Exhibit10.1 MANAGEMENTSERVICES AGREEMENT

1.2

1.3

1.4

Advertising and Marketing. Manager shall provide advice and assistance to Company management in advertising and marketing services for the Practice and Company. During the term of this Agreement, Company grants to Manager a revocable, non-assignable and nonexclusive worldwide license to use the Company's name and other service and trademarks (collectively the "Mark") solely in connection with the performance of this Agreement, subject to any conditions imposed by any third party that transfers or licenses the Mark to Company, and further subject to the following conditions:

 

(A)

Permitted Uses. The license to use the Mark granted by this Agreement (the "License") may be exercised only for the purposes contemplated by this Agreement.

 

(B)

Prohibited Use. Manager shall not do anything which derogates the ownership of, infringes upon or diminishes the value of the Mark. This Section shall survive the termination of this Agreement.

 

(C)

 

(D)

No Transfer or Assignment. Company shall not transfer or sublicense the Mark, assign or transfer the License or contract, create, incur, assume or allow existing any claim, mortgage, lien, security interest or other charge or encumbrance with respect to the Mark or License.

1.5

Financial Reporting. Manager shall provide advice and assistance to Company management concerning the financial reporting and the preparation of statements of financial information for Practice and Company. Company shall be solely responsible for coordinating and overseeing the regular financial review and/or audit of Company and/or Practice financials by an independent accounting firm and approving all financial disclosures.  Manager shall not be required to prepare any financial reports or statements or projections for public disclosure for any purpose.

Confidentiality of Records.  Manager shall comply with all applicable federal, state and local laws and regulations relating to the records of the Practice and Company.  Any information obtained by Manager pursuant to the provisions of this Agreement shall be kept confidential; provided, however, that, subject to Article IX of this Agreement, applicable law (specifically including but not limited to the Health Insurance Portability and Accountability Act of 1996. 42 U.S.C. §1320(d) (“HIPAA”)) and except for PHI (as defined in Article IX of this Agreement) and proprietary information of the Practice, Manager may disclose such information (i) within Manager’s organization for internal purposes only, (ii) to its legal counsel and accountants, (iii) as required in Manager’s credit relationships, and (iv) as required by law, or by requirements of managed care contracts and other third-party payor, or order of a court of competent jurisdiction.  Manager shall not utilize such information for any purpose other than to substantiate its activities hereunder or to defend claims against Manager arising out of such activities.

Control of Operations.  Manager shall only have that authority to perform those duties as expressly detailed in this Agreement.  Company shall at all times govern and exercise ultimate control over the Company and the delivery of Services to Company and Practice.  The parties acknowledge and agree that various aspects of the performance of Services hereunder shall be performed by third party subcontractors who may, with the approval of a Company officer, be hired and report to Manager, but whose authority shall be no greater than the authority of Manager.

2.1

Confidentiality.  Company shall abide by all of the provisions of confidentiality set forth in this Agreement, including any attachments.

2.2

IT Equipment and Services Company and any authorized licensees and/or subcontractors shall use the information technology (“IT”) equipment and services for the Practice and Company, and shall comply with the terms of any lease agreement covering such equipment and with all applicable local rules, ordinances and all standards of professional care.

2.3

Provision of Services. Practice shall be wholly responsible for providing professional medical services and for patient care. Company shall help Practice ensure that each professional employee is duly licensed and at all times meets all other regulatory and legal requirements and qualifications to enable such professional employee to work at the Company and to perform the professional services as assigned. Practice shall be solely and exclusively in control of all aspects of the practice of medicine and the delivery of professional services to patients.  The rendition of all services and the supervision of all personnel rendering professional services on behalf of the Company and Practice shall be the sole and exclusive responsibility of Practice and Company.

2.5

Professional Standards. Company shall ensure that all services provided by Practice and Company are delivered in accordance with the generally accepted professional standards for the practice of medicine in the community and in accordance with all applicable laws and regulations and rules of professional conduct. To the extent is it appropriate, Manager shall assist and cooperate with Company  in taking steps to resolve any utilization review or quality assurance issues or claims of professional negligence or misconduct which may arise in connection with Company or Practice activities.

2.6

Independent Contractor Relationship. Company and Manager are independent contracting parties. Nothing in this Agreement shall be construed to create a relationship of principal and agent, employer and employee, partners or joint venturers.  Neither party shall have any right, power or authority to act for or enter into binding agreements on behalf of the other party unless expressly authorized in this Agreement or in writing by an officer of the authorizing party.  Company shall have no claim under this Agreement or otherwise against Manager for workers compensation, unemployment compensation, sick leave, vacation pay, retirement benefits, Social Security benefits, or any other employee benefits related to Company’s business operations. Neither Manager nor its employees shall have any claim under this Agreement or otherwise against Company for workers compensation, unemployment compensation, sick leave, vacation pay, retirement benefits, Social Security benefits, or any other employee benefits related to Manager’s business operations. Company acknowledges that Manager has no other duties, obligations or liabilities to Company except as expressly provided in this Agreement.

2.10

Control of Operations.  Company shall at all times govern and exercise ultimate control over the Company and Practice and the activities of Manager and any related party providing Services pursuant to this Agreement.

3.1

Management Fee. Company and Manager acknowledge that Manager shall incur substantial costs and expenses in providing the Manager's duties. In consideration for the provision of the Manager's duties, Company agrees to pay to Manager a monthly service fee ("Management Fee") as further described and set forth in Attachment “A” (“Attachment A”).

3.2

Unconditional Payment of Management Fees. Management Fees shall be payable by Company without regard to the amount of professional fees charged by Company or whether such fees are actually collected.

3.3

Payment of Management Fees. Manager shall submit a monthly invoice to Company for payment of the Management Fee. Such Management Fee shall be paid by the twentieth (20) day of each month.

3.5

No Patient Referrals.  The parties agree that the benefits to the Company hereunder do not require, are not payment for, and are not in any way contingent upon the admission, referral, or any other arrangement for the provision of any item or services offered by Manager, or any affiliate of Manager to the patients of the Practice in any facility or medical practice managed or operated by Manager or any such affiliate.  The parties to this Agreement agree that no payments made hereunder are made in return for, or to induce any person to:

 

(a)

refer an individual to anyone for the furnishing or arranging for the furnishing of items or services for which payment may be made in whole or in part under any federally funded healthcare program, including the Medicare and Medicaid programs, or

 

(b)

purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under any federally funded healthcare program, including the Medicare and Medicaid programs.

 4.1

Deposit of Practice Revenue.  Company shall deposit all Practice revenue collected on behalf of Company in an account in the name of Company at a bank acceptable to Company (the "Holding Account"). Company, on behalf of itself and each of its physicians, agrees that any amounts received on or after the Commencement Date with respect to any accounts receivable or Practice revenue shall be deposited, in the form received, in the Holding Account immediately upon receipt by Company or any physician. Company, on behalf of itself and each of its physicians shall ensure that all third parties make payments of accounts receivable and Practice revenue directly to the Holding Account.  Company agrees to execute and deliver from time to time and at any time all such documents and instruments as may reasonably be required by Manager to effectuate the foregoing provisions in this Article 4 and to extend or amend such documents and instruments as may be required from time to time.

 5.1

Term.  The initial term of this Agreement shall be for one (1) year, commencing on Commencement Date and ending on April 1, 2009 ("Term").  Following the Term, this Agreement shall renew for like terms unless a party gives the other party written notice of termination at least ninety (120) days before the expiration of the current term.

 

(C)

Filing of any petition in a bankruptcy or insolvency proceeding in respect to a party.

 

(D)

Any act or omission which results in the termination of a party's professional liability insurance coverage.

 

(E)

Commencement of any investigation which could lead to the revocation, suspension or probation of the professionals' license in Florida.

 

(F)

Cessation of business operations substantially as they are conducted by Company or Manager.

 

(G)

Any state or federal investigation, indictment or conviction against the Company, the Manager or any employee, professional or independent contractor of either party; or

 

(H)

A change in the control of Manager.

5.4

Termination Without Cause. Either party may terminate this Agreement without cause upon thirty (120) days' written notice to the other party.

5.5

Effect of Termination. Upon the termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall cease except:

 

(C)

Any available right or remedy of either party against the other party for breach of this Agreement.

5.6

Legislative. Regulatory or Administrative Change. In the event there shall be a change in the Medicare or Medicaid statutes, state statutes, case laws, regulations or general instructions, the interpretation of any of the foregoing, the adoption of new federal or State legislation, or a change in any third party reimbursement system, any of which are reasonably likely to materially and adversely affect the manner in which either party may perform or be compensated for its Services under this Agreement or which shall make this Agreement unlawful, the parties shall immediately enter into good faith negotiations regarding a new service arrangement or basis for compensation for the services furnished pursuant to this Agreement that complies with the law, regulation or policy and that approximates as closely as possible the economic position of the parties prior to the change.  If the parties cannot come to an agreement on modifications to the Agreement to remedy the void or unenforceable term, either party may terminate this Agreement upon thirty (30) days' written notice to the other party.

6.1

Professional Liability Insurance. Company shall ensure that any professional employee providing services described in this Agreement on behalf of the Company shall maintain throughout the term of this Agreement, a policy or policies of professional liability insurance covering Company and any professional employee against any claim for damages arising directly or indirectly by any act or omission of Company or any professional employee in the course of the medical practice. Such policy or policies shall cover personal injury, bodily injury and death with limits of liability of at least $250,000.00 per claimant and $750,000.00 annual aggregate. Such insurance will be underwritten by a company authorized in good standing authorized to transact the insurance business in Florida. Company shall use its best efforts to arrange with its insurer to name Manager as an additional insured and provide at least twenty (20) days notice of any termination, cancellation, revocation or limitation of such coverage. If the insurance is written on a claims made basis, the carrier must guarantee tail coverage at the time the primary insurance policy is written, and Company or the physician must purchase and maintain such tail coverage upon the termination of its coverage for the maximum reporting period available. Alternatively, Company or any physician may purchase "nose" coverage if approved in writing by Manager. If necessary, such insurance will provide for a retroactive date of placement coincidental with the effective date of the Agreement. Within ten (10) days of the effective date of the Agreement, Company will supply Manager with a certificate of insurance confirming the coverage described in this paragraph and containing an undertaking by the carrier to notify Manager at least thirty (30) days before coverage is reduced or canceled, the deductible is increased, or any term or condition of coverage is materially modified. Company shall notify Manager in writing of any reduction or cancellation, increase of deductible or material modification of any term or condition of Company's insurance coverage within twenty-four (24) hours of receipt. This Section will survive the termination or expiration of the Agreement.

6.2

Comprehensive General Liability Insurance. Manager shall obtain and maintain during the term of this Agreement reasonable amounts of comprehensive general liability and workers' compensation insurance with an insurance carrier or insurance carriers admitted to transact the insurance business in Florida. Manager shall ensure that any professional employee providing services described in this Agreement on behalf of the Company shall maintain throughout the term of this Agreement, a policy or policies of professional liability insurance covering Company and any professional employee against any claim for damages arising directly or indirectly by any act or omission of Company or any professional employee in the course of the medical practice. Such policy or policies shall cover personal injury, bodily injury and death with limits of liability of at least $250,000.00 per claimant and $750,000.00 annual aggregate. Such insurance will be underwritten by a company authorized in good standing authorized to transact the insurance business in Florida. Manager shall use its best efforts to arrange with its insurer to name Company as an additional insured and provide at least twenty (20) days notice of any termination, cancellation, revocation or limitation of such coverage. If the insurance is written on a claims made basis, the carrier must guarantee tail coverage at the time the primary insurance policy is written, and Manager or the physician must purchase and maintain such tail coverage upon the termination of its coverage for the maximum reporting period available. Alternatively, Manager or any physician may purchase "nose" coverage if approved in writing by Company.  If necessary, such insurance will provide for a retroactive date of placement coincidental with the effective date of the Agreement. Within ten (10) days of the effective date of the Agreement, Manager will supply Company with certificates of insurance confirming the coverages described in this paragraph and containing an undertaking by the carrier to notify Company at least thirty (30) days before coverages are reduced or canceled, the deductibles are increased, or any terms or conditions of coverages is materially modified. Manager shall notify Company in writing of any reduction or cancellation, increase of deductible or material modification of any terms or conditions of Manager's insurance coverages within twenty-four (24) hours of receipt. This Section will survive the termination or expiration of the Agreement.

8.1

Patient Records.

Upon termination of this Agreement, the patient records shall belong to the Company and Manager shall not maintain any copies of such patient records.

8.2

Records Owned by the Company.  All records other than patient records, relating in any way to the operation of the Practice, shall at all times be the property of the Company.

 

9.1Acknowledgment of HIPAA Obligations and Other Regulations Implementing HIPAA.The parties acknowledge that federal regulations relating to the confidentiality of individually identifiable health information require covered entities to comply with the privacy standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 65 Fed. Reg. 82462-82829 (December 28, 2000) (“Privacy Standards”).  The Privacy Standards require a “Covered Entity” (as defined in the Privacy Standards) to ensure that a “Business Associate” (as defined in the Privacy Standards) who receives confidential information in the course of providing services on behalf of a Covered Entity comply with certain obligations regarding the confidentiality of health information.

9.2

Purposes for which PHI May be Used or Disclosed.  In connection with the services provided by Manager on behalf of the Company pursuant to this Agreement, the Company may use, disclose, or permit access to protected health information (“PHI”), as defined in the Privacy Regulations, to Manager in order to permit Manager to provide the management services contemplated by this Agreement.

9.3

Manager Obligations.  Manager agrees to comply with applicable federal and state confidentiality and security laws, including, but not limited to the Privacy Standards published by the United States Department of Health and Human Services implementing Part C of HIPAA, including without limitation:

 

Use of PHI.  Manager shall not use PHI except as necessary to fulfill the purposes of this Agreement.  Manager is permitted to use and disclose PHI as necessary for the proper management and administration of the Practice or to carry out its legal responsibilities and its responsibilities under this Agreement.  However, Manager shall in such case:

 

Disclosure to Third Parties.  If Manager discloses PHI received from the Company, or created or received by Manager on behalf of the Company, to agents, including a subcontractor, Manager shall require the agent to agree to the same restrictions and conditions that apply to the Manager under this Agreement.  Manager shall be fully liable to the Company for any acts, failures or omissions of the agent in providing the services as if they were Manager’s own acts, failures or omissions, to the extent permitted by law.  Manager further expressly warrants that its agents will be specifically advised of, and will comply in all respects with, the terms of this Article IX.

 

De-Identified Information.  Use and disclosure of de-identified health information is permitted, but only if (i) the precise use is disclosed to Company and permitted by Company in its sole discretion, and (ii) the de-identification is in compliance with 45 CFR §164.502(d), and any such de-identified health information meets the standard and implementation specifications for de-identification under 45 CFR §164.514(a) and (b), or such regulations as they may be amended from time to time.

 

Notice of Privacy Practices.  Manager agrees that it will abide by the limitations of any Notice of Privacy Practices (“Notice”) published by the Company of which it has knowledge.  The Company shall provide to Manager such Notice when it is adopted.  Any use or disclosure permitted by this Agreement may be amended by such Notice.  The amended Notice shall not affect permitted uses and disclosures on which Manager relied prior to such Notice.

 

Withdrawal of Consent or Authorization.  If the use or disclosure of PHI in this Agreement is based upon an individual’s specific consent or authorization for the use of his or her PHI, and the individual revokes such consent or authorization in writing, or the effective date of such authorization has expired, or the consent or authorization is found to be defective in any manner that renders it invalid, Manager agrees, if it has notice of such revocation or invalidity, to cease the use and disclosure of any such individual’s PHI except to the extent it has relied on such use or disclosure, or where an exception under the Privacy Standards expressly applies.

 

Use or Disclosure that Would Violate HIPAA.  Manager is prohibited from further use or disclosure of PHI in a manner that would violate the requirements of the Privacy Standards if the PHI were used or disclosed by the Practice.

 

Safeguards.  Manager is required to maintain appropriate safeguards to ensure that PHI is not used or disclosed other than as provided by this Agreement or as required by law.

 

Records Management.  Upon termination of this Agreement, Manager agrees to return or destroy all PHI received from the Company that Manager maintains in any form and shall comply with federal and state laws as they may be amended from time to time governing the maintenance or retention of PHI.  If the return or destruction of PHI is not feasible, Manager agrees to extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible.

 

Accounting of Disclosures.  Manager agrees to make available to the Company and the individual from whom the PHI originated, information required for an accounting of disclosures of PHI with respect to the individual, in accordance with 45 CFR §164.528 as it may be amended from time to time, and incorporating exceptions to such accounting designated under the regulation.  Such accounting is limited to disclosures that were made in the six (6) years prior to the request (not including any disclosures prior to the compliance date of the Privacy Standards).

9.4

Internal Practices, Books, and Records.  Manager shall make available its internal practices, books, and records relating to the use and disclosure of PHI received from, created, or received by Manager on behalf of the Company to the U.S. Department of Health and Human Services or its agents for the purpose of determining the Company’s compliance with the Privacy Standards, or any other health oversight agency, or to the Practice.

9.5

Rights of Proprietary Information.  The Company retains any and all rights to proprietary information, confidential information, and PHI it releases to Manager.

9.6

Termination for Breach.  Without limiting the termination provisions herein, if Manager breaches any provision in this Article IX, the Company may, at its option, access and audit the records of Manager related to its use and disclosure of PHI, require Manager to submit to monitoring and reporting, and such other conditions as the Practice may determine is necessary to ensure compliance with this Article IX.  In addition, the Company may immediately terminate this Agreement on a date specified by the Company in a written notice of termination to Manager.

9.7

Survival of Key Provisions.  The provisions of this Article IX shall survive the termination of this Agreement.

10.1

Amendments. This Agreement may be modified only by a written amendment signed by the parties.

10.3

Gender and Number.  The masculine, feminine or neutral gender and the singular or plural number shall be deemed to include the others whenever the context so indicates.

10.4

Governing Law.  The validity, construction and performance of this Agreement shall be governed by the laws of the State of Florida without giving effect to conflicts of law principles.  Any action to interpret or enforce the provisions of this Agreement shall occur in a court of competent jurisdiction in Broward County. Florida.

10.7

Assignment and Delegation. Neither party may assign or transfer its rights, or delegate its duties or obligations, under this Agreement without the prior written consent of the other party. The parties hereto expressly reserve the right for Manager to subcontract some or all of the Services hereunder to third party providers with the approval of Company.

10.8

Notification by Company.   Company shall notify Manager in writing immediately if Company has notice, or becomes aware, of any investigation which may lead to, or an action which may result in the, restriction, suspension, termination, denial or non-renewal of any of Company's physicians' licensure, medical staff membership, clinical privileges or authorization to prescribe and administer controlled substances.

10.10

Marketing to Patients. Company consents to Manager marketing goods and services to patients in a manner not interfering with the Practice.

10.11

Notices.     Any notice or communication required by this Agreement shall be written and delivered personally, by facsimile, by a nationally recognized overnight courier service, or by U.S. mail, return receipt requested. Such notice will be deemed given when delivered personally, by facsimile or by prepaid overnight courier or when deposited in the U.S. Mail, postage prepaid, addressed for delivery to the principal place of business of the respective party. By notice to the other party, a party may change the foregoing information for notices.

10.12

Captions. The captions of sections of this Agreement are for reference purposes only and shall not affect the meaning of this Agreement.

 

(B)

Each of the parties will share equally in the costs and expenses of arbitration unless the arbitrator fords that the position of the non-prevailing party in such arbitration was without substantial justification, in which event the arbitrator may assess all of such costs and expenses together with reasonable attorneys' fees against the non-prevailing party.

 

 (C)

The prevailing party in any arbitration, or in any litigation brought to enforce the award, will be entitled to recover from the other party its attorney's fees and costs.

10.14

Counterparts. This Agreement may be executed in counterparts and the counterparts read together shall constitute one Agreement.

10.20

Survival. The provisions of this Article X (all sections), and of Sections 1.10, 1.11, 1.12, 1.13, 2.1, 2.7, 2.8, 2.9, 3.2, 3.3, 3.4, 5.5, 5.8, 6.1, 6.2, 7.1, 7.2, 8.3 and Article IX (all sections) and Attachment A shall survive the termination of this Agreement for any reason.