Exhibit 10.49


 


ADDENDUM TO ADMINISTRATIVE SERVICES AGREEMENT


 


This Addendum (the “Addendum”)
is entered into as of January 1, 2010, by and among NEW YORK RADIATION THERAPY
MANAGEMENT SERVICES, INC., a New York corporation (“MANAGEMENT SERVICES”) and
YONKERS RADIATION MEDICAL PRACTICE, P.C., a New York professional corporation
(the “PC”). This Addendum amends Section 3.1 of the Administrative Services
Agreement dated January 1, 1999 between the parties (the “Agreement”) to adjust
the monthly Service Fee payable at the rate of $600.00 per external beam
treatment billed in 2009 to a monthly Service Fee payable at the rate of
$500.00 per external beam treatment billed (currently CPT codes 77372, 77373,
77401 - 77416, 77418, and 77781 - 77784) and replaces the Addendum of that same
Section dated January 1, 2009. From and after the date hereof, Section 3.1
shall read as follows:


 


3.1.
Service Fee. For the services to be provided hereunder by MANAGEMENT
SERVICES, the PC shall pay to MANAGEMENT SERVICES a monthly Service Fee at the
rate of $500.00 per external beam treatment billed (currently CPT codes 77372,
77373, 77401 -77416, 77418, and 77781 - 77784). The parties agree that the
Service Fee represents the fair market value of the services provided by
MANAGEMENT SERVICES hereunder and that the parties shall meet annually to
reevaluate the value of services provided by MANAGEMENT SERVICES and shall
establish the fair market value thereof for purposes of this Section 3.1.


 


 


	
  Accepted:

  	
   

  	
  NEW YORK RADIATION THERAPY

  
	
   

  	
   

  	
  MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
   

  	
   

  	
   

  	
  Bryan J. Carey

  Vice President and CFO

  
	
   

  	
   

  	
   

  
	
  Accepted:

  	
   

  	
  YONKERS RADIATION MEDICAL

  
	
   

  	
   

  	
  PRACTICE, P.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  Daniel E. Dosoretz, M.D.

  President

  



 

















 


ADDENDUM TO ADMINISTRATIVE SERVICES AGREEMENT


 


This Addendum (the “Addendum”)
is entered into as of January 1, 2009, by and among NEW YORK RADIATION THERAPY
MANAGEMENT SERVICES, INC., a New York corporation (“MANAGEMENT SERVICES”) and
YONKERS RADIATION MEDICAL PRACTICE, P.C., a New York professional corporation
(the “PC”). This Addendum amends Section 3.1 of the Administrative Services
Agreement dated January 1, 1999 between the parties (the “Agreement”) to adjust
the monthly Service Fee payable Fee payable at the rate of $630.00 per external
beam treatment billed in 2008 to a monthly Service Fee payable at the rate of
$600.00 per external beam treatment billed (currently CPT codes 77372, 77373,
77401 - 77416, 77418, and 77781 - 77784) and replaces the Addendum of that same
Section dated January 1, 2008. From and after the date hereof, Section 3.1
shall read as follows:


 


3.1.
Service Fee. For the services to be provided hereunder by MANAGEMENT
SERVICES, the PC shall pay to MANAGEMENT SERVICES a monthly Service Fee at the
rate of $630.00 per external beam treatment billed (currently CPT codes 77372,
77373, 77401 - 77416, 77418, and 77781 - 77784). The parties agree that the
Service Fee represents the fair market value of the services provided by
MANAGEMENT SERVICES hereunder and that the parties shall meet annually to
reevaluate the value of services provided by MANAGEMENT SERVICES and shall
establish the fair market value thereof for purposes of this Section 3.1.


 


 


	
  Accepted:

  	
   

  	
  NEW YORK RADIATION THERAPY

  
	
   

  	
   

  	
  MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David NT Watson

  
	
   

  	
   

  	
   

  	
  David NT Watson

  Vice President and CFO

  
	
   

  	
   

  	
   

  
	
  Accepted:

  	
   

  	
  YONKERS RADIATION MEDICAL

  
	
   

  	
   

  	
  PRACTICE, P.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  Daniel E. Dosoretz, M.D.

  President

  



 

















 


ADDENDUM TO ADMINISTRATIVE SERVICES AGREEMENT


 


This Addendum (the “Addendum”)
is entered into as of January 1, 2008, by and among NEW YORK RADIATION THERAPY
MANAGEMENT SERVICES, INC., a New York corporation (“MANAGEMENT SERVICES”) and
YONKERS RADIATION MEDICAL PRACTICE, P.C., a New York professional corporation
(the “PC”). This Addendum amends Section 3.1 of the Administrative Services
Agreement dated January 1, 1999 between the parties (the “Agreement”) to adjust
the monthly Service Fee of $476,483.33 paid in 2007 to a monthly Service Fee
payable at the rate of $630.00 per external beam treatment billed (currently
CPT codes 77372, 77373, 77401 - 77416, 77418, and 77781 - 77784) and replaces
the Addendum of that same Section dated January 1, 2007. From and after the
date hereof, Section 3.1 shall read as follows:


 


3.1.
Service Fee. For the services to be provided hereunder by MANAGEMENT
SERVICES, the PC shall pay to MANAGEMENT SERVICES a monthly Service Fee at the
rate of $630.00 per external beam treatment billed (currently CPT codes 77372,
77373, 77401 - 77416, 77418, and 77781 - 77784). The parties agree that the
Service Fee represents the fair market value of the services provided by
MANAGEMENT SERVICES hereunder and that the parties shall meet annually to
reevaluate the value of services provided by MANAGEMENT SERVICES and shall
establish the fair market value thereof for purposes of this Section 3.1.


 


 


	
  Accepted:

  	
   

  	
  NEW YORK RADIATION THERAPY

  
	
   

  	
   

  	
  MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David NT Watson

  
	
   

  	
   

  	
   

  	
  David NT Watson

  Vice President and CFO

  
	
   

  	
   

  	
   

  
	
  Accepted:

  	
   

  	
  YONKERS RADIATION MEDICAL

  
	
   

  	
   

  	
  PRACTICE, P.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  Daniel E. Dosoretz, M.D.

  President

  



 

















 


ADMINISTRATIVE SERVICES AGREEMENT


 


This Administrative Services
Agreement (“Agreement”) is entered into as of August 1, 1997 (“Effective Date”)
by and among NEW YORK RADIATION THERAPY MANAGEMENT SERVICES, INCORPORATED, a
New York corporation (“MANAGEMENT SERVICES”) and YONKERS RADIATION MEDICAL
PRACTICE, P.C., a New York professional corporation (“YRMP”).


 


RECITALS


 


A.                                   YRMP is a New
York professional corporation that engages in the business of providing or
arranging for the provision of health care services (the “Practice”). YRMP has
entered into and throughout the term of this Agreement may (if MANAGEMENT
SERVICES does not do so on behalf of YRMP and in the name of YRMP as provided
herein) continue to enter into arrangements with insurers, HMOs and other
third-party payors (“Payors”) to provide or arrange for the provision of health
care services to persons covered by those Payors (“Enrollees”).


 


B.                                     YRMP has
entered into written employment agreements with physicians and other health
care providers and health care professionals (“Employed Providers”) licensed
`to practice in the State of New York. YRMP may also enter into independent
contractor agreements with various physicians and other health care providers
and health care professionals (“Contracting Providers”) to assist YRMP in
providing or arranging for the provision of health care services to Enrollees
and other patients of YRMP (collectively, “Patients”).


 


C.                                     MANAGEMENT
SERVICES engages in the business of providing certain administrative and
support services concerning the day-to-day affairs of radiation therapy centers
(the “Centers”), both in their startup and established phases, and in providing
space in the Centers, equipment, furnishings, supplies, inventory and non-
medical personnel to Centers and facilities management in connection therewith.


 


D.                                    YRMP desires to
secure certain administrative services from MANAGEMENT SERVICES in connection
with its operation of the Practice in the Centers, and to lease from MANAGEMENT
SERVICES certain space, equipment, furnishings, supplies and inventory in
connection therewith.


 


E.                                      YRMP and
MANAGEMENT SERVICES desire to enter into a written agreement for the provision
by MANAGEMENT SERVICES, on an exclusive basis, of administrative services to
YRMP with respect to the Practice, and for the provision of space, furnishings,
supplies, inventory, non-medical personnel and management services to the
Practice, so as to permit YRMP to devote its efforts on a concentrated and
continuous basis to the rendering of medical services to its Patients.


 


NOW, THEREFORE, in
consideration of the mutual covenants and conditions contained herein, the parties
agree as follows:


 

















 


I. RESPONSIBILITIES OF YRMP


 


1.1.                              Sole
Responsibility for All Medical and Professional Matters. All medical
and professional matters relating to the provision of radiation therapy or
oncology services to Patients at the Centers shall be the sole responsibility
of YRMP. YRMP shall use and occupy the facilities provided by MANAGEMENT
SERVICES hereunder exclusively for the practice of medicine. YRMP expressly
acknowledges that the medical practice or practices conducted at these facilities
shall be conducted solely by its Employed Providers and Contracting Providers.
YRMP shall be solely responsible for identifying appropriate YRMP personnel,
including Employed Providers and Contracting Providers, to treat the Patients.


 


1.2.                              Employed
Providers and Contracting Providers. YRMP shall have complete
control of and responsibility for the hiring, engagement, compensation,
supervision evaluation and termination of all Employed Providers and
Contracting Providers, including nurses, physician assistants and other
licensed health care professionals. With respect to physicians, YRMP shall only
employ and contract with licensed physicians meeting applicable credentialing
guidelines established by YRMP. YRMP shall be responsible for the payment of salaries
and wages, compensation, payroll taxes, employee benefits, and all other taxes
and charges now or hereafter applicable to Employed Providers and Contracting
Providers, and other licensed health care professional personnel. A list of all
current Employed Providers and Contracting Providers is attached as Exhibit
B hereto. Prior to making any changes with respect to any of the Employed
Providers or Contracting Providers, YRMP shall consult with MANAGEMENT SERVICES
although MANAGEMENT SERVICES shall provide input only and shall not conclude
whether an Employed Provider should be hired or terminated. YRMP shall also
consult with MANAGEMENT SERVICES for MANAGEMENT SERVICES’ input with regard to
the terms of contracts entered into between YRMP and Employed Providers and
Contracting Providers and the terms and conditions of their employment or
engagement as independent contractors, as applicable.


 


1.3.                              Fees, Charges
and Payor Agreements. YRMP shall, after consultation with MANAGEMENT
SERVICES, determine the fees, charges, premiums, or other amounts due in
connection with its delivery of health care services to Patients. Such fees,
charges, premiums, or other amounts, regardless of whether determined on a
fee-for- service, capitated, prepaid, or other basis, shall be reasonable and
consistent with the fees, charges, premiums and other amounts due to health
care providers for similar services within the community under the type of
reimbursement program involved. MANAGEMENT SERVICES shall provide input
relating to the foregoing but shall not conclude the level of fees, charges,
premiums, or other amounts YRMP should establish.


 


1.4.                              Compliance with
Law. YRMP shall be solely responsible for requiring all of its Employed
Providers and Contracting Providers to comply with all laws, regulations and
ethical and professional standards applicable to the practice of medicine.
Employed Providers and Contracting Providers who are physicians shall at all
times be licensed to practice medicine in the State of New York and all other
states in which a Center at which such physician provides patients medical
services is located.


 


2

















 


1.5.                              Centers; Hours
of Operation; Staffing. YRMP shall conduct the Practice from the
current Centers set forth in Exhibit A as well as such hospitals and
other facilities as YRMP may determine from time to time in consultation with
MANAGEMENT SERVICES. Either party may recommend changes in or additions to the
Centers. Any additional or substitute Center which is agreed upon by the mutual
consent of the parties shall be deemed to be part of the Practice for the
purposes of this Agreement. The hours of operation and the medical staffing of
the Centers shall be established by the agreement of YRMP in consultation with
MANAGEMENT SERVICES from time to time hereafter.


 


1.6.                              Quality
Assurance. YRMP shall rigorously monitor utilization and
quality of services provided by Employed Providers and Contracting Providers,
shall develop, maintain and administer quality assurance programs and
performance standards and shall take all steps necessary to remedy any and all
deficiencies in the efficiency or the quality of medical care provided.


 


1.7.                              Patient
Referrals. The parties agree that the payments to MANAGEMENT
SERVICES for its services hereunder are not in any way contingent upon the
admission, referral or any other arrangements for the provision of any item or
service to YRMP’s Patients. MANAGEMENT SERVICES shall neither make NOR accept
any referrals of Patients hereunder.


 


1.8.                              Professional
Dues and Education Expenses. YRMP and its Employed
Providers shall be solely responsible for the cost of membership in
professional associations, and continuing professional education. YRMP shall
ensure that each of its Employed providers participates in such continuing
medical education as is necessary for such provider to remain current with
professional licensure and community standards.


 


1.9.                              Professional
Insurance Eligibility. YRMP shall obtain and retain professional
liability insurance by assuring that either its Employed Providers are
insurable or instituting proceedings to terminate any Employed Provider who is
not insurable or loses his or her insurance eligibility. Termination shall be
effective no more than thirty (30) days from such determination. YRMP shall
require all Employed Providers to participate in an on-going risk management
program.


 


1.10.                        Fees for
Professional Services. MANAGEMENT SERVICES shall be solely
responsible for legal, accounting and other non-medical professional services
incurred by YRMP in operating the Practice absent a violation by YRMP of any
provisions of this Agreement.


 


II. RESPONSIBILITIES OF MANAGEMENT SERVICES


 


2.1.                              General
Responsibility. MANAGEMENT SERVICES shall have general
responsibility for providing fiscal services, administrative services, and
other strategic and tactical support services to YRMP with respect to the
Practice as provided hereunder or at the direction of YRMP, except as otherwise
provided in this Agreement. Notwithstanding MANAGEMENT SERVICES’s general and
specific rights and responsibilities set forth in this Agreement, YRMP shall
have full authority and control


 


3

















 


with respect to all medical,
professional and ethical determinations over YRMP’s Practice to the extent
required by federal, state and local laws, rules and regulations. MANAGEMENT
SERVICES shall not engage in activities which constitute the practice of
medicine under applicable law. MANAGEMENT SERVICES shall neither exercise
control over nor interfere with the physician-patient relationship, which shall
be maintained strictly between the physicians of YRMP and their Patients.


 


2.2.                              Responsibilities
with Regard to Selected Patient- Related Matters.


 


(a)                                  Patient Relations,
Scheduling, Etc. MANAGEMENT SERVICES shall assist YRMP in
maintaining positive Patient relations by, among other things, in conjunction
with and at the direction of YRMP: scheduling Patient appointments; responding
to Patient grievances and complaints in matters other than medical evaluation,
diagnosis, and treatment; and establishing and maintaining in YRMP’s name and
on YRMP’s behalf Patient transfer arrangements to expedite referrals where
medically necessary, as determined and requested by the attending physician.


 


(b)                                 Recordkeeping. Patient
medical records shall be and shall remain the property of YRMP, and the content
thereof shall be solely the responsibility of YRMP. MANAGEMENT SERVICES shall
assist YRMP in maintaining Patient medical records at the direction of YRMP and
in accordance with applicable laws concerning their confidentiality and
retention, and promptly making such records available to YRMP’s Employed
Providers, Contracting Providers and other appropriate recipients.


 


(c)                                  Quality
Assurance.


 


(i)                       In General. In accordance
with criteria established by YRMP and at the direction of YRMP, MANAGEMENT
SERVICES shall assist YRMP in the development and implementation of appropriate
quality assurance programs, including development of performance and
utilization standards, sampling techniques for case review, and preparation of
appropriately documented studies. Notwithstanding the foregoing, MANAGEMENT
SERVICES shall not perform any duties that constitute the corporate practice of
medicine.


 


(ii)                    Periodic
Independent Review. On behalf of YRMP and at the direction of YRMP,
MANAGEMENT SERVICES may periodically perform quality assurance and utilization
reviews through nurses employed by YRMP; provided, however, that
MANAGEMENT SERVICES shall not engage in activities which constitute the
practice of medicine under applicable law. Alternatively and in consultation
with YRMP, MANAGEMENT SERVICES may arrange for an independent quality assurance
and utilization review to be performed periodically by persons who are
unrelated to YRMP or MANAGEMENT SERVICES, or to any Affiliate of YRMP or
MANAGEMENT SERVICES, which has expertise in such areas and which has been
approved in advance by YRMP. Such review shall include a random sampling of
medical records (consistent with laws regarding the confidentiality of medical
records), an analysis of YRMP’s quality assurance utilization review
procedures, and an analysis of the appropriateness of costs associated with
operating YRMP’s medical practice at the Practice.


 


4

















 


2.3.                              Responsibilities
with Regard to Selected Financial Matters.


 


(a)                                  Billing. MANAGEMENT
SERVICES shall submit on a timely basis all bills and necessary documentation
required by Patients and Payors in order to obtain payment in connection with
YRMP’s delivery of health care services at the Practice or its arrangement for
the delivery of such services. In seeking such payment, MANAGEMENT SERVICES
shall act as YRMP’s exclusive agent in billing and collecting professional
fees, charges and other amounts owed to YRMP. In this connection, YRMP hereby
appoints MANAGEMENT SERVICES, during the term of this Agreement, as YRMP’s true
and lawful attorney-in-fact, with power of substitution, for the following
purposes relating to the Practice:


 


(i)                       To bill YRMP’s
Patients on YRMP’s behalf and in YRMP’s name.


 


(ii)                    To collect accounts
receivable generated by such billings on YRMP’s behalf, including, where deemed
appropriate by MANAGEMENT SERVICES and approved in advance by YRMP, settling
and compromising claims, assigning such accounts receivable to a collection
agency or the bringing of legal action against a Patient or Payor on YRMP’s
behalf.


 


(iii)                 To receive payments on
behalf of YRMP from Patients and Payors, to cause such payments to be deposited
into appropriate depository accounts (each such depository account, a “Collections
Account”) and to write checks against or otherwise withdraw such payments to
pay YRMP Expenses (as hereinafter defined).


 


(b)                                 Accounting. MANAGEMENT
SERVICES shall direct and maintain the operation of an appropriate accounting
system with respect to YRMP’s operation of the Practice which shall perform all
bookkeeping and accounting services required for the operation of the Practice,
including the maintenance, custody and supervision of business records, ledgers
and reports; the establishment, administration and implementation of accounting
procedures, controls and systems. Such accounting system shall allow MANAGEMENT
SERVICES to prepare the reports specified in Section 2.3(c).


 


(c)                                  Reporting. MANAGEMENT
SERVICES shall present to YRMP reports on the financial condition of YRMP on
the basis set forth below in clauses (i) and (ii) and such other reports that
YRMP may reasonably request, including daily activity reports, weekly analyses,
alternative delivery system reports, backlog reports and the like. MANAGEMENT
SERVICES also shall provide such reports as may be required by any regulatory
agency having jurisdiction over the operations of YRMP.


 


The reports initially
required to be delivered to YRMP under this Section 2.3(c) with respect to the
Practice are as follows:


 


(i)                       As soon as
possible after the close of each month, a balance sheet and a related statement
of revenues and expenses showing the results of YRMP’s operations for the
preceding month of the fiscal year and the year to date.


 


5

















 


(ii)                    As soon as possible after
the close of each fiscal year, a balance sheet and related statement of revenues
and expenses showing the results of YRMP’s operations during that fiscal year.


 


2.4.                              Responsibilities
with Respect to Facilities Management.


 


(a)                    Office
Management Services. MANAGEMENT SERVICES shall provide, supervise and
direct the development of appropriate and efficient office management services
with respect to YRMP’s operation of the Practice.


 


(b)                   Centers. MANAGEMENT
SERVICES shall provide, manage and maintain the real property comprising the
Centers and reasonable improvements during the term of this Agreement. In
consultation with YRMP, MANAGEMENT SERVICES shall oversee all management,
maintenance and other decisions pertaining to the Centers consistent with the
terms of this Agreement. MANAGEMENT SERVICES shall maintain the Centers in good
condition and repair, reasonable wear and tear excepted. MANAGEMENT SERVICES
shall provide YRMP with all utilities (including water, gas and electricity),
heat, air conditioning, telephone, janitorial services and disposal services
(including the disposal of medical wastes) required in connection with the
operation of the Centers. YRMP acknowledges that the space allocated for the
provision of medical services is adequate and not excessive for its needs at
the commencement of this Agreement. YRMP shall notify MANAGEMENT SERVICES if
the space allocated to it hereunder does not meet YRMP’s needs at any point
during the term of this Agreement. Upon the request of YRMP and after
consultation with MANAGEMENT SERVICES, MANAGEMENT SERVICES will procure
additional space for yrmp’S provision of medical services hereunder.


 


(c)                                  Use of Assets.


 


(i)                       MANAGEMENT
SERVICES shall lease or purchase and, when necessary, replace equipment and
furnishings needed for the delivery of health care services by YRMP at the
Centers and for the delivery of services provided by MANAGEMENT SERVICES
pursuant to this Agreement. MANAGEMENT SERVICES shall consult with YRMP with
respect to the suppliers, prices and specifications of such equipment and
furnishings. MANAGEMENT SERVICES shall use its best efforts to keep and
maintain the equipment and furnishings used by YRMP at the Centers in good
working order and condition.


 


(ii)                    All assets provided or
purchased under this Agreement by MANAGEMENT SERVICES, including any management
information systems, shall remain the property of MANAGEMENT SERVICES and YRMP
shall have the right to use such assets only during the term of this Agreement.


 


(iii)                 Nothing in this Agreement
shall be construed to affect or limit in any way the professional discretion of
YRMP to select and use equipment, furnishings, inventory and supplies purchased
by MANAGEMENT SERVICES in accordance with the terms of this Agreement insofar
as such selection or use constitutes or might constitute the practice of
medicine.


 


6






 










 


(d)                   Supplies and
Inventory. MANAGEMENT SERVICES shall provide and replenish,
as necessary and as may be permitted by applicable law, the inventory and
supplies needed for the delivery of medical services by YRMP and for the
delivery of services by MANAGEMENT SERVICES pursuant to this Agreement.
MANAGEMENT SERVICES shall consult with YRMP with respect to the suppliers,
prices and specifications of such inventory and supplies.


 


(e)                    No Warranties. YRMP
ACKNOWLEDGES THAT MANAGEMENT SERVICES MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, AS TO THE SUITABILITY OR ADEQUACY OF ANY FACILITIES,
EQUIPMENT, FURNISHINGS, INVENTORY OR SUPPLIES PROVIDED PURSUANT TO THIS
AGREEMENT FOR THE CONDUCT OF A MEDICAL PRACTICE OR FOR ANY OTHER PARTICULAR
PURPOSE.


 


2.6.                              Other
Responsibilities.


 


(a)                                  Public
Relations. MANAGEMENT SERVICES shall propose, directly or
indirectly, public relations programs for YRMP’s use to enhance its public
relations. All public relations materials and all signage shall be in the name
of YRMP. Such “public, relations shall comply with applicable laws and
regulations governing the use of promotional activities by the medical
profession and with applicable standards of medical ethics.


 


(b)                                 Insurance.


 


(i)                  Property Insurance. MANAGEMENT
SERVICES shall obtain and maintain during the term of this Agreement, if
available on commercially reasonable terms, property damage insurance
protecting the Practice premises and the personal property located therein
against such hazards and in such amounts as MANAGEMENT SERVICES determines are
reasonably prudent; general liability insurance in such amounts as MANAGEMENT
SERVICES determines are reasonably prudent.


 


(ii)               General Liability Insurance. YRMP shall
obtain and maintain during the term of this Agreement general liability
insurance in such amounts as YRMP determines are reasonably prudent. YRMP shall
name MANAGEMENT SERVICES as an additional insured on such policies.


 


(iii)            Malpractice Insurance. It is
understood that YRMP and its Employed Providers shall, at YRMP’s cost, at all
times be covered by malpractice insurance with coverage in usual and customary
amounts for practitioners of the same profession and specialties in New York
and, if applicable, other states. YRMP shall ensure that its written agreements
with Contracting Providers who are physicians require such Contracting
Providers to at all times be covered by malpractice insurance in amounts that
are usual and customary for practitioners of the same profession and specialty
in New York and, if applicable, other states. Such malpractice policies shall
name MANAGEMENT SERVICES as an additional insured.


 


7

















 


(iii)                 Copies of Insurance Policies. MANAGEMENT
SERVICES or YRMP shall, upon request by YRMP or MANAGEMENT SERVICES, as the
case may be, promptly provide YRMP or MANAGEMENT SERVICES, as the case may be,
with copies of all policies of insurance that it procures under this Agreement.
Each such policy shall provide that it cannot be modified or terminated except
after thirty (30) days written notice to MANAGEMENT SERVICES.


 


(c)                                  Personnel. MANAGEMENT
SERVICES shall furnish the services of all personnel other than physicians,
nurses, physician assistants or other licensed health care professionals
required for the operation of the Practice. Except as specifically provided in
this Section 2.6(c). MANAGEMENT SERVICES has the power to recruit,
hire, train, promote, assign, set the compensation level for, and discharge all
personnel. Any nonprofessional personnel employed by MANAGEMENT SERVICES who
perform patient care services shall perform such services under the exclusive
direction, supervision and control of YRMP, while all other services of
MANAGEMENT SERVICES personnel shall be performed under the exclusive direction,
supervision and control of MANAGEMENT SERVICES. If YRMP is dissatisfied with
the services of any personnel employed by MANAGEMENT SERVICES, YRMP shall
consult with MANAGEMENT SERVICES. MANAGEMENT SERVICES shall in good faith
determine whether the performance of that employee could be brought to
acceptable levels through counsel and assistance, or whether, if requested by
YRMP (provided that such employee is not an officer or senior manager of
MANAGEMENT SERVICES), such employee should be removed from providing services
for YRMP. Employee assignments shall be made with the intention of assuring
consistent and continued rendering of high quality medical support services and
to ensure prompt availability and accessibility of individual medical support
personnel to physicians in order to develop constant, familiar and routine
working relationships between individual physicians and individual members of
the medical support personnel.


 


(d)                                 Employed
Providers, MANAGEMENT SERVICES shall assist YRMP in the administration
of any employee benefit plans established by YRMP as directed by YRMP.


 


(e)                                  Managed Care
Agreements. MANAGEMENT SERVICES shall negotiate, enter into
(to the extent deemed advisable by YRMP) and administer all managed care
agreements on behalf and at the direction of YRMP and shall consult with YRMP
on all professional and clinical matters relating thereto.


 


III. FINANCIAL ARRANGEMENTS


 


3.1.                              Service Fee. For the
services to be provided hereunder by MANAGEMENT SERVICES and subject to the
provisions of this Section 3.1, YRMP shall pay to MANAGEMENT SERVICES a
Management Fee of Thirty Thousand Dollars $30,000.00. Such fee shall be payable
on a monthly basis. The parties agree that the Management Fee represents the
fair market value of the services provided by MANAGEMENT SERVICES hereunder and
that such fee shall be recalculated annually and the new fee shall go into
effect as of January 1 of each calendar year.


 


8

















 


3.2.                              Security
Agreement; YRMP Expenses. To secure YRMP’s payment obligations
hereunder, YRMP is concurrently herewith entering into a security agreement, in
form acceptable to MANAGEMENT SERVICES, to grant to MANAGEMENT SERVICES a
security interest in the accounts receivable of YRMP and all of YRMP’s rights
to receive payments under managed care contracts. YRMP shall cooperate with
MANAGEMENT SERVICES and execute all reasonably necessary documents in
connection with the granting of such security interest.


 


All payments on behalf of
YRMP from Patients and Payors shall be deposited into one or more Collection
Accounts. To the extent YRMP receives any such payments, YRMP shall direct such
payments to MANAGEMENT SERVICES for deposit in one or more Collection Accounts.


 


3.4.                              Arbitration. Any controversy
or claim arising out of or relating to this Agreement or the transactions
contemplated hereby, including any controversy or claim arising out of or
relating to the parties’ decision to enter into this Agreement or the
transactions contemplated hereby, shall be settled by binding arbitration. Each
party shall select an arbitrator who has at least three (3) years
experience in health care or medical practice management or in health care or
medical practice dispute resolution. The arbitration proceedings shall be
confidential and the arbitrators may issue - appropriate protective orders to
safeguard each party’s confidential information. Such protective orders shall
be enforceable by any court of competent jurisdiction. Except as specifically
provided in this section, the arbitration shall be conducted in accordance with
the rules of conciliation and arbitration of the American Arbitration
Association. The two arbitrators shall agree upon any issue no later than
thirty (30) days after the date the second arbitrator has been engaged, and
shall take into account the principles and objectives set forth in paragraph (b) below.
If the two arbitrators cannot agree on a determination, then within five (5) days
thereafter the two arbitrators shall select a third arbitrator, who shall have
the same qualifications required for the first two arbitrators. No later than
thirty (30) days after the date the third arbitrator is engaged, he or she
shall determine which of the two positions best satisfies the provisions of the
contract and the intent of the parties, taking into account the principles and
objectives set forth in paragraph (b) below. The third arbitrator shall
have no right to propose a middle ground between the two or to make any
modification of the proposals of either party. The third arbitrator’s
determination shall be final and binding on all parties. The cost and expense
of the third arbitrator shall be shared equally between the parties. If either
party fails to engage an arbitrator as required hereunder, the arbitrator
selected by the other party shall conduct the arbitration and make the final
decision in accordance with this Section 3.4.


 


(b)                                 The arbitration
shall be conducted at the offices of MANAGEMENT SERVICES or such other mutually
acceptable site. In conducting the arbitration, the arbitrator(s) shall
consider the following principles and objectives of the parties in entering
into this Agreement:


 


(i)                       The parties
contemplate that YRMP shall pay MANAGEMENT SERVICES a flat fee for the fair
market value of MANAGEMENT SERVICES’ services hereunder.


 


9

















 


(ii)          The parties that MANAGEMENT
SERVICES shall in no way provide medical services to Patients.


 


(iii)                 The parties contemplate an
expansion of the Practice by acquisition or purchase of other Centers and by
expansion of the variety of specialty medical services provided and/or
ancillary services provided.


 


IV. REPRESENTATIONS AND WARRANTIES; COVENANTS


 


4.1.                              Representations
and Warranties and Covenants of YRMP. YRMP hereby represents and
warrants to MANAGEMENT SERVICES as follows:


 


(a)                                  YRMP is and
shall remain during the term of this Agreement a professional corporation duly
organized, validly existing and in good standing under the laws of the State of
New York, actively engaged in the practice of medicine, and possessing full
corporate power and authority to own its properties and to conduct the business
in which it engages.


 


(b)                                 YRMP has full
corporate power and authority to execute and deliver this Agreement and to
engage in the transactions and obligations contemplated by this Agreement. Upon
its execution, this Agreement shall constitute a valid and binding obligation
of YRMP, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, moratorium, or other similar laws affecting
generally the rights of creditors and by principles of equity. The party
executing this Agreement on behalf of YRMP is duly authorized to do so.


 


(c)                                  The
consummation of the transactions contemplated by this Agreement will not:
result in a breach of the terms, provisions, or conditions of or constitute a
default under the Articles of Incorporation, By-Laws or other enabling or
governing instruments of YRMP or any agreement to which YRMP is a party or by
which it is bound; or, to the best knowledge of YRMP, constitute a violation of
any applicable law or regulation.


 


4.2.                              Covenants and
Warranties of MANAGEMENT SERVICES. MANAGEMENT SERVICES hereby
represents and warrants to YRMP as follows:


 


(a)                                  MANAGEMENT
SERVICES is and shall remain during the term of this Agreement a corporation
which is duly organized, validly existing and in good standing under the laws
of the State of New York, possessing full corporate power and authority to own
its properties and to conduct the business in which it engages.


 


(b)                                 MANAGEMENT
SERVICES has full corporate power and authority to execute and deliver this
Agreement and to engage in the transactions and obligations contemplated by
this Agreement. Upon its execution, this Agreement shall constitute a valid and
binding obligation of MANAGEMENT SERVICES, enforceable in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, moratorium, or
other similar laws affecting generally the rights of creditors and by


 


10

















 


principles of equity. The
party executing this Agreement on behalf of MANAGEMENT SERVICES is duly
authorized to do so.


 


(c)                                  The
consummation of the transactions contemplated by this Agreement will not:
result in any breach of the terms, provisions or conditions of or constitute a
default under the Certificate of Incorporation, Bylaws or other enabling or
governing instruments of MANAGEMENT SERVICES or any agreement to which
MANAGEMENT SERVICES is a party or by which it is bound; or, to the best
knowledge of MANAGEMENT SERVICES, constitute a violation of any applicable law
or regulation.


 


V. TERM AND TERMINATION


 


5.1.                              Term. This
Agreement shall commence on the Effective Date and shall continue in effect
until August 1, 2007 (the “Initial Term”), unless sooner terminated
pursuant to this Article V. Thereafter, this Agreement shall automatically
continue in effect for additional terms of five (5) years each (each such
additional term, a “Renewal Term”), unless MANAGEMENT SERVICES notifies YRMP in
writing not less than twelve (12) months or more than fifteen (15) months prior
to the expiration of the Initial Term or any then current Renewal Term of its
intent to terminate this Agreement at the end of such term, or unless this
Agreement is terminated pursuant to Section 5.2, Section 5.3, Section 5.4
or Section 8.11 hereof.


 


5.2.                              Events of
Default. Each of the following shall constitute an “Event of Default” (the
party causing such default is referred to as the “Breaching Party” and the
other party is referred to as the “Non-Breaching Party”):


 


(a)                                  The Breaching
Party fails to make any payment required under this Agreement.


 


(b)                                 The Breaching
Party admits in writing its inability to pay its debts as they mature, makes
any general assignment for the benefit of creditors, or seeks to avail itself
of any law for the release of insolvent debtors.


 


(c)                                  Insolvency,
bankruptcy, dissolution, liquidation, or receivership proceedings are commenced
by or with the consent of the Breaching Party, or are pending for more than
sixty (60) days against the Breaching Party.


 


(d)                                 The Breaching
Party fails to observe or otherwise breaches any material term, condition,
covenant, or warranty of this Agreement.


 


5.3.                              Termination. Subject to
the provisions of this Article V, the Non- Breaching Party may terminate
this Agreement upon the occurrence of an Event of Default in accordance with
the following:


 


(a)                                  In the event of
the occurrence of an Event of Default referred to in Section 5.2(a) above,
upon the expiration of thirty (30) days after written notice, which


 


11

















 


notice shall specify the
amount of such payment and when it was due, unless the amount due is paid
within such thirty (30) days.


 


(b)                                 In the event of
the occurrence of any other Event of Default, upon the expiration of ninety
(90) days after written notice, which notice shall specify the nature and
extent of such Event of Default to the Breaching Party, unless such Event of Default
is remedied within such ninety (90) days or, in the case of an Event of Default
which cannot reasonably be remedied within ninety (90) days, unless the
Breaching Party has made a good faith effort to begin to cure such Event of
Default within such ninety (90) days.


 


5.4.                              Termination
Without Cause. Either party shall have the absolute right to
terminate this Agreement without any further liability to the other (except as
provided in Section 5.5 below), upon at least ninety (90) days notice.


 


5.5.                              Duties upon
Termination or Expiration of This Agreement.


 


(a)                                  If this
Agreement is terminated upon expiration of its term, or earlier as provided in
Sections 5.3, 5.4 or 8.11:


 


(i)                       Neither party
shall be released or discharged from any obligation, debt or liability which
has previously accrued or been incurred and remains to be performed upon the
date of termination or expiration;


 


(ii)                    Any sums of money owing by
one party to the other shall be paid immediately;


 


(iii)                 YRMP shall return to
MANAGEMENT SERVICES all originals and copies of the Proprietary Information of
any of the Protected Parties (as those terms are defined in Article VI)
which are in the possession of YRMP or any other person or entity to whom it
has delivered such originals and copies; and


 


(iv)                MANAGEMENT SERVICES shall
return to YRMP all originals and copies of all Patient Medical Records and
records which will remain the property of YRMP pursuant to Section 7.2(b) hereof.


 


(v)                   Damages and any other
remedies available at law or in equity may be sought and collected by the
Non-Breaching Party from the Breaching Party in the event of a termination
pursuant to Section 5.3 hereof.


 


VI. RESTRICTIVE COVENANTS


 


6.1.                              Covenant
Regarding Proprietary Information. In the course of the
relationship created pursuant to this Agreement, YRMP will have access to
certain methods, trade secrets, processes, ideas, systems, procedures,
inventions, discoveries, concepts, software in various stages of development,
designs, drawings, specifications, models, data, documents, diagrams, flow
charts, research, economic and financial analysis, developments, procedures,
know-how, policy manuals, financial data, form contracts,


 


12

















 


marketing ad other
techniques, plans, materials, forms, copyrightable materials and trade
information regarding the operations of MANAGEMENT SERVICES and/or of its
Affiliates (collectively, the “Protected Parties”). The foregoing, together
with the existence and terms of this Agreement, are referred to in this
Agreement as “Proprietary Information”. YRMP shall maintain all such
Proprietary Information in strict secrecy and shall not divulge such
information to any third parties, except as may be necessary for the discharge
of its obligations under this Agreement. YRMP shall take all necessary and
proper precautions against disclosure of any Proprietary Information to
unauthorized persons by any of its officers, directors, employees or agents.
All officers, directors, employees and agents of YRMP who will have access to
all or any part of the Proprietary Information may be required to execute an
agreement, at the reasonable request of MANAGEMENT SERVICES, valid under the
law of the jurisdiction in which such agreement is executed, and in a form
acceptable to MANAGEMENT SERVICES and its counsel, committing themselves to
maintain the Proprietary Information in strict confidence and not to disclose
it to any unauthorized person or entity. The Protected Parties not party to
this Agreement are hereby specifically made third party beneficiaries of this Section 6.1,
with the power to enforce the provisions hereof. Upon termination of this
Agreement for any reason, YRMP and each of its Employed Providers and
Contracting Providers shall cease all use of any of the Proprietary Information
and, at the request of MANAGEMENT SERVICES, shall execute such documents as may
be necessary to evidence YRMP’s abandonment of any claim thereto. The parties
recognize that a breach of this Section 6.1 cannot be adequately
compensated in money damages and therefore agree that injunctive relief shall
be available to the Protected Parties as their respective interests may appear.


 


The obligations of YRMP
under this Section 6.1 shall not apply to information: (i) which is a
matter of public knowledge on or becomes a matter of public knowledge after the
Effective Date of this Agreement, other than as a breach of the confidentiality
terms of this Agreement or as a breach of the confidentiality terms of any
other agreement between YRMP and MANAGEMENT SERVICES or its Affiliates; or (ii) was
lawfully obtained by YRMP on a nonconfidential basis other than in the course
of performance under this Agreement and from some entity other than MANAGEMENT
SERVICES or its Affiliates or from some person other than one employed or
engaged by MANAGEMENT SERVICES or its Affiliates, which entity or person has no
obligation of confidentiality to MANAGEMENT SERVICES or its Affiliates.


 


6.2.                              Covenants Not
to Compete During the Term. The parties recognize that
the services to be provided by MANAGEMENT SERVICES shall be feasible only if
YRMP operates an active medical practice to which YRMP and Employed Providers
devote full time and attention. To that end:


 


(a)                                  Restrictive
Covenants by YRMP. During the term of this Agreement, YRMP shall not
establish, operate or provide physician or other health care services at any
medical office, clinic or other health care facility providing services
substantially similar to those provided by YRMP pursuant to this Agreement
anywhere other than at the Centers and as may be approved in writing by
MANAGEMENT SERVICES. YRMP shall also not enter into any management or
administrative services


 


13

















 


agreement or arrangement
with any person or entity other than MANAGEMENT SERVICES without MANAGEMENT
SERVICES’s prior written approval.


 


(b)                                 Restrictive
Covenants by Employed Physicians, All employment contracts
between YRMP and its Employed Providers shall name MANAGEMENT SERVICES as a
third-party beneficiary to the contract. The contracts shall include
noncompetition agreements with its Employed Providers who are physicians, the
substance and form of which is set forth as Exhibit C hereto, and
which YRMP will enforce.


 


6.3.                              Covenant Not to
Compete Following Termination. For one (1) year
following the termination of this Agreement by MANAGEMENT SERVICES pursuant to Section 5.3
or by either party pursuant to Section 8.11, YRMP shall not enter into any
management or administrative services agreement or any similar arrangement with
any person or entity for the provision of the same or similar services as
MANAGEMENT SERVICES provides to YRMP under this Agreement.


 


6.4.                              Covenant Not to
Solicit. During the term of this Agreement and for one (1) year following
the termination of this Agreement, YRMP shall not:


 


(a)                                  Directly or
indirectly solicit, recruit or hire, or induce any party to solicit, recruit or
hire any person who is an employee of, or who has entered into an independent
contractor arrangement with, MANAGEMENT SERVICES or any Affiliate of MANAGEMENT
SERVICES (excluding any person who performs patient services);


 


(b)                   Directly or indirectly,
whether for itself or for any other person or entity, call upon, solicit,
divert or take away, or attempt to solicit, call upon, divert or take away any
of MANAGEMENT SERVICES’s customers, business, or clients; or


 


(c)                                  Disrupt,
damage, impair or interfere with the business of MANAGEMENT SERVICES.


 


6.5.                              Enforcement. MANAGEMENT
SERVICES and YRMP acknowledge and agree that since a remedy at law for any
breach or attempted breach of the provisions of this Article VI or of Article VII
shall be inadequate, either party shall be entitled to specific performance and
injunctive or other equitable relief in case of any such breach or attempted
breach, in addition to whatever other remedies may exist by law. All parties
hereto also waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other equitable relief.
If any provision of Article VI or Article VII relating to the
restrictive period, scope of activity restricted and/or other provisions
described therein shall be declared by a court of competent jurisdiction to
exceed the maximum time period, scope of activity restricted or geographical
area such court deems reasonable and enforceable under applicable law, the time
period, scope of activity restricted and/or area of restriction held reasonable
and enforceable by the court shall thereafter be the restrictive period, scope
of activity restricted and/or the territory applicable to the restrictive
covenant provisions in this Article VI or Article VII. The invalidity
or non-enforceability of this Article VI or


 


14

















 


Article VII in any
respect shall not affect the validity or enforceability of the remainder of
this Article VI or Article VII or of any other provisions of this
Agreement.


 


VII. INFORMATION AND RECORDS


 


7.1.                              Ownership of
Records. At all times during and after the term of this Agreement, including
any extensions or renewals hereof, all business records, including but not
limited to, business agreements, books of account, general administrative
records and all information generated under or contained in the management
information system pertaining to MANAGEMENT SERVICES’s obligations hereunder,
and other business information of any kind or nature, except for Patient
medical records and YRMP’s Records (as defined in Section 7.2 below),
shall be and remain the sole property of MANAGEMENT SERVICES; provided
that after termination of this Agreement YRMP shall be entitled to reasonable
access to such records and information, including the right to obtain copies
thereof, for any purpose related to patient care or the defense of any claim
relating to patient care or the business of MANAGEMENT SERVICES or YRMP.


 


7.2.                              YRMP’s Business
and Financial Records. At all times during and after the term of
this Agreement, the financial, corporate and personnel records and information
relating exclusively to the business and activities of YRMP, as distinguished
from the business and activity of MANAGEMENT SERVICES, hereinafter referred to
as “YRMP’s Records,” shall be and remain the sole property of YRMP.


 


7.3.                              Access to
Records. Each party shall be entitled, upon request and with reasonable
advance notice, to obtain access to all records of the other party directly
related to the performance of such party’s obligations pursuant to this
Agreement; provided, however, that such right shall not allow for access to
records that must necessarily be kept confidential. Either party, at its
expense, shall have the right to make copies of any records, to which it has
access pursuant to this Section.


 


7.4.                              Confidentiality
of Records. MANAGEMENT SERVICES and YRMP shall adopt
procedures for maintaining the confidentiality of the records relating to the
operations of MANAGEMENT SERVICES and YRMP which do not constitute Proprietary
Information, which information is not otherwise available to third parties
publicly or by law, and shall comply with all applicable federal and state
statutes and regulations relating to such records. Patient medical records and
other privileged Patient information shall not be disclosed or utilized by YRMP
or MANAGEMENT SERVICES or their agents or employees except as required or
permitted by applicable laws and regulations.


 


VIII. MISCELLANEOUS


 


8.1.                              Independent
Contractor Status of Parties. In the performance of the
work, duties and obligations under this Agreement, it is mutually understood
and agreed that each party is at all times acting and performing as an
independent contractor with respect to the other and that no relationship of
partnership joint venture or employment is created by this Agreement. Neither
party, nor any other person performing services on behalf of such party
pursuant to this Agreement, shall have any right or claim against


 


15

















 


the other party for Social
Security benefits, workers’ compensation benefits, disability benefits,
unemployment insurance benefits, health benefits, vacation pay, sick leave or
any other employee benefits of any kind.


 


8.2.                              No Waiver. The waiver by
any party to this Agreement of any breach of any term or condition of this
Agreement shall not constitute a waiver of subsequent breaches. No waiver by
any party of any provision of this Agreement shall be deemed to constitute a
waiver of any other provision.


 


8.3.                              Notices. If, at any
time after the execution of this Agreement, it shall become necessary or
convenient for one of the parties to serve any notice, demand or communication
upon the other party, such notice, demand, or communication shall be in writing
and shall be served personally, by nationally recognized overnight courier which
provides confirmation of delivery, or by depositing the same in the United
States mail, registered or certified, return receipt requested, postage prepaid
and,


 


(a)                                  If intended for
YRMP, then the notice shall be addressed to:


 


(b)                                 If intended for
MANAGEMENT SERVICES, then the notice shall be addressed to:


 


or to such other address as
either party may have furnished to the other party in writing as the place for
the service of notice. Any notice so mailed shall be deemed to have been given
three (3) days after the same has been deposited in the United States
mall; when delivered if the same has been given personally; or the next
business day if the same has been delivered to a nationally recognized
overnight courier service.


 


8.4.                              Assignment. Neither party
may sell, transfer, assign, or otherwise convey its rights or obligations under
this Agreement without the prior written consent of the other, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, MANAGEMENT
SERVICES shall have the right to (a) assign its rights and/or delegate all
or any of its obligations to any of its Affiliates; and/or (b) subcontract
some portion of its obligations hereunder to a third party which is not an
Affiliate of MANAGEMENT SERVICES.


 


8.5.                              Successors and
Assigns. Subject to the provisions of this Agreement respecting assignment,
the terms, covenants and conditions contained herein shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.


 


16

















 


8.6.                              Severability. Nothing
contained in this Agreement shall be construed to require the commission of an
act contrary to law, and whenever there 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 any provision 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 the extent
necessary to bring it within the requirements of the law and, insofar as
possible under the circumstances, to carry out the purposes of this Agreement.
The other provisions of this Agreement, shall remain in full force and effect,
and the invalidity or unenforceability of any provision hereof shall not affect
the validity and enforceability of the other provisions of this Agreement, nor
the availability of all remedies in law or equity to the parties with respect
to such other provisions.


 


8.7.                              Third Parties. Except as
provided in Article VII, nothing in this Agreement shall be construed to
create any duty to, any standard of care with reference to or any liability to
anyone not a party to this Agreement.


 


8.8.                              Headings. The headings
used in this Agreement are for convenience of reference only and shall have no
force or effect in the construction or interpretation of the provisions of this
Agreement.


 


8.9.                              Time of the
Essence. Time is of the very essence of each and all of the agreements, covenants
and conditions of this Agreement.


 


8.10.                        Governing Law. This
Agreement shall be interpreted in accordance with and governed by the laws of
the State of New York, to the jurisdiction of which each of the parties hereby
submits.


 


8.11.                        Contract
Modifications for Prospective Legal Events. In the event any state or
federal laws or regulations, now existing or enacted or promulgated after the
Effective Date of this Agreement, are interpreted by judicial decision, a
regulatory agency or legal counsel of both parties in such a manner as to
indicate that the structure of this Agreement may be in violation of such laws
or regulations (a “Structural Issue”), and if the basis of such violation
relates to the management fee payable to MANAGEMENT SERVICES hereunder,
MANAGEMENT SERVICES may elect either to terminate this Agreement, on not less
than ninety (90) days written notice to YRMP, or negotiate and enter into an
amendment of the management fee provisions of this Agreement in such manner as
to alleviate such violation. In the event that MANAGEMENT SERVICES elects to
negotiate an amendment of the management fee provisions of this Agreement, the
parties shall be obligated to use their best efforts to negotiate such
amendment based upon the principles set forth in Section 3.5(b)(v) hereof.
In the event that the parties are unable to agree upon such amendment within
thirty (30) days after the determination that such amendment is necessary,
either party may elect either to terminate this Agreement, on not less than ninety
(90) days written notice to the other, or submit the amendment of the
provisions of this Agreement relating to the management fee to arbitration in
accordance with the provisions of Section 3.5 hereof.


 


17






 










 


In the event the basis of
such violation relates to a matter other than the management fee, YRMP and
MANAGEMENT SERVICES shall amend this Agreement, to the maximum extent possible,
to preserve the underlying economic and financial arrangements between YRMP and
MANAGEMENT SERVICES.


 


The parties agree that an
amendment to accomplish the purposes set forth in this Section 8.11 may
require reorganization of YRMP or MANAGEMENT SERVICES, or both, and may require
either or both parties to obtain appropriate regulatory licenses and approvals.
If (a) such reorganization or obtaining such regulatory licenses and
approvals is not reasonably possible, either party shall have the right to
terminate this Agreement on not less than ninety (90) days written notice to
the other party; or (b) such reorganization or obtaining such regulatory
licenses and approvals would require MANAGEMENT SERVICES or YRMP to incur a
material economic detriment or would result in a material economic detriment
for MANAGEMENT SERVICES or . YRMP, MANAGEMENT SERVICES or YRMP, as the case may
be, shall have the right to terminate this Agreement on not less than ninety
(90) days written notice to YRMP or MANAGEMENT SERVICES, as the case may be.


 


MANAGEMENT SERVICES shall
have no claim against YRMP, and YRMP shall have no claim against MANAGEMENT
SERVICES, pursuant to the provisions of Section 4.1(c) hereof or Section 4.2(c) hereof,
respectively, which is based upon or arises out of a Structural Issue.


 


8.12.                        Language
Construction. The language in all parts of this Agreement shall
be construed, in all cases, according to its fair meaning, and not for or
against either party hereto. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.


 


8.13.                        Indemnification. YRMP shall
indemnify, hold harmless and defend MANAGEMENT SERVICES, its officers,
directors, shareholders, employees, agents and independent contractors (the “MANAGEMENT
SERVICES Group”) from and against any and all liabilities, losses, damages,
claims, causes of action, and expenses (including reasonable attorneys’ fees
and disbursements (a “MANAGEMENT SERVICES Loss”)), caused or asserted to have
been caused, directly or indirectly, by or as a result of the performance of
medical services or any other acts or omissions by MANAGEMENT SERVICES and/or
its partners, agents, employees and/or subcontractors (other than MANAGEMENT
SERVICES) during the term hereof except with respect to any MANAGEMENT SERVICES
Loss which is the result of any gross negligence or willful misconduct by a
member of the MANAGEMENT SERVICES Group. MANAGEMENT SERVICES shall indemnify,
hold harmless and defend YRMP, its officers, directors, partners employees,
agents and independent contractors (the “YRMP Group”) from and against any and
all liabilities, losses, damages, claims, causes of action, and expenses (including
reasonable judgment attorneys’ fees and disbursements) (a “YRMP Loss”), caused
or asserted to have been caused, directly or indirectly, by or as a result of
the performance of any acts of omissions by MANAGEMENT SERVICES and/or its
shareholders, agents, employees and/or subcontractors during the term hereof


 


18

















 


except with respect to any
YRMP Loss which is the result of any gross negligence or willful misconduct by
a member of the YRMP Group.


 


8.14.                        Entire
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether written or oral, between or among parties regarding the
subject matter of this Agreement.


 


8.15.                        Incorporation by
Reference. All exhibits and other attachments to this Agreement are
incorporated by reference into this Agreement by such reference.


 


8.16.                        Amendments Only
in Writing. This Agreement may not be amended or modified in
any respect whatsoever, except by an instrument in writing signed by the.
parties hereto.


 


8.17.                        Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be considered
an original and all of which shall constitute one and the same agreement. This
Agreement shall not become effective until it has been executed by all of the
parties hereto.


 


8.18.                        Commercial
Impracticability. No party to this Agreement shall be liable for any
failure to perform its obligations hereunder where such failure results from
any cause beyond that party’s reasonable control, including, for example, an
act of God, labor disturbance such as a strike or walkout, war, riot, fire,
storm, accident, government regulation or interference, or mechanical,
electronic or communications failure.


 


8.19.                        Election of
Remedies. The respective rights of the parties to this
Agreement shall be cumulative. Each party shall have all other rights and
remedies consistent with this Agreement as law and equity may provide. No
exercise by any party of one right or remedy shall be deemed to be an exclusive
election of rights or remedies.


 


8.20.                        Survival. The
provisions of Articles III, IV, V, VI, VII and VIII shall survive any
termination of this Agreement.


 


8.21.                        Third Party
Beneficiaries. Except with respect to Affiliates of MANAGEMENT
SERVICES, nothing in this Agreement shall be construed to create any duty to,
any standard of care with reference to, or any liability to any Person not a
party to this Agreement. The Affiliates of MANAGEMENT SERVICES are intended
third party beneficiaries of this Agreement.


 


8.22.                        Affiliate. An “Affiliate”
of an entity means (i) any person or entity directly or indirectly
controlled by such entity; (ii) any person or entity directly or
indirectly controlling such entity; (iii) any subsidiary of such entity if
the entity has a fifty percent (50%) or greater ownership interest in the
subsidiary; or (iv) such entity’s parent entity if the parent has a fifty
percent (50%) or greater ownership interest in the entity. For purposes of this
Article III, YRMP is not an Affiliate of MANAGEMENT SERVICES.


 


19

















 


IN WITNESS WHEREOF,
MANAGEMENT SERVICES and YRMP have caused this Agreement to be executed by their
duly authorized respective officers as of the Effective Date.


 


	
   

  	
  NEW YORK RADIATION THERAPY

  MANAGEMENT SERVICES, INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Daniel E. Dosoretz, M.D.

  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  YONKERS RADIATION MEDICAL
  PRACTICE,

  P.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Daniel E. Dosoretz, M.D. 

  President

  



 


20

















 


EXHIBIT A


 


CENTERS


 


21

















 


EXHIBIT B


 


EMPLOYED
PROVIDERS AND CONTRACTING PROVIDERS


 


22

















 


EXHIBIT C


 


NONCOMPETITION
AGREEMENT


 


23