INFORMATION has the meaning ascribed to it in Attachment III.
FF&E has the meaning ascribed to it in Section II-I.
MANAGING PHYSICIAN means Xx. Xxxxxx X. Xxxxxxx, for so long as he remains
employed by the Practice or its successor, and thereafter "Managing Physician"
shall mean the Practice Provider designated by the Practice and AmeriPath in the
Operating Plan to manage the administrative and medical functions of the
Practice.
MEDICAL OFFICES means the medical offices and laboratory facilities listed on
Attachment IV and/or at such other place or places of business as may be agreed
upon by the parties in writing.
NEW PRACTICE AMENDMENT means those individual amendments to this Agreement
executed by the Practice, an Additional Practice and AmeriPath.
OPERATING PLAN means the Practice Operating Plan referred to in Section IV.B.
PRACTICE BANK ACCOUNT means the bank account referred to in Section V.C. of
which the Practice is the owner.
PRACTICE EXPENSES means the following expenses: Practice Providers' compensation
expenses, professional liability insurance, continuing medical education,
benefits, dues and subscriptions, automobiles, facility leases, repairs and
maintenance, telephones and pagers, utilities, billing services, courier
services, legal expenses, travel and entertainment, outside medical consultants,
license fees and taxes, all expenses identified in this Agreement as Practice
Expenses, all expenses identified in this Agreement as incurred by AmeriPath on
behalf of Practice and other expenses approved from time to time by the Steering
Committee, all as permitted to be incurred in accordance with this Agreement and
any New Practice Amendment (as defined in Section III.G.).
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PRACTICE PROVIDERS means individuals who are duly licensed to practice medicine
and who are employed by the Practice, or other individuals who are under
contract with the Practice to provide physician services to patients of the
Practice.
PRACTICE ORGANIZATIONAL DOCUMENTS means the articles of incorporation and bylaws
of the Practice.
PRACTICE REVENUES means all revenues generated by or on behalf of the Practice,
after the date hereof, as a result of professional medical services furnished to
patients, ancillary services provided to patients, pharmaceuticals and other
items and supplies sold to patients and other fees or income generated by the
Practice or Practice Providers rendered in an inpatient or outpatient setting
and regardless of whether rendered to health maintenance organization, preferred
provider organization, Medicare, Medicaid or other patients, including, but not
limited to, payments received under capitation arrangements, less account
adjustments for uncollectible accounts, discounts, Medicare, Medicaid, workers'
compensation, professional courtesy discounts and other write-offs.
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ATTACHMENT II
APPOINTMENT OF AMERIPATH AS ATTORNEY IN FACT
On behalf of and for the account of Practice, AmeriPath shall
assist Practice in Practice's establishment and maintenance of credit and
billing and collection policies and procedures, and shall coordinate and
supervise Practice personnel to ensure the timely billing and collection of all
professional and other fees for all billable pathology services provided by
Practice or Physicians. AmeriPath shall advise and consult with Practice
regarding the fees for pathology services provided by Practice; it being
understood, however, that Practice shall establish the fees to be charged for
pathology services and that AmeriPath shall have no authority whatsoever with
respect to the establishment of such fees. In connection with the billing and
collection services to be provided hereunder, and throughout the term of this
Agreement, Practice hereby grants to AmeriPath an exclusive special power of
attorney and appoints AmeriPath as Practice's exclusive true and lawful agent
and attorney-in-fact, and AmeriPath hereby accepts such special power of
attorney and appointment, for the following purposes:
1. To supervise and coordinate the billing of Practice's
patients, in the name of Practice and on behalf of Practice,
as applicable, for all billable pathology services provided by
Practice to patients.
2. To supervise and coordinate the billing in Practice's name and
on Practice's behalf, as applicable, all claims for
reimbursement or indemnification from Blue Shield/Blue Cross,
insurance companies, Medicare, Medicaid, and all other third
party payors or fiscal intermediaries for all covered billable
pathology services provided by Practice to patients.
3. To ensure the collection and receipt in AmeriPath's name and
for AmeriPath's account all accounts receivable of Practice
purchased by AmeriPath, and to deposit such collections in an
account selected by AmeriPath and maintained in AmeriPath's
name.
4. To ensure the collection and receipt in Practice's name and on
Practice's behalf, as applicable, of all accounts receivable
generated by such xxxxxxxx and claims for reimbursement that
have not been purchased by AmeriPath, to administer such
accounts including, but not limited to, (i) extending the time
of payment of any such accounts for cash, credit or otherwise;
(ii) discharging or releasing the obligors of any such
accounts; (iii) with the consent of the Steering Committee,
suing, assigning or selling at a discount such accounts to
collection agencies; or (iv) with the consent of the Steering
Committee, taking other measures to require the payment of any
such accounts.
5. To deposit all amounts collected in Practice's name and on
behalf of Practice into Practice Bank Account which shall be
and at all times remain in Practice's name.
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Practice covenants to transfer and deliver to AmeriPath for
deposit into Practice Bank Account or itself to make such
deposit of all funds received by Practice from patients or
third party payors for pathology services. Upon receipt by
AmeriPath of any funds from patients or third party payors or
from Practice pursuant hereto for pathology services,
AmeriPath shall immediately deposit same into the Practice
Bank Account. AmeriPath shall disburse such deposited funds to
creditors and other persons on behalf of Practice, maintaining
records of such receipt and disbursement of funds as directed
by Practice.
6. To take possession of, endorse in the name of Practice, and
deposit into the Practice Bank Account any notes, checks,
money orders, insurance payments, and any other instruments
received in payment for pathology services.
7. To sign checks, drafts, bank notes or other instruments on
behalf of Practice, and to make withdrawals from the Practice
Bank Account for payments specified in this Agreement and as
requested from time to time by Practice.
Upon request of AmeriPath, Practice shall execute and deliver to the financial
institution wherein the Practice Bank Account is maintained, such additional
documents or instruments as may be necessary to evidence or effect the special
and limited power of attorney granted to AmeriPath by Practice pursuant to this
Agreement. The special and limited power of attorney granted herein shall be
coupled with an interest and shall be irrevocable except with AmeriPath's
written consent. The irrevocable power of attorney shall expire on the later of
when this Agreement has been terminated, when all accounts receivable purchased
by AmeriPath have been collected, or when all management fees due to AmeriPath
have been paid. If AmeriPath assigns this Agreement in accordance with its
terms, then Practice shall execute a power of attorney in favor of the assignee.
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ATTACHMENT III
RESTRICTIVE COVENANTS
The Practice shall cause each Practice Provider to enter into an
agreement with respect to restrictive covenants, such as the confidentiality of
information relating to the Practice or AmeriPath, restrictions on solicitation
of employees or customers of the Practice or AmeriPath and restrictions on such
Practice Provider's right to compete with the Practice after termination of the
Practice Provider's employment by the Practice. Such agreement shall be in a
form reasonably satisfactory to AmeriPath and shall provide that AmeriPath shall
be a third party beneficiary of such agreements.
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ATTACHMENT IV
Offices and laboratory located at:
0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
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ATTACHMENT V
MISCELLANEOUS CONTRACTUAL PROVISIONS
1. ADDITIONAL ACTS. Each party agrees to perform any further acts and to
execute and deliver any documents which may be reasonably necessary to
carry out the provisions of this Agreement.
2. CONTRACT CONSTRUCTION, INTERPRETATION AND ENFORCEMENT PROVISIONS.
(a) Assignment. No party may assign this Agreement without the other's
written consent, except that: 1)AmeriPath may assign this Agreement to
a parent, subsidiary or affiliate, and; 2) a parent, affiliate or
subsidiary of AmeriPath that is an assignee to this Agreement may
subsequently assign this Agreement to another parent, subsidiary or
affiliate of AmeriPath. This Agreement shall be binding on and shall
inure to the benefit of the parties to this Agreement, and their
successors and permitted assigns. Subject to the foregoing sentence, no
person or entity not a party to this Agreement shall have any right
under or by virtue of this Agreement, except for AmeriPath, Inc. as an
intended third party beneficiary of this Agreement.
(b) Captions. The captions or headings in this Agreement are made for
convenience and general reference only and shall not be construed to
describe, define or limit the scope or intent of the provisions of this
Agreement.
(c) Costs of Enforcement. In the event that either party files suit in
any court against the other party to enforce the terms of or to obtain
performance under this Agreement, the prevailing party shall be
entitled to recover all reasonable costs, including reasonable
attorneys' fees, from the other party as part of any judgment in the
suit. The term "prevailing party" means the party in whose favor final
judgment after appeal (if any) is rendered with respect to the claims
asserted in the complaint. "Reasonable attorneys' fees" are those
attorneys' fees actually incurred in obtaining a judgment in favor of
the prevailing party.
(d) Counterparts. The parties may execute this Agreement in several
counterparts, each of which shall be deemed to be an original, and
counterparts shall constitute and be one and the same instrument.
(e) Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of Texas, applied
without giving effect to any conflicts of law principles.
(f) Modifications. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes any
prior or contemporaneous negotiations, understandings or agreements
between the parties, written or oral, with respect to the transactions
contemplated by this Agreement. This Agreement may not be changed
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or terminated orally but may only be changed by an agreement in writing
signed by AmeriPath and the Practice.
(g) Notices. The parties to this Agreement shall give notice under this
Agreement by U.S. mail, postage prepaid, by hand delivery or by
overnight express, charges prepaid. Notices shall be addressed as
follows:
If to the Practice:
---------------------------
---------------------------
---------------------------
---------------------------
If to AmeriPath:
AmeriPath Texas, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
With a copy to:
AmeriPath, Inc.
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
or other addresses as furnished in writing by a party to the other
party. All notices shall be considered received when received by the
addressee, if by mail, when hand delivered or one business day after
delivery to the overnight courier.
(h) Severability. A determination by a court of competent jurisdiction
that a provision or part of any provision of this Agreement is invalid
or unenforceable shall not affect the remaining parts or provisions of
this Agreement which shall continue in full force and effect.
3. LEGAL EVENTS TRIGGERING CONTRACT MODIFICATION OR TERMINATION
(a) Changes in Reimbursement. In the event that Medicare, Medicaid,
Blue Shield or any other third party payor, or any other Federal, state
or local laws, rules, regulations or interpretations, at any time
during the Term prohibit, restrict or in any way materially and
adversely change the method or amount of reimbursement or compensation
for either party provided for in this Agreement, then the parties shall
negotiate in good faith to amend this
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Agreement to provide for payment of compensation in a manner consistent
with such changes, taking into account any materially adverse change in
reimbursement or payment for physician services. If the parties cannot
reach agreement on an amendment prior to the effective date of the
change, the parties agree to jointly select a mediator and share
equally in the cost of the mediation. If mediation does not resolve
such dispute, then the matter shall be settled exclusively by binding
arbitration, which shall be conducted in Broward County, Florida, in
accordance with the National Health Lawyer's Association, Alternative
Dispute Resolution Service, Rules of Procedure for Arbitration. The
expenses of such arbitration shall be borne equally by the parties,
provided that each party shall pay for the cost and its own experts,
evidence, and attorney's fees (unless otherwise directed by the
arbitrator).
(b) Enactment or Interpretation of Relevant Statutes and Regulations.
In the event any state or federal laws or regulations, now existing or
enacted or promulgated after the date hereof, are interpreted by
judicial decision, a regulatory agency, or legal counsel acceptable to
both AmeriPath and the Practice in such a manner as to indicate that
this Agreement or any provision hereof may be in violation of such laws
or regulations, the Practice and AmeriPath shall amend this Agreement
as necessary to preserve the underlying economic and financial
arrangements between the Practice and AmeriPath and without substantial
economic detriment to any party. If such an amendment is not possible,
either party shall have the right to terminate this Agreement. .
4. INDEPENDENT CONTRACTOR STATUS. The Practice and AmeriPath are to
perform and exercise their rights and obligations under this Agreement
as independent contractors. AmeriPath's sole function under this
Agreement is to provide services, as requested, in a competent and
satisfactory manner, exercising reasonable care in the performance of
all such duties. AmeriPath shall not become liable for any of the
obligations, liabilities, debts or losses of the Practice unless
otherwise specifically provided by this Agreement. AmeriPath shall have
no liability whatsoever for damages suffered on account of the willful
misconduct or negligence of any employee, agent or independent
contractor (other than AmeriPath) of the Practice. 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. In the event
that any court or regulatory authority (or AmeriPath, in good faith)
determines that the relationship established by this Agreements creates
an employment relationship, the parties shall negotiate in good faith
to reach an arrangement involving AmeriPath and the then current
Practice Providers which substantially preserves for the parties the
benefits of this Agreement. If such an arrangement cannot be reached,
AmeriPath may terminate this Agreement upon thirty (30) days prior
written notice to the Practice.
5. PROHIBITION AGAINST DISCRIMINATION. The Practice and AmeriPath agree
that, in fulfilling their respective obligations and duties under this
Agreement, they shall not discriminate against any individual on the
basis of race, religion, age, sex, disability or national origin.
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6. USE OF NAMES. Subject to the approval of the Managing Physician, which
approval shall not be unreasonably withheld, AmeriPath may include the
name of the Practice, the Practice Providers and the Practice Providers
in any brochures, promotional materials or the like relating to
AmeriPath.
7. INDEMNIFICATION.
(a) AmeriPath agrees to indemnify and hold the Practice and its
directors, officers, agents employees, Practice Providers and
affiliates (collectively, the "Practice Group") harmless from and
against any and all filings, suits, proceedings, claims, penalties,
damages, costs and expenses (including, but not limited to, court costs
and reasonable attorney and paralegal fees) incurred by the Practice
Group, resulting or arising from any breach in any representation or
warranty of AmeriPath contained herein or any default in the
performance of any covenant or agreement of AmeriPath contained herein.
(b) The Practice agrees to indemnify and hold AmeriPath and its
directors, officers, agents employees, stockholders and affiliates, and
the directors, officers, agents and employees of its stockholders and
affiliates (collectively, the "AmeriPath Group"), harmless from and
against any and all filings, suits, proceedings, claims, penalties,
damages, costs and expenses (including, but not limited to, court costs
and reasonable attorney and paralegal fees) incurred by the AmeriPath
Group, resulting or arising from any breach in any representation or
warranty of the Practice contained herein or any default in the
performance of any covenant or agreement of the Practice contained
herein.
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