STIPULATION OF SETTLEMENT AND COMPROMISE OF ALL CLAIMS
AMONG
INTEGRAMED AMERICA, INC.
AND
REPRODUCTIVE SCIENCES MEDICAL CENTER, INC.
AND SAMUEL H. WOOD, M.D.
THIS STIPULATION AND SETTLEMENT AGREEMENT effective September 1, 1998
["Agreement"], by and among (1) IntegraMed America, Inc., a Delaware corporation
with its principal place of business at One Manhattanville Road, Purchase, New
York 10577 ["INMD"]; and (2) Reproductive Sciences Medical Center, Inc., a
California professional corporation, with its principal place of business at
4150 Regents Row, Suite 280, La Jolla, California 92037 ["PC"]; and (3) Samuel
H. Wood, M.D., having a post office address at P.O. Box 1208, Rancho Sante Fe,
California 92067 ["Wood"].
R E C I T A L S
WHEREAS, PC and INMD are parties to a Management Agreement dated June
6, 1997, as amended ["Management Agreement"]; and
WHEREAS, Wood and INMD are parties to an Asset Purchase Agreement dated
June 6, 1997, as amended ["Asset Agreement"]; and
WHEREAS, PC, Wood and INMD are parties to a Personal Responsibility
Agreement dated June 6, 1997, as amended ["Personal Responsibility
Agreement"];and
WHEREAS, PC and Wood are parties to a Physician-Shareholder Employment
Agreement dated June 6, 1998, as amended ["Employment Agreement"] pursuant to
which Wood was the medical director of the Program; and
WHEREAS, the Management Agreement, Asset Purchase Agreement, Personal
Responsibility Agreement and Employment Agreement, and any Amendments thereto,
are herein collectively referred to as the "Various Agreements"; and
WHEREAS, for the purposes of this Agreement, PC, Wood and INMD accept,
adopt and here utilize the defined terms and definitions contained in the
Management Agreement; and
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WHEREAS, pursuant to such Management Agreement, the PC, Wood and INMD
have operated a program providing Infertility Services (as such term is defined
in ss.1.1.7 of the Management Agreement) and known as "Reproductive Sciences
Medical Center of San Diego" [hereinafter "Program"]; and
WHEREAS the Program is part of the INMD Reproductive Science Center
Division, which consists of a national network of similar Programs; and
WHEREAS, pursuant to the Asset Agreement, INMD purchased all of the
assets of Wood used in the operation of Wood and PC's practice of providing
Infertility Services ["Wood Practice"] and Wood, on this date, is the record
tenant of the office and laboratory space of the Program, the record tenant of
space at Xi-Med ["Xi-Med Leasehold"]; and
WHEREAS, INMD is the owner and/or lessee of all equipment, fixtures and
fixed assets and the employer of all personnel at the Program with the exception
of physicians; and
WHEREAS, pursuant to the Asset Agreement and the Management Agreement,
INMD was to make certain payments, during the term of the Management Agreement,
for the assets and the name "Reproductive Sciences Medical Center" ["Asset
Payments"]; and
WHEREAS, pursuant to the Management Agreement, INMD was to make certain
payments, over the term of the Management Agreement and at certain milestones,
to PC, for the Exclusive Management Right ["RTM Payments"]; and
WHEREAS, pursuant to the Management Agreement, INMD was obligated to
make certain Advances to the PC, which Advances if made, were to be repaid by
the PC to INMD; and
WHEREAS, certain disputes have arisen between and among the parties to
this Agreement in which the parties have both served various Notices of Breach,
claimed breaches of the various agreements, as well as fraud in the inducement
and requests for damages and payments; and
WHEREAS, on June 12, 1998, INMD commenced an arbitration before
JAMS/Endispute in San Diego, California ["JAMS Arbitration"], against PC and
Wood, in which INMD seeks damages and recission and/or termination of the
Various Agreements ["INMD Claims"]; and
WHEREAS, PC and Wood have interposed a counterclaim in the JAMS
Arbitration as against INMD, which seeks damages and recission and/or
termination of the Various Agreements, and which asserts various theories of
recovery, in both tort and contract, and which asserts the right to both
compensatory and exemplary damages ["Wood/PC Claims"]; and
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WHEREAS, the parties desire to effectuate a termination of the Various
Agreements, and a transition of the management of the Program to Wood and PC in
an orderly fashion, so as to insure the quality of Infertility Services at the
Program, and to settle and compromise all their disputes in order to avoid the
expense and the uncertainty of litigation.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the parties, intending to be legally bound, and
without coercion or duress of any kind, hereby agree as follows:
1. TERMINATION OF AGREEMENTS. INMD and the PC hereby terminate the Asset
Agreement, the Management Agreement, the Employment Agreement and the
Personal Responsibility Agreement, effective September 1, 1998. As of
such date, except for the rights and obligations contained in this
Agreement, all parties are discharged from any obligations arising from
the Various Agreements, including but not limited to, the repayment of
Advances, payment of RTM payments, and covenants not to compete or
solicit employees, and any Lab Build-Out. The parties hereby accelerate
all unamortized RTM payments and apply those accelerated payments to
repay Advances and discharge any remaining Advances' balance.
2. GENERAL RELEASES. (a) INMD hereby releases and forever discharges PC
and Wood, their subsidiaries, affiliates, successors, shareholders,
predecessors, heirs, assigns, agents, officers, directors and employees
from any and all claims, suits, demands, debts, causes of action,
liabilities, indemnities, obligations, costs, losses, damages and
expenses of whatsoever kind or nature, whether legal, equitable or
statutory, liquidated or unliquidated, known or unknown, including but
not limited to those arising out of the Management Agreement, Asset
Purchase Agreement, Personal Responsibility Agreement and Physician
Employment Agreement, and all causes of actions and claims asserted (or
which could have been asserted) in the JAMS Arbitration, arising from
the first day of the world until the date of this Settlement Agreement.
It is expressly understood by INMD that the granting of this general
release to PC and Wood shall constitute a voluntary and knowing waiver
of any right to legal recourse as against Wood and PC except such legal
action that may be necessary to enforce the terms of this Agreement.
(b) PC and Wood hereby release and forever discharge INMD, its
subsidiaries, affiliates, successors, shareholders, predecessors,
assigns, agents, officers, directors and employees, from any and all
claims, suits, demands, debts, causes of action, liabilities,
indemnities, obligations, costs, losses, damages and expenses of
whatsoever kind or nature, whether legal, equitable or statutory,
liquidated or unliquidated, known or unknown, including but not limited
to those arising out of the Management Agreement, Asset Purchase
Agreement, Personal Responsibility Agreement and Physician Employment
Agreement, and all causes of actions and claims asserted (or which
could have been asserted) in the JAMS Arbitration, arising from the
first day of the world until the date of this Settlement Agreement.
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It is expressly understood by PC and Wood that the granting of this
general release to INMD shall constitute a voluntary and knowing waiver
of any right to legal recourse as against INMD, except such legal
action that may be necessary to enforce the terms of this Agreement.
(c) Each of Wood, PC and INMD knowingly and voluntarily waives any and
all rights that it has under the provisions of Section 1542 of the
Civil Code of the State of California, which reads as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Each of the undersigned acknowledges and agrees that this waiver of
claims governed by Section 1542 is an essential and material term of
this Stipulation for Settlement, without which this document would not
have been executed.
3. CONTINUATION OF THE PROGRAM AND WITHDRAWAL OF INMD. (a) The parties
acknowledge and agree that the Program shall, commencing September 1,
1998, be operated solely by PC and Wood, and that INMD shall withdraw
(except for the INMD Employee detailed in paragraph 8 hereof) and cease
to offer any management, administrative, financial or support services
to the Program.
(b) Employees. INMD shall terminate the employment of all its employees
located at the Program (other than the Employee referred to in
paragraph 8) and PC and Wood shall hire such employees. INMD shall
indemnify Wood and PC for any claims by INMD Employees, arising out of
their employment during the term of the Management Agreement, except
for any and all claims arising out of the volitional or intentional
acts of Wood.
(c) Insurances. (1) Effective September 1, 1998, INMD shall cancel the
general liability insurance policy in effect for the PC and the
Facilities [as defined in paragraph 3.2 of the Management Agreement and
including the Xi-Med Leasehold] and shall cancel any professional
liability insurance policy in effect for the PC and PC's staff
(including Wood). Wood and PC covenant and warrant that the PC and Wood
shall have, effective no later than September 1, 1998, professional
liability insurance , insuring all professional acts including the
storage of Biological Materials in an amount of no less than $1 million
per claim/$3 million in the aggregate, and that the PC and Wood shall
provide INMD, proof of such insurance, and proof of general liability
insurance for the Facilities no later than September 1, 1998. The
Wood/PC obligation to provide proof of such insurance shall continue
annually (on the anniversary date of the first proof) for three (3)
years. Wood hereby acknowledges and agrees that any and all health
and/or disability benefits provided by INMD shall cease on September 1,
1998.
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(2)INMD shall continue, in full force and effect, "tail insurance" ,
covering the PC and INMD's prior employees for professional acts,
including the storage of biological materials for claims made after
September 1, 1998 but arising out of professional acts or conduct
occuring during the term of the Management Agreement. INMD shall
provide PC and Wood with proof of such insurance no later than
September 1, 1998 and shall continue to provide such proof of insurance
annually (on the anniversary date of the first proof) for three years.
(d) Notification of Patients. Wood and PC shall notify patients of the
Program, on or before October 1, 1998, that he and the PC are no longer
affiliated with INMD. The form and content of such notification shall
be previously approved by INMD, such approval not to be unreasonably
withheld or delayed.
(e) Biological Materials.
(i) The PC and Wood, hereby acknowledge and agree that, at all
times during the time period of the Management Agreement, and
at all times hereafter, the PC and/or Wood have been the sole
and rightful custodians of all biological materials, including
but not limited to sperm, oocytes and embryos (cryopreserved
or fresh)["Biological Materials"] and that they shall continue
to preserve and protect such Biological Materials as are in
their custody.
(ii) The PC shall provide INMD with a list of all patients who
(1) currently have cryopreserved biological materials in
storage at the Program as of September 1, 1998, and (2) who
have ever had cryopreserved biological materials in storage at
the Program from June 6, 1997 through September 1, 1998,
together with information as to and the date as to when
storage ceased.
(f) Removal of Proprietary Information. INMD shall remove from the
Program Premises any and all copies of proprietary written information
(as listed on the annexed Schedule A), and PC and Wood hereby covenant
not to copy or utilize any consents, procedure or policy manuals or
proprietary information henceforth in operation of the Program, except
that, the PC shall, for a period of ninety days (up to and including
November 30, 1998) be permitted to utilize the text of the INMD
Consents, now utilized for documenting patient consent, provided that
all reference to INMD is redacted or removed therefrom.
(g) Billing Cooperation. INMD shall leave at the Program any and all
documentation and equipment necessary for the Program to bill for
unbilled Infertility Services and to collect outstanding amounts. This
shall include data stored in the computer system at the Program.
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4. COVENANT BY WOOD. Wood hereby covenants and represents that the PC is
the current professional corporation through which he practices
medicine. He further covenants and represents that if, at any time
prior to the full payment of the Payment Price, he should establish
another professional corporation or entity through which he shall
practice medicine, he shall do so only if such PC and/or sole
proprietorship or business entity expressly assumes the obligations of
the Payment Price and the obligations of this Agreement.
5. LEASE OF ASSETS. The PC shall lease the Program's tangible assets and
leasehold improvements of the Program on the terms of the Asset Lease
["Payment Price"] here annexed as Exhibit A and executed simultaneously
with this Agreement.
6. ASSUMPTION OF LEASEHOLD INTERESTS. (a) The PC shall assume all future
lease payments, as of September 1, 1998, the lease for the office space
of the Program located at 4150 Regents Row, Suite 280, La Jolla,
California ["Program Premises"], and the XiMed Leasehold and shall
indemnify INMD against claims for rent or payments thereunder made by
the Landlord, except as provided in paragraph 11 hereof.
(b) The PC shall assume the leases, as of September 1, 1998, for any
and all medical and/or office equipment located at the Program Premises
except for the Diagnostic Products Corporation Immulite Immunology
Analyzer, Serial # 5379010 ["Immulite Analyzer"] and shall indemnify
INMD against any claims for rent or payments thereunder made by the
Lessors thereof. INMD shall assume the lease for the Immulite Analyzer,
and the parties shall cooperate, in good faith, in efforts to sell,
lease, transfer or return such Immulite Analyzer, such sale, leasehold,
transfer or return not to take place prior to October 1, 1998. PC and
Wood shall pay to INMD the monthly lease price of $1,736.82 (One
thousand seven hundred and thirty six dollars and eighty-two cents) for
the use of the Immulite Analyzer for the period September 1, 1998 until
October 1, 1998 ["Immulite Payment"]. The Immulite Payment shall be
offset, or deducted, from the first payment to be earned by Wood
pursuant to Section 9(d)(2) of this Agreement.
7. RIGHT TO ACCOUNTS RECEIVABLE. The parties hereby acknowledge and agree
that, during the operation of the Program up to and including August
31, 1998, certain accounts receivable were, and shall continue to be,
generated. For the purposes of this Agreement, accounts receivable are
deemed generated on the date that the medical or laboratory 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 accounts
receivable of the Program:
(a) Any and all accounts receivable generated prior to September 1,
1998 ("Pre- September Receivables") are the sole property of INMD,
whether payment therefor has, or in the future is, received by INMD,
the PC and/or Wood.
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(b) Any and all accounts receivable generated on and after September 1,
1998 ("Future Program Receivables") shall be the sole property of the
PC, whether payment therefor has been, or in the future is, received by
any or all of INMD, the the PC and/or Wood.
(c) In the event there arises a dispute between INMD and PC as to the
nature and character of the Program Receipts (as Pre-September or
Future Receivables), the parties shall first rely on the date the
service was rendered, as shown on the computer records generated by
INMD. PC shall have the burden of proving such records erroneous by
supplying copies of the patient medical records.
8. COLLECTION OF ACCOUNTS RECEIVABLE. An employee of INMD (of INMD's
choosing)(the "INMD Employee") shall be on the Program Premises for up
to and including December 31, 1998, in order to oversee and make
efforts for the collection of the accounts receivable of the Program
and the PC. Such collection shall be jointly supervised and conducted
by the INMD Employee and a representative of the PC designated by Wood
(the "PC Representative"). The INMD Employee and PC Representative
shall have joint and simultaneous access to any and all billing
information, data and computer information necessary, provided,
however, such information be restricted to information needed to
process, record and document payment of such accounts receivable. The
INMD Employee shall have access to the Program Premises at any time
during normal business hours. The INMD Representative and the PC
Representative shall, jointly and in good faith, allocate any and all
monies received as being either Pre-September Receivables or Future
Receivables. INMD and the PC shall, in good faith, insure that the
Future Receivables are paid to the PC and the Pre-September Receivables
are paid to INMD. The PC and Wood hereby covenant to cooperate with the
INMD Employee in his/her efforts to collect Pre-September Receivables
and agree not to interfere, by omission or commission, with that
effort. In the event that there is a dispute between the Companies'
Representative and the IntegraMed Representative concerning whether
monies received constitute a Pre-September Receivable or a Future
Receivable, the parties shall first rely on the date of the service
rendered, as shown in the computer records generated by INMD and, if
the Companies' representative disagrees with such records, he/she shall
produce the patient's records. If the parties cannot, in good faith,
agree to the allocation on the basis of such records, such collections
shall be put in escrow until the matter is determined by arbitration or
agreement. The parties anticipate that the amount of Pre- September
Receivables to be subject to collection by INMD are the sum of (1) One
hundred and twenty-two thousand four hundred and ninety dollars
($122,490.00) and (2) such accounts receivable generated by the Program
between August 1 and August 31, 1998 ["August Receivables"]. Between
September 1 and September 30, 1998, INMD shall account to PC for any
money collected on behalf of the Program which represented pre-payments
by patients for medical services to be performed on or after September
1, 1998, including both "patient deposits" and "suspended credits"
["Pre-payments"].The aggregate amount of such Pre-payments shall be
paid by INMD to PC no later than October 1, 1998. Between September 1
and September 30, 1998, Wood and PC shall account to INMD for the
amount of August Receivables.
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9. ENTITLEMENTS OF PC AND WOOD. In consideration for the withdrawal of
INMD from the Program, the termination of the Various Agreements, and
the obligations of this Agreement, PC and Wood shall receive the
following:
(a) Any and all INMD Common Shares ["INMD Shares"] issued to PC and/or
Wood upon the signing of the Management Agreement, shall no longer be
subject to the provisions of Section 7.1.7 of the Management Agreement,
but shall be subject to all applicable Federal and State law. INMD
agrees to provide any documentation or approval reasonably required by
PC or Wood in order to sell the INMD Shares in accordance with law. No
additional INMD Shares shall be issued to Wood or the PC as a result
of, or based upon any rights contained in, the Various Agreements,
hereafter.
(b) INMD shall pay one hundred percent (100%) of the monthly payments
on the XiMed Leasehold for (1) a period of six months, commencing
September 1, 1998; or (2) until the XiMed Leasehold is fully sublet to
another tenant or (3) the commencement of a Navy contract between the
government and the PC or Wood, whichever shall first occur. PC and Wood
covenant to use commercially reasonable efforts to sublet the premises
governed by the XiMed Leasehold.
(c) INMD shall Advance the Costs of Services of the Program up to and
including August 31, 1998 and shall be repaid such money solely from
the collected Pre- September Accounts Receivable.
(d) Consulting Agreement. (1) Commencing September 1, 1998, and for a
period of twenty-nine months thereafter, Wood shall be a Special
Consultant to INMD. His duties as a Special Consultant shall be to,
upon request of INMD, consult and advise INMD with respect to new ART
technologies, laboratory methods, protocols for new procedures and
results. It is expressly understood that INMD shall provide Wood with
reasonable notice of such requests, but Wood shall also make himself
reasonably available for such consultation, it being understood between
the parties to this Agreement that the time devoted by Wood to his
duties as a Special Consultant shall be not greater than an average of
10 hours per month.
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(2) Wood's compensation for performance of his duties as Special
Consultant shall be $4800 per month ["Consulting Payment"], payable on
the 15th day of each month, providing however, that INMD shall be
entitled to offset the payment against the Immulite Payment due under
Section 6(b) of this Agreement and any Asset Lease payments due, or to
become due within 30 days of the date of required payment by INMD.
10. GOVERNMENT CONTRACT EFFORT. (a) The parties agree and acknowledge that
there is a Request for Quotation (RFQ) issued by the Naval Medical
Center San Diego [NMCSD] which seeks an infertility program to
associate with NMSCD physicians for the provision of Infertility
Services to active, retired and/or reservist US Navy care-eligible
personnel referred to NMSCD for infertility treatment ["Navy
Contract"]. PC and Wood desire to submit a proposal for such Navy
Contract and desire that INMD, specifically its COO Dr. Donald S. Wood,
lend their/his expertise in preparing the necessary documents and
presentation of such proposal on behalf of PC and Wood. Wood and INMD
have evaluated the RFQ and have determined that the Scope of Work and
qualifications listed therein may, in fact, be too narrow to permit the
PC (and other infertility programs) to qualify for consideration,
inasmuch as the RFQ may be designed to meet the specific qualifications
of a prior Navy contractor. Nonetheless, both parties feel it is
nonetheless worthwhile to prepare and submit a proposal on behalf of
PC. In consideration of this Agreement, INMD and Donald S. Wood, hereby
agree to use commercially reasonable efforts to assist PC and Wood in
the preparation and submission of a proposal for such Navy Contract.
The parties agree and acknowledge that the deadline for such submission
is September 6, 1998, and that the preparation of such proposal on
behalf of PC and Wood shall be a time-consuming project. INMD agrees
that it shall use such efforts and shall devote such time as is
reasonably necessary, at its own cost and expense, it being understood
by the parties that whatever the nature of the INMD efforts, there can
be no assurance that Wood or PC will secure the Navy Contract and that
it shall be impossible to ascertain the reason underlying an award of
the Navy Contract to an entity other than PC or Wood. (b) PC and Wood
agree that the proposal for the Navy Contract shall not contain any
description of INMD's future relationship with PC unless said language
receives the express approval of INMD, and such express approval shall
not be unreasonably withheld or delayed.
(c) In the event that PC secures the Navy Contract, INMD agrees that it
shall function as Special Consultant to the Director of the Laboratory
of PC. INMD's duties shall be to, upon request of Wood or the Director
of the Laboratory of PC, to advise PC with respect to new ART
Technologies, laboratory methods, protocols and techniques.
(d) It is expressly understood among the parties that Wood, in his role
as Special Consultant, shall function purely as an advisor and
independent contractor and that conduct of INMD, even if based upon his
advice and/or recommendation, shall be the sole responsibility of INMD.
It is also expressly understood among the parties that INMD, in its
role as Special Consultant to PC, shall function purely as an advisor
and independent contractor and that the conduct of PC, even if based on
INMD's advice and/or recommendation shall be the sole responsibility of
PC.
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11. DISCONTINUANCE OF JAMS ARBITRATION. INMD, PC and Wood shall, within
seven (7) business days of this Agreement, write a letter (or
independent letters ) to JAMS/Endispute, discontinuing all claims
against each other with prejudice. Each party shall bear its/his own
costs, expenses and attorneys fees. The cost of any administrative fee
assessed by JAMS, over and above the filing fee already paid by INMD
shall be borne equally between INMD and PC.
12. COOPERATION. In the event of any claims, suits or governmental
investigations, arising out of or relating to the Program, in which
INMD, Wood and/or the PC shall be named or involved, whether or not
pending during the term of the Management Agreement, the parties hereto
agree to fully cooperate with each other in the defense of such suit,
claim or investigation. Such cooperation shall include, by way of
example but not limitation, meeting with defense counsel, the
production of any documents in their possession for review,
participation in discovery or an investigation by an insurer, response
to subpoenae and the coordination of any individual defenses with
counsel for all parties. Wood and the PC shall, as soon as practicable,
deliver to INMD copies of any summonses, complaints, suit letters,
subpoenae or legal papers of any kind, served upon them or their
attorneys. This obligation to cooperate shall survive the satisfaction
of any payment obligations hereunder, or the termination of this
Agreement for whatever reason, and nothing in this paragraph shall
obligate the parties to pay any legal fees incurred by the other.
13. NON-DISPARAGEMENT AND CONFIDENTIALITY. The parties acknowledge that
this Agreement represents a fully consensual and amicable separation of
interests and that, hereafter, each party covenants that, in
communicating with third parties, they shall not, by action or word,
defame, criticize or condemn the actions, conduct or motives of the
other. Each party recognizes that this covenant represents a material
obligation of both parties under this Agreement, the breach of which
may impact adversely on the business interests of the non-breaching
party. The parties further covenant that the terms of this Agreement
shall not be disclosed to any third party,except to the extent
necessary to enforce the terms hereto, and except that each party may
disclose such terms to his/its spouses, attorneys, financial advisors
or in response to judicial process.
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14. ARBITRATION. 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
California, County of San Diego (hereinafter "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 have no authority to change
or modify any provision of this Agreement. 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 California or the United States District
Court for the Southern District of California, to whose jurisdiction
for such purposes PC, Wood and INMD hereby irrevocably consent and
submit.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California, without reference to rules of conflicts of laws.
16. AMENDMENT. No modification, amendment or addition to this Agreement,
nor waiver of any of its provisions, shall be valid or enforceable
unless in writing and signed by all parties.
17. No assignment or delegation of this Agreement or the rights and
obligations hereunder shall be valid without the specific consent of
all parties.
18. No consent or waiver, express or implied, by either party hereto, of
any breach or default by the other party in the performance by the
other of its obligations hereunder, shall be valid unless in writing,
and no such consent or waiver shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the
performance by such other party of the same or any other obligation of
such party hereunder. Failure on the part of either party to complain
of any act or failure to act of the other party or to declare the other
party in default, irrespective of how long such failure continues,
shall not constitute a waiver by such party of its rights hereunder.
19. Any notices, requests, demands and other communications provided for in
this Agreement as required among the parties in connection with the
Agreement shall be in writing and shall be deemed to have been given at
the time when mailed at any United States Post Office via register or
certified mail, prepaid, or sent by overnight delivery services,
addressed to the party at the address set forth below or such other
addresses as such party may designate by notice:
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To PC or Wood at:
Reproductive Sciences Medical Center, Inc.
4150 Regents Park Row, Suite 280
La Jolla, CA 92037
Attention: Samuel H. Wood, M.D., P.C.
With Copy to:
David J. Hirsch, Esq.
9460 Wilshire Boulevard
Suite 830
Beverly Hills, California 90212
To IntegraMed America, Inc:
Donald S. Wood, Ph.D.
Chief Operating Officer
Integramed America, Inc.
One Manhattanville Road
Purchase, New York 10577
The failure of any party to claim such notice, or the refusal of
delivery, shall not alter the effectiveness of said notice.
20. This Agreement is the result of arms-length and deliberate negotiations
and each party has consulted with counsel. Should this Agreement be the
subject of interpretation, it shall be deemed to have been drafted by
all of the parties equally.
21. This Agreement may be executed in any number of separate counterparts,
each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. This Agreement
shall be effective upon the receipt by each party of facsimile copies
of the signature page, with the original, executed documents to be
exchanged within seven (7) business days thereafter.
IN WITNESS WHEREOF, the parties have set their hands hereunto as of the
effective date herein written.
INTEGRAMED AMERICA, INC. REPRODUCTIVE SCIENCES
MEDICAL CENTER, INC.
By: /s/Donald S. Wood By: /s/Samuel H. Wood
------------------------------ ------------------------
Donald S. Wood, Ph.D. Samuel H. Wood, M.D.
Title: Chief Operating Officer Title: President
------------------------------
Samuel H. Wood, M.D.
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