Exhibit 10.45


 


PET CT
Management Services Agreement


 


This PET / CT
Management Services Agreement (this “Agreement”) is made the 1st day
of August, 2005 (the “Effective Date”), by and between JAXPET, LLC, a Florida
limited liability Company and a wholly owned subsidiary of OnCURE Medical
Corp., a Delaware corporation (“ONCURE”), and Integrated Community Oncology
Network, LLC, dba PET/CT Center of North Florida and Cyclotron Center of North
East Florida (“ICON”).


 


RECITALS


 


(a)           ICON (or its
affiliated entity) owns and operates a mobile state-of-the-art Siemens Biograph
Positron Emission Tomography / CT (“PETCT”) imaging facility (the “Mobile Unit”),
which operates at selected Centers in Northern Florida, including at radiation
centers owned and operated by ONCURE (or its affiliated entities) located at
Palatka, Southside, Wells, Beaches, St. Augustine, and Orange Park (the “Centers”).


 


(b)           ICON (or its
affiliated entity) owns and operates a validly existing Florida Cylcotron
business (“Cyclotron”), formed for and engaged in the manufacturing and
production of FDG, and is licensed to by the state of Florida to produce FDG.
Cyclotron currently supplies FDG to ICON for its Mobile Unit.


 


(c)           ONCURE provides
management services to the PETCT Mobile Unit pursuant to the agreement dated March 1st, 2004, by and between
ONCURE, ICON (its predecessor) and Cyclotron (“Original Agreement”).


 


(d)           ONCURE owns an
older Siemens Ecat PET unit, serial number 1027, which is out of service and
not being utilized at the Centers (“Old PET”). ONCURE has agreed to sell the
Old PET as a trade-in to Siemens, and ICON has agreed to buy from Siemens a new
PET CT unit pursuant to the Siemens agreement dated March 2005 (“Siemens
Agreement”). ICON will utilize the new PET CT (“Second Mobile Unit”) at the
Centers. As part of the Siemens Agreement, Siemens will pay off in full
satisfaction the existing Marcap debt of approximately $ 600,000 on the Old
PET, and cause the $ 200,000 letter of credit to be released to ONCURE as part
of the Siemens Agreement. As part of mutual consideration of the Siemens
Agreement, OnCURE and ICON have agreed to revise the Original Agreement into
this Agreement. This Agreement is subject to the final execution of the Siemens
Agreement, delivery of the Second Mobile Unit and payoff of the Marcap debt.


 


NOW, THEREFORE, in consideration of the foregoing
and of the respective covenants and undertakings hereunder and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, intending to be legally bound, the parties hereto do hereby agree
as follows:


 


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1.01        FDG Supply.  Cyclotron has a valid license to produce FDG
in the State of Florida, and will provide FDG to the Mobile Unit, the Second
Mobile Unit, and any future PET unit, at a price equal to the cost to produce
such FDG.


 


1.02        Management
Services Provided by ONCURE.  Pursuant to the Agreement, ONCURE will act as
the exclusive manager and administrator of the Mobile Unit, Second Mobile Unit
and Cyclotron with respect to the administrative day-to-day operations of the
facilities. ONCURE will be responsible for providing: (i) all employees
and human resources; (ii) marketing; (iii) payroll/ADP and bookkeeping
services as necessary to compile monthly financial information; (iv) manage
all personnel; (v) supervise the purchasing of inventory and supplies for the
Facility; (vi) supervise and maintain custody of substantially all of the
accounting, billing, collection, and FDG patient records and files; and (vii) any
other administrative duties deemed necessary by ICON for the Mobile Unit,
Second Mobile Unit and Cyclotron. All operating expenses of the Mobile Unit,
Second Mobile Unit and Cyclotron, which expressly excludes the Management Services
Fee (but includes all radiology reading fees), will be paid for solely out of
the proceeds of the Mobile Unit, Second Mobile Unit and Cyclotron net revenues,
which will be billed and collected by ONCURE.


 


1.03        Staff Costs.  ONCURE, or its affiliates, agrees to provide
staff for the Mobile Unit, Second Mobile Unit and Cyclotron (“Leased Employees”).
ONCURE, ICON and Cyclotron will jointly determine the positions and
requirements of the Leased Employees, however, the supervision and clinical
control over the Leased Employees will be the responsibility of ICON. The
Leased Employees shall be deemed employees of ONCURE or its affiliate, and
subject to the employee benefits and regulations of ONCURE or its affiliate.
ONCURE will invoice on a weekly basis, and ICON and Cyclotron will compensate
ONCURE on a weekly basis for the exact cost of the Leased Employees.


 


1.04        Management
Services Fee.  ICON and
Cyclotron shall pay to ONCURE in consideration for performing its services
under this Agreement, a fee equal to fifteen percent (15%) of EBITDA [defined
as earnings from operations before interest, taxes, depreciation, and
amortization, based upon the accrual method of accounting in accordance with
generally accepted accounting principles, and including the debt service costs
of the Mobile Unit, Second Mobile Unit and the Cyclotron] (“Management Services
Fee”). The Management Service Fee will be paid to ONCURE within 15 days
following the end of each month.


 


1.05        Reasonable
Value.  Payment of the Management
Services Fee is not intended to be and shall not be interpreted or applied as
permitting ONCURE to share in ICON fees for PETCT, nor for ONCURE to share in
Cyclotron’s fee for FDG, or any other services, but is acknowledged as the
parties’ negotiated agreement as to the reasonable fair market value of the
management services provided by ONCURE pursuant to this Agreement, considering
the nature of the services required.


 


1.06        Term.  This Agreement shall commence on the Effective
Date and terminate ten (10) years thereafter, unless extended by mutual
agreement (the “Term”);


 


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1.07        Termination by
Agreement.  In the
event ONCURE and ICON and Cyclotron shall mutually agree in writing, this
Agreement may be terminated on the date specified in such written agreement.


 


1.08        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 use their best efforts to 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 are unable to reach a new agreement within a reasonable time, then
either party may submit the issue to arbitration for the purpose of reaching an
alternative arrangement that is equitable under the circumstances.


 


1.09        Termination for
Cause.  Either Party may terminate
this Agreement immediately upon the occurrence of any of the following events
with regard to the other Party: (i) the making of a general assignment for
the benefit of creditors; (ii) the filing of a voluntary petition or the
commencement of any proceeding by either Party for relief under any bankruptcy
or insolvency laws, or any laws relating to the relief of debtors, readjustment
of indebtedness, reorganization, composition or extension; (iii) the
filing of any involuntary petition or the commencement of any proceeding by or
against either Party for relief under any bankruptcy or insolvency laws, or any
laws relating to the relief of debtors, readjustment of indebtedness,
reorganization, composition or extension, which petition or proceeding is not
dismissed within ninety (90) days of the date on which it is filed or
commenced.


 


1.10        Mutual
Exclusivity.  ONCURE, ICON,
and Cyclotron hereby agrees the Agreement is mutually exclusive, and that ICON
and Cyclotron will not employ or otherwise utilize another party to manage the
Mobile Unit, Second Mobile Unit, Cyclotron, or any future unit, and further,
the parties agree that they will not compete with each other in Northeast
Florida. ONCURE agrees that its management services are exclusively for ICON
and Cyclotron, and ONCURE will not engage in any competing PET/CT or Cyclotron
business in Northeast Florida.


 


1.11        Parties Bound.  This Agreement shall be binding upon and inure
to the benefit of the parties and their respective heirs, executors,
administrators, successors, and permitted assigns.


 


1.12        Amendments.  This Agreement may be amended at any time by
written consent of both parties.


 


1.13        Conformance
With Law.  Each party
shall carry out all activities undertaken by it pursuant to this Agreement in
conformance with all federal and state government laws, rules, and


 


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regulations; provided, however, nothing contained in
this Agreement shall prevent either party from initiating legal action to test
the validity of any such law, rule, or regulation.


 


1.14        Entire
Agreement.  This
Agreement, together with any attachments and exhibits, contains the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings, whether
oral or written, with respect to the subject matter hereof.


 


1.15        Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. Venue for any
action by any party, whether at law or in equity, shall be in Duval County,
Florida.


 


1.16        Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.


 


1.17        Notices.  Any notices required pursuant to this
Agreement shall be in writing and shall be hand delivered or sent by (i) certified
mail, return receipt requested, (ii) overnight express delivery service,
or (iii) facsimile, at the addresses and numbers set forth below (or at
such other address or number as either party may designate to the other party
in writing):


 


If to ICON - PET/CT Center of North Florida, LLC:


 


Shyam B. Paryani, M.D.


3599UniversityBlvd.South


Suite#1000


Jacksonville, FL 32216


Phone-(904)346-3338


Fax-(904)346-3812


 


If to ONCURE:


Jeffrey A. Goffman,
President


610 Newport Center Drive


Newport Beach, CA 92660


Phone-(949)721-6540


Fax-(949)721-6541


 


Notices shall be deemed to have been given, and shall be effective,
upon receipt by other party.


 


IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed personally or by their duly authorized officers or agents.


 


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  ICON dba PET/CT Center of
  North Florida

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shyam B. Paryani

  
	
   

  	
   

  	
  Shyam B. Paryani 

  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  8/1/05

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OnCURE Medical Corp &
  JAXPET, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Goffman

  
	
   

  	
   

  	
  Jeffrey A. Goffman 

  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  8/4/05

  



 


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