AGREEMENT
THIS AGREEMENT ("Agreement") is dated September 1, 1998 by and among
Women's Medical & Diagnostic Center, Inc., a Florida corporation, with its place
of business at 222 S.W. 36th Terrace, Gainesville, Florida ("WMDC"), IntegraMed
America, Inc., a Delaware corporation, with its principal place of business at
One Manhattanville Road, Purchase, New York 10577 ("INMD") and Florida Medical
and Research Institute, P.A., a Florida professional association, with its place
of business at 6440 N.W. Newberry Road, Suite 204, Gainesville, Florida 32605
("FMRI").
RECITALS:
WMDC is a wholly-owned subsidiary of INMD conducting a medical practice
in the State of Florida;
INMD and FMRI have entered into a Memorandum of Understanding dated
August 24, 1998 ("MOU") pursuant to which, among other things, INMD has agreed
to sell certain WMDC accounts receivable to FMRI; and
WMDC has agreed to assign certain Clinical Research Trials to FMRI.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. RIGHT TO CLINICAL ACCOUNTS RECEIVABLE. The parties hereby
acknowledge and agree that, during the operation of WMDC, certain accounts
receivable were generated in connection with medical and/or clinical services
rendered by WMDC ("Clinical Receivables"). For the purposes of this Agreement,
Clinical Receivables are deemed generated on the date that the medical and/or
clinical service or treatment is provided to a patient, irrespective of the date
(before or after treatment) that payment is actually received. The parties
hereby agree and acknowledge the following rights and interests in the Clinical
Receivables:
(a) Any and all Clinical Receivables generated on or prior to August
31, 1998 ("Pre- Closing Clinical Receivables") are the sole property of
WMDC, whether payment therefor has, or in the future is, received by
WMDC or FMRI. Any and all payments received by FMRI on and after
September 1, 1998 for Pre-Closing Clinical Receivables will be promptly
forwarded to IntegraMed America, Inc., One Manhattanville Road,
Purchase, New York 10577, Attention: John Kearns, Director of
Accounting (b) Any and all Clinical Receivables generated on and after
September 1, 1998 ("Post- Closing Clinical Receivables") are the sole
property of FMRI, whether payment therefor has, or in the future is,
received by INMD or FMRI. Any and all payments received by WMDC on or
after September 1, 1998 for Post-Closing Clinical Receivables will be
promptly forwarded to FMRI, Attention: Accounts Receivable Department.
Nothing contained herein shall be construed to obligate FMRI to collect
the Pre-Closing Clinical Receivables generated by WMDC; provided,
however, FMRI shall give WMDC and INMD access, from time to time, as
reasonably needed, to the data supporting the Pre-Closing Clinical
Receivables, and, if necessary, give WMDC or INMD representatives
access to FMRI's office at 222 SW 36th Terrance, Gainesville, Florida,
on reasonable notice, in pursuit of collecting Pre-Closing Clinical
Receivables. (c) In the event there arises a dispute between WMDC and
FMRI as to the nature and character of the Clinical Receivable, the
parties shall first rely on the date the service was rendered, as shown
on the computer records generated by WMDC. FMRI shall have the burden
of proving such records erroneous by supplying copies of the patient
medical records. FMRI shall not be responsible for any refunds due
patients for services rendered prior to September 1, 1998.
2. RIGHT TO CLINICAL RESEARCH ACCOUNTS RECEIVABLE. The parties hereby
acknowledge and agree that, during the operation of WMDC, certain accounts
receivable were generated in connection with clinical research services rendered
by WMDC ("Research Receivables"). For the purposes of this Agreement, Research
Receivables are deemed generated on the date that the medical and/or clinical
service, or treatment is provided to a patient, irrespective of the date (before
or after treatment) that payment is actually received. The parties hereby agree
and acknowledge that any and all Research Receivables generated prior to
September 1, 1998 are being assigned to FMRI, and WMDC does hereby assign,
transfer and convey such Research Receivables as set forth on Exhibit A,
attached hereto, to FMRI in consideration for the payment of One-Hundred
Sixty-Five Thousand Dollars ($165,000.00), the receipt of which is hereby
acknowledged. To the best of WMDC's knowledge and belief, Exhibit A represents
Research Receivables as of August 31, 1998.
3. CLINICAL RESEARCH. Marvin Heuer, MD, Medical Director of WMDC
("Heuer") is the Research Scientist or Principal Investigator for various
clinical trials ("Clinical Trials") being conducted by WMDC. All such Clinical
Trials are hereby assigned to FMRI. Neither WMDC nor INMD makes any
representation or warranty that the Clinical Trials are assignable or can be
assigned to FMRI; however, WMDC will use its best efforts to assist with the
assignment of such Clinical Trials to FMRI. WMDC hereby assigns all new research
protocols whichwould have been contractually awarded to WMDC, or to Heuer in his
role as WMDC's employee, to FMRI, and will use its best efforts to assist with
any such assignment.
4. CLINICAL CHARTS. Effective September 1, 1998, FMRI shall assume
responsibility for all patient charts maintained by WMDC, other than the
patients of Drs. Hinshaw, Markle and Sample.
5. FURNISHINGS AND EQUIPMENT. Pursuant to paragrapgh 8 of the MOU
certain equipment and furnishings located at the Ocala and Gainesville offices
are being conveyed to FMRI, effective the date hereof. Attached hereto as
Exhibit B is a listing of such furnishings and equipment.
6. CONFLICT. Except as may be modified herein, all the terms and
conditions of the MOU remain in full force and effect. In the event any term or
condition herein is inconsistent with or is in conflict with the MOU, this
Agreement shall control.
7. INDEMNIFICATION
(a) WMDC and INMD agree to indemnify and hold harmless FMRI,
its directors, officers, employees and agents from any suits, claims, actions,
losses, liabilities or expenses (including reasonable attorneys' fees and costs)
arising out of or in connection with any act or failure to act by either of them
during the operations of WMDC. To the best of INMD's and WMDC's knowledge and
belief, all incidents that potentiate a claim have been reported to their
professional liability insurer.
(b) FMRI agrees to indemnify and hold harmless WMDC and INMD,
their respective officers, directors, employees and agents, from any suits,
claims, actions, losses, liabilities or expenses (including reasonable attorneys
fees and costs) arising out of or in connection with any act or failure to act
by it after September 1, 1998.
8. PROFESSIONAL LIABILITY INSURANCE. WMDC agrees to keep medical
malpractice coverage in place for Heuer until such time, not to exceed 60 days
from September 1, 1998, that Heuer effects such coverage in his own name.
9. COOPERATION. In the event of any claims, suits or
governmentalinvestigations, arising out of or relating to the operations of WMDC
in which WMDC, INMD or FMRI or an individual of either shall be named or
involved whether occurring or pending prior to this Agreement, the parties agree
to cooperate with each other in the defense of such suit, claim or investigation
by the production of any documents in their possession for review. The parties
shall, as soon as practical, deliver to each other copies of any summonses,
complaints, suit letters, subpoenas or legal papers of any kind, served upon a
party or a party's attorneys. Nothing in this Section shall obligate the parties
to pay any legal fees incurred by the other.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Any and all claims, disputes,
or controversies arising under, out of, or in connection with this Agreement or
any breach thereof, shall be determined by binding arbitration in the State of
Florida, City of Gainesville (hereinafter "Arbitration"); provided, however,
mediation shall be a precursor to Arbitration. The party seeking determination
shall subject any such dispute, claim or controversy to either (i)
JAMS/Endispute or (ii) the American Arbitration Association, and the rules of
commercial arbitration of the selected entity shall govern. The Arbitration
shall be conducted and decided by three (3) arbitrators, unless the parties
mutually agree, in writing at the time of the Arbitration, to fewer arbitrators.
In reaching a decision, the arbitrators shall no authority to change or modify
any provision of this Agreement, including without limitation, any liquidated
damages provision. Each party shall bear its own expenses and one-half the
expenses and costs of the arbitrators. Any application to compel arbitration,
confirm or vacate an arbitral award or otherwise enforce this Paragraph shall be
brought either in the Courts of the State of Florida.
11. Notices. All notices, requests, demands and other communications
provided for in this Agreement or required among the parties in connection with
this Agreement shall be in writingand shall be deemed to have been given at the
time when personally delivered, mailed at any United States Post Office via
certified mail, prepaid, return receipt requested, or sent by overnight delivery
services against receipt, addressed to the party at the address set forth below
or such other address as such party may designate by notice:
If to INMD or WMDC:
Mr. Jay Higham, Vice President
IntegraMed America, Inc.
One Manhattanville Road
Purchase, New York 10577
With a Copy to:
Claude E. White, General Counsel
IntegraMed America, Inc.
One Manhattanville Road
Purchase, New York 10577
If to FMRI:
Marvin Heuer, MD, President
Florida Medical and Research Institute, P.A.
6640 N.W. Newberry Road
Gainesville, Florida 32605
With a Copy to:
Ellen Gershow, Esq.
Dell Graham, P.A.
P.O. Box 850
203 N.E. 1st Street
Gainesville, Florida 32601
12. SEVERABILITY. Each provision in this Agreement is intended to be
severable, and may be modified by any court of competent jurisdiction to the
extent necessary to make such provision valid and enforceable. If any term or
provision hereof shall be determined by a court of competent jurisdiction to be
illegal or invalid for any reason whatsoever, in whole or in part, such
provision shall be severed from this Agreement and shall not effect the validity
of the remainder of this Agreement.
13. INDEPENDENT STATUS. The Parties agree that FMRI is purchasing
assets and certain receivables of WMDC and accepting assignment of certain
leases and agreements. Nothing contained herein or with respect to any aspect of
the transaction shall be construed to constitute FMRI as a related or successor
party-in-interest to WMDC.
14. TELEPHONE NUMBERS. WMDC hereby assigns its right to the telephone
numbers previously used by it to FMRI and agrees to execute any further
documentation necessary to transfer such numbers.
IN WITNESS WHEREOF, the parties have executed this Agreement the date
first above written. WOMEN'S MEDICAL & DIAGNOSTIC CENTER, INC.
By: /s/Jay Higham
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Jay Higham, Vice President
FLORIDA MEDICAL AND RESEARCH INSTITUTE, P.A.
By: /s/Marvin Heuer
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Marvin Heuer, MD, President
INTEGRAMED AMERICA, INC.
By: /s/Jay Higham
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Jay Higham, Vice President