Exhibit 10.54


 


EXECUTION
COPY


 


INDEPENDENT CONTRACTOR AGREEMENT


 


THIS INDEPENDENT CONTRACTOR
AGREEMENT (the “Agreement”) is entered into as of the 18th day of October,
2005, by and between Ambergris, LLC, a West Virginia limited liability company
(“Ambergris”) and Katin Radiation Therapy, P.A., a Maryland professional
corporation duly qualified to do business in West Virginia (the “P.A.”).


 


WITNESSETH:


 


1. Ambergris owns and
operates a free standing radiation therapy center located at 2000 Foundation
Way, Suite 1100, Martinsburg, West Virginia (the “Facility”).


 


2. The P.A. is in the
business of providing professional medical services within the specialty of
radiation oncology through its duly licensed physician-employees (the “Physicians”).


 


3. Ambergris desires to
engage the P.A. as an independent contractor upon the terms and conditions
hereafter set forth to provide radiation oncology services to patients at the
Facility, and the P.A. desires to accept such engagement.


 


NOW,
THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby mutually acknowledged, the parties hereto agree as follows:


 


ARTICLE 1. RETENTION OF THE P.A.


 


Commencing on the 1st day
October, 2005 (the “Commencement Date”), upon the terms and conditions set
forth herein, Ambergris hereby retains the P.A. as an independent contractor
during the Term, for the purpose of having the P.A. render radiation oncology
medical services (referred to hereafter as “Services”) to those members of the
general public for whom such Services are to be provided at the Facility
(referred to hereafter as “Patients”).


 


ARTICLE 2. DUTIES OF THE P.A.


 


2.1 Professional Services.
The P.A. agrees to provide, or arrange to be provided, Services at the Facility
through such number of Physicians and during such hours each day during each
week during the term of this Agreement as may be necessary to meet Patient
demands and needs, but in no event shall it provide less than four (4) hours
of Services during each such weekday and otherwise at all times in compliance
with Section 3.5 and Section 3.6. The P.A. will also arrange to have
a Physician on call during the Term of the Agreement such that the Physician
will be accessible by telephone in rendering Services, the P.A. will comply,
and will cause each Physician employed by, or under contract to it to provide
Services at the Facility to comply, with all policies, standards and
regulations established by Ambergris, including any and all credentialing
requirements, quality assurance, and utilization review procedures which are
imposed or instituted by Ambergris. The P.A. will also comply, and will cause
each Physician to comply, with such standards of care in the community, professional
ethics, standards, regulations, administrative instructions, and practices as
may be adopted from


 

















 


time to time by all relevant
local, State and federal regulatory agencies, professional associations and
societies, and accrediting agencies having jurisdiction over the Facility,
Ambergris, the P. A., or the Physicians, and the requirements of all managed
care organizations.


 


2.2 Additional Duties.
The duties of the P.A. and the Physicians shall also include, without
limitation, promoting the consistency of Services and standardization and
uniformity of the administration of Services, providing efficiency in the
operation of the Facility, evaluating diagnostic tests and treatment results
and providing therapeutic care, supervising the hiring and training of medical
staff and technical staff, establishing and maintaining the required treatment
protocols, evaluating the appropriateness of radiation oncology treatments for
Patients, assisting the Facility’s billing staff to obtain pre-approval from insurance
carriers, and supervising the actual Services and any follow-up Services.


 


2.3 Group Practice.
The P.A. hereby confirms that it is, and agrees that it will continue to be, a
group practice as defined under 42 U.S.C. §1395nn and the regulations issued
thereunder (the “Stark Act”); that its Group Provider Number is 649L and
Federal Identification Number 52-2110080, the P.A. hereby further confirms that
it has required, and agrees that it will require, each Physician to assign to
it its right to bill the Medicare, Medicaid and other governmental programs and
Payors as defined in Section 2.20 of this Agreement.


 


2.4 Medical Records.
The P.A. shall cause the Physicians to timely document and maintain appropriate
medical records relating to all Services rendered by the Physicians under this
Agreement.


 


2.5 Reports. The P.A.
will cause the Physicians to timely prepare and submit such additional reports
as may be required by Ambergris from time-to-time.


 


2.6 Credentials. The
P.A. will cause each Physician to maintain at the Facility a current and bona
fide copy of Physician’s license to practice medicine in the State of West
Virginia and medical staff privileges and such other evidence of Physician’s
training and authorization to perform his duties under this Agreement as
Ambergris shall request.


 


2.7 Public Image. The
P.A. shall cause each Physician to promote and maintain for himself, for the
P.A., and for Ambergris a public image and reputation of excellence in the
health care community and the general public.


 


2.8 Timely Notice.
The P.A. shall notify and shall cause each Physician to notify in a timely
manner Ambergris of any event, including but not limited to, any change in
Physician’s physical or mental health, error, omission, action, act or alleged
act of material practice, failure to act, or other incident or occurrence that
may adversely affect any Physician, any Patient, the Facility, and/or
Ambergris,


 


2.9 Licensure. The
P.A. warrants and covenants that during the Term of this Agreement each
Physician who provides Services at the Facility (i) has, and will maintain
in good standing and without restriction during the Term of this Agreement, an
unrestricted license to practice medicine in West Virginia; (ii) is and
will continue to be board certified (or board eligible with certification to be
received within eighteen (18) months of the date on which Physician first
becomes board eligible) in therapeutic radiology by the American Board of


 


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Radiology with appropriate
training in radiation oncology; and (iii) has and will maintain medical
staff privileges at the facilities listed on Schedule A.


 


2.10 Medicare/Medicaid
and other Programs. The P.A. shall maintain, and shall cause each Physician
to maintain, its and Physician’s unrestricted eligibility to participate in the
Medicare and Medicaid programs, as well as Physician’s eligibility to
participate in such other Payor Contracts as described in Section 2.20.


 


2.11 Other Duties.
The P.A. shall cause each Physician to faithfully perform such additional
duties, pursuant to the terms of this Agreement and the intent of the parties,
as are reasonably related to Physician’s duties hereunder, to the best of his
ability and to the reasonable satisfaction of Ambergris.


 


2.12 Authority.
Neither the P.A. nor the Physician shall have no authority to enter into any
contracts binding upon Ambergris or to create any obligations or encumber any
of the assets of Ambergris.


 


2.13 Compliance with Laws.
In the performance of its responsibilities under the Agreement, the P.A. shall
comply and shall cause each Physician to comply with the requirements of all
applicable Federal, state and local laws, rules and regulations, and
published official interpretations of the foregoing, including without
limitation, those including the licensure and regulation of hospitals,
outpatient diagnostic centers and physicians, and those prohibiting employment
discrimination, discrimination against Patients, those prohibiting kick-backs
and remuneration for referral of Patients, and shall comply with the
requirements of the Medicare and Medicaid programs, and the standards of any
accrediting agency having jurisdiction over Ambergris, the P.A. or the
Physician.


 


2.14 Malpractice
Insurance.


 


2.14.1 Professional
Liability Insurance. The P.A. will, at its sole cost and expense, provide
and maintain in good standing professional liability (“malpractice”) insurance
during the Term of this Agreement covering each of the Physicians while
such Physician is employed by, or under contract to, the P.A. in the minimum
amount of One Million Dollars ($1,000,000) per occurrence and Three Million
Dollars ($3,000,000) in the aggregate, or such greater amounts as may be
required by law. The P.A. shall promptly furnish Ambergris with a certificate
of such insurance upon the request of Ambergris.


 


2.14.2 Prior Acts
Coverage. If the insurance coverage acquired under Subsection 2.14.1 above
is claims made, and not occurrence coverage, then upon the termination of this
Agreement for any reason whatsoever, the P.A. shall secure and maintain in
effect for its benefit, the benefit of the Physicians, and Ambergris, prior
acts coverage (tail insurance coverage) for a period of seven (7) years
after the date of termination, in the amount of malpractice insurance coverage
then in effect at the time of the termination of this Agreement for any acts of
malpractice alleged to have been committed by the P.A. or any Physician during
the term of this Agreement. The P.A. shall promptly provide, upon the request
of Ambergris, a certificate of such insurance.


 


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2.15 P.A. Responsibility.
The P.A. shall be responsible for the payment of all compensation and benefits
of every type and nature due the Physicians for providing the Services under
this Agreement, including, for example (i) salaries and bonuses; (ii) all
health, life, professional, medical, malpractice and disability insurance and
workers’ compensation insurance; (iii) all professional dues; (iv) all
professional and medical licensure fees and expenses; (v) all beeper,
answering services, paging and mobile phone expenses; (vi) all continuing
medical education costs; (vii) all travel and entertainment expenses; (viii) all
FICA, Federal, withholding, Medicare and other taxes pertaining to the
employment of the Physicians by the P.A.; (ix) all medical staff dues,
journals, publications, board certification fees; (x) federal, state or
local income taxes of West Virginia; (xi) liability judgments against the
P.A. or any of the Physicians; and (xii) all other expenses incurred by
the P.A. and the Physicians providing the Services.


 


2.16 Recruitment of
Physicians. The P.A. shall, at its sole cost and expense, be responsible
for recruitment and retention of those physicians necessary to provide the
Services under this Agreement.


 


2.17 Conduct of Medical
Practice. The P.A. and the Physicians alone will be solely and exclusively
responsible for, and shall have exclusive control of, all aspects of the
practice of medicine and the provision of Services to the Patients at the
Facility. Ambergris shall not interfere with the exercise by the Physicians of
their professional judgment, nor with Ambergris interfere with, control,
direct, or supervise the Physicians or any other professional in connection
with the care and treatment of the Patients.


 


2.18 Quality Management.
Continuous Improvement Risk Management, Utilization Review and Cost Containment.
The P.A. shall, and shall cause each Physician to, assist them and cooperate
with quality management, continuous improvement, risk management, utilization
review and cost containment policies, procedures and programs adopted
periodically by Ambergris.


 


2.19 Medical Director.
During the Term of this Agreement, a Physician selected by the P.A., with the
approval of Ambergris, which approval shall not be unreasonably withheld, shall
serve as the medical director of the Facility. Such services performed by such
Physician as an employee of the P.A. and not as an employee of Ambergris. The
medical director shall work with Ambergris in creating and implementing medical
quality assurance programs and utilization review programs with respect to the
provision of Services at the Facility and to assure that the Physicians comply
with such medical quality assurance programs and utilization review programs at
the Facility. The medical director will also advise the P.A. and Ambergris with
an on-going assessment of staffing needs and adjustments as appropriate to meet
the needs of the Patients and the obligations of the P.A. hereunder and to work
with Ambergris to continuously improve Patient relations, and referring
Physician and Facility relations.


 


2.20 Payor Contracts.
If Ambergris elects to accept a Payor Contract, as hereafter defined, then the
P.A. shall, and cause each Physician to, execute and deliver such agreement or
otherwise become a participating provider under such Payor Contract. The P.A.
shall assist Ambergris in securing such Payor Contracts as Ambergris shall request
or otherwise designate. For purposes hereof, a “Payor Contract” is an agreement
for the provision of health care services


 


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where the health maintenance
organization, preferred provider organization, exclusive provider organization,
employer, or other third party payor is obligated for the provision of, or
payment, or reimbursement for, the  provision
of health care services including professional radiation therapy services, and
the professional and technical components thereof.


 


2.21 Removal. The
P.A. shall promptly, and thereafter continuously, prohibit any Physician from
providing Services under this Agreement at the Facility when and if (i) requested
to do so in writing by Ambergris, or (ii) such Physician is in violation
of any of the P.A.’s warranties and representations in this Agreement as they
apply to such Physician.


 


2.22 Referral Disclaimer.
The amounts paid by Ambergris hereunder have been determined by the parties
through good faith and arms’-length bargaining to be the fair market value for
the Services. The fees have not been determined in any manner that takes into
account the volume or value of any potential referrals between the parties. No
amount paid hereunder is intended to be nor shall it be construed to be, an
inducement or payment for referral of patients or other business generated
between the parties. In addition, the amount charged hereunder does not include
any discount, rebate, kickback or the reduction in charge, and the amount charged
is not intended to be, nor shall it be construed to be, an inducement or
payment for referral of Patients by Ambergris to the PA or any Physician, or by
the P.A. or any Physician to Ambergris.


 


ARTICLE 3. DUTIES OF AMBERGRIS


 


3.1 Facility.
Ambergris shall furnish and equip the Facility with appropriate equipment and
furnishings as are normally found within a radiation therapy center within West
Virginia, and as is otherwise required to be contained therein by any
governmental or quasi-governmental agency, or any accrediting agency, having
jurisdiction over the Facility or Ambergris.


 


3.2 Personnel Services.
Ambergris shall schedule all appointments for Patients seeking Services at the
Facility and shall promptly advise the P.A. of the dates and times of such
Patients for whom it has scheduled an appointment. Ambergris shall also provide
such personnel, including nurses, technical assistants, physicists, and such
other personnel reasonably necessary to assist the P.A. when the P.A. is
providing Services to Patients.


 


3.3 Supplies.
Ambergris shall supply to the P.A. for all Patients treated by the P.A. at the
Facility all supplies and other disposable items required or requested by the
P.A. to provide Services to, or to perform procedures on, the Patients within
the Facility.


 


3.4 Repairs to Equipment.
Ambergris shall be solely responsible for making, and shall promptly make, all
necessary repairs to the equipment provided by it under this Agreement, and if
such equipment is not repairable, Ambergris shall promptly replace such
equipment with equipment of equivalent function. Ambergris shall also, at its
sole cost and expense, maintain the structural soundness of the exterior and
interior of Facility, including the roof and exterior walls, and the electrical,
air-conditioning and heating systems located therein. Notwithstanding the
foregoing however, the P.A. shall be responsible for any damages caused by the
P.A., or its Physicians to any of the equipment or the Facility itself and any
such damage shall be repaired or replaced by the P.A. at its sole costs and
expense.


 


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3.5 Scheduling.
Except for emergencies, the P.A. and Ambergris will use their best efforts to
jointly establish by Friday of each week a schedule of working hours for the
P.A. and the Physicians for the following week, and if the P.A. and Ambergris
cannot reach an agreement, then Ambergris’s determination will be binding on
the P.A.


 


ARTICLE 4. TERM


 


The term of this Agreement (“Term”)
will commence on the Commencement Date, will continue for a period of five (5) years
thereafter (“Initial Term”), and automatically will be renewed for successive
twelve (12) month periods (each a “Renewal Term”), subject to termination as
provided in Article 7 hereof.


 


ARTICLE 5. COMPENSATION


 


As full compensation for
Services rendered to Patients at the Facility and for its performance of such
other duties and responsibilities as are set forth in this Agreement, Ambergris
will pay the P.A. an amount equal to (x) the actual costs incurred by the
P.A. in connection with the Physicians employed or otherwise engaged by the
P.A. to provide services at the Facility plus (y) an amount equal to ten
percent (10%) of such costs (the sum of the foregoing being referred to herein
as the “Services Fees”). Services Fees shall be payable to the P.A. not later
than the tenth (10th) day of each
month for services rendered in the prior month.


 


ARTICLE 6. BILLING AND COLLECTION


 


6.1 Billing and
Collection. Ambergris, at its sole discretion, but after consultation with
the P.A., will establish fees, policies and procedures for billing and
collecting for Services provided by the P.A. and for the technical component of
the radiation therapy services provided at the Facility. Ambergris will be
solely responsible for billing and collecting, or arranging for billing and
collection, from the Medicare and Medicaid programs, Patients and/or their
third party payors and insurers all amounts owed for those Services provided by
the P.A. pursuant to this Agreement, as well as for the technical component of
the radiation therapy services provided at the Facility. The P.A. hereby
irrevocably assigns to Ambergris any right the P.A. may have to bill and
collect for any and all Services provided by Ambergris and Physicians to
Patients at the Facility during the Term of the Agreement at the Facility. The
P.A. will take all actions reasonably requested by Ambergris to implement the
provisions of this Section 6.1. The P.A. agrees that Ambergris shall have the
right to bill the Medicare and Medicaid Programs in the P.A.’s name, using the
P.A.’s group Medicare and Medicaid provider numbers, and if appropriate, the
P.A.’s Federal Identification Numbers. In furtherance hereof, the P.A. hereby
appoints Ambergris as its agent and true and lawful attorney in fact for the
following purposes: (i) to submit all claims and other documents necessary
or appropriate for the timely and aggressive billing for the Services, (ii) to
collect, receive payment of, receipt for, and give discharges and releases for
all claims for such healthcare and ancillary services; (iii) to make
demand with respect to, settle, compromise, and adjust such claims and to
commence and prosecute either in its name or in the name of the P.A. and the Physicians,
and for their mutual benefit any suit, action or proceeding to collect any such
claims in accordance with sound risk management practices; and (iv) to
take possession of and endorse in the name of the Group or


 


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any of the Physicians any
note, check, money order, insurance payment or any other instrument received as
payment for such Services.


 


6.2 Deposit of Revenue.
Ambergris shall deposit all proceeds collected by it with respect to the
provision of the services at the Facility in lockbox account (the “Practice
Account”) in the name of the P.A., unless the name of the account may be
maintained in the name of Ambergris, at a bank acceptable to Ambergris. Any
monies so deposited in the Practice Account shall be immediately transferred by
Ambergris into an account or accounts in the name of Ambergris or its designee.
The P.A., on behalf of itself and each Physician, agrees that any amounts
received by it or any Physician in respect of the Services provided at the
Facility shall be held in trust for the benefit of Ambergris and deposited in
the form received in the Practice Account immediately upon receipt by the P.A.
or any Physician. The P.A., on behalf of itself and each Physician, shall
insure that all third parties make payments directly to the Practice Account. A
monthly accounting of this revenue will be made available to the P.A.


 


6.3 Exclusive
Compensation. In the event the P.A. or any Physician receives any payment
or other remuneration for any Services rendered by it or a Physician to a
Patient at the Facility. The P.A. acknowledges that it is holding such payment
in trust for the benefit of Ambergris and it will, and will cause the Physician
to, promptly turn such amounts over to Ambergris, with any attached
documentation. The P.A. expressly agrees that the compensation received by it
from Ambergris under article 5 will satisfy and discharge in full all of the
P.A.’s and the Physician’s claims upon Ambergris and/or any Patient and/or
his/her third party payor or insurer for compensation in respect to Services
provided by the P.A. and Physician at the Facility to Patients pursuant to this
Agreement. The P.A. and Physicians will not bill or seek to collect payments
from any Patient, his/her third party payor or insurer for any Services
rendered any Patient. The provisions of this Section 6.3 will survive the
expiration or termination of this Agreement, with or without cause.


 


6.4 Survival. The
provisions of this Article 6 will survive the expiration or termination,
with or without cause, of this Agreement.


 


ARTICLE 7. TERMINATION OF THIS AGREEMENT


 


7.1 Either party may
terminate this Agreement, without cause, at its sole discretion, by notifying
the non-terminating party in writing of its intention not less than ninety (90)
days prior to the effective date of said termination as specified in such
notice, which termination date must be the last day of a month.


 


7.2 This Agreement shall
terminate immediately upon the liquidation or dissolution of the P.A.


 


7.3 Ambergris may terminate
this Agreement immediately upon written notice to the P.A. for “Cause.” For
purposes herein Cause shall mean (a) any Physician’s (i) conviction
of a felony, (ii) loss of or restrictions, or limitations placed on, his
license to practice medicine in the State of West Virginia, (iii) loss of
his license(s) or certifications or registrations to dispense controlled
substances, (iv) loss of his staff membership at the facilities described
in Schedule A. (v) loss of his right to participate as a provider
in the Medicare, Medicaid or any other


 


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governmental program, (vi) loss
of his right to participate in any managed care program in which the P.A. or
Ambergris or any of the other Physicians employed by, or under contract to, the
P.A. or Ambergris participates, (vii) commitment of any act constituting
willful misconduct, dishonesty, actionable negligence or fraud in violation of
any policy governing Physician conduct as may be established by Ambergris from
time to time, or (viii) failure, inability or refusal to perform
professional Services, or any other Service, duty or responsibility as required
under this Agreement; or (b) the P.A.’s (i) loss of its right to
participate as a provider in the Medicare or Medicaid or any other governmental
programs, (ii) revocation of its assignment to Ambergris of the P.A.’s
right to bill the Medicare or Medicaid Program, or (iii) its failure to
observe or perform any of its covenants, agreements, warranties or
representations in this Agreement.


 


7.4 The P.A. may terminate
this Agreement if Ambergris fails to cure any default by it of its
representations, warranties, or agreements hereunder within twenty (20) days
after written notice of such failure has been given to Ambergris by the P.A.


 


7.5 Upon the expiration or
sooner termination of this Agreement, with or without cause, except as
specifically provided for herein, neither party will owe any duty or have any
obligation to the other party.


 


ARTICLE 8. BOOKS AND RECORDS


 


8.1 Medical Records.
Upon the termination of the Agreement, with or without cause, the P.A. will be
entitled to a copy of the medical records, case histories and charts of each
Patient treated by the P.A. pursuant to this Agreement but only upon receipt of
an authorization signed by the patient to whom such records and charts relate.
The P.A. will at all times during and after the termination of this Agreement
be provided access to such medical records, charts, histories and any other
pertinent information pertaining to any Patient as is necessary for the P.A. to
respond to (i) any complaint, law suit, or allegation concerning his
alleged malpractice, over-utilization, or misappropriate utilization of
Services rendered to any Patient, or, (ii) any inquiry, investigation or
allegation of any governmental agency, insurers, managed care organization or
other third party payor.


 


ARTICLE 9.


 


9.1 Compliance with Laws.
In the performance of the P.A.’s and Physician’s responsibilities under this
Agreement, and in general in the performance of Services on behalf of the
Employer, the P.A. shall comply and shall cause the Physician to comply with
the requirements of all applicable federal, state and local laws, rules and
regulations, including without limitation those respecting the licensure and
regulation of physicians, and those prohibiting employment discrimination and
discrimination against Patients, and shall comply with the requirements of the
Medicare and Medicaid programs, and the applicable requirements and standards
of those managed care organizations with which the P.A., Ambergris or Physician
has a managed care agreement.


 


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9.2 Changes in Law.


 


9.2.1 Legal Event;
Consequences. Notwithstanding any other provision of this Agreement, if any
federal, state or local governmental or nongovernmental agency, or any court or
administrative tribunal passes, issues or promulgates any law, rule,
regulation, standard, interpretation, order, decision or judgment (collectively
or individually, “Legal Event”) which, in the good faith judgment of either
party (the Noticing Party”), renders this Agreement illegal or subjects the
Noticing Party to a risk of prosecution or monetary penalty, or which, in good
faith judgment of the Noticing Party, indicates a rule or regulation with
which the Noticing Party desires further compliance, then the Noticing Party
may give the other party notice of intent to amend or terminate this Agreement
in accordance with the next subparagraph.


 


9.2.2 Notice of
Requirements. The Noticing Party shall give notice to the other party
together with an opinion of counsel setting forth the following information:


 


(a) The
Legal Event(s) giving rise to the notice;


 


(b) The
consequences of the Legal Event(s) as to the Noticing Party;


 


(c) The
Noticing Party’s intention to either:


 


(i) terminate
this Agreement due to unacceptable risk of prosecution or monetary penalty; or


 


(ii) amend
this Agreement, together with a statement that the purpose thereof is one or
more of the following:


 


a.
to further comply with any statutory provisions or rules or regulations
created or affected by the Legal Event(s); and/or


 


b.
to satisfy any licensure or certification requirements created or affected by
the Legal Event(s); and/or


 


c.
to eliminate or minimize the risk of prosecution or monetary penalty;


 


(d) Noticing
Party’s proposed amendment(s); and


 


(e) The
Noticing Party’s request for commencement of the Renegotiation Period (as
defined below).


 


9.2.3 Renegotiation
Period; Termination. In the event of notice under either subparagraph A. or
B. above, the parties shall, unless otherwise directed by court order, have
thirty (30) days from the giving of such notice (“Renegotiation Period”) within
which to attempt to amend this Agreement in accordance with the Noticing Party’s
proposal (if an) or otherwise as the parties may agree. If this Agreement is
not so amended within the Renegotiation Period, this Agreement shall terminate
as of midnight on the 30th day after said notice was given. Except as otherwise
required by applicable law, any amounts owing to either party hereunder shall
be paid,


 


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on a pro rata basis, up to
the date of such termination, and any obligation hereunder that is to continue
beyond expiration or termination shall so continue pursuant to its terms. All
opinions of counsel presented by the Noticing Party hereunder, and any corresponding
opinions given by the other party in response, shall be deemed confidential and
given solely for purposes of renegotiation and settlement of a potential
dispute, and shall not be deemed disclosed so as to waive any privileges
otherwise applicable to said opinions.


 


ARTICLE 10. INDEMNIFICATION


 


10.1 The P.A. Obligation
to Indemnify. The P.A. hereby agrees to indemnify and hold harmless
Ambergris, and its successors and assigns, and the directors, officers, agents
and employees of any of the foregoing (collectively, “Ambergris Indemnified
Parties”), from and against any all proceedings, judgments, obligations,
losses, damages, deficiencies, settlements, assessments, charges, costs, and
expenses, (including, without limitation, reasonable attorneys’ fees,
paralegals’ fees, investigation expenses, court costs, interest, and penalties)
arising out of or in connection with, or caused by, directly or indirectly, any
or all of the following (“Indemnified Matter”) whether suit is instituted or
not and, if instituted, at any trial or appellate level, and whether raised by
the parties to this Agreement or any third party:


 


10.1.1 Any
misrepresentation, breach or failure of any warranty or representation made by
or on behalf of the P.A. in this Agreement or pursuant hereto.


 


10.1.2 Any failure or
refusal by the P.A. to satisfy or perform any term, agreement, covenant, or
condition of this Agreement required to be satisfied or performed by the P.A..


 


10.1.3 Any acts of medical
malpractice committed by the P.A. or any of its Physicians.


 


10.1.4 Any inaccurate
information furnished to Ambergris as contemplated by this Agreement.


 


10.2 Ambergris Obligation
to Indemnify. Ambergris hereby agrees to indemnify and hold harmless the
P.A., its successors and assigns and the directors, officers, agents and
employees of the P.A. (collectively, the “the P.A. Indemnified Parties”) from
and against any and all proceedings, judgments, obligations, losses, damages,
deficiencies, settlements; assessments, charges, costs and expenses (including
without limitation, reasonable attorneys’ fees, paralegals’ fees, investigation
expenses, court costs, interest and penalties) arising out of, or in connection
with, or caused by, directly or indirectly, any or all of the following matters
(“Indemnified Matter”) whether suit is instituted or not and, if instituted, at
any trial or appellate level, and whether raised by the parties to this
Agreement or any third party:


 


10.2.1 Any
misrepresentation, breach or failure of any warranty or representation made by
or on behalf of Ambergris in this Agreement or pursuant hereto; or


 


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10.2.2 Any failure or
refusal by Ambergris to satisfy or perform any term, agreement, covenant or
condition of this Agreement required to be satisfied or performed by Ambergris.


 


10.3 Defense of Actions.
Each party (“indemnifying party”) shall be solely responsible, at their
expense, for litigating, defending or otherwise attempting to resolve any
Proceeding against which any other party is indemnified under this Article 12
(“indemnified party”), except that: (i) the indemnified party shall have
the right to participate in the defense of any such proceeding at its expense
and through counsel of its choice; (ii) indemnified party may at its
option, defend or otherwise attempt to resolve, any Proceeding against which
any indemnified party is indemnified under this Article 12 if the
indemnifying party does not promptly and diligently defend or otherwise attempt
to resolve any such proceeding or if such indemnified party, in good faith,
believes that the defense or resolution of such proceeding might adversely
affect its relations with a patient, customer or supplier, in which event
indemnifying party shall continue to be obligated to indemnify the indemnified
party hereunder in connection with such Proceedings; and (iii) the
indemnifying party shall not agree to any settlement without the indemnified
party’s express prior written consent; provided that if indemnified party
rejects a monetary settlement proposed in writing by indemnifying party,
indemnifying party may elect to pay such amount to the indemnified party and,
upon doing so, shall be relieved of all further obligations to defend and
indemnify indemnified party with respect to that matter.


 


10.4 Notices and Payments.
With respect to each separate matter or series of matters against which a party
is indemnified under this Article 12:


 


10.4.1 Upon the indemnified
party’s receipt of written documents pertaining to the Proceeding underlying
such matter or series of matters, or, if such matter or series of matters does
not involve a third party demand claim, after the indemnified party’s first
learning of such matter or series of matters and the amount demanded or claimed
in connection therewith, the indemnified party shall give notice to
indemnifying party of such documents and information as he shall have so
received.


 


10.4.2 After a final
agreement is reached or a final Judgment is rendered (i.e., a judgment with
respect to which all rights of appeal have been exhausted or time to exercise
same has expired) with respect to such matter or series of matters or the
amount owing by indemnifying party pursuant to this Article 12 as a result
of such matter or series of matters, is otherwise determinable in whole or in
part, indemnified party shall give notice to indemnifying party of the amount
owing by indemnified party (“Indemnification Amount”) with respect to such
matter or series of matters (“Indemnification Payment Notice”).


 


10.4.3 Indemnifying party
shall pay the Indemnification Amount to indemnifying party (or to such Person
as indemnified party instructs) within ten (10) days after the
Indemnification Payment Notice was given.


 


ARTICLE 11. STATUS OF THE P.A.


 


It is expressly acknowledged
by the parties hereto that the P.A. is an “independent contractor” and nothing
in this Agreement is intended nor shall be construed to create an


 


11

















 


employer/employee
relationship, a joint venture relationship or partnership, or landlord/tenant
relationship, between Ambergris and the P.A., or to allow Ambergris to exercise
control or direction over the manner or method by which the P.A. performs the
services which “ are the subject matter of this Agreement; provided, always,
that the services to be furnished hereunder by the P.A. shall be provided in a
manner consistent with the standards governing such services and the provisions
of this Agreement. At no time shall the P.A., or anyone providing services
under this Agreement on the P.A.’s behalf, represent or hold himself or herself
out to be an employee, agent, or servant of Ambergris or to be providing
services hereunder in other than a contractual capacity. The P.A. understands
and agrees that (i) the P.A. and its employees will not be treated as
Ambergris’s employees for federal tax purposes, (ii) Ambergris will not
withhold on behalf of the P.A. or such employees pursuant to this Agreement any
sums for income tax, unemployment insurance, social security, or any other
withholding pursuant to any law or requirement of any governmental body
relating to the P.A., or make available to the P.A. or its employees any of the
benefits afforded to employees of Ambergris, and (iii) all of such
payments, withholdings, and benefits, if any, are the sole responsibility of
and shall be effected by the P.A. In the event the Internal Revenue Service or
any other governmental agency should question or challenge the independent
contractor status of the P.A., the parties hereto mutually agree that Ambergris
and the P.A. shall have the right to participate in any discussion or
negotiation occurring with such agency or agencies, irrespective of by whom
such discussions or negotiations are initiated.


 


ARTICLE 12. MISCELLANEOUS


 


12.1 Entire Agreement.
This Agreement contains the entire agreement between the parties and supersedes
all prior negotiations or agreements, whether written or oral, between them
with respect to the matters set forth herein,


 


12.2 Recitals. The
Recitals at the beginning of this Agreement are true and correct, and are
incorporated into this Agreement.


 


12.3 Binding Effect.
This Agreement is binding upon and will inure to the benefit of the parties,
their heirs, personal representatives, successors and assigns.


 


12.4 Additional Documents.
Both parties hereto agree to execute in an expeditious manner all instruments
in writing and to do all other things necessary to effectuate the purpose of
this Agreement.


 


12.5 Governing Law and
Venue. This Agreement will be construed and enforced in accordance with the
laws of the State of West Virginia. The parties hereto waive any objection to
the local, State and federal courts whose jurisdiction includes the County in
West Virginia in which the Facility is located, as being the proper and
convenient venue for the litigation of any matter which might arise between
them relating to this Agreement.


 


12.6 Assignability.
Inasmuch as this is an agreement for the P.A.’s and Physician’s provision of
its/his personal services, the P.A. may not assign any of its rights or
delegate any of its duties hereunder without Ambergris’s prior written consent,
which may be withheld at its sole discretion, and any attempt to do so will be
void.


 


12

















 


12.7 Section Headings.
The section headings contained in this Agreement are for convenience of
reference only and will not be used for substantive purposes.


 


12.8 Attorneys’ Fees.
In the event that either party hereto finds it necessary to employ the services
of an attorney to enforce any of his/its rights hereunder, each party will be
responsible for all of those costs he/it incurs including, but not limited to,
attorneys’ fees and all costs incurred as a result of such enforcement action
and all appeals thereof.


 


12.9 Severability.
Should any part of this Agreement be declared invalid or unenforceable for any
reason, such decision shall not affect the validity of the remainder of this
Agreement, which will remain in full force and effect and enforceable in
accordance with its terms.


 


12.10 Waiver of Breach.
The waiver by either party of a breach or violation of any provision hereunder
will not constitute a waiver of any prior, simultaneous, or subsequent breach
of the same or any other provision hereof.


 


12.11 Gender and Number.
Whenever the context requires, the gender of all words will include the
masculine, feminine, and neuter, and the number of all words will include the
singular and the plural.


 


12.12 Notices. Any
notice or other communication required or which may be given hereunder shall be
in writing and shall be delivered personally, sent by certified mail, postage
prepaid, return receipt requested or by a nationally recognized overnight
courier, and shall be deemed given when so delivered personally or by
facsimile, or if mailed, five (5) days after the date of mailing as
follows:


 


	
  If to Ambergris:

  	
   

  	
  Ambergris, LLC

  2000 Foundation Way, Suite 1100 

  Martinsburg, West Virginia 

  Attention: Daniel E. Dosoretz, M.D.

  
	
   

  	
   

  	
   

  
	
  If to the P.A.:

  	
   

  	
  Katin Radiation Therapy,
  P.A.

  2234 Colonial Boulevard 

  Fort Myers, Florida 33907 

  Attention: David Koeninger

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Garfunkel, Wild &
  Travis, P.C.

  111 Great Neck Road, Suite 503 

  Great Neck, New York 11021 

  Attention: Norton L. Travis, Esq.

  



 


12.13 Amendment. This
Agreement may be amended only by a writing signed by both parties.


 


12.14 Counterparts.
This Agreement may be signed in any number of counterparts, each of which will
be an original, but all of which taken together will constitute one and the same
instrument.


 


13

















 


12.15 Independent
Judgment Nothing in this Agreement will be construed or applied in any
manner so as to relieve Physician of or interfere with or impede Physician’s
legal and ethical obligations to exercise his independent medical judgment,
serve as an advocate for each Patient, and take such actions as are in the best
interests of each Patient.


 


12.16 No Breach.
Ambergris and the P.A. each warrants and represents to the other that entering
into this Agreement will not cause that party to breach any contract,
agreement, understanding or other commitment to which it is a party, third
party beneficiary, or third party obligor.


 


12.17 Construction.
Nothing in this Agreement will be construed against one party as the drafter,
proponent, or maker thereof. This Agreement will be construed with an
irrefutable presumption that all of its terms were negotiated between and
drafted by both Ambergris and the P.A.


 


12.18 Special Medicare
Rules. Since the value or cost of services provided under this Agreement
may be Ten Thousand Dollars ($10,000) or more within a twelve (12) month
period, the P.A. agrees to comply with the Access to Books, Documents and
Records of Subcontractors provision of Section 952 of the Omnibus Budget
Reconciliation Act of 1980 (PL96-499) and 42 C.F.R. Part 420, Subpart D, Section 420.300,
et. seq. In accordance with these
provisions, the P.A. shall, upon proper written notice, allow the Comptroller
General of the United States, the Secretary of Health and Human Services, and
their duly authorized representatives access to this Agreement and to the P.A.’s
books, documents and records necessary to certify the nature and extent of
costs of Medicare reimbursable services provided under this agreement. Such
access shall be allowed, upon request, until the expiration of four (4) years
after the Medicare reimbursable services are furnished pursuant to this
Agreement. If the P.A. carries out any of the duties of this agreement through
a subcontract with a related party with a value or cost of Ten Thousand Dollars
($10,000) or more over a twelve (12) month period, said subcontract shall
contain a clause which requires a subcontractor to comply with the above
statutes and regulations.


 


[This space intentionally left blank. Signature page to
follow.]


 


14

















 


IN WITNESS
WHEREOF, the parties hereunto have executed this Agreement to
be executed the day and year first above written.


 


	
   

  	
  AMBERGRIS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
  Name:

  	
  Daniel E. Dosoretz

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KATIN RADIATION THERAPY,
  P.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David M. Koeninger

  
	
   

  	
  Name:

  	
  David M. Koeninger

  
	
   

  	
  Title:

  	
  CFO

  



 


15

















 


SCHEDULE A


 


Facilities


 


City Hospital 

Martinsburg, West Virginia


 


Jefferson Hospital