**Exhibit 10.60**

**CONFIDENTIALTREATMENT REQUESTED**

**COMPREHENSIVE iVOW CENTER PROGRAM**

**BARIATRICADMINISTRATIVE SERVICES AGREEMENT**

This**Bariatric Administrative Services Agreement**(“hereafter Agreement”) is entered into as of April 20, 2005 by and between **iVOW,  INC.** (“iVOW”),a Delaware corporation qualified to do business in California, with itsprincipal offices at 2101 Faraday, Carlsbad, California 92008, **LENOX HILL HOSPITAL**, an acute care hospital****located at 100 East 77th Street, New York, New York 10021(“LHH”) and **MANHATTAN MINIMALLY INVASIVE & BARIATRICSURGERY, P.C**., a professional corporation  located at 100 East 77th Street,New York, NY 10021 (“MIBSPC”) to engage iVOW to provide operational assistancein the ongoing administration and development of an iVOW branded bariatricsurgical and medical center and Program (“hereafter Program”).

**WHEREAS,** iVOW is aconsulting firm with an array of products developed to help LHH, MIBSPC andother entities address the disease of chronic and morbid obesity.

**WHEREAS**, LHH andMIBSPC desire to expand the available outpatient and inpatient bariatricservices (“Bariatric Services”) to their patients and to engage iVOW to provideongoing collaborative administrative services to MIBSPC and LHH’s bariatricsurgical and medical patients.

**WHEREAS**, LHH andMIBSPC desire to retain iVOW’s expertise to help stage the evolution of theirbariatric program and its benefits to correspond with vehicles for programmaticgrowth and revenue enhancement via adoption of a more comprehensive programmodel, e.g. medical weight loss, psychological readiness, and exercisephysiology.

**NOW, THEREFORE**, inconsideration of the mutual promises, covenants and obligations of the partiesset forth herein, iVOW, LHH and MIBSPC hereby agree as follows:

**AGREEMENT**

# **SECTION 1:  DEFINITIONS**

Whenever used in thisAgreement with initial letters capitalized, the following terms will have thespecified meanings:

“Affiliate” means, withrespect to a party, any person that, directly or indirectly, Controls or isControlled, or is under common Control with such party.

“Blueprint”means the analysis by iVOW of the financial feasibility, market potential andprogram readiness for continuing its Program.

 “Control” means the possession, directly orindirectly, of the power to direct or cause the direction of the administrationand policies of a person, whether by contract or otherwise.

“Clients” means LHH andMIBSPC.

“Contractor” means iVOW.

“Clinicians” means any andall of the medical, surgical, clinical and ancillary clinical personnelinvolved in direct patient care provided to patients receiving care under theauspices of the Clients’ Program.

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***Certain confidential portions of this Exhibit were omitted andreplaced with “***” (the “Mark”).  ThisExhibit has been filed separately with the Secretary of the Securities andExchange Commission without the Mark pursuant to the Company’s applicationrequesting confidential treatment under Rule 24b-2 under the 1934 Act.

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“Credentialing”means the policies and procedures used by LHH to gather, evaluate andre-evaluate on an ongoing basis information pertaining to the education,training, licensure, experience, reputation, ethical standards, utilization,quality administration and the history of the Clinicians participating in itsProgram. This includes but is not limited to information on Clinician’s officepractice, referrals, resource administration, practice patterns, complicationrates and other indices of quality in both the acute setting and otherwise,staff privileges, professional liability insurance and claim status, patientand payor complaints, health and other matters concerning Clinician’s clinicalperformance and professional competence.

“Party(ies)”means any person(s) or entity(ies) covered by this Agreement.

“Thirdparty” means any person that is not a party hereto or an Affiliate of a Partyhereto.

“Quality AdministrationProgram” means a program that is established by LHH and/or MIBSPC andadministered by LHH and/or MIBSPC designed to review and manage the utilizationand quality of medical services and to assure that the services are provided atthe most appropriate level and quality of care consistent with medical andsurgical practices and standards prevailing in the community at the time oftreatment.

“iVOW Center Program” or“Program” means a fully developed and implemented operating plan for theongoing implementation and administration of the current MIBSPC program inconjunction with LHH and subsequently developed conjoint medical programs namedas either the iVOW Center at Lenox Hill Hospital or the Lenox Hill iVOW Centerand Programs or some other derivative acceptable to all the Parties (referredto hereafter as the “Program”).   TheProgram shall be administered by iVOW with personnel on site at the 59thand Park Avenue location of MIBSPC and Lenox Hill Hospital.  The iVOW Center Program provides the skillsand market-driven standardized practices applicable to the key areas ofmarketing, finance and operations jointly elaborated with MIBSPC and LHH andunder the day to day administrative control of MIBSPC and LHH withcollaborative consultation and support from the iVOW corporate office. Thesupervision and practice of any and all Clinicians of MIBSPC and LHH and howthey practice medicine or their respective clinical disciplines shall be thesole and exclusive purvey of MIBSPC and LHH respectively. iVOW does notpractice medicine and accepts and desires no role explicit or implicit in theclinical practice of medicine per se performed by the Clinicians.

# **SECTION 2:  TERMS OF THE AGREEMENT**

2.1          Term.  The term of this Agreement shall be for three(3) years and shall commence on April 25, 2005 and end on April 24, 2008,unless terminated earlier pursuant to this Agreement.

# **SECTION 3:** OBLIGATIONS OFiVOW

3.1           Compliance with Law and MIBSPC andLHH Policies and Procedures.  iVOWshall assist MIBSPC and LHH to establish and administer the day-to-dayoperations of the Program. iVOW shall administer and provide operationalassistance to the Program in accordance with (a) all applicable federal, stateand local laws, rules and regulations, regarding the licensing and operation ofLHH and MIBSPC facilities, and the Program, (b) the terms and conditions ofthis Agreement, (c) the rules, regulations, policies, procedures and standardsof  MIBSPC, LHH and its Medical Staff,(d) LHH’s compliance program, and (e) the standards of the Joint Commission forthe Accreditation of Health Care Organizations (JCAHO), provided that LHH and MIBSPCcooperate with iVOW to ensure that LHH, MIBSPC and the Program meet allrequirements imposed by law, rule, regulation, ordinance, or certificateof  accreditation requirements, includingbut not limited to the Program pertaining to federal, 

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state or local agencies,departments, commissions, associations or other governing or advisory bodieshaving authority to set standards governing the operation of  LHH, MIBSPC and the Program.

3.2           Medical Recordkeeping.  iVOW shall comply with MIBSPC and LHH’srules, regulations, policies, procedures and standards for medicalrecordkeeping, including making timely and appropriate documentation ofservices provided to their patients in the Program and maintainingconfidentiality in accordance with Section 10.4 of this Agreement.

3.3           Quality Administration andUtilization Review.  iVOW shallassist MIBSPC and LHH by supporting their activities, policies and proceduresrelated to their ongoing Quality Administration Program and the operation ofthe Program, including but not limited to in-service education to LHH andMIBSPC personnel and if requested to LHH’s Medical Staff.

3.4           Reports. iVOW shall makequarterly reports to appropriate MIBSPC and/or LHH administrative andsupervisory personnel.  iVOW will cooperatein its administrative communication and reporting in a manner consistent withthe Clients’ requirements for compliance from accreditation bodies andgovernment sponsorship.  iVOW willcollect, analyze and provide quarterly reports pertaining to its Programadministration. The form and content of the report(s) shall be agreed upon inadvance in writing by all parties.

## Administrative Services Personnel

## 3.4.1          iVOWPersonnel.  iVOW shall provideadministration and operational assistance for the Program in accordance withthe terms and conditions of this Agreement. iVOW will support the Program with personnel who are onsite and who areregionally and centrally-based at iVOW offices. In addition, iVOW will provide corporate support services.

iVOW    ***    a Program Director (hereinafterreferred to as “PD”) with the salary and benefits and direct overhead of the PD    ***   .. LHH, MIBSPC and iVOW will agree upon this salary, benefits and directoverhead**The PD shall coordinate and administerthe Program on behalf of MIBSPC and LHH including marketing, financial andoperational components, based on iVOW expertise and LHH and MIBSPCdirection.  The PD will be theadministrative director of both the MIBSPC and the LHH components of theProgram.

 

iVOWis solely responsible for employing such PD, and in no event is the PD to beconsidered an employee of MIBSPC or LHH.

 

iVOWretains full authority to discipline and to terminate iVOW personnel, providedthat, at MIBSPC’s or LHH’s reasonable request, iVOW will review the performanceof any iVOW employee and will remove and replace at iVOW’s own expense suchindividual from the Program should such individual fail to meet the obligationsof the Program.

iVOWshall not be required to employ as personnel, individuals who are now or havepreviously been employed by MIBSPC or LHH. iVOW shall not be bound by any agree­ment entered into by LHH withrespect to its own employees.

ThePD will be responsible for advising MIBSPC and LHH regarding Program employeesand contractors, scheduling Program services, monitoring the day-to-dayoperations of the Program, maintaining Program compliance with all LHH andMedical Staff rules and regula­tions, and all other required laws, rules andregulations.  iVOW will supply timely andaccurate reporting to designated and appropriate MIBSPC and LHH administrativepersonnel on the 

 

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progressof the Program and any potential or actual problems with its operations.  The PD shall track Program performance,design applicable reports and collaborate with MIBSPC and LHH’s staff toproduce a compilation of data elements useful to all Parties.

 

iVOWwill establish the    ***    with the Program andsubsequent care, and supply operational direction using effective templatesthat complement and facilitate the required processes. iVOW will provideProgram training, training manuals and materials to MIBSPC and LHH staff tointegrate the    ***    into a bona fide conjointProgram.

 

3.4.2        ProfessionalExpertise.  During the term of theAgreement, the Program Director must at all times be qualified by training orexperience to fulfill the responsibilities set forth herein.

3.4.3        Consultation.  If requested, iVOW shall assist LHH and itsMedical Staff in developing appropriate criteria for credentialing physiciansto perform Bariatric Services at the iVOW Center.  iVOW shall be available initially and fromtime to time thereafter to advise LHH on the billing requirements of insurersand other third party payors with respect to Bariatric Services, includingcoding standards and clinical documentation requirements.  iVOW shall cooperate with and assist LHH andMIBSPC as may be reasonably required to file appeals on claims or resolve otherbilling disputes with respect to Bariatric Services provided in theProgram.  In addition, iVOW may provide,as needed intensive on-site or remote “a la carte” iVOW consulting services,e.g. process redesign and new product elaboration from the iVOW corporateoffice staff.  MIBSPC and/or LHH willreimburse iVOW for all attendant travel expenses incurred in providing any suchapproved or requested regional or corporate support on site.

 

**               **3.5**          **AdministrativeAssistance.  iVOW will assist LHH inadministering the Bariatric Service(s) via an iVOW Center Program.

                3.6           Personnel.  iVOW will assure that its personnel aretimely available and diligently pursue its commitments in performing its dutiesin the start up and ongoing operation of the Program as well as in providingtraining and inservice education.

# **SECTION4:  OBLIGATIONS OF LHH AND MIBSPC**

4.1          Compliance with Law and LHHand MIBSPC Policies and Procedures. LHH warrants and represents that it is now, and will be at all timesduring the term of this Agreement, remain fully licensed, certified andaccredited as an acute care hospital, as required by the laws of the State ofNew York, by JCAHO or equivalent accreditation organization, and by Medicareand Medicaid, or any successor thereto.  LHH and MIBSPC willnotify iVOW in writing of the revocation, cancellation, non-renewal,limitation, or suspension of any or all of either’s license(s), certification(s),accreditation(s) or LHH’s JCAHO accreditation status as well as either’s statusas a Medicare or Medicaid Provider.

4.2           MedicalRecordkeeping.  LHH and MIBSPC willprovide iVOW access to the medical records of Program patients for the purposesof evaluating, monitoring the performance and effectiveness of the Programsubject to any legal restriction or other restrictions necessary to maintaintheir confidentiality.  MIBSPC and LHHwill take appropriate steps to obtain consents from Program patients to releasepertinent information to iVOW in compliance with any applicable laws andregulations.  iVOW, MIBSPC and LHH willnot disclose the contents of any Program patients’ medical records to any 

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thirdparty without the patient’s prior written consent unless required to do sopursuant to law, regulation or legally permissible contractual requirement andin accordance with Section 10.4 of this Agreement.

4.3           QualityAdministration and Utilization Review. LHH’s Quality Administration Programshall ensure LHH’s continuing compliance with applicable requirements of JCAHOand any other state and federal regulations and/or mandates with respect to theProgram.  If and as requested by LHH,iVOW shall participate in utilization review and peer review programsestablished by LHH and/or MIBSPC.

 4.4 LHH and MIBSPC Personnel.  With the exception of the aforementioned iVOWemployee (the PD), MIBSPC and/or LHH shall, at their appropriately respectiveexpense, provide all clinical, ancillary and other staff necessary for theProgram, including but not limited to a full time, dedicated receptionist(s),customer service representative(s) and licensed personnel.  Ancillary personnel such as a registereddietician, social service/behavioral services personnel and physical/physiotherapist(s) are strongly recommended as described in Exhibit A.  iVOW shall assist LHH and MIBSPC indetermining the staffing level needed to support the Program.  LHH and MIBSPC shall ensure that all suchlicensed personnel (i) are qualified to perform Bariatric Services, (ii) areduly licensed, certified or registered under applicable state, federal andlocal laws to perform the services for which they are employed, (iii) performonly those services that are within the scope of their licenses, (iv) performsuch services in compliance with all applicable laws, rules and regulations,and (v) perform such services under the supervision of a physician when sorequired by applicable law.  LHH andMIBSPC shall be responsible for maintaining the licensing and credentialingrequired of their respective employees assigned to the Program.

 LHH and MIBSPC personnel hired specifically towork at the Program or assigned to work with and/or at the Program will besubject to the prior consent of iVOW, such consent shall not be unreasonablywithheld.  iVOW may request the removalof any non-physician employee from Program services, but LHH and/or MIBSPCshall make decisions about the employees’ status and possible placement inother areas within their respective domains. LHH and MIBSPC will be solely responsible for employing the clinical,ancillary and other essential staff, and in no event shall  LHH’s or MIBSPC’s employees be consideredemployee(s) of iVOW. LHH and MIBSPC personnel hired specifically to work at theProgram or assigned to work with and/or at the Program will undergo the samebackground evaluation and check as all of their other employees.

 

                    4.4.1          MedicalDirector.   MIBSPC, LHH and iVOWconcur with the selection of *** as the inaugural Medical Director of theProgram.  The Medical Director of theProgram will be responsible for working with LHH administration, the LHH’sMedical Staff, MIBSPC and iVOW.  TheMedical Director shall be accountable to LHH and MIBSPC and shall consult withthe President of iVOW as to matters provided by iVOW.  The Medical Director must be available on aregular, part-time basis to assure the clinical appropriateness of careprovided to all Program participants, to participate in any LHH and/or MIBSPCdesignated or payor/regulator required peer review and quality assuranceactivities of the Program, e.g. required to satisfy its accrediting/regulatoryagencies and payors, discuss case specific issues with attending physicians andprovide support for MIBSPC’s, LHH’s and its Medical Staff’s ongoing QualityAssurance Program as it directly relates to services rendered to iVOW CenterProgram or  MIBSPC or LHH patients**.**

 

4.4.2          BariatricSteering Committee.  LHH and MIBSPCshall form a Bariatric Steering committee which shall include, but not belimited to, LHH’s vice president of medical affairs, the Program MedicalDirector and the PD.  The Program MedicalDirector shall chair the committee.  Itscomposition shall be determined by iVOW, MIBSPC and LHH, and shall representkey departments 

 

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which will support the Program’s progress.  Departments may include but are not limitedto marketing, admissions, operating room, utilization administration, qualityassurance, discharge planning, medical surgical unit, dietary, physicaltherapy, printing and production, facilities, and medical records.  Every appropriate and reasonable effort willbe made to develop a clinical subcommittee of this committee in such a manneras is appropriate for bestowing upon this subcommittee peer review protection.

 

4.5         Retention ofProfessional and Administrative Control.  MIBSPC and LHH will retain professional and administrative responsibilityfor the services rendered as outlined in this Agreement.   LHH and MIBSPC retain ultimate control overall activities performed at the iVOW Center and under the auspices of the iVOWProgram on behalf of MIBSPC and LHH in their respective domains.  Notwithstanding any other provision containedin this Agreement, LHH remains responsible for ensuring that any serviceprovided pursuant to this Agreement at LHH complies with all pertinentprovisions of federal, state and local statutes, rules and regulations.

 

4.6           Facilityand Equipment.  MIBSPC and LHH willmaintain a site for the Program that is convenient for both patients andphysicians with convenient access from mass transit and/or convenientparking.  The site must ensure adequatespace and shall accommodate a reception area, space for the on site iVOWemployee(s) and any co-located LHH and MIBSPC employees.  The site must also include, at a minimum, aprivate area to provide privacy for patient intake and financial counseling.

 

##  LHH shall provide use of such operating roomsand patient rooms for the Program and the provision of Bariatric Services asare required for the inpatient treat­ment and care of bariatric patients at itsown cost and expense.

## 4.7           Equipment.  LHH shall, at its own cost and expense,provide and maintain for use in the Program, operating rooms in which BariatricServices procedures (both open and laparoscopic) are performed, inpatientrooms, and all equipment as is reasonable and necessary for the properoperation of the Program and the provision of Bariatric Services.  Decisions regarding the acquisition,selection, replacement and upgrade of medical and non-medical equipment for theProgram component at LHH shall be made by LHH after consultation with MIBSPCand iVOW.  Decisions regarding theacquisition, selection, replacement and upgrade of medical and non-medicalequipment for the Program component at MIBSPC shall be made by MIBSPC afterconsultation with LHH and iVOW.

## Alladditions and improvements made to such equipment during the term of thisAgreement shall belong to and become the property of either LHH or MIBSPCdependent upon whichever is the purchaser. In addition, LHH and/or MIBSPC will provide and replenish all suppliesand inventory which LHH and MIBSPC determine are reasonable and necessary forthe proper operation of the Program and the provision of BariatricServices.  LHH and MIBSPC also shall beresponsible for all equipment repair, maintenance, and training, the purchaseand maintenance of all office related supplies, inventory and services,including telephones and all customary utilities including gas, electric,heating and air conditioning.

 MIBSPC or LHH shall, at its cost and expense,provide the customary provisions for computer configuration, which includes butis not limited to computer hardware, hardwiring, desktop software and highspeed internet connection capabilities.

Subjectto Section 10.4 of this Agreement, LHH and MIBSPC will permit and provideaccess that links to patient registration, billing and diagnostic testing toiVOW such that iVOW is able to interface with LHH and MIBSPC in order tomonitor patient activity and support the revenue cycle.

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4.8           Safety.  iVOW shall assist MIBSPC and LHH in providingProgram-related safety presentations to MIBSPC and LHH staff.  MIBSPC and LHH will extend its existing andfuture security precautions and protocols, such as well lighted areas andsecurity guards, if needed.

4.9           Environment.   LHH and MIBSPC will be responsible forinfection control surveillance, adherence to OSHA standards, routinemaintenance including housekeeping, reduction of pathogens and providing aclean, safe workplace and care setting consistent with other patient care areasof  LHH and MIBSPC.

4.10         Diagnostic Health Screening.  LHH will provide all personnel, including theProgram Director, at its expense, with pre-employment and periodic diagnosticand health screening procedures, immunizations and any other health screeningto the same extent as customarily required by LHH for its employees and staffmembers.

## 4.11         Third Party Payor Agreements.  LHH and MIBSPC will use commerciallyreasonable efforts to offer Bariatric Services to beneficiaries under existingand new agreements with third party payors.

4.12         Personnel.

4.12.1      LHH and MIBSPC will assure that theirpersonnel will timely and diligently assist iVOW in the performance of itsduties in the start up and ongoing operation of the Program.

4.12.2      LHH and MIBSPC will assure that their personnelwill timely undergo the requisite training and inservice education necessary tofacilitate the start up and ongoing operation of the Program.

 

4.13         MIBSPCPhysicians. LHH attests that MIBSPC’s physicians are members in goodstanding of LHH’s Medical Staff.  LHHwill facilitate any requisite credentialing and privileging required by itsMedical Staff in order for any new MIBSPC’s physicians to be admitted to itsMedical Staff in accordance with LHH policies. LHH will facilitate any requisite re-credentialing and re-privilegingrequired by its Medical Staff in order for MIBSPC’s physicians to retain theirMedical Staff credentialing and privileges.

 

4.14         Resources.LHH will provide the resources articulated in the LHH Blueprint (a copy ofwhich is annexed to this Agreement and incorporated herein by reference) asExhibit B presented to LHH on or before March 29, 2005 to facilitate the launchand ongoing operation of the Program.

 

# **SECTION 5:  OBLIGATIONS OF BOTH PARTIES**

5.1           RegulatoryPermits and Approvals.  MIBSPC, LHHand iVOW will obtain, if applicable, permits, licenses and regulatory approvalsrequired in the operation of the Program under this Agreement.  Each entity shall cooperate with the other tothe extent required to obtain such permits, licenses and approvals and meet anyother requirements for regulatory mandates.

 

5.2           No Violation.  To the best of each Party’s knowledge, theParties hereby represent and warrant that neither the provisions of thisAgreement nor the Parties execution hereof does now or shall hereafterconstitute or result in a breach, default or violation of any contract,agreement (including any collective bargaining agreement), judgment, order ordecree to which the Parties are bound.

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5.3           No Discrimination.  In the operation of the Program, Partiesshall not differentiate in the treatment of any patient because of race, color,national origin, ancestry, religion, sex, marital status, sexual orientation orage. During the performance of this Agreement, Parties and their subcontractorsshall not unlawfully discriminate, harass or allow harassment, against anyemployee or applicant for employment because of sex, race, color, ancestry,religious creed, national origin, physical disability, mental disability, medical condition (cancer), age(over 40), and marital status. Parties and their subcontractors shall ensurethat the evaluation and treatment of their employees and applicants foremployment are free from such discrimination and harassment.  Parties and their subcontractors will givewritten notice of their obligations under this clause to labor organizationswith which they have a collective bargaining or other agreement. iVOW, MIBSPCand LHH will include the nondiscrimination and compliance provisions of thisAgreement in all subcontracts to perform work under this Agreement.

5.4           Access to Determine Compliance.Parties shall permit access by representatives of any federal, state or localagencies, departments, commissions, associations or other governing or advisorybodies having authority governing the operation of the Program upon reasonablenotice at any time during normal business hours to such of its books, records,accounts, other sources of information and its facilities as such agenciesshall require to ascertain compliance of the Program within the scope of theirjurisdiction, regulatory or statutory authority.

5.5           Representationand Warranty.  Each Party representsand warrants to the other that each Party is not currently excluded, debarred,or otherwise ineligible to participate in the Federal health care programs asdefined in 42 U.S.C. Section 1320a-7b(f) (the “Federal health careprograms”).  Each Party represents thatit has not been convicted of a criminal offense related to the provisions ofhealth care items or services.  EachParty represents that it is not under investigation or otherwise aware of anycircumstances which may result in them being excluded from participation in theFederal healthcare programs.  Thestatements set forth in this Section 5.5 shall be an ongoing representation andwarranty during the term of this Agreement and each party shall notify oneanother of any change in the status of the representation and warranty setforth in this section.  Any breach ofthis section shall give each Party the right to terminate this Agreement withcause.

5.6             Nonsolicitation.  iVOW, for the term of this Agreement and for   ***   afterits termination or expiration, shall not directly or indirectly, on iVOW’s ownbehalf or on behalf of any other person, organization or entity, individuallyor collectively, in any fashion, form or manner, employ, engage, contract inany manner for the services of, induce or solicit the services of employees ofMIBSPC or LHH to work for iVOW or any person, corporation, partnership, soleproprietorship, governmental agency, organization, joint venture or otherentity with whom or which iVOW is associated, or otherwise interfere with anycontractual relationship of  MIBSPC orLHH, unless mutually agreed upon by iVOW and MIBSPC or LHH.  Without limiting any other remedies availableto MIBSPC or LHH to enforce this covenant, iVOW agrees that an injunction orother equitable relief shall be available, without the necessity of  MIBSPC or LHH posting a bond.  The provisions of this Section 6.6 shallsurvive the termination or expiration of this Agreement.

5.7           Nonsolicitation.  MIBSPC or LHH, for the term of this Agreementand for    ***         after its termination or expiration,shall not directly or indirectly, on MIBSPC or LHH’s own behalf or on behalf of any other person,organization or entity, individually or collectively, in any fashion, form ormanner, employ, engage, contract in any manner for the services of, induce orsolicit the services of employees of iVOW to work for MIBSPC or LHH or anyperson, corporation, partnership, sole 

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proprietorship, governmentalagency, organization, joint venture or other entity with whom or which LHH orMIBSPC is associated, or otherwise interfere with any contractual relationshipof iVOW, unless mutually agreed upon by iVOW and MIBSPC or LHH.  Without limiting any other remedies availableto iVOW to enforce this covenant, MIBSPC or LHH agrees that an injunction orother equitable relief shall be available, without the necessity of iVOWposting a bond.  The provisions of thisSection 5.7 shall survive the termination or expiration of this Agreement.

5.8             Non-Competition. During the term of this Agreement and for           ***          after termination of theAgreement,  iVOW shall not, without the prior written consent of LHHand/or MIBSPC, directly or indirectly, including by or through any corporationor any entity that is an affiliate of iVOW (for purposes of thisprovision, a corporation or entity is an affiliate of iVOW if iVOW ownsmore than a    ***    in such corporation orentity), invest in, manage, operate, market, finance or provide administrativeservices to any entity within the     ***             that is performingor will perform bariatric services or services related thereto.  Should LHH and/or MIBSPC elect to terminateiVOW’s services other than for material breach then iVOW is released from thisnon compete provision.

 

5.9           Non-Competition During the term of this Agreement and for      ***     after termination of the Agreement, LHH and MIBSPC shall not,without the prior written consent of iVOW, directly or indirectly, including byor through any corporation or any entity that is an affiliate of either orboth (for purposes of this provision, a corporation or entity is an affiliateof either if either owns more than a    ***   in such corporation or entity) engage, hire, contract with or otherwise haveservices provided to either or both by a bariatric management or consultingcompany that is performing or will perform bariatric administrative, marketing,financial, operational or consulting services related thereto. Should iVOWelect to terminate this relationship with LHH and/or MIBSPC other than formaterial breach then LHH and/or MIBSPC is released from this non competeprovision.

 

# **SECTION 6:  PROMOTION/MARKETING AND PATIENT EDUCATION**

6.1           iVOW shall develop and make availableto LHH and MIBSPC for Program use patient education, marketing and outreachmaterials tailored to MIBSPC and LHH’s mission and culture that are designed toinform and educate the general public, physicians and other health careclinicians, patients and payors about MIBSPC and LHH’s Bariatric Services andthe Program.  Such marketing and outreachshall include, by way of example and not limitation, rights to useiVOW-licensed promotional partners, rights to use iVOW-prepared presentationmaterials, including    ***   materials.

6.2           iVOWshall be responsible for the material development costs for the initial LHHand/or MIBSPC specific customization of its templates for    ***   materials as well as their subsequent placement according to a mutually agreedupon schedule and venue at a year-one cost of $*** to be expended during the    ***   ofthe engagement.  iVOW shall provide LHHand MIBSPC with documentation evidencing that $*** has been spent during the    ***   .

 

6.3           MIBSPCand LHH will be responsible for the linking of iVOW to their websites andintranet sites (as appropriate), reproduction of Program materials and postagefor mailing such Program 

 

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materials. MIBSPC and LHH will promote the Program and provide a link to theProgram from their internet sites.  Theplacement of such links shall be mutually agreed upon by the Parties.

 

iVOW shall be responsible for the linking of MIBSPCand LHH to iVOW’s websites and intranet site (as appropriate). iVOW shallpromote the Program and provide a link to the Program from its Internetsite.  The placement of such links shallbe mutually agreed upon by MIBSPC, LHH and iVOW.

 

6.4           Any subsequent or additionalmarketing and outreach expense and materials, including    ***   disbursed    ***   materials, shall be theresponsibility of    ***    inclusive of allproduction and distribution cost.  Nosuch cost shall be incurred without the prior approval of the financiallyresponsible party.

6.5           During the term of this Agreement,iVOW hereby grants to MIBSPC and LHH a non-exclusive and non-assignable rightentitling MIBSPC and LHH to use one or more of iVOW’s trade names or trademarks as designated by iVOW in connection with MIBSPC and LHH’s marketing andadvertising activities under this Agreement and in the routine course of theirbusinesses, which right(s) shall immediately terminate upon termination of thisAgreement.   MIBSPC and LHH consent tothe use of their names by iVOW in connection with its marketing and advertisingactivities undertaken on behalf of MIBSPC and LHH and in the routine course of its business, such right(s)shall immediately terminate upon termination of this Agreement.

6.6           MIBSPC and LHH agrees to participatein the unique marketing of iVOW Center Programs’ brand names and obtain the pre-approvalfrom iVOW for all marketing materials developed, reproduced and distributedunder the iVOW Center Program brand such approval not to be unreasonablywithheld.

6.7           To complement the $***    ***   hascommitted to outreach, marketing and advertising, MIBSPC and LHH agree to spend      ***      during the    ***   of the term of this Agreement for advertising and public relations activitiesof the Program and in subsequent years to ultimate assumption of all marketingand advertising costs.

6.8           In cooperation with MIBSPC and LHH,iVOW shall develop or refine and implement a Community Relations and EducationProgram to aggressively and effectively communicate to interested candidatesabout the Program.  iVOW shall providetemplates for MIBSPC and LHH’s use with MIBSPC and LHH being responsible forall expenses incurred for production and distribution.  Components of an education plan shall includesome or all of the activities listed in Exhibit C.

6.9           iVOW will provide Program trainingmanuals and materials (any updates or revisions thereto), as illustrated inExhibit D during the term of this Agreement.

6.10         Ifrequested and    ***   shall develop and    ***   and   ***   distribution center for theProgram.  Client(s) materials andcollaterals for the    ***   , their reproductionand distribution of said materials inclusive of postage for mailing shall beborne at cost by    ***    as appropriate.  It is presumed that the iVOW collateraltemplates will be utilized to avoid any additional developmental cost for suchcollaterals by the client(s).  Should theclient(s) prefer unique, significantly customized collaterals, such collateralswill be utilized per the client(s) directions but their prima facie productioncost will be borne by    ***    as appropriate.

 

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Thecost of the provision of *** and disbursement services are not a component ofthe $*** iVOW outreach, marketing and advertising *** commitment but will be ***under a separate arrangement.

 

# **SECTION 7:  COMPENSATION AND PAYMENT**

                7.1Fees and Compensation.  MIBSPCand/or LHH shall compensate iVOW for its services hereunder as follows:

 

                                7.1.1  A flat monthly Administrative Services Fee of$*** (the “Fee”) commences and applies during the preparatory/ramp upimplementation of the Program, defined as a ninety (90) day preparation windowand continues for one (1) year. This fee will be $*** a month for year two (2)and $*** a month in year three (3) of this Agreement. By the end of the first year of this Agreement, iVOWagrees to have successfully implemented *** of the *** Models (defined inSection 7.1.6(a)) identified under the Milestones set forth in Section 7.1.6 ofthis Agreement. If LHH and MIBSPC have utilize their best efforts tosuccessfully implement the Models defined in Sec 7.1.6(a) and iVOW fails tohave successfully implemented at least *** of the *** Models by the end of the    ***   year, at LHH and MIBSPC’s sole discretion, LHH and MIBSPC may either (i)terminate this Agreement effective    ***    or(ii) renegotiate a new Fee for year    ***    ofthis Agreement taking into account the number of Models that have beensuccessfully implemented and the remaining number of Models to beimplemented.  In addition, the Fee foryear *** of thisAgreement is based upon    ***    of the Modelshaving been successfully implemented.  IfLHH and MIBSPC have utilized their best efforts to successfully implement theModels defined in Sec.7.1.6(a) and all of the Models have not been successfullyimplemented by the end of    ***    of theAgreement, the Fee in year    ***    of thisAgreement shall be renegotiated taking into account the number of Models thathave been successfully implemented and the remaining number of Models to beimplemented.  Additionally, iVOW    ***   for the salary, bonus, benefits and direct overhead of the on site PD atcost.  Any    ***   to be paid will be mutually agreed upon by the client(s) and iVOW.  Should MIBSPC and/or LHH desire other iVOWpersonnel be hired for on-site support to the Bariatric Services Program theirwages, salaries, bonuses etc.   ***    by MIBSPCand/or LHH consistent with their FTE equivalency.  Any    ***    tobe paid will be mutually agreed upon by the client(s) and iVOW.

 

                                7.1.2During the ramp up period when the iVOW interim PD is commuting to set up theprogram and before the local PD is hired (his/her selection being with theconcurrence of the client) the PD’s travel and living expenses shall be    ***   by the    ***   . Air travel is booked at regularcoach fare and accommodations in 3-4 star hotel facilities.  The expense reimbursement for the interimPD’s travel and living expense shall be    ***   to the Client(s) by iVOW at ***/week. It is understood that Client(s) willattempt to limit such expense via a    ***   provided accommodation, probably a    ***   .

 

                                7.1.3Should there be hiring issues beyond the ramp up period (for example to retainthe iVOW local PD suitable to all parties consequent to clients’ preference)then the Client(s) will bear the cost of the attendant travel and livingexpenses for the continued commuting of the iVOW interim PD in accordance withSection 7.1.2 of this Agreement.

 

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                                7.1.4iVOW corporate and regional consultants time and work required to execute theAgreement is covered under the monthly management and milestone fees e.g.intensive on-site or remote iVOW a la carte consulting e.g. contracting,marketing, process redesign and new product elaboration provided by theregional or corporate iVOW personnel. Additionally, iVOW shall bill LHH andMIBSPC on a monthly basis for the reimbursement of reasonable travel relatedexpenses actually incurred by iVOW staff and Consultants providing services toMIBSPC and LHH under the terms of this Agreement whenever such personnel arenot the full time on site employees of iVOW providing services at MIBSPC andLHH but personnel who travel to New York to assist iVOW’s full time onsitepersonnel in fulfilling iVOW’s obligations and Client(s)’ request under theterms of this Agreement.

 

                                7.1.5       Nothing in this Agreement is to beconstrued to directly or indirectly be interpreted or construed to mean thatiVOW is expected or required to provide services to LHH and MIBSPC beyond theprofessional competency of its personnel. Should LHH and MIBSPC request anysuch assistance, iVOW will facilitate its acquisition at LHH and/or MIBSPC’sexpense.

 

                        7.1.6  **  **The followingdevelopmental accomplishments set forth in 7.1.6(a) through (c) are considered **MILESTONES**

 

                                        (a)  The following five (5) models shall bereferred to as “Models” and iVOW is expected to successfully implement theseModels in accordance with the timeframes set forth in Section 7.1.1.

 

***

***

***

 

 

(b)  **A truly integratedsurgical/medical group practice model.**  Four (4) months after all the desiredservices of 1-5 above are instituted  andwith the iVOW Program Director integrating and supervising agreed upon MIBSPCoffice personnel,  iVOW will be paid anadditional incentive fee of $***/month. Should there be a change of interest or new direction from the Client(s)which results in any of    ***    above beingforegone or cancelled as service lines then this integration incentive will bepaid four (4) months after  iVOW hasimplemented the remaining services lines.

**(c)           Successful achievement of grants orresearch contracts.**LHH and/or MIBSPC will pay to iVOW a fee equal to$*** per grant or contract for each grant or contract received by LHH or MIBSPCfor which iVOW has participated in the acquisition of such grant or awardand/or provides administrative or operational assistance in the fulfillment ofthe awards operating and/or deliverable requirements. Such fee will be paidupon the receipt of award of such grant or contract from the funder.

 

                7.2           The aforementioned Fees represent thefair market value for the Services provided by iVOW through its ProgramDirector and its corporate administrative consulting team.

 

(a) The amounts provided representthe    ***    for the development andimplementation of the iVOW Center, the    ***   to monies exchanged for the ongoing administrative onsite and the off-siteconsulting services provided by iVOW to assist with the Center’s operation.

 

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7.3            Clients are responsible for an expense in addition toiVOW’s onsite placement personnel reimbursement expense(s), equivalent to ***days wind-down fee i.e., *** months of the then current Fee (Sec. 7.1.1) uponthe termination of the iVOW Center Administrative Program Services Agreement,in accordance with the termination provisions of this Agreement.

 

7.4             The Fee shall be paid to iVOW by the             ***         ofthe month for current month of service. Payments not received by the   ***       of the month shall bear interest at a rate equal to the lesser of oneand one-half percent per month compounded or the highest rate permitted underlaw, accruing from the due date until paid in full.

7.5             Travel expense reimbursement payments shall be due toiVOW upon presentation following receipt by Clients of iVOW’s reimbursementrequest accompanied by appropriate supporting documentation including paidreceipts.  Payments not receivedwithin     ***     days shall bear interest at a rate equalto the lesser of      ***     percent per month compounded or thehighest rate permitted under law, accruing from the due date until paid infull.

7.6             Governmental and Private Payors.  LHH and MIBSPC shall have sole right to andresponsibility for their respective revenue and expenses and shall respectivelybill and collect from all payors (both governmental and private) for all theirrespective Bariatric Services provided to patients.

## 7.7  Books and Records.  Each party shall make its books, records andaccounts related to the provision of services under this Agreement availablefor inspection and examination by the other party or its authorizedrepresentative, at all times during normal business hours, upon seven daysadvance notice to such party for the purpose of verifying the amounts billed orcharged under this Section 7.

# **SECTION 8:  INSURANCE AND INDEMNIFICATION**

8.1  Insurance.

8.1.1        iVOW Liability Insurance.  iVOW shall maintain at all times during theterm of this Agreement and for a period of three (3) years following itstermination (the “Required Insurance Period”), commercial and professionalliability insurance by a New York licensed carrier inclusive of D&O as wellas E&O coverage or a comparable program of self insurance covering allrisks and exposures arising out of the performance of services pursuant to thisAgreement in the amount of ***           ***         per occurrence and        ***     in the annual aggregate.  Coverageshall be for claims made during the Required Insurance Period for servicesrendered during the term of this Agreement. Upon request by LHH and/or MIBSPC, iVOW shall provide either with aninsurance certificate or other applicable document evidencing coverage.

8.1.2          LHH and MIBSPC Liability Insurance.   LHH and MIBSPC shall maintain at all timesduring the term of this Agreement and for a period of three (3) years followingits termination (the “Required Insurance Period”), commercial and professionalliability insurance inclusive of D&O as well as E&O coverage or a selfinsured or pooled program that complies with Medicare or any successor program,covering all risks and exposures arising out of the performance of servicespursuant to this Agreement in the amount                        ***     per occurrence and        ***      in the annual aggregate.  Coverage shall be for claims for servicesrendered during the term of this Agreement. Upon request by iVOW,  and/orMIBSPC provide 

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iVOW with an insurancecertificate or other applicable document evidencing such coverage. Consequentto the bone fide clinical roles of their personnel, LHH and MIBSPC will alsoprovide iVOW upon request with evidence documenting similar coverage levelsof  malpractice insurance for all oftheir respective physicians, clinical employees or Clinicians renderingservices under the auspices of or in conjunction with the Program.

8.2.  Indemnification.

8.2.1        iVOW shall indemnify, hold harmless anddefend  LHH, MIBSPC, their agents andemployees and affiliates from and against any claim, loss, damage, cost,expense or liability, including reasonable attorneys’ fees, arising out of orrelated to the performance or nonperformance of iVOW, its agents and employeesof any services to be performed or provided by iVOW under this Agreement.  However, iVOW shall not be liable to LHH orMIBSPC hereunder for any claim covered by insurance, except to the extent theliability of iVOW exceeds the amount of such insurance coverage.

8.2.2        LHH and MIBSPC shall indemnify, holdharmless and defend iVOW, its agents and employees from and against any claim,loss, damage, cost, expense or liability, including reasonable attorneys’ fees,arising out of or related to the performance or nonperformance of LHH and/orMIBSPC, their agents or employees of any duty or obligation of  LHH and/or MIBSPC under this Agreement.  However, LHH and MIBSPC will not be liable toiVOW hereunder for any claim covered by insurance, except to the extent theliability of LHH and/or MIBSPC exceeds the amount of such insurance coverage.

8.3           The obligations of the parties underSection 8.2 shall survive the expiration or termination of this Agreement.

# **SECTION 9:  TERMINATION**

## 9.1           Termination upon Certain Events.  This Agreement may be terminated by eitherparty hereto upon   ***          prior written notice to the otherparty, upon occurrence of any of the following:

9.1.1        Such other party shall: (i) commencevoluntary proceedings under any applicable bankruptcy, insolvency or othersimilar law now or hereafter in effect; (ii) consent to the entry of an orderfor relief in any voluntary proceedings under any such law; (iii) consent tothe appointment of a receiver, liquidator, assignee, trustee, custodian,sequestrator or similar official for itself or any substantial part of itsproperty; (iv) make a general assignment for the benefit of its creditors; or(v) take any corporate action in furtherance of any of the foregoing; or

9.1.2        Such other party shall fail to performin any material respect any of its obligations hereunder if such failure hascontinued for a period of    ***     days after written notice of suchnon-performance has been given to such non-performing party by the party electingto terminate this Agreement.

9.1.3       Notwithstanding anything to thecontrary contained in this Agreement, if the performance of any Party of anyterm, covenant, condition or provision of this Agreement should (i) jeopardizethe tax-exempt status of the bonds of LHH or (ii) violate any statute,ordinance, or otherwise be deemed illegal by any governmental body or agency(collectively “Jeopardy Event”), then the Parties shall use their best effortsto meet forthwith to attempt to renegotiate this Agreement to remove or negate the effect of the JeopardyEvent;  however, LHH shall have the rightto terminate this agreement if a reasonably and mutually satisfactoryresolution to mitigate or remove said Jeopardy Event cannot be reached by  the Parties.

 

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# **SECTION 9:  TERMINATION**

9.2             Additional Rights of Termination.

                  9.2.1        ThisAgreement may be terminated by either party, (a) upon written notice to theother and without further obligation hereunder (except to the extent accrued tothe date of termination), in the event that the other party fails to obtain ormain­tain the insurance required by Section 9.1 above.

                  9.2.2        ThisAgreement may be terminated by LHH and MIBSPC in accordance with Section 7.1.1of this Agreement.

                  9.2.3        ThisAgreement may be terminated by iVOW on the same terms as afforded LHH andMIBSPC in 7.1.1(i) if LHH and MIBSPC do not utilize their best efforts tosuccessfully implement the Models in Section 7.1.6(a)

9.3           Effect of Termination.  Termination of this Agreement shall notrelieve either party of any obligation to the other party under this Agreementwith respect to services rendered prior to termination.  Under no circumstances shall iVOW havingperformed in good faith, have any obligations to satisfy any outstanding termsof an agreement beyond the    ***    year anniversarydate of the Agreement’s termination effective date.

9.4           Post Termination.  Upon termination, iVOW, MIBSPC and LHH willcooperate to develop and implement a pragmatic process for the dissolution  of the Agreement, and  LHH, MIBSPC and iVOW will return to eachother Party’s Confidential Information in whatever form or format provided tothe other, including but not limited to, templates, forms, community andprofessional education materials, scripts, manuals, computer hardware andsoftware, or at the other company’s option, destroy all of such other party’sConfidential Information, with exception of any computer hardware or software.

9.5           Responsibility for Patients atTermination.  LHH and MIBSPC willcontinue to provide services to the patient who is currently receiving servicesfrom either on the effective termination date of this Agreement until such timeas the services being rendered are completed, under its obligation.  LHH and MIBSPC agree to make reasonable andmedically appropriate provisions for the continued care of any such affectedpatient(s).

# **SECTION 10:  CONFIDENTIALITY AND PROTECTION OF PROPRIETARYINFORMATION**

10.1         iVOW Proprietary Information.  LHH and MIBSPC acknowledge and agree thatiVOW has a proprietary interest in its business systems for operating aBariatric Services program, including all trade secrets, policies, procedures,operating manuals, specifications, software, forms, signs, notices, displays,marketing techniques, outreach materials, financial information, employee information,and other information developed and/or used by iVOW in the furtherance ofProgram operations and in performance of iVOW’s obligations under thisAgreement (collectively the “iVOW Proprietary Information”).  LHH and MIBSPC will maintain the confidentialityof all such iVOW Proprietary Information and shall not divulge such informationto any third parties both during the term of this Agreement and after its  termination except as may be necessary (a)for the dis­charge of its obligations under this Agreement and (b) under law.LHH and MIBSPC will retain the iVOW Proprietary Information at its premises atthe address designated below and shall take reasonable precautions againstdisclosure of any iVOW Proprietary Information to unauthorized persons by anyof its officers, directors, employees or agents.   LHH and MIBSPC will not directly orindirectly, without the express prior written permission of iVOW, use the iVOWProprietary Information for any purpose except as provided herein 

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and,upon termination of this Agreement for any reason, LHH and MIBSPC shall ceaseall use of any of the Proprietary Information and shall return to iVOW anycopies thereof.

  10.2      LHH and MIBSPC Proprietary Information. iVOW acknowledges and agrees that in the course of performance underthis Agreement, iVOW may have access to certain information proprietary to LHHand/or MIBSPC, including but not be limited to trade secrets, policies,procedures, operating manuals, specifications, software, business or strategicplans, budgets, salary information, contractual arrangements or negotiations, patientnames, patient lists, price lists, pricing policies, financial information, andemployee information (collectively, the “LHH and/or MIBSPC ProprietaryInformation”). iVOW shall maintain the confidentiality of all such LHH and/orMIBSPC Proprietary Informa­tion and shall not divulge such information to anythird parties, except as may be necessary for the discharge of its obligationsunder this Agreement and under law.  iVOWshall take reasonable precautions against disclosure of any LHH and/or MIBSPC ProprietaryInformation to unauthorized persons by any of its officers, directors,employees or agents.  Upon termination ofthis Agreement for any reason, iVOW shall cease all use of any of LHH and/orMIBSPC Proprietary Information and shall return to LHH and/or MIBSPC any copiesthereof.

10.3         General Confidentiality.  Other than as provided in the marketingprovisions of this Agreement both parties shall acknowledge and treat thebusiness relationship created by and under this agreement as confidential, includingits terms and conditions, unless a duty to disclose is otherwise mandated orcreated by a court of law or by either entity’s license or official obligationset forth by federal or state statutes or otherwise required by the publicdomain inherit for each entity.

10.4         Confidentiality of Patient Recordsand Information.  All Parties shallcomply with any and all federal and state privacy laws and regulations thatapply to the protection of individually identifiable health information.  Patient medical records and other privilegedpatient information shall not be disclosed or utilized by MIBSPC or LHH  or iVOW or their agents or employees exceptas required or permitted by applicable laws and regulations.  iVOW, MIBSPC and LHH will comply with allapplicable requirements of the Health Insurance Portability and AccountabilityAct of 1996, Public Law 104-191 (“HIPAA”), regulations promulgated thereunderby the U.S. Department of Health and Human Services (the “HIPAA Regulations”)and other applicable laws relating to data security and privacy in performingits and his respective obligations under this Agreement.  iVOW acknowledges that it has entered into a BusinessAssociate Agreement (the “Business Associate Agreement”) with LHH and MIBSPCsubstantially in the form attached hereto as Exhibit E.

10.5         Trademarks & Service Marks.LHH and MIBSPCacknowledge that iVOW is the sole and exclusive owner ofcertain trademarks, including iVOW. Inc., iVOW Obesity to Wellness Solutions,and such other marks as may be designated by iVOW for time to time (“theMarks”).  LHH  and MIBSPC are granted a non-exclusive,non-transferable, limited right during the term of this Agreement to use theMarks solely to identify iVOW or the Program. LHH and MIBSPC will adhere to iVOW’s protocols for use of its Marks andwill submit to iVOW for prior approval any written materials not developed byiVOW that use the Marks.  LHH and MIBSPCwill not at any time do or suffer to be done any act or thing that would impairthe rights of iVOW in and to the Marks. The terms of this Section shall survive the termination of thisAgreement.

10.6         Copyright & ProprietaryMaterials.  iVOW will make availableto LHH and MIBSPC certain copyrighted and/or proprietary materials owned byiVOW, including but is not limited to, manuals, forms, commercial scripts,marketing plans, software and data.  iVOWgrants to LHH and MIBSPC a non-exclusive, non-transferable, limited right forthe term of this Agreement to use copyrighted and/or proprietary materials solelyfor use in connection with the Program. LHH and 

 

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MIBSPC understand andacknowledge that such copyrighted and proprietary materials shall remain theexclusive property of iVOW.  The terms ofthis Section shall survive the termination of this Agreement.

10.7         Program Name.  The name of the of the Program will be TheiVOW Center at  LHH or the LHH iVOWCenter and Program.  The Program name maybe used in publications, advertisements and periodicals.  LHH’s or MIBSPC’s use of the Program namewill comply with protocols for font, logo, design, and layout as specified andapproved by iVOW.

10.8         Equitable Relief andIndemnification.  Each of the Partiesacknowledges and agrees that due to the unique nature of its ProprietaryInformation there can be no adequate remedy of law for any breach of itsobligations hereunder, that any such breach may allow the breaching Party orthird parties to unfairly compete with the non-breaching Party resulting inirreparable harm to the non-breaching Party that cannot be adequatelycompensated.  Therefore, upon any suchbreach or any threat thereof, the non-breaching Party shall be entitled toappropriate equitable relief in addition to whatever remedies it might have atlaw and to be indemnified by the breaching Party from any loss or harm,including without limitation, attorney’s fees, in connection with any breach orenforcement of the breaching Party’s obliga­tions hereunder or the unauthorizeduse or release of any such Proprietary Information.  Each Party will notify the other Party inwriting immediately upon the occurrence of any unauthorized release or otherbreach of which it is aware.

# **SECTION 11:  GENERAL PROVISIONS**

 11.1        PatientRecords.  Any and all patient recordsand charts produced as a result of either party’s performance under thisAgreement shall be and remain the property of MIBSPC and/or LHH.

 11.2        GovernmentAccess to Books and Records.  For thepurpose of implementing Section 1861(v)(1)(I) of the Social Security Act(42 U.S.C. § 1395x(v)(1)(I)), iVOW shall, until the expiration of four (4)years after the furnishing of services pursuant to this Agreement, upon writtenrequest, make available to the Secretary of the U.S. Department of Health andHuman Services (HHS) or to the Comptroller General of the United States, or totheir duly authorized representatives, this Agreement and such books, documentsand records that are necessary to certify the nature and extent of services andcosts under this Agreement and, if iVOW carries out any of its duties underthis Agreement through a subcontract with a related organization with a valueof or cost of $10,000 or more over a twelve-month period, such subcontractshall require the related organization to provide the HHS Secretary or theComptroller General or their duly authorized representatives, the subcontract,and such books, documents and records that are necessary to certify the natureand extent of such costs.

11.3           Patient Care. Nothing in this Agreement shall dictate how MIBSPC or LHH or anyphysician or any clinician shall practice medicine, deliver patient care, orexercise clinical or medical judgment. LHH, MIBSPC and the patient’s physicians shall have complete control overthe diagnosis and treatment of all Program Patients.  iVOW does not practice medicine and acceptsand desires no role explicit or implicit in the clinical practice of medicineper se performed by any of the Physicians, Clinicians, or other  the clinical practitioners.

11.4         Relationship of the Parties.  This Agreement does not constitute eitherParty hereto as the agent, legal representative, partner or joint venture ofthe other Party and neither Party hereto is granted any right or authority toassume or create any obligation for or on behalf of, or in the name of, or inany way to bind the other without the specific written consent of the other.

11.5         Dispute Resolution.  If any dispute, controversy or claim arisesout of this Agreement, the parties shall first use their good faith efforts toresolve the dispute.  In the event ofsuch a dispute, either 

 

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party may notify the otherthat a dispute exists and, within ten (10) days, the parties shall meet and usebest efforts to resolve the dispute.  Ifthe parties are unable to resolve the dispute, the matter shall be submitted the American Health Lawyers Association(“AHLA”) Dispute Resolution Service utilizing three (3) arbitrator(s) who shallbe chosen from a list of arbitrators maintained by the AHLA and are mutuallyacceptable to both parties.  In the eventmutually acceptable arbitrators cannot be selected, the Parties will utilizethe standard AHLA procedures for the selection of arbitrators.  Arbitration shall commence within thirty (30)days of notice and shall take place at a mutually convenient setting in theCounty of New York, New York, unless otherwise agreed by the parties.  The costs of arbitration, excluding eachparty’s attorney, experts and witness fees, shall be shared equally by eachparty to the arbitration.  Each partyshall be responsible for paying the costs of its own attorneys, experts, andwitnesses.  A decision of the arbitratorsshall be final and binding upon the parties and may be reduced to judgment andfiled and enforced in any court of appropriate jurisdiction.  The parties agree that the arbitrators shallnot be authorized to award punitive changes.

11.6         Successors and Assigns.  This Agreement shall inure to the benefit of,and be binding upon, the respective successors and assigns of the Partieshereto.

11.6.1  This agreement is not assignable withoutprior written consent of the other Party, with the exception of an assignmentby iVOW to an entity directly owned or controlled by, or which owns orcontrols, or which is under the common ownership or control of iVOW.  Additionally, there is an exception of anassignment by LHH or MIBSPC to an entity directly owned or controlled by, orwhich owns or controls, or which is under the common ownership or control ofLHH or MIBSPC.  Notice shall be providedto the other Party with regard to such permitted assignments.

11.7           Notices.  Allnotices and other communications under this Agreement shall be given in writingand shall be deemed duly given when delivered, if delivered in person, uponreceipt if receipted overnight mail,  orfour (4) days after being deposited, with first class postage thereon prepaid,in the U.S. mail if mailed by certified mail, return receipt requested,addressed as follows:

 
| **If to iVOW:**   |                                                        | iVOW, Inc.                 |                                     |   |   |   |
|-------------------|-------------------------------------------------------------|----------------------------|------------------------------------------|--------|--------|--------|
|              |                                                        | 2101 Faraday Avenue        |                                     |   |   |   |
|              |                                                        | Carlsbad, California 92008 |                                     |   |   |
|              |                                                        | Attention:                 | Michael H. Owens, M.D.,  MPH, FACPE, CPE |   |   |
|              |                                                        |                       | President and CEO                        |   |   |   |
|              |                                                        |                       |                                     |   |   |   |
| **If to LHH:**    |                                                        | Lenox Hill Hospital        |                                     |   |   |
|              |                                                        | 100  East 77th Street      |                                     |   |   |
|              |                                                        | New  York, New York 10021  |                                     |   |
| ** **        |                                                        | Attention:                 | Mr.  Philip P. Rosenthal                 |   |   |   |
|              |                                                        |                       | Vice  President, Operations              |   |   |
|              |                                                        |                       |                                     |   |   |   |
| **If to  MIBSPC** | Manhattan  Minimally Invasive & Bariatric Surgery, P.C. |                       |                                     |
|              |                                                        | 100  East 77th Street      |                                     |   |   |   |
|              |                                                        | New  York, New York 10021  |                                     |   |   |
| ** **        | ** **                                                  | Attention:                 | Mitchell  Roslin, M.D.                   |   |   |   |
|              |                                                        |                       | President  MIBSPC                        |   |   |   |
|              |                                                        |                       | Chief  Obesity Program at LHH            |   |   |
|                   |                                                             |                            |                                          |        |        |        |  |

 

 

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The Parties acknowledge and agree that proof of suchmailing shall constitute proof of receipt. The Parties shall be responsible for notifying each other promptly inwriting of any change of address.

11.8         Entire Agreement.  This Agreement contains the entire agreementbetween the Parties hereto with regard to the subjects hereof and supersedesall prior agreements and understandings both written and oral.  Each Party to this Agreement acknowledgesthat no representations, inducements, promises, or agreements, oral orotherwise, have been made by either Party, or anyone acting on behalf of eitherParty, which are not embodied herein, and that no other agreement, statement,or promise not contained in this Agreement shall be valid or binding. ThisAgreement may not be modified orally or in any other manner except by anagreement in writing signed by all Parties or their respective successors ininterest.

11.9         Counterparts.  This Agreement may be executed in severalcounterparts, each of which shall be an original, but all of which shallconstitute but one and the same instrument.

11.10       Severability.  Nothing contained in this Agreement shall beconstrued to require the commission of an act contrary to law, and wheneverthere 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 anyprovision 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 theextent necessary to bring it within the requirements of the law and, insofar aspossible under the circumstances, to carry out the purposes of thisAgreement.  The other provisions of thisAgreement shall remain in full force and effect, and the invalidity orunenforceability of any provision hereof shall not affect the validity andenforceability of the other provisions of this Agreement, nor the availabilityof all remedies in law or equity to the Parties with respect to such otherprovisions.

11.11       Contract Modifications for ProspectiveLegal Events.  In the event(a) any state or federal laws or regulations, now existing or enacted orpromulgated after the effective date of this Agreement, are interpreted byjudicial decision, a regulatory agency or legal counsel of all Parties in sucha manner as to indicate that the structure of this Agreement may be inviolation of such laws or regulations, or (b) a material change incircumstances occurs which requires a change in the relationship between LHH,MIBSPC and iVOW, then LHH, MIBSPC and iVOW shall negotiate with each other ingood faith to amend this Agreement, to the maximum extent possible, to preservethe underlying economic and financial arrangements between LHH, MIBSPC andiVOW.  Until the earlier to occur of oneyear following such change of law or circumstances or the Parties’ reasonabledetermination that they are unable to restructure their relationship in amanner that complies with applicable law, no Party shall negotiate with anyother person with respect to entering or creating any arrangements involvingthe subject matter hereof unless the Party first obtains the approval of theother Parties hereto.  If an amendment isnot possible, any Party shall have the right to terminate this Agreement uponthirty (30) days’ written notice to the other Parties.

11.12       Force Majeure.  If any Party fails to perform any such obligationsunder this Agreement due to any cause beyond the reasonable control of suchParty, including, but not limited to, an act of God, act or omission of civilor military authorities of the state in which LHH is located or the UnitedStates of America, fire, strike, flood, riot, delay of transportation, or theinability due to the aforementioned causes to obtain necessary labor, materialor facilities, such Party will not be deemed liable under this Agreement forfailing to fulfill such obligations.

11.13       Governing Law.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of New York (withoutreference to conflicts of law principles).

 

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11.14       Headings.  Headings or titles of the sections hereof arefor convenience only and shall not be construed to modify or otherwise affectthe terms hereof.

11.15       Interpretation. Each Party to thisAgreement acknowledges that it has been represented by counsel in connectionwith this Agreement and the transactions contemplated by this Agreement.

11.16       Jurisdiction and Venue.  The proper venue for any suit, action orlegal proceeding arising out of or relating to this Agreement shall be broughtin New York, New York.

11.17       Independent Contractor.  Neither LHH, MIBSPC or any of the physiciansor Clinicians providing services at the Program are or shall be an employee,agent or servant of iVOW; instead LHH, MIBSPC and such physicians/Cliniciansare independent contractors who are providing services on a fee for servicebasis to Program patients or employees of LHH or MIBSPC.  Furthermore, iVOW is not and shall not be anemployee, agent, servant of LHH or MIBSPC or such physicians or clinicians; insteadit is an independent contractor providing administrative services to LHH andMIBSPC on a fee for service basis.

11.18       Ethics.  iVOW agrees not to advertise, disclose, orotherwise discuss this Agreement and its business relationship with LHH, MIBSPCand/or their affiliates except as otherwise herein specified without priorwritten consent of LHH’s Chief Operating Officer or VP of Operations and/or thePresident of MIBSPC.  Any violation ofthis provision shall be considered a material breach of the Agreement,conferring on LHH and MIBSPC the right to cancel this Agreement immediatelywithout further obligation to iVOW and to seek any other legal recourseavailable to them.

11.18.1   LHH and MIBSPC agree not to advertise,disclose, or otherwise discuss this Agreement and its business relationshipwith iVOW and/or its affiliates except as otherwise herein specified withoutprior written consent of iVOW’s President and/or Chief Executive Officer.  Any violation of this provision shall beconsidered a material breach of the Agreement, conferring on iVOW the right tocancel this Agreement immediately without further obligation to  LHH and/or MIBSPC  and to seek any other legal recourseavailable to it.

 

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**IN WITNESS WHEREOF**, the partieshave executed this Bariatric Administrative Services Agreement as of the firstdate referenced above.

 
| **For CLIENTS:**              |                | **For CONTRACTOR:**                           | ** ** |
|-------------------------------|---------------------|-----------------------------------------------|------------|
| ** **                    |                | ** **                                    | ** ** |
| ** **                    |                | ** **                                    | ** ** |
| By:                           | /s/ Mitchell Roslin |                                          | By:        | /s/ Michael H. Owens | ** ** |
| Mitchell Roslin, MD           | ** **          | Michael. H. Owens, MD,  MPH, FACPE, CPE  | ** ** |
| Title: President MIBSPC  |                | Title: President and CEO  IVOW, Inc.          |       |
| Chief Obesity Program         |                |                                          |       |
| at Lenox Hill Hospital        |                |                                          |       |
|                          |                |                                          |       |
|                               |                     |                                               |            |  |  |

 

 

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# **EXHIBIT A:**

# **LHH—EMPLOYEDPERSONNEL AND DESIGNATED MEDICAL DIRECTOR APPOINTEE**

LHH and MIBSPC will ensurethe employ of the following staff consistent with Section 4, and its respectivesubsection 4.4.  Consistent withsubsection 4.4.1, LHH and MIBSPC shall also appoint a Medical Director, who maynot be an employee, but for whom LHH and/or MIBSPC will bear all expenses toretain.  The FTEs described at start upand the incremental increases thereafter are consistent with the “Blueprint”submitted to  LHH and MIBSPC.  Not incorporated herein is the inclusion ofacute care nursing hours attributed to incremental increases in caseload.

 

Advanced Practice Clinician-    ***    at Program start

Receptionist —    ***   at Program start, then increases based on an incremental caseload

Customer ServiceRepresentative -    ***    at start-up, then increasesbased on incremental caseload

Registered Dietician -    ***   at Program start, then increases based on an incremental caseload

Patient Educator -    ***   at Program start

Medical Director - A MedicalDirector shall be so named, consistent with Section 4 the BariatricAdministrative Services Agreement.

**Registered Nurse -    ***   at Program start

 

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***Placementof a Registered Nurse employed by LHH or MIBSPC should be negotiated based onProgram features.  If, for example,clinical services are rendered at the MIBSPC Program site, then MIBSPC wouldlikely employ an appropriate clinician to render such services.*

***Portions of this page have been omitted pursuant to a request forConfidential Treatment filed separately with the Commission.

 

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# **EXHIBIT B:**

**LHH BLUEPRINT delivered toClients on March 28,2005 by Fed Ex**

 

 

**[Diagram]**

** **

 

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**EXHIBIT C**:

# **COMMUNITYRELATIONS AND EDUCATIONAL PLAN ACTIVITIES:**

MIBSPC and LHH and iVOWshall agree on a number of marketing initiatives as outlined under Subsection6.1 of Section 6 of the Bariatric Administrative Services Agreement. Providedbelow are a listing of endeavors for discussion:

The community relations andeducation plan shall include some or all of the following activities:

   ***   

   ***   

   ***   

   ***   

   ***   

   ***   

   ***   

   ***   

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***Portions of this page have been omitted pursuant to a request forConfidential Treatment filed separately with the Commission.

 

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# **EXHIBIT D:**

# **TRAININGMATERIALS**

MIBSPC, LHH and iVOW willagree on a number of training initiatives as outlined under Subsection 6.9 ofSection 6.0 of the Bariatric Administrative Services Agreement, with furtherand specific mutual agreement by iVOW and MIBSPC and LHH.  Provided below are a listing of trainingmaterials which iVOW shall provide MIBSPC and LHH’s staff for their training:

•             ***   

•             ***   

•             ***   

•                  ***   

 

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***Portions of this page have been omitted pursuant to a request forConfidential Treatment filed separately with the Commission.

 

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# **EXHIBIT E:**

# **LHH BUSINESSASSOCIATE AGREEMENT**

 

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