Exhibit 10.60


 


Execution Copy


 


PROFESSIONAL SERVICES AGREEMENT


 


THIS PROFESSIONAL SERVICES AGREEMENT dated as of
January 1, 2009 is by and between RADIOSURGERY
CENTER OF RHODE ISLAND, LLC, a Rhode Island limited liability
company with a primary place of business c/o Rhode Island RCRI, 593 Eddy
Street, Providence, Rhode Island 02903 (“RCRI”), and MASSACHUSETTS ONCOLOGY SERVICES, P.C. (“Mass. Onc.”), a
Massachusetts professional corporation with a primary place of business at 192
Braemoor Road, Brockton, Massachusetts 02301 (collectively, RCRI and Mass. Onc.
are referred to herein as the “Parties”), and is effective on the date RCRI is
licensed to operate an organized ambulatory care facility by the Rhode Island
Department of Health and first provides radiation therapy services to patients
(the “Effective Date”).


 


WHEREAS, RCRI intends to
become licensed to operate an organized ambulatory care facility primarily
providing radiation therapy services to patients using cyberknife technology
(the “Service”); and


 


WHEREAS, RCRI desires
to retain Mass. Onc. to make Mass. Onc. employed physicians available to RCRI
to provide the physician services required to meet the needs of patients who
use the Service (“Physician Services”); and


 


WHEREAS, Mass. Onc. is
qualified to and desires to provide the Physician Services required by RCRI.


 


NOW,
THEREFORE, in consideration of the mutual promises and
covenants set forth in this Agreement and intending to be legally bound, the
Parties hereby agree as follows:


 


1. ENGAGEMENT AND PROFESSIONAL
SERVICES.


 


RCRI hereby engages Mass.
Onc. to provide, and Mass. Onc. hereby agrees to provide, Physician Services to
RCRI patients using only qualified radiation therapy physicians (the “Physicians”),
in such numbers and at such times as RCRI and Mass. Onc. mutually agree shall
be necessary to support the patient care needs of RCRI. Mass. Onc. shall at all
times continue to provide the Physician Services required by this Agreement,
regardless of illness or disability of any Physicians. RCRI covenants to Mass.
Onc. that Mass. Onc. and Pratt Radiation Oncology Associates, Inc., or
their wholly owned affiliates, will be the exclusive providers of Physician
Services at RCRI while this Agreement remains in effect.


 


2. RESPONSIBILITIES OF
MASS. ONC.


 


In order for the Physicians
to provide the Physician Services described in this Agreement, Mass. Onc. shall
cause each Physician to comply with each of the requirements set forth below in
this Article 2.


 

















 


2.1.                Qualifications. To be
qualified to render Physician Services pursuant to this Agreement, each
Physician must at all times during the course of this Agreement:


 


(a)                     Be board certified in
radiation therapy;


 


(b)                    Possess a valid and
unlimited license to practice medicine in the State of Rhode Island;


 


(c)                     Obtain and maintain
professional liability insurance coverage in accordance with Article 5 of
this Agreement;


 


(d)                    Meet any and all
requirements of the Bylaws, Rules and Regulations, policies and procedures
of RCRI as exist from time to time, including compliance and conflict of
interest policies; and


 


(e)                     Be, and remain, a
participating provider in good standing in the Medicare and Medicaid programs
(Titles XVIII and XIX of the Social Security Act, respectively).


 


2.2.                Standards of Practice. Each Physician
shall be responsible for providing services that are at all times rendered in a
competent and professional manner, consistent with the quality assurance
standards of RCRI and in compliance with all applicable statutes, regulations, rules and
directives of federal, state and other governmental and regulatory bodies
having jurisdiction over RCRI; the Bylaws, Rules and Regulations of RCRI;
applicable standards of the Joint Commission on Accreditation of Health Care
Organizations, and currently accepted and approved methods and practices
applicable to the practice of radiation therapy.


 


2.3.                Protocols and Procedures. Each
Physician shall work cooperatively with RCRI to assure that the Physician
Services are available on a timely, coordinated, efficient, and professional
basis.


 


2.4.                Medical Records. The
Physicians shall document all Physician Services provided to patients of RCRI
in the medical record in accordance with RCRI policies and applicable law. All
such medical records, including, but not limited to, case records, charts and
patient files, are and shall remain the property of RCRI, and RCRI shall
maintain such medical records and make them available to Mass. Onc. and
Physicians in accordance with state and federal laws. This provision shall
survive termination of the Agreement.


 


2.5.                Professional Expenses. Except as
otherwise provided, Mass. Onc. or the individual Physicians providing Physician
Services hereunder shall be solely responsible for all personal and
professional expenses incurred by


 


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Physicians, including, but
not limited to, travel, licensing/registration fees, professional liability
insurance, membership fees and dues in professional societies and
organizations, medical books and journals, and expenses incurred in attending
conventions, meetings, and continuing education seminars.


 


2.6.                Restriction on License,
Membership, Right to Participate or Privilege. If any qualification,
license, membership, right to participate or privilege of any Physician is
terminated, suspended or limited for any reason, Mass. Onc. shall immediately
notify RCRI and, upon RCRI’s request, Mass. Onc. shall immediately suspend said
Physician from providing Physician Services under this Agreement.


 


3. RCRI OBLIGATIONS.


 


3.1.                Radiation Therapy Service: RCRI shall
operate its radiation therapy service in a professional, timely, competent and
ethical manner, in accordance with all applicable laws, regulations,
professional standards and accreditation requirements.


 


3.2.                Space: RCRI shall
furnish sufficient space, facilities and accommodations as may be reasonably
necessary and mutually agreed to by the Parties for Mass. Onc. to properly
provide Physician Services under this Agreement.


 


3.3.                Equipment: RCRI shall
furnish such equipment, instruments, furniture and files as are reasonably
necessary and mutually agreed to by the Parties for the proper provision of
radiation therapy services at RCRI. RCRI shall keep and maintain the Equipment
in good working order, condition and repair.


 


3.4.                Facility Support: RCRI shall
provide such facility support as may be reasonably required and mutually agreed
to by the Parties for the adequate provision of radiation therapy services at
RCRI. All non- physician personnel shall be competent and reasonably sufficient
in number to assist Mass. Onc. in the provision of Physician Services. RCRI
agrees to consult with Mass. Onc. regarding the adequacy of the performance of
all non-physician personnel.


 


3.5.                Supplies: RCRI shall
purchase all expendable and non-expendable supplies necessary for the proper
operation of radiation therapy services at RCRI.


 


3.6.                Patient Records. RCRI agrees,
subject to all applicable laws, rules and regulations, to make available
to Mass. Onc. such information and records of RCRI as Mass. Onc. may reasonably
request to facilitate its performance of Physician Services.


 


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3.7.                Permits. RCRI shall
obtain and maintain all necessary licenses, certificates, permits, approvals,
franchises, notices and authorizations issued by governmental entities or other
regulatory authorities, federal, state or local, required for operation of the
equipment and for its performance of radiation therapy services.


 


4. COMPENSATION.


 


In consideration of the
services to be rendered by Mass. Onc. Physicians, RCRI shall compensate Mass.
Onc. in accordance with Schedule A attached hereto and made a part
hereof.


 


5. BILLING, COLLECTION
AND PAYMENT.


 


5.1.                Compensation. RCRI shall
set the charges for all professional services, Pharmaceuticals and supplies
provided to patients of RCRI and shall bill and collect from patients, insurers
and other third party payers all such fees in its own name and, to the extent
possible, under its own provider number, including billing and collecting for
Physician Services. Mass. Onc. acknowledges, and shall require Physicians to
acknowledge, that only RCRI is entitled to claim or receive any fees or charges
for Mass. Onc.’s or Physicians’ services under this Agreement. In the event
services performed by a Physician will only be reimbursed if billed under the
Physician’s provider number, Physician hereby appoints RCRI as the Physician’s
agent (i) to bill and collect from patients and third party payers for
services rendered by Physician, and (ii) to take possession of, and
endorse, any cash, checks, insurance payments or other instruments of value
received in payment for services rendered by Physician. Mass. Onc. assigns, and
shall require Physicians to assign to RCRI, the Physicians’ rights to bill and
collect for medical services rendered to RCRI’s patients. Except as otherwise
provided in this Subparagraph, Physicians shall neither bill nor collect any
fees for any professional services, Pharmaceuticals or supplies provided to
patients of RCRI.


 


5.2.                Each party shall provide the
other with access to such books and records as may be necessary for them to
determine amounts owed to them and to allow RCRI to bill and collect properly
for services rendered by Physicians to patients of RCRI;


 


5.3.                Mass. Onc. shall require
Physicians to use their best efforts to assure that the services Physicians
render to patients of RCRI qualify for reimbursement under applicable third
party reimbursement programs, if any, including Medicare, Medicaid, Blue
Shield, private commercial insurance, and any HMO’s, PPO’s, CMP’s or other
alternative delivery systems with which RCRI may affiliate.


 


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5.4.                Mass. Onc. shall submit to
RCRI on a periodic basis such time and/or effort records as are requested by
RCRI and shall meet applicable requirements of state or federal agencies,
including Medicare, and of third party payers.


 


5.5.                RCRI expressly agrees and
covenants that it will comply with all rules, regulations and other
requirements of the Federal Medicare Program relating to billing for radiation
therapy services.


 


6. PROFESSIONAL LIABILITY
INSURANCE.


 


Each party, at its own
expense, shall provide itself and its employees with professional liability insurance
providing coverage against liabilities arising from the services to be provided
by such party in connection with RCRI’s radiation therapy service, in amounts
and pursuant to policies required by each party’s Board, but in no event less
than One Million Dollars per occurrence and Three Million Dollars in the
aggregate per year. Each party shall require its professional liability
insurance carrier to name the other as an additional insured on any such
professional liability insurance policy and to notify the other of the
cancellation or proposed cancellation thereof for any cause, or of any material
change to such insurance. Upon request, each party agrees to deliver to the
other a certificate reflecting such insurance coverage.


 


7. CONFIDENTIAL INFORMATION.


 


RCRI may provide RCRI or a
Physician with proprietary and confidential information about RCRI’s
inventions, research and development, clinical pathways, systems, improvements,
trade secrets, financial information, and business strategy or policies (“Confidential
Information”). Confidential Information shall not include public information or
information legally and properly obtained from other sources without breach of
any agreement with RCRI. Mass. Onc. will not, and will require Physicians not
to use Confidential Information for any purpose other than for providing
Physician Services and not disclose, publish, or disseminate any Confidential
Information to any third party without the express prior written consent of
RCRI, except as may be required by state or federal law. Mass. Onc. will notify
RCRI, and will require any Physician to notify RCRI, of any request or demand
for disclosure of Confidential Information by any law enforcement officer,
court, governmental agency, or other third party.


 


Furthermore, the Parties
agree, and the Physicians shall be caused to agree, to comply with any and all
state and federal privacy laws and regulations that apply to the protection of
individually identifiable health information as are in effect during the term
of this Agreement including, without limiting the generality of the foregoing,
the Health Insurance Portability and Accountability Act of 1996 and the
regulations promulgated thereunder (“HIPAA”). The Parties agree that Physicians
will be members of RCRI’s workforce for HIPAA purposes and that each is a
Covered Entity exchanging protected health information solely for purposes of
treatment, payment and operations, and that


 


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as such the Parties are not “Business
Associates” for HIPAA purposes and HIPAA mandated business associate provisions
need not be included in this Agreement or set out in a separate business
associate agreement. The Parties further agree to enter into good faith
negotiations to amend this Agreement to include any contract provisions
required to be included herein in order to cause the Parties to comply with any
subsequent changes or clarifications to privacy and confidentiality laws and
rules.


 


This provision shall survive
termination of the Agreement.


 


8. STATUS OF THE PARTIES.


 


RCRI and each Physician
shall be independent contractors of RCRI. It is expressly understood and agreed
by RCRI and RCRI, and RCRI shall cause each Physician to understand and agree,
that nothing contained in this Agreement shall be construed to create a joint
venture, partnership, employer-employee, principal-agent, association, or other
affiliation relationship between RCRI and RCRI or RCRI and any Physician other
than an independent contractor relationship. RCRI and RCRI specifically agree,
and RCRI shall cause each Physician to agree, that their relationship is and
shall remain that of independent Parties to a contractual relationship as set
forth in this Agreement. Neither RCRI nor any Physician shall have any claim
under this Agreement or otherwise against RCRI for vacation pay, paid sick
leave, retirement benefits, social security, workers’ compensation, health,
disability, professional malpractice, or unemployment insurance benefits or
other employee benefits of any kind. Nothing in this Agreement shall dictate
how any Physician shall practice medicine, deliver patient care, or exercise
independent medical judgment. RCRI shall neither have nor exercise any specific
control or direction over the particular methods by which Physicians perform
the professional services required under this Agreement.


 


9. TERM.


 


This Agreement commences on
the Effective Date and continues for an initial term ending on the last day of
the month that is one year after the Effective Date (the “Initial Term”),
unless terminated earlier pursuant to the terms of this Agreement. Thereafter,
this Agreement will automatically renew for successive one (1) year terms
(each, an “Additional Term”, and together with the Initial Term, the “Term”).


 


10. TERMINATION.


 


10.1.          Termination of the Agreement. Either Party
may terminate this Agreement for cause (defined as material non-compliance with
any of the terms of the Agreement) upon thirty (30) days written notice if the
offending Party does not correct the failure within the thirty (30) day notice
period to the reasonable satisfaction of the Party giving notice. If New
England Radiation Therapy Management Services, Inc., a Massachusetts
business corporation (“NE RTSI”), ceases to be a member of RCRI, or NE RTSI


 


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undergoes a change in
control, either Party may terminate this Agreement without cause on ninety (90)
days notice.


 


10.2.          Change of law. In the event
that performance by either Party of any term, covenant, condition or provision
of this Agreement would jeopardize the licensure of RCRI, its participation
with any third-party payer or certification or accreditation by any other state
or nationally recognized organization, or if for any other reason said
performance would be in violation of any law or be deemed unethical by any
governmental authority or professional association in the medical field, the
Parties shall undertake to amend this Agreement to remove the jeopardy
contemplated by this Section 10.2. If the Parties are unable to reach
agreement as to any such amendment necessary to remove the jeopardy
contemplated herein within thirty (30) days, this Agreement shall thereafter
automatically terminate.


 


10.3.          Effect of Termination. Upon expiration
or termination of this Agreement, neither Party shall have any further
obligation hereunder except for (a) obligations accruing prior to the date
of termination, and (b) obligations, promises or covenants contained
herein which are expressly made to extend beyond the term of this Agreement.
Upon expiration or termination of this Agreement, the Parties agree, and Mass.
Onc. shall cause each Physician to agree, to cooperate in a reasonable manner
to ensure a smooth transition, including but not limited to the continued
orderly delivery of Physician Services.


 


11. NON-COMPETITION.


 


RCRI
has invested over one million Dollars to construct its facility and acquire the
cyberknife equipment. In retaining Mass. Onc. pursuant to this Agreement, RCRI
is willingly granting Mass. One. and Physicians access to RCRI’s confidential
business information and patients. In order to preserve this information and
patient base, encourage Mass. Onc. and Physicians to remain providing services
for RCRI, and maintain RCRI as a going concern, RCRI has advised Mass. Onc. and
its Physicians that RCRI would not enter into this agreement were it not for
Mass. Onc. and Physicians’ agreement to abide by the provisions of this
Section. Mass. Onc. agrees, and will require each Physician to agree, that any
action by either of them in violation of this agreement would have a material
adverse effect on RCRI’s continued opportunity for success.


 


In
light of the foregoing, neither Mass, Onc. nor any Physician shall, for a
period commencing on the date hereof and continuing for one (1) year after
the termination of this Agreement by Mass. Onc. without cause, or by RCRI for
cause:


 


(a)                     Engage, directly or
indirectly, in any way (as owner, stockholder, director, joint venturer,
investor, partner, employee, sole


 


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practitioner, consultant or
otherwise), in any business enterprise which provides radiation therapy
services utilizing cyberknife technology at any location within such portion of
a fifteen (15) mile radius from such site that does not extend beyond Rhode
Island;


 


(b)                    Solicit for hiring by Mass.
Onc., Physician or others, any of the employees of RCRI.


 


In
addition, neither Mass. Onc. nor Physicians will be bound by the preceding
non-competition and non-solicitation provisions if either: (i) RCRI ceases
to provide cyberknife services for any reason other than a sale, merger or
other transfer of RCRI’s cyberknife business to a third party; or (ii) the
provision of cyberknife radiation therapy services by Mass. Onc. or a Physician
is required in order to comply with contractual obligations to Rhode Island
Hospital or its affiliates, or The Warren Alpert Medical School of Brown
University.


 


The
provisions of this Section 11 shall survive the termination of this
Agreement. The Parties acknowledge that violation of this Section 11 will
irreparably harm RCRI’s conduct of its business and that in such event, RCRI
may be without an adequate remedy at law for enforcement of the provisions
hereof, and thus may be entitled to injunctive relief. Mass. Onc. and Physician
further acknowledge that the character, duration and or geographical scope of
the non-competition provisions contained in this Section are reasonable in
light of the nature of RCRI’s practice as it exists as of the date hereof.


 


12. MISCELLANEOUS.


 


12.1.          Notices. Notices or
communications required or permitted to be given under this Agreement shall be
given to the respective Parties by hand, registered or certified mail, or by an
overnight delivery service that obtains a receipt upon delivery, at the
addresses first set forth above unless a party shall otherwise designate its
address for notice. Notices will be deemed to have been given as of the date of
sending.


 


12.2.          Section Headings. The section
headings in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.


 


12.3.          Governing Law. This
Agreement has been executed and delivered in, and shall be construed and
enforced in accordance with, the internal substantive laws of the State of
Rhode Island.


 


12.4.          Assignment. No assignment
or delegation of this Agreement or the rights and obligations hereunder shall
be valid without the specific written consent of both Parties hereto except
that this Agreement may be assigned by RCRI as a result of sale,
reorganization, merger, or


 


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Execution Copy


 


bankruptcy to any successor
entity operating the facility now operated by RCRI.


 


12.5.          Waiver. Failure of a
party to insist upon strict adherence of any term of this Agreement on any
occasion shall not be considered a waiver of such term. The waiver by either
party of a breach of any provision of this Agreement by the other party shall
not operate or be construed as a waiver of any subsequent breach by the other
party.


 


12.6.          Entire Agreement. This
Agreement and its Exhibits constitute the entire agreement among the Parties
and the Physicians, and supersede all previous contracts or agreements between
the Parties and the Physicians with respect to the subject matter hereof.


 


12.7.          Amendments. This
Agreement may be amended only by an instrument in writing signed by a duly
authorized officer of each of the Parties, effective as of the date stipulated
therein.


 


12.8.          Counterparts. This
Agreement may be executed in any number of counterparts, including via
facsimile signatures, that together shall constitute one instrument.


 


IN WITNESS WHEREOF, the
Parties, by their duly authorized officers, have caused this Agreement to be
signed and sealed as of the day and year first above written.


 


	
  RADIOSURGERY CENTER OF RHODE ISLAND, LLC

  	
   

  	
  MASSACHUSETTS
  ONCOLOGY SERVICES, P.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Authorized
  Signatory

  	
   

  	
  By:

  	
  /s/ David N. T. Watson

  
	
   

  	
  Its:

  	
  Authorized Signatory

  	
   

  	
   

  	
  Name: David N. T. Watson

  
	
   

  	
   

  	
  President & CEO

  	
   

  	
   

  	
  Title: Chief Financial
  Officer

  



 


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EXHIBIT A


 


COMPENSATION


 


RCRI shall pay, and Mass.
Onc. shall accept as payment in full for performance of Professional Services
hereunder, fees (the “Professional Service Fees”) in an amount equal to fifteen
percent (15%) of the Facility Net Collections. For purposes of this Agreement, “Facility
Net Collections” shall mean the gross collections (net of refunds and overpayments)
attributable to radiation therapy services generated by RCRI. The Parties have
reviewed and evaluated the compensation to be paid by RCRI to Mass. Onc. for
the Professional Services hereunder and have determined it to be commercially
reasonable, to be commensurate with fair market value and to not in any way be
based upon the volume or value of patient referrals or any other business
generated between the Parties. Payment of the Professional Service Fees by RCRI
to Mass. Onc. shall be due no later than the fifteenth (15th) day of the month
following the last day of the month in which Professional Services were
rendered by Mass. Onc. hereunder.


 


Mass. Onc. shall have the
right at all reasonable times, and upon the giving of reasonable notice, to
examine, inspect and copy the records of RCRI and its billing service
pertaining to Facility Net Collections and the Professional Service Fees.


 


Upon the termination or
expiration of this Agreement for any reason, RCRI shall pay Mass. Onc. any
Professional Service Fees that accrued but remained unpaid as of the effective
date of termination or expiration of this Agreement no later than thirty (30)
days following any such termination or expiration.


 


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