EXHIBIT 10.3
South Carolina Medical Director And
Administrative Services Agreement dated March 29, 2000
42
SOUTH CAROLINA MEDICAL DIRECTOR AND
ADMINISTRATIVE SERVICES AGREEMENT
(Independent Contractor)
This South Carolina Medical Director and Administrative Services Agreement
("Agreement") is entered into as of March ___, 2000 ("Effective Date") by and
among LIGHTTOUCH VEIN & LASER OF SOUTH CAROLINA, INC., a South Carolina
corporation ("LightTouch") and Harley F. Freiberger, M.D. ("Physician").
RECITALS
A. Physician operates a medical practice and has entered into and
throughout the term of this Agreement may continue to enter into arrangements
with insurers, HMOs and other third-party payors ("Payors") to provide or
arrange for the provision of health care services to persons covered by those
Payors ("Enrollees").
B. Physician may enter into independent contractor or employment agreements
with various physicians and other health care providers and health care
professionals licensed in South Carolina ("Providers") to assist Physician in
providing or arranging for the provision of health care services to Enrollees
and other patients of Physician (collectively, "Patients") on behalf of
LightTouch.
C. LightTouch is a wholly owned subsidiary of LightTouch Vein & Laser,
Inc., a Nevada corporation ("LTVL").
D. LTVL engages in the business of owning laser centers and providing
certain administrative and support services concerning the day-to-day affairs of
medical practices and has established existing laser centers ("Centers") at the
sites listed on EXHIBIT A, including the center located at 29 Gamecock Avenue,
Charleston, South Carolina operated by LightTouch under the direction of
Physician (the "South Carolina Center").
E. LightTouch desires to engage Physician to serve as medical director of
the South Carolina Center, and Physician desires to obtain the use of the South
Carolina Center for its practice and the administrative services of LightTouch
and LTVL.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agrees as follows:
I. RESPONSIBILITIES OF PHYSICIAN
1.1 MEDICAL DIRECTOR. Physician shall assume responsibility for the
professional medical services rendered at the South Carolina Center. Physician
shall assist LightTouch in the proper operation and management of the South
Carolina Center. Physician agrees to provide professional medical services to
Patients at the South Carolina Center and provide medical direction services at
the South Carolina Center
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during the hours of operation of the South Carolina Center. Physician's duties
as medical director of the South Carolina Center shall include the
responsibilities listed on EXHIBIT B. It is understood that all of Physician's
responsibilities under this Agreement are as that of the local medical director
of LightTouch located at the South Carolina Center and are not personal
obligations of Physician. All references to Physician shall be in his capacity
as an independent contractor working as an agent for and on behalf of LightTouch
as the medical director of the South Carolina Center. Physician shall be the
president and sole director of LightTouch.
1.2 RESPONSIBILITY FOR ALL MEDICAL AND PROFESSIONAL MATTERS. All medical
and professional matters relating to the operations of the South Carolina
Center, and the performance of medical services for Patients shall be the
responsibility of Physician with the administrative support of LightTouch and
LTVL. Physician shall use and occupy the South Carolina Center exclusively for
the practice of medicine and related cosmetic procedures. Physician expressly
acknowledges that the medical practice or practices conducted at these
facilities shall be conducted solely by Physician and the Providers.
1.3 PROVIDERS. Unless otherwise agreed to by the parties, Physician shall
have complete control of the hiring, engagement, supervision evaluation, and
termination of all Providers, although at the request of Physician, LightTouch
shall consult with Physician respecting such matters. With respect to
physicians, Physician shall only employ and contract with licensed physicians
meeting applicable credentialing guidelines established by Physician. Physician
shall be responsible for the payment of salaries and wages, compensation,
payroll taxes, employee benefits, and all other taxes and charges now or
hereafter applicable to Providers and other licensed health care professional
personnel employed by Physician; provided, however, LightTouch shall reimburse
Physician for all such payments and expenses on a monthly basis. All such
reimbursements shall be paid to Physician by LightTouch promptly upon receipt of
an invoice therefor. Physician shall consult with LightTouch with regard to the
terms of contracts entered into between Physician and Providers, or other
licensed health care professional employees and the terms and conditions of
their employment or engagement as independent contractors, as applicable.
1.4 PAYOR AGREEMENTS. Physician shall continue to operate and maintain a
separate medical practice at the South Carolina Center for so long as Physician
desires for which he provided services to Enrollees which are paid, at least in
part, by third-party Payors. Physician may operate such practice in his own
name, under Charleston Dermatology and Cosmetic Surgery Center or any other
professional business entity. All fees received for such services shall be
deposited into Physician's separate account and deemed income to Physician.
Physician shall thereafter pay all of such income to LightTouch as an expense
for use of LightTouch's facilities at the South Carolina Center.
1.5 COMPLIANCE WITH LAW. Physician shall require all of the Providers at
the South Carolina Center to comply with all laws, regulations, and ethical and
professional standards applicable to the practice of medicine. Providers who are
physicians shall at all times be licensed to practice medicine in the State of
South Carolina and all others states
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at which such physician provides patients medical services at a Center.
Likewise, LightTouch shall also comply with all laws, rules, regulations and
ethical and professional standards applicable to the South Carolina Center and
the practices employed therein.
1.6 CENTERS; HOURS OF OPERATION; STAFFING. Changes in or additions to the
Centers at which Physician provides medical director services and conducts
medical practices shall require the consent of both parties which consent shall
not be unreasonably withheld. The hours of operation and the medical staffing of
the South Carolina Center shall be mutually established by the agreement of
Physician and LightTouch from time to time hereafter.
1.7 QUALITY ASSURANCE. Physician shall monitor utilization and quality of
services provided by Providers, shall develop, maintain and administer quality
assurance programs and performance standards and shall take all steps necessary
to remedy any and all deficiencies in the efficiency or the quality of medical
care provided.
1.8 PATIENT REFERRALS. The parties agree that the benefits to Physician
hereunder do not require, are not payment for, and are not in any way contingent
upon the admission, referral or any other arrangements for the provision of any
item or service offered by LightTouch or any Affiliate of LightTouch to any of
Physician's Patients in any facility or laboratory controlled, managed or
operated by LightTouch or any Affiliate of LightTouch.
1.9 PROFESSIONAL INSURANCE ELIGIBILITY. Physician shall obtain and retain
professional liability insurance. LightTouch shall reimburse Physician for all
such expenses promptly upon receipt of an invoice therefor. Physician shall
terminate any Provider who is not insurable or loses his or her insurance
eligibility. Termination shall be effective no more than thirty (30) days from
such determination. Physician shall require all Providers to participate in an
on-going risk management program. It is understood that Physician and its
Providers who are physicians shall, at all times be covered by malpractice
insurance with coverage in usual and customary amounts for practitioners of the
same profession and specialties in South Carolina and, if applicable, other
states, the expense of which shall be reimbursed by LightTouch. Physician shall
ensure that its written agreements with Providers who are physicians require
such physicians to at all times be covered by malpractice insurance in amounts
that are usual and customary for practitioners of the same profession and
specialty in South Carolina and, if applicable, other states. Such malpractice
policies shall name LightTouch as an additional insured.
II. RESPONSIBILITIES OF LIGHTTOUCH
2.1 RESPONSIBILITIES WITH REGARD TO SELECTED PATIENT-RELATED MATTERS.
(a) PATIENT RELATIONS, SCHEDULING, ETC. LightTouch shall assist
Physician in maintaining positive Patient relations by, among other things, in
conjunction with and at the direction of Physician: scheduling Patient
appointments; responding to Patient
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grievances and complaints in matters other than medical evaluation, diagnosis,
and treatment.
(b) RECORDKEEPING. LightTouch shall assist Physician is maintaining
Patient medical records in accordance with applicable laws concerning
Physician's Providers and other appropriate recipients. Notwithstanding the
foregoing sentence, Patient medical records shall be and shall remain the
property of Physician, and the content thereof shall be the responsibility of
Physician.
(c) QUALITY ASSURANCE. LightTouch shall assist Physician, in
accordance with criteria established by Physician, in the development and
implementation of appropriate quality assurance programs, including development
of performance and utilization standards, sampling techniques for case review,
and preparation of appropriately documented studies. Notwithstanding the
foregoing, LightTouch shall not perform any duties that constitute the corporate
practice of medicine.
2.2 BILLING. LightTouch shall submit on a timely basis all bills and
necessary documentation required by Patients and Payors in order to obtain
payment in connection with Physician's delivery of health care services at the
South Carolina Center or its arrangement for the delivery of such services. In
seeking such payment, LightTouch shall act as Physician's exclusive agent in
billing and collecting professional fees, charges and other amounts owed to
Physician for service rendered by it and its Providers at the South Carolina
Center. In this connection, Physician hereby appoints LightTouch, during the
term of this Agreement, as Physician's true and lawful attorney-in-fact, with
power of substitution, for the following purposes relating to the South Carolina
Center:
(i) To bill Physician's Patients on Physician's behalf and the
South Carolina Center's.
(ii) To collect accounts receivable generated by such billings on
Physician's and the South Carolina Center's behalf, including, where deemed
appropriate by LightTouch and approved in advance by Physician, settling and
compromising claims, assigning such accounts receivable to a collection agency
or the bringing of legal action against a Patient or Payor on Physician's
behalf.
(iii) To receive payments on behalf of Physician and the South
Carolina Center from Patients and Payors, to cause such payments to be deposited
into appropriate depository accounts (each such depository account, a
"Collections Account").
2.3 OTHER RESPONSIBILITES.
(a) INSURANCE. LightTouch shall obtain and maintain during the term of
this Agreement (a) property damage insurance protecting the South Carolina
Center's premises and the personal property located therein against such hazards
and in such amounts as LightTouch determines are reasonably prudent; and (b)
general liability
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insurance in such amounts as LightTouch and Physician determine are reasonably
prudent.
(b) PERSONNEL. LightTouch shall furnish the services of all personnel
other than physicians, nurses, physician assistants or other health care
professionals required for the operation of the South Carolina Center. Except as
specifically provided in this SECTION 2.3(B), LightTouch has the power to
recruit, hire, train, promote, assign, set the compensation level for, and
discharge all nonprofessional personnel. Any nonprofessional personnel employed
by LightTouch who perform patient care services shall perform such services
under the exclusive direction, supervision and control of Physician, while all
other services of LightTouch personnel shall be performed under the exclusive
direction, supervision and control of LightTouch. If Physician is dissatisfied
with the services of any personnel employed by LightTouch, Physician shall
consult with LightTouch. LightTouch shall in good faith determine whether the
performance of that employee could be brought to acceptable levels through
counsel and assistance, or whether, if requested by Physician (provided that
such employee is not an officer or senior manager of LTVL), such employee should
be removed from providing services for Physician and the South Carolina Center.
Employee assignments shall be made with the intention of assuring consistent and
continued rendering of high quality medical support service and to ensure prompt
availability and accessibility of individual medical support personnel to
physicians in order to develop constant, familiar and routine working
relationships between individual physicians and individual members of the
medical support personnel.
2.4 PROFESSIONAL DUES AND EDUCATION EXPENSES. LightTouch shall be
responsible for the cost of membership in professional associations and
continuing professional education for Physician and its Providers. Physician
shall ensure that each of its Providers participates in such continuing medical
education as is necessary for such provider to remain current with professional
licensure and community standards.
2.5 FEES FOR PROFESSIONAL SERVICES. LightTouch shall be solely responsible
for legal, accounting and other professional services incurred by Physician in
operating the South Carolina Center absent a material violation by Physician of
any provisions of this Agreement.
2.6 ACCOUNTING. LightTouch shall direct and maintain the operation of an
appropriate accounting system with respect to Physician's operation of the South
Carolina Center and shall perform all bookkeeping and accounting services
required for the operation of the South Carolina Center, including the
maintenance, custody and supervision of business records, ledgers and reports;
the establishment, administration and implementation of accounting procedures,
controls and systems.
III. FINANCIAL ARRANGEMENTS
3.1 COMPENSATION. LightTouch shall pay to Physician the amount LightTouch
collects on behalf of Physician hereunder. In recognition of the services of
Physician
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hereunder, including services as medical director, LightTouch shall pay to
Physician the compensation salary and benefits set forth below. Within
forty-five (45) days of the end of each calendar quarter and ninety (90) days of
each calendar year, LightTouch will reconcile the amount due to, or payable
from, Physician for such quarter and year, determined by comparing the amount
paid to Physician during such quarter against the actual collections by
LightTouch on Physician's behalf. Physician shall earn and be entitled to
receive all of the first $40,000.00 of the cash flow received by LightTouch each
and every month for the first twenty-four months (or for such longer period as
necessary if the Promissory Note from LightTouch to Physician dated March ___,
2000 (the "Note") has not been paid in full). All of the cash flow received by
LightTouch above $40,000.00 per month up to $55,000.00 per month during such
period shall be retained by LightTouch and distributed to its parent LTVL,
unless LTVL consents to such profits being retained by LightTouch. All of the
cash flow in excess of $55,000.00 shall be shared between Physician and
LightTouch on a 50/50 basis (with 50% of the additional cash flow over
$55,000.00 per month going to the account of Physician and 50% of the additional
cash flow over $55,000.00 per month going to the account of LightTouch). For
purposes of this Section, cash flow shall mean: Net cash flows shall be defined
as net income, including facility rental income calculated using the accrual
method of accounting subject to the rules and provisions of Generally Accepted
Accounting Principles (GAAP) before income taxes and Physician's total
compensation for the period being reported.. After such initial twenty-four (24)
month period (or such longer period if the Note has not been paid in full),
Physician shall be paid a guaranteed minimum annual salary of $175,000.00 plus
50% of all of the cash flow of LightTouch.
IV. REPRESENTATIONS AND WARRANTIES; COVENANTS
4.1 COVENANTS AND WARRANTIES OF LIGHTTOUCH. LightTouch hereby represents
and warrants to Physician as follows:
(a) LightTouch is and shall remain during the term of this Agreement a
corporation which is duly organized, validly existing and in good standing under
the laws of the State of South Carolina, possessing full corporate power and
authority to own its properties and to conduct the business in which it engages.
(b) LightTouch has full corporate power and authority to execute and
deliver this Agreement and to engage in the transactions and obligations
contemplated by this Agreement. Upon its execution, this Agreement shall
constitute a valid and binding obligation of LightTouch, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, moratorium, or other similar laws affecting generally the rights of
creditors and by principles of equity. The party executing this Agreement on
behalf of LightTouch is duly authorized to do so.
(c) The consummation of the transactions contemplated by this
Agreement will not: result in any breach of the terms, provisions or conditions
of or constitute a default under the Certificate of Incorporation, By-Laws or
other enabling or governing instruments of LightTouch or any agreement to which
LightTouch is a party or
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by which it is bound; or, to the best knowledge of LightTouch, constitute a
violation of any applicable law or regulation.
V. TERM AND TERMINATION
5.1 TERM. This Agreement shall commence on the Effective Date and shall
continue for a period of ten (10) years, unless sooner terminated pursuant to
this Article V. Thereafter, this Agreement shall automatically continue in
effect for additional terms of five (5) years each, unless either party notifies
the other in writing not less than six (6) months or more than twelve (12)
months prior to the expiration of the term or any renewal term of its intent to
terminate this Agreement at the end of such term, or unless this Agreement is
terminated pursuant to Section 5.2, Section 5.3 or Section 8.10 hereof.
Notwithstanding the foregoing, if at any time Medical Director determines that
his responsibilities hereunder are interfering with the operation of his
practice and the performance of his duties at the South Carolina Center and
LightTouch fails to provide assistance satisfactory to Medical Director at
LightTouch's expense within thirty (30) days of Medical Director's request,
Medical Director may terminate this Agreement upon the expiration of such thirty
(30) day period.
5.2 EVENTS OF DEFAULT. Each of the following shall constitute an "Event of
Default" (the party causing such default is referred to as the "Breaching Party"
and the other party is referred to as the "Non-Breaching Party"):
(a) The Breaching Party fails to make any payment required under this
Agreement.
(b) The Breaching Party fails to observe or otherwise breaches any
material term, condition, covenant, or warranty of this Agreement.
5.3 TERMINATION. Subject to the provisions of this Article V, The
Non-Breaching Party may terminate this Agreement upon the occurrence of an Event
of Default in accordance with the following:
(a) In the event of the occurrence of an Event of Default referred to
in Section 5.2(a) above, upon the expiration of ten (10) days after written
notice, which notice shall specify the amount of such payment and when it was
due, unless the amount due is paid within such ten (10) days.
(b) In the event of the occurrence of any other Event of Default, upon
the expiration of sixty (60) days after written notice, which notice shall
specify the nature and extent of such Event of Default to the Breaching Party,
unless such Event of Default is remedied within such sixty (60) days or, in the
case of an Event of Default which cannot reasonably be remedied within sixty
(60) days, unless the Breaching Party has made a good faith effort to begin to
cure such Event of Default within such sixty (60) days.
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5.4 DUTIES UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT.
(a) If this Agreement is terminated upon expiration of its term, or
earlier as provided in Sections 5.3 or 8.10:
(i) Neither party shall be released or discharged from any
obligation, debt or liability which has previously accrued or been incurred and
remains to be performed upon the date of termination or expiration;
(ii) Any sums of money owing by one party to the other shall be
paid immediately;
(iii) Physician shall return to LightTouch all originals and
copies of the Proprietary Information of any of the Protected Parties (as those
terms are defined in Article VI) which are in the possession of Physician or any
other person or entity to whom it has delivered such originals and copies; and
(iv) Damages and any other remedies available at law or in equity
may be sought and collected by the Non-Breaching Party from the Breaching Party
in the event of a termination pursuant to Section 5.3 hereof.
VI. RESTRICTIVE COVENANTS
6.1 COVENANT REGARDING PROPRIETARY INFORMATION. In the course of the
relationship created pursuant to this Agreement, Physician will have access to
certain methods, trade secrets, processes, ideas, systems, procedures,
inventions, discoveries, concepts, software in various stages of development,
designs, drawings, specifications, models, data, documents, diagrams, flow
charts, research, economic and financial analysis, developments, procedures,
know-how, policy manuals, financial data, form contracts, marketing ad other
techniques, plans, materials, forms, copyrightable materials and trade
information regarding the operations of LightTouch and/or of its Affiliates
(collectively, the "Protected Parties"). The foregoing, together with the
existence and terms of this Agreement, are referred to in this Agreement as
"Proprietary Information". Physician shall maintain all such Proprietary
Information in strict secrecy and shall not divulge such information to any
third parties, except as may be necessary for the discharge of its obligations
under this Agreement. Physician shall take all necessary and proper precautions
against disclosure of any Proprietary Information to unauthorized persons by any
of its officers, directors, employees or agents. All officers, directors,
employees and agents of Physician who will have access to all or any party of
the Proprietary Information may be required to execute an agreement, at the
reasonable request of LightTouch, valid under the law of the jurisdiction in
which such agreement is executed, and in a form acceptable to LightTouch and its
counsel, committing themselves to maintain the Proprietary Information in strict
confidence and not to disclose it to any unauthorized person or entity. The
Protected Parties not party to this Agreement are hereby specifically made third
party beneficiaries of this Section 6.1, with the power to enforce the
provisions hereof. Upon termination of this Agreement for any reason,
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Physician and each of its Employed Providers and Contracting Providers shall
cease all use of any of the Proprietary Information and, at the request of
LightTouch, shall execute such documents as may be necessary to evidence
Physician's abandonment of any claim thereto. The parties recognize that a
breach of this Section 6.1 cannot be adequately compensated in money damages and
therefore agree that injunctive relief shall be available to the Protected
Parties as their respective interests may appear.
The obligations of Physician under this Section 6.1 shall not apply to
information: (i) which is a matter of public knowledge on or becomes a matter of
public knowledge after the Effective Date of this Agreement, other than as a
breach of the confidentiality terms of this Agreement or as a breach of the
confidentiality terms of any other agreement between Physician and LightTouch or
its Affiliates; or (ii) was lawfully obtained by Physician on a nonconfidential
basis other than in the course of performance under this Agreement and from some
entity other than LightTouch or its Affiliates or from some person other than
one employed or engaged by LightTouch or its Affiliates, which entity or person
has no obligation of confidentiality to LightTouch or its Affiliates.
6.2 COVENANTS NOT TO COMPETE DURING THE TERM. The parties recognize that
the services to be provided by LightTouch shall be feasible only if Physician
operates an active medical practice to which Physician and Providers devote full
time and attention. During the term of this Agreement, Physician shall not
establish, operate or provide physician or other health care services at any
medical office, clinic or other health care facility providing services
substantially similar to those provided by Physician pursuant to this Agreement
anywhere other than at the Centers and as may be approved in writing by
LightTouch. Physician shall also not enter into any medical director or
management or administrative services agreement or arrangement with any person
or entity other than LightTouch or LTVL without LightTouch's prior written
approval. Provided, however, the foregoing is in no way intended from
prohibiting Physician from operating a separate medical practice at the South
Carolina Center under the trade name Charleston Dermatology and Cosmetic Surgery
Center or a similar business entity, its successors and assigns, LightTouch
acknowledges that Physician will be performing medical services separate and
apart from those which he performs on behalf of LightTouch, including, without
limitation, services performed for Enrollees for which payment is made through
third-party Payors.
6.3 COVENANT NOT TO SOLICIT. During the term of this Agreement,
Physician shall not:
(a) Directly or indirectly solicit, recruit or hire, or induce any
party to solicit, recruit or hire any person who is an employee of, or who has
entered into an independent contractor arrangement with, LightTouch or any
Affiliate of LightTouch (excluding any person who performs patient services);
(b) Directly or indirectly, whether for itself or for any other person
or entity, call upon, solicit, divert or take away, or attempt to solicit, call
upon, divert or take away any of LightTouch's customers, business, or clients;
or
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(c) Disrupt, damage, impair or interfere with the business of
LightTouch.
6.4 ENFORCEMENT. LightTouch and Physician acknowledge and agree that since
a remedy at law for any breach or attempted breach of the provisions of this
Article VI or of Article VII shall be inadequate, either party shall be entitled
to specific performance and injunctive or other equitable relief in case of any
such breach or attempted breach, in addition to whatever other remedies may
exist by law. All parties hereto also waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief. If any provision of Article VI or Article VII relating
to the restrictive period, scope of activity restricted and/or other provisions
described therein shall be declared by a court of competent jurisdiction to
exceed the maximum time period, scope of activity restricted or geographical
area such court deems reasonable and enforceable under applicable law, the time
period, scope of activity restricted and/or area of restriction held reasonable
and enforceable by the court shall thereafter be the restrictive period, scope
of activity restricted and/or the territory applicable to the restrictive
covenant provisions in this Article VI or Article VII in any respect shall not
affect the validity or enforceability of the remainder of this Article VI or
Article VII or of any other provisions of this Agreement.
VII. INFORMATION AND RECORDS
7.1 OWNERSHIP OF RECORDS. At all times during and after the term of this
Agreement, including any extensions or renewals hereof, all business records,
including but not limited to, business agreements, books of account, general
administrative records and all information generated under or contained in the
management information system pertaining to LightTouch's obligations hereunder,
and other business information of any kind or nature, except for Patient medical
records and Physician's Records (as defined in Section 7.2 below), shall be and
remain the sole property of LightTouch; PROVIDED that after termination of this
Agreement Physician shall be entitled to reasonable access to such records and
information, including the right to obtain copies thereof, for any purpose
related to patient care or the defense of any claim relating to patient care or
the business of LightTouch or Physician.
7.2 PHYSICIAN'S BUSINESS AND FINANCIAL RECORDS. At all times during and
after the term of this Agreement, the financial, corporate and personnel records
and information relating exclusively to the business and activities of
Physician, as distinguished from the business and activity of LightTouch,
hereinafter referred to as "Physician's Records," shall be and remain the sole
property of Physician.
7.3 ACCESS TO RECORDS. Each party shall be entitled, upon request and with
reasonable advance notice, to obtain access to all records of the other party
directly
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related to the performance of such party's obligations pursuant to this
Agreement; provided, however, that such right shall not allow for access to
records that must necessarily be kept confidential. Either party, at its
expense, shall have the right to make copies of any records to which it has
access pursuant to this Section.
7.4 CONFIDENTIALITY OF RECORDS. LightTouch and Physician shall adopt
procedures for maintaining the confidentiality of the records relating to the
operations of LightTouch and Physician which do not constitute Proprietary
Information, which information is not otherwise available to third parties
publicly or by law, and shall comply with all applicable federal and state
statutes and regulations relating to such records. Patient medical records and
other privileged Patient information shall not be disclosed or utilized by
Physician or LightTouch or their agents or employees except as required or
permitted by applicable laws and regulations.
VIII. MISCELLANEOUS
8.1 INDEPENDENT CONTRACTOR STATUS OF PARTIES. IN THE PERFORMANCE OF THE
WORK, DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT, IT IS MUTUALLY UNDERSTOOD AND
AGREED THAT EACH PARTY IS AT ALL TIMES ACTING AND PERFORMING AS AN INDEPENDENT
CONTRACTOR WITH RESPECT TO THE OTHER AND THAT NO RELATIONSHIP OF PARTNERSHIP
JOINT VENTURE OR EMPLOYMENT IS CREATED BY THIS AGREEMENT. NEITHER PARTY, NOR ANY
OTHER PERSON PERFORMING SERVICES ON BEHALF OF SUCH PARTY PURSUANT TO THIS
AGREEMENT, SHALL HAVE ANY RIGHT OR CLAIM AGAINST THE OTHER PARTY FOR SOCIAL
SECURITY BENEFITS, WORKERS' COMPENSATIONS BENEFITS, DISABILITY BENEFITS,
UNEMPLOYMENT INSURANCE BENEFITS, HEALTH BENEFITS, VACATION PAY, SICK LEAVE OR
ANY OTHER EMPLOYEE BENEFITS OF ANY KIND.
8.2 NO WAIVER. The waiver by any party to this Agreement of any breach of
any term or condition of this Agreement shall not constitute a waiver of
subsequent breaches. No waiver by any party of any provision of this Agreement
shall be deemed to constitute a waiver of any other provision.
8.3 NOTICES. If, at any time after the execution of this Agreement, it
shall become necessary or convenient for one of the parties to serve any notice,
demand or communication upon the other party, such notice, demand, or
communication shall be in writing and shall be served personally, by nationally
recognized overnight courier which provides confirmation of delivery, or by
depositing the same in the United States mail, registered or certified, return
receipt requested, postage prepaid and,
(a) If intended for Physician, then the notice shall be addressed to:
29 Gamecock Avenue
Charleston, South Carolina 29407
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Attn: Harley F. Freiberger, M.D.
(b) If intended for LightTouch, then the notice shall be addressed to:
LightTouch Vein & Laser of South Carolina, Inc.
10663 Montgomery Road
Cincinnati, Ohio 45242
Attn: Greg Martini
or to such other address as either party may have furnished to the other party
in writing as the place for the service of notice. Any notice so mailed shall be
deemed to have been given three (3) days after the same has been deposited in
the United States mail; when delivered if the same has been given personally; or
the next business day if the same has been delivered to a nationally recognized
overnight courier service.
8.4 ASSIGNMENT. Neither party may sell, transfer, assign, or otherwise
convey its rights or obligations under this Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld;
provided, however, Physician may assign this Agreement and all of his rights and
obligations hereunder to any professional corporation or similar business entity
wholly owned by Physician without the prior consent or approval of LightTouch or
LTVL.
8.5 SUCCESSORS AND ASSIGNS. Subject to the provisions of this Agreement
respecting assignment, the terms, covenants and conditions contained herein
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the parties hereto.
8.6 SEVERABILITY. Nothing contained in this Agreement shall be construed to
require the commission of an act contrary to law, and whenever there is any
conflict between any provision of this Agreement and any statute, law, ordinance
or regulation, the latter shall prevail. In such event, and in any case in which
any provision of this Agreement is determined to be in violation of a statute,
law, ordinance or regulation, the affected provision(s) shall be limited only to
the extent necessary to bring it within the requirements of the law and, insofar
as possible under the circumstances, to carry out the purposes of this
Agreement. The other provisions of this Agreement shall remain in full force and
effect, and the invalidity or unenforceability of any provision hereof shall not
affect the validity and enforceability of the other provisions of this
Agreement, nor the availability of all remedies in law or equity to the parties
with respect to such other provisions.
8.7 HEADINGS. The headings used in the Agreement are for convenience of
reference only and shall have no force or effect in the construction or
interpretation of the provisions of this Agreement.
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8.8 TIME OF THE ESSENCE. Time is of the very essence of each and all of the
agreements, covenants and conditions of this Agreement.
8.9 GOVERNING LAW. This Agreement shall be interpreted in accordance with
and governed by the laws of the State of Ohio, to the jurisdiction of which each
of the parties hereby submits.
8.10 CONTRACT MODIFICATIONS FOR PROSPECTIVE LEGAL EVENTS. In the event any
state or federal laws or regulations, now existing or enacted or promulgated
after the Effective Date of this Agreement, are interpreted by judicial
decision, a regulatory agency or legal counsel of both parties in such a manner
as to indicate that the structure of this Agreement may be in violation of such
laws or regulations (a "Structural Issue"), either party may terminate this
Agreement, on not less than ninety (90) days written notice to the other party,
or negotiate and enter into an amendment of the provisions of this Agreement in
such manner as to alleviate such violation. In the event that the parties are
unable to agree upon such amendment within thirty (30) days after the
determination that such amendment is necessary, a party may elect either to
terminate this Agreement, on not less than ninety (90) days written notice to
the other party.
The parties agree that an amendment to accomplish the purposes set forth in
this Section 8.10 may require reorganization of Physician or LightTouch, or
both, and may require either or both parties to obtain appropriate regulatory
licenses and approvals. If (a) such reorganization or obtaining such regulatory
licenses and approvals is not reasonably possible, either party shall have the
right to terminate this Agreement on not less than ninety (90) days written
notice to the other party; or (b) such reorganization or obtaining such
regulatory licenses and approvals would require LightTouch or Physician to incur
a material economic detriment or would result in a material economic detriment
for LightTouch or Physician, LightTouch or Physician, as the case may be, shall
have the right to terminate this Agreement on not less than ninety (90) days
written notice to Physician or LightTouch, as the case may be.
In the event that either party elects to terminate this Agreement in
accordance with the provisions of this Section 8.10, LightTouch shall have the
right, exercised by the delivery of a written notice to Physician at any time
within sixty (60) days after the delivery by either party of notice of
termination of this Agreement, to require Physician to purchase from LightTouch
all of the assets used by Physician in connection with the conduct of the
medical practice at the South Carolina Center (the "Practice Assets"). In the
event that LightTouch fails to exercise such right within the first thirty (30)
days of such sixty (60) day period, Physician shall have the right, exercisable
by delivery of a written notice to LightTouch at any time during the last thirty
(30) days of such sixty (60) day period, to require LightTouch to sell to
Physician all of the Practice Assets.
If LightTouch elects to exercise the right to require Physician to purchase
the Purchase Assets from LightTouch or if Physician elects to exercise the right
to require LightTouch to sell the Purchase Assets to Physician: (a) the purchase
price for the Practice Assets shall be the balance outstanding under the Note,
if any; and (b) the
Charleston: 182803 13
closing for such sale of the Practice Assets shall occur on such date as is
designated in writing by LightTouch (if LightTouch elects to exercise such
right) or Physician (if Physician elects to exercise such right) which date
shall be not later than ten (10) business days after the date of delivery by
LightTouch or Physician of notice of its exercise of its right to require
Physician to purchase or to require LightTouch to sell all of the Purchase
Assets, as the case may be.
LightTouch shall have no claim against Physician, and Physician shall have
no claim against LightTouch which is based upon or arises out of a Structural
Issue.
8.11 LANGUAGE CONSTRUCTION. The language in all parts of this Agreement
shall be construed, in all cases, according to its fair meaning, and not for or
against either party hereto. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
8.12 INDEMNIFICATION. LightTouch shall indemnify, hold harmless and defend
Physician from and against any and all liabilities, losses, damages, claims,
causes of action, and expenses (including reasonable attorneys' fees and
disbursements (a "Physician Loss"), caused or asserted to have been caused,
directly or indirectly, by or as a result of the performance of medical services
or any other acts or omissions by LightTouch, and/or its partners, agents,
employees and/or subcontractors (other than Physician) and any Physician Loss
arising from or as a result of the performance of his duties as a director of
LightTouch except with respect to any Physician Loss which is the result of any
gross negligence or willful misconduct by Physician. Physician shall indemnify,
hold harmless and defend LightTouch, its officers, directors, shareholders,
employees, agents and independent contractors (the "LightTouch Group") from and
against any and all liabilities, losses, damages, claims, causes of action, and
expenses (including reasonable attorneys' fees and disbursements (a "LightTouch
Loss"), caused or asserted to have been caused, directly or indirectly, by or as
a result of the performance of medical services or any other acts or omissions
by Physician, and/or its partners, agents, employees and/or subcontractors
(other than LightTouch) during the term hereof except with respect to any
LightTouch Loss which is the result of any gross negligence or willful
misconduct by a member of the LightTouch Group.
8.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether written or oral, between or among parties regarding the
subject matter of this Agreement.
8.14 INCORPORATION BY REFERENCE. All exhibits and other attachments to this
Agreement are incorporated by reference into this Agreement by such reference.
Charleston: 182803 14
8.15 AMENDMENTS ONLY IN WRITING. This Agreement may not be amended or
modified in any respect whatsoever, except by an instrument in writing signed by
the parties hereto.
8.16 COUNTERPARTS. This Agreement may be executed in on or more
counterparts, each of which shall be considered an original and all of which
shall constitute one and the same agreement. This Agreement shall not become
effective until it has been executed by all of the parties hereto.
8.17 COMMERCIAL IMPRACTICABILITY. No party to this Agreement shall be
liable for any failure to perform its obligations hereunder where such failure
results from any cause beyond that party's reasonable control, including, for
example, an act of God, labor disturbance such as a strike or walkout, war,
riot, fire, storm, accident, government regulation or interference, or
mechanical, electronic or communications failure.
8.18 ELECTION OF REMEDIES The respective rights of the parties to this
Agreement shall be cumulative. Each party shall have all other rights and
remedies consistent with this Agreement as law and equity may provide. No
exercise by any party of one right or remedy shall be deemed to be an exclusive
election of rights or remedies.
8.19 SURVIVAL. The provisions of Articles III, IV, V, VI, VII and VIII
shall survive any termination of this Agreement.
8.20 THIRD PARTY BENEFICIARIES. Except with respect to Affiliates of
LightTouch, nothing in this Agreement shall be construed to create any duty to,
any standard of care with reference to, or any liability to any Person not a
party to this Agreement. The Affiliates of LightTouch are intended third party
beneficiaries of this Agreement.
IN WITNESS WHEREOF, LightTouch and Physician have caused this Agreement to
be executed by their duly authorized respective officers as of the Effective
Date.
LIGHTTOUCH VEIN & LASER OF
SOUTH CAROLINA, INC.
By: /s/ Dr. Freiberger
Title: /s/ President
---------------------------
HARLEY F. FREIBERGER, M.D.
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