Exhibit 10.85


 


AMENDMENT
TO

BUSINESS OPERATIONS AND SUPPORT SERVICES AGREEMENT


 


THIS
AMENDMENT TO BUSINESS OPERATIONS AND SUPPORT SERVICES AGREEMENT (“Amendment”)
dated as of November 15, 2006 by and between Phoenix Management Company,
LLC, a Michigan limited liability company (“Manager”) and X-ray Treatment
Center, P.C., a Michigan professional services corporation (“Medical Practice”).


 


RECITALS


 


WHEREAS, Manager and
Medical Group are parties to that certain Business Operations and Support
Services Agreement dated July 20, 1999 (the “Agreement”).


 


WHEREAS, pursuant to
the Agreement, the Manager is responsible for general management and
administration operations of the medical practices (the “Practices”) operated
by Medical Group located at 23333-23337 Gratiot Avenue, Eastpointe, Michigan
and 17435 Hall Road, Macomb, Michigan (the “Offices”).


 


WHEREAS, Manager’s
obligations include owning, maintaining and/or providing Medical Group with
equipment, fixtures and furnishings (collectively, the “Equipment”) at the
Offices necessary for the operation of the Practices.


 


WHEREAS, the Michigan
Department of Community Health (“MDCH”) issued two Certificates of Need (“CONs”)
to Medical Group in connection with owning and operating the Equipment at the
Offices.


 


WHEREAS, Medical Group
desires to transfer to Manager, and Manager desires to accept from Medical
Group, all of Manager’s right, title and interest in and to the CONs.


 


WHEREAS, the parties
desire to amend the Agreement in accordance with the terms and conditions set
forth below.


 


NOW
THEREFORE, intending to be legally bound and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:


 


1. Defined Terms.
Capitalized terms used herein but not otherwise defined shall have the meanings
ascribed to them in the Agreement.


 

















 


2. Section 5.1
of the Agreement is hereby amended to add the following at the end of Section 5.1:


 


Medical Group hereby agrees
to transfer to Manager all of its right, title and interest in and to the
Certificates of Need (“CONs”) issued by the Michigan Department of Community
Health (the “MDCH”) originally issued to Medical Group relating to the
Equipment at no additional cost to Manager (the “Transfer”). The parties acknowledge
and agree that the Transfer of the CONs are intended to assist Manager in
performing its obligations set forth in this Agreement and that the absence of
consideration therefore has been determined by the parties through good faith
to be fair and reasonable. Medical Group shall fully cooperate with Manager in
all respects to effectuate the Transfer, including but not limited to execution
of any documents deemed necessary by Manager or MDCH.


 


3. Section 5.14
of the Agreement is hereby deleted in its entirety and replaced with the
following:


 


5.14 Recruitment of
Physicians. Practice Manager shall coordinate recruiting of physicians
including advertising for recruitment of Physicians to become shareholders,
employees or independent contractors of the Medical Practice. It shall be a
joint responsibility of Medical Practice and Practice Manager to interview,
select, contract with, supervise, control, and terminate all Physicians
performing Medical Services. Costs of recruiting not identified in the yearly budget
on a continual basis shall be borne as an additional expense to the Medical
Practice.


 


4. Section 8.3
of the Agreement is amended to delete the second paragraph in its entirety.


 


5. Section 9.4
of the Agreement is hereby deleted in its entirety and replaced with the
following:


 


9.4 Notices. Any
notice, demand, or communication required, permitted, or desired to be given
under this Agreement shall be in writing and shall be deemed given if delivered
in person or deposited in United States Mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to the parties as set forth
opposite their respective names below:


 


	
   

  	
  Medical Practice:

  	
  X-Ray Treatment Center,
  P.C.

  
	
   

  	
   

  	
  Attention: Michael J.
  Katin, M.D.

  
	
   

  	
   

  	
  23333-23337 Gratiot Avenue

  
	
   

  	
   

  	
  Eastpointe, MI 48021

  
	
   

  	
   

  	
   

  
	
   

  	
  Manager:

  	
  Phoenix Management
  Company, LLC

  
	
   

  	
   

  	
  Attention: Daniel E.
  Dosoretz, M.D.

  
	
   

  	
   

  	
  2234 Colonial Boulevard

  
	
   

  	
   

  	
  Fort Myers, FL 33907

  



 


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6. Ratification.
Except as expressly modified by this Amendment, all of the terms and conditions
of the Agreement shall remain in full force and effect.


 


7. Counterparts. This
Amendment may be executed by the parties hereto in separate counterparts and
both counterparts taken together shall constitute one and the same instrument.


 


IN WITNESS WHEREOF, the
undersigned have executed this Amendment as of November 15, 2006.


 


	
   

  	
   

  	
  PHOENIX MANAGEMENT
  COMPANY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David M. Koeninger

  
	
   

  	
   

  	
  Name:

  	
  David M. Koeninger

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  X-RAY TREATMENT CENTER,
  P.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, M.D.

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


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BUSINESS
OPERATIONS AND SUPPORT SERVICES AGREEMENT


 


This Business Operations and
Support Services Agreement (this “Agreement”) is made and entered into this 20th day of July, 1999, effective as of the Closing
Date, by and between Phoenix Management Company, LLC, a Michigan limited
liability company (“Manager”), and X-Ray Treatment Center, P.C. a Michigan
professional services corporation (“Medical Practice”) located at 23333-23337
Gratiot, Eastpointe, Michigan.


 


RECITALS:


 


WHEREAS, Medical
Practice is a duly formed and validly existing professional services
corporation; and


 


WHEREAS, Medical
Practice is formed for and engaged in the conduct of a medical practice and the
provision of medical services to the general public in the State of Michigan
through individual physicians who are licensed to practice medicine in the
State of Michigan and who are shareholders of Medical Practice or are employed
or otherwise retained by Medical Practice; and


 


WHEREAS, Manager is a
duly formed and validly existing Michigan limited liability company, which is
in the business of providing both medical administrative and related services
to professional associations, physicians, and other professional health care
entities and individuals. Manager is experienced in the design, development,
financing, equipping, staffing, accounts receivable management, and marketing
of medical practices; and


 


WHEREAS, Medical
Practice desires to focus its energies, expertise, and time on the actual
practice of medicine and on the delivery of medical services to patients, and
to accomplish that goal it desires to delegate the increasingly more complex
business aspects of its practice to business persons; and


 


WHEREAS, Medical
Practice wishes to expand its business, pursue market opportunities, achieve
efficiencies, provide utilization review and quality assurance, acquire additional
equipment, space and personnel; and


 


WHEREAS, Medical
Practice wishes to engage Manager to assume the initial costs and risks of
operating the practice, to provide the management, marketing, administrative,
and business services that are necessary and appropriate for the day-to-day
administration of the non-medical aspects of its medical practice, and Manager
desires to provide such services, all upon the terms and conditions hereinafter
set forth; and


 


WHEREAS, Medical
Practice and Manager have determined a fair market value for the services to be
rendered by Medical Practice; and


 


WHEREAS, based on this
fair market value, Medical Practice and Manager have developed a formula to
compensate the Medical Practice and employees that will allow the parties to
establish a relationship permitting each parry to devote its skills and
expertise to the appropriate responsibilities and functions;


 

















 


NOW,
THEREFORE, in consideration of the mutual terms, covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:


 


I. Recitals.


 


The foregoing recitals are
true and correct and are made an integral part of this Agreement as though
fully set forth and incorporated herein.


 


II. Definitions.


 


For the purposes of this
Agreement, the following terms have the following meanings, unless otherwise
clearly required by the context in which the term is used.


 


2.1 Agreement. The
term “Agreement” means this Business Operations and Support Services Agreement
between Medical Practice and Manager and any amendments that may be adopted
from time to time as hereinafter provided.


 


2.2 Budget. The term “Budget”
means an operating budget for each fiscal year as prepared by Manager.


 


2.3 Confidential
Information. The term “Confidential Information” means all of the
materials, information and ideas of Manager, including, without limitation:
operation methods and information, accounting and financial information,
marketing and pricing information and materials, internal publications and
memoranda, and other matters considered confidential by Manager.


 


2.4 Management Fee.
The term “Management Fee” means Manager’s monthly compensation established
pursuant to this Agreement, against receivables draw.


 


2.5 Manager. The term
“Manager” means Phoenix Management Company, LLC, a Michigan limited liability
company, and any successors or assigns.


 


2.6 Manager Expense.
The term “Manager Expense” means an expense or cost incurred by Manager and for
which Manager is financially liable.


 


2.7 Managing Physician.
The term “Managing Physician” means that physician designated by Manager to
direct the delivery of clinical services to patients by Manager.


 


2.8 Medical Practice.
The term “Medical Practice” means X-Ray Treatment Center, P.C., a Michigan
professional corporation, and any successors, assigns, subsidiaries or
affiliates.


 


2.9 Medical Practice
Account. The term “Medical Practice Account” means the bank account of
Medical Practice established pursuant to this Agreement.


 


2.10 Medical Practice
Expense. The term “Medical Practice Expense” means an expense or cost that
is incurred by Manager or Medical Practice and for which Medical Practice is
financially liable.


 


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2.11 Medical Services.
The term “Medical Services” means medical care and services, including but not
limited to the practice of medicine, and all related health care services
provided by Medical Practice through Medical Practice’s Managing Physician and
Physician(s) that are retained by or professionally affiliated with
Medical Practice.


 


2.12 Office. The term
“Office” means any office space that Manager or Medical Practice owns, leases
or otherwise procures as an agent for Medical Practice for Medical Practice for
the purpose of providing Medical Services.


 


2.13 Physician. The
term “Physician” means the individually licensed professionals who are
shareholders of Medical Practice, or are employed or otherwise retained by or
associated with Medical Practice by contract.


 


2.14 Professional
Personnel. The term “Professional Personnel” means any licensed personnel,
other than Physician(s), whose clinical services are provided under the
direction of Physician and are retained by or professionally affiliated with
Medical Practice.


 


2.15 State. The term “State”
means the State of Michigan.


 


2.16 Term. The term “Term”
means the initial and any renewal periods of duration of this Agreement as
described in Section 8.1 hereof.


 


2.17 Closing Date.
The Closing Date shall be October 15, 1999 unless mutually agreed upon by
both parties.


 


III. Business
of Medical Practice and Manager.


 


The parties stipulate that
the business of the Medical Practice and Manager are those Medical Services,
and Manager services in support of Medical Service (i) where both the “facility”
and “professional” components of the Medical Services have historically been
provided in the Medical Practice’s private practice offices and reimbursed on a
“global basis,” and (ii) where the “professional” component of the service
has historically been provided in a hospital inpatient or outpatient facility,
nursing home, ambulatory surgery facility or some other licensed or certified “facility”
eligible for separate reimbursement for the “facility” component of such
service and where the “professional” and “facility” components of the service
are billed separately by different legal entities.


 


IV. Appointment
and Authority of Manager.


 


4.1 Appointment.
Medical Practice appoints Manager as its sole and exclusive agent for the
management, marketing, and administration of the business affairs and funding
of Medical Practice, except as otherwise specifically agreed in writing by
Medical Practice and Manager, and Manager accepts the appointment, subject at
all times to the provisions of this Agreement.


 


4.2 Authority.
Consistent with the provisions of this Agreement, Manager shall have the
responsibility and commensurate authority to provide business, public
relations, administrative, and full management services for Medical Practice,
including, without limitation, the provision of


 


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(a)    equipment,


(b)    supplies,


(c)    support services,


(d)    non-physician personnel,


(e)    public relations;


(f)     office space, including purchase and lease, and rental fee
collection,


(g)    management,


(h)    administration,


(i)     financial record keeping,


(j)     financial reporting,


(k)    other business services,


(l)     supervision of all medical physics and radiation safety
services,


(m)   business expansion,


(n)    patient billing and revenue collection.


 


Manager is expressly
authorized to provide such services in any reasonable manner Manager deems
appropriate to meet the day-to-day requirements of the business functions of
Medical Practice, as well as the long range plan for the Practice. Unless an
expense is expressly designated as a Manager Expense in this Agreement, all
expenses incurred by Manager in providing management services pursuant to this
agreement shall be Medical Practice Expenses. The parties acknowledge and agree
that Medical Practice, through its Physicians, shall be responsible for and
shall have complete authority, responsibility, supervision, and control over
the provision of all Medical Services and other professional health care
services performed for patients by Professional Personnel, and that all
diagnoses, treatment, procedures, and other professional health care services
shall be provided and performed exclusively by or under the supervision of the
Physicians as they, in their sole discretion, deem appropriate. Manager shall
have and exercise absolutely no control or supervision over the clinical
aspects of the provision of Medical Services. Manager may however, in
conjunction with its obligations to pursue business expansion opportunities,
determine whether to offer new or expanded medical services or eliminate
certain medical services currently provided to patients by the Medical
Practice.


 


4.3 Patient Referrals.
Manager and Medical Practice agree that the benefits to Medical Practice
hereunder do not require, are not payment for, and are not in any way
contingent upon the referral, admission, or any other arrangement for the
provision of any item or service offered by Manager to any patient of Medical
Practice in any facility, laboratory, or hospital controlled, managed, or
operated by Manager or its affiliates.


 


V. Covenants
and Responsibilities of Manager.


 


During the Term of this
Agreement, Manager shall provide all the management, public relations,
administrative and business services that are necessary and appropriate for the
day-to-day administration of the non-medical aspects of Medical Practice’s
operations, including without limitation those set forth in this Article IV,
in accordance with the law and all rules, regulations, and guidelines of
applicable governmental agencies.


 


4














 


5.1 Office and Equipment.
As agreed upon by the parties hereto and included in the Medical Practice’s
approved capital and operating budgets, Manager shall provide for an Office, or
more than one office where relevant (“Office”) deemed reasonably necessary by
Manager, for the purpose of providing Medical Services. Furthermore, as agreed
upon by the parties hereto and included in the Medical Practice’s capital and
operating budgets, Manager shall provide certain equipment, fixtures, furniture
and furnishings (collectively, the “Equipment”) deemed reasonably necessary by
Manager for the operation of the Office and reasonably necessary for the
provision of Medical Services therein. Manager shall consult with and seek the
advice of Medical Practice in connection with equipping the Office, and with
the purchase of additional or replacement equipment, to ensure the necessity
and appropriateness of equipment placed in service at the Office. Manager shall
be responsible for the repair and maintenance of the Office, consistent with
the respective responsibilities of Manager and Medical Practice and for the
repair, maintenance, and replacement of all Equipment, other than such repairs,
maintenance and replacement necessitated by the negligence or willful
misconduct of Medical Practice, the Physicians, or other personnel employed by
Medical Practice.


 


5.2 Supplies. Manager
shall obtain and provide all reasonable medical, office, and other supplies,
and shall ensure that the Office is at all times adequately stocked with the
supplies that are reasonably necessary and appropriate for the operation of the
Office(s) and the provision of Medical Services therein; except, however,
that Medical Practice shall order, purchase, stock, and monitor the inventory
of pharmaceutical and other medical supplies, substances, or items whose
purchase, maintenance, or security require licensure as a health care provider
or require a permit, registration, certification, or identification number that
requires licensure or certification as a health care provider.


 


5.3 Support Services.
Manager shall provide or arrange for all printing, stationery, forms, postage,
duplication or photocopying services, and other support services that are
reasonably necessary and appropriate for the operation of the Office and the
provision of Medical Services in the Office.


 


5.4 Quality Assurance,
Risk Management and Utilization Review. Manager shall assist Medical
Practice in the establishment and implementation of procedures to ensure the
consistency, quality, appropriateness, and medical necessity of Medical
Services provided by Medical Practice, and shall provide administrative support
for Medical Practice’s overall quality assurance, risk management, and
utilization review programs.


 


5.5 Licenses and Permits.
Manager shall, on behalf and in the name of Medical Practice, coordinate all
development and planning processes, and apply for and use Manager’s best
efforts to obtain and maintain all federal, State, and local licenses and
regulatory permits required for or in connection with the operation of Medical
Practice and the equipment (existing and future) located therein, other than
those relating to the practice of medicine or the administration of drugs by
Physicians or Professional Personnel retained by, associated with, or under
contract with Medical Practice. The Medical Practice, its Physicians and/or
Professional Personnel shall use their best efforts to support Manager’s
activities on behalf of the Medical Practice in a timely manner.


 


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5.6 Use of Name.
Except as noted below, Manager will permit the Medical Practice to do business
under the name “X-Ray Treatment Center, P.C.” and may require it to prominently
reflect an affiliation with any of Manager’s assumed names during the term of
this Agreement. Manager may, however, at any time change the names, marks and
logos under which the Medical Practice or Manager does business and/or which it
makes available to the Medical Practice. The Medical Practice recognizes the
value of the names, marks and logos of Manager. The Medical Practice
acknowledges and agrees that all rights to such names, marks and logos and the
goodwill pertaining thereto belong exclusively to Manager, and that the Medical
Practice will not during the term of this Agreement or thereafter, challenge
the title or rights of Manager to such names, marks and logos. The Medical
Practice further acknowledges and agrees that Manager possesses valid trade
name, trademark and service mark rights to such names, marks and logos, and
that the Medical Practice will not, during the term of this Agreement or
thereafter, challenge the validity of any such rights or their exclusive
ownership by Manager. Manager shall have the right to obtain assumed names (d/b/a)
for the Medical Practice and may require the Medical Practice to use the d/b/a
if Manager deemed it advantageous for marketing purposes.


 


5.7 Public Relations.
Public relations services shall be provided in accordance with the standards of
medical ethics of the American Medical Association and the American Osteopathic
Association, and all applicable laws prior to the publication or distribution
of marketing or public relations materials or information. Manager shall submit
such materials to Medical Practice for its review and comments, and shall make
all reasonable written changes thereto as Medical Practice may request and
which are in accordance with Manager’s marketing plans for the Medical
Practice. Manager shall be the sole owner and holder of all right, title, and
interest in and to any materials or documents prepared, purchased, or furnished
by Manager pursuant to this Agreement.


 


5.8 Personnel.


 


A. Non-Physician
Personnel. Except as specifically provided in this Agreement, Manager shall
employ or otherwise retain and shall be responsible for selecting, training,
supervising, and terminating all management, administrative, clerical,
secretarial, bookkeeping, technical, medical physics, nursing, accounting,
payroll, billing and collection, and other non-physician personnel as Manager
deems reasonably necessary and appropriate for Manager’s performance of its
duties and obligations under this Agreement and for the operation of the
Office. Manager shall have the duty to hire duly qualified clinical personnel
in accordance with standards promulgated by the American College of Radiology
(ACR), Joint Commission for Accreditation of Health Organization (JCAHO) and/or
Nuclear Regulatory Commission (NRC), provided, however, Manager shall seek the
input of the full-time physicians and employees of Practice concerning the
selection, transfer and termination of all non-physician personnel.


 


B. Physician Personnel.
Manager shall have sole responsibility for determining the salaries and
providing fringe benefits, and for withholding, as required by law, any sums
for income tax, unemployment insurance, social security, or any other
withholding required by applicable law or governmental requirement for all
employees, including physician-employees and consultants. If any physician-employee/consultant
does not meet ACR, JCAHO or Hospital medical staff requirements, or is not
Board Certified in his/her field of speciality, then Manager may remove or
refuse to hire that physician. Likewise, Manager may take action to remove a
physician for the following reasons:


 


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  i.

  	
  commission of a felony,

  
	
   

  	
   

  	
   

  
	
   

  	
  ii.

  	
  not supervising patients’
  treatments adequately,

  
	
   

  	
   

  	
   

  
	
   

  	
  iii.

  	
  being removed from any
  Hospital’s medical staff,

  
	
   

  	
   

  	
   

  
	
   

  	
  iv.

  	
  mental or physical
  disability interfering with Practice,

  
	
   

  	
   

  	
   

  
	
   

  	
  v.

  	
  losing his/her medical
  license,

  
	
   

  	
   

  	
   

  
	
   

  	
  vi.

  	
  not being timely certified
  by ABR or equivalent,

  
	
   

  	
   

  	
   

  
	
   

  	
  vii.

  	
  ethical conducts
  unbefitting a professional,

  
	
   

  	
   

  	
   

  
	
   

  	
  viii.

  	
  inability to manage
  patient care,

  
	
   

  	
   

  	
   

  
	
   

  	
  ix.

  	
  not completing patient
  charts and other required medical documents on a timely basis as requested by
  Manager.

  



 


Manager shall also have the
right to act on behalf of Medical Practice and terminate physician-employee or
physician consulting agreements pursuant to their terms and conditions and to
take whatever other action is deemed necessary to protect the Medical Practice.


 


C. Nonexclusivity. In
recognition of the fact that Manager and the management and administrative
personnel and non-physician personnel provided to Medical Practice by Manager
may from time to time perform services for others, this Agreement shall not
prevent Manager or such personnel from performing services for others or
restrict Manager from so using Manager’s personnel. Manager shall use
reasonable efforts, consistent with sound business practices, to honor the
specific requests of Medical Practice with regard to the assignment of Manager’s
non-physician and nonprofessional personnel.


 


D. Equal Employment
Opportunity. Manager expressly agrees not to intentionally violate any and
all applicable federal and/or State equal employment opportunity statutes, rules and
regulations, all as may from time to time be modified or amended.


 


E. Labor Reports.
Manager shall appropriately prepare, maintain, and file all requisite reports
and statements regarding income tax withholdings, unemployment insurance,
social security, workers’ compensation, equal employment opportunity, or other
reports and statements required with respect to personnel provided by Manager
pursuant to this Agreement.


 


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5.9 Contract Negotiations.


 


For all existing and/or new
physician employees, consultants or third parties, Manager shall advise Medical
Practice with respect to and shall negotiate, either directly or on Medical
Practice’s behalf, all contractual arrangements that are reasonably necessary
and appropriate for Medical Practice’s provision of Medical Services,
including, without limitation, physician’s employment contracts, physicians’
consulting agreements, negotiated price agreements with third-party payors,
alternative delivery systems, or other purchasers of group health care
services. All contracts or arrangements regarding the provision of Medical
Services shall be entered into with Medical Practice’s consent, which consent
shall not be unreasonably withheld. A lack of written objection by Medical
Practice 5 working days after notice by Manager shall be construed as automatic
approval by Medical Practice.


 


5.10 Billing and
Collection.


 


On behalf of and for the
account of Medical Practice, Manager shall establish and maintain credit and
billing and collection policies and procedures, and shall use Manager’s best
efforts to bill and collect timely all professional and other fees for all
billable Medical Services provided by Medical Practice or the Physicians.
Provided, however, that nothing in this Agreement shall be construed as a
guarantee by Manager that amounts billed will be collected. Manager shall
advise and consult with Medical Practice regarding the fees for Medical
Services provided by Medical Practice; it being understood, however, that
Medical Practice shall establish the reasonable and customary fees to be
charged for Medical Services and that Manager shall have no authority
whatsoever with respect to the establishment of such fees. In connection with
the billing and collection services to be provided hereunder and throughout the
Term (and thereafter as provided in Section 8.3), Medical Practice grants
Manager a special power of attorney and appoints Manager as Medical Practice’s
true and lawful agent and attorney-in-fact, and Manager accepts such special
power of attorney and appointment, for the following purposes:


 


A. To bill Medical Practice’s
patients on behalf of and in the name of Medical Practice, for all billable
Medical Services provided-by Medical Practice to such patients;


 


B. To bill on behalf of and
in the name of Medical Practice all claims for reimbursement or indemnification
from Blue Cross/Blue Shield, insurance companies, Medicare, Medicaid, and all
other third-party payors or fiscal intermediaries for all covered billable
Medical Services provide by Medical Practice to patients; provided, however,
that Physician shall comply with all third party payor requirements applicable
to true and accurate coding and submission of claims for reimbursement or
indemnification and patient care management in accordance with all applicable
laws, rules, regulations and third parry payor requirements;


 


C. To collect and receive on
behalf of and in the name of Medical Practice, all accounts receivable
generated by such billings and claims for reimbursement; to administer such
accounts including, but not limited to: extending the time of payment of any
such accounts; assigning or selling at a discount such accounts to collection
agencies; or taking other measures to require the payment of any such accounts;
provided, however, that extraordinary collection measures, such as discharging
or releasing obligers or assigning or selling accounts at a discount to
collection agencies, shall not be undertaken except in emergency cases without
the approval of Managing Physician, which approval shall not be unreasonably
withheld. Lack of a written objection from Managing Physician after 5 working
days shall be an automatic approval by the Managing Physician.


 


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D. To deposit all amounts
collected into the Medical Practice Account, which shall be and at all times
remain in Medical Practice’s name. Medical Practice covenants to transfer and
deliver to Manager all funds received by Medical Practice from any and all
services including patients or third-parry payors for Medical Services. Upon
receipt by Manager of any funds from patients or third-party payors or from
Medical Practice for Medical Services of Medical Practice or from other sources
including grants, leases, donations, and interests received by Medical
Practice, Manager shall immediately deposit the funds into the Medical Practice
Account. Manager shall disburse the deposited funds to creditors and other
persons on behalf of Medical Practice, maintaining records of the  receipt and disbursement of fluids
according to generally accepted accounting principles; and


 


E. To take possession of,
endorse in the name of Medical Practice, subject to required reassignment by
Physicians, and deposit into the Medical Practice Account any notes, checks,
money orders, insurance payments, and any other instruments received in payment
of accounts receivable for Medical Services. Medical Practice shall require all
physician employees and consultants to assign to Medical Practice in writing
any and alt fees received by them for services rendered on behalf of Manager or
Medical Practice.


 


Upon the request of Manager,
Medical Practice shall execute and deliver to the financial institution wherein
the  Medical Practice Account is
maintained, any additional documents or instruments that may be necessary to
evidence or effect the special power of attorney granted to Manager by Medical
Practice pursuant to this Section or pursuant to Section 5.10 of this
Agreement. The special power of attorney granted in this Agreement shall be
coupled with an interest and shall be irrevocable except with Manager’s written
consent.


 


5.11 Medical Practice
Account. Manager shall have sole access to the Medical Practice Account.
Manager shall have access to the Medical Practice Account solely for the
purposes stated in this Agreement. In connection with this Agreement and
throughout the Term, Medical Practice grants Manager a special power of
attorney and appoints Manager as Medical Practice’s true and lawful agent and
attorney-in-fact, and Manager accepts such special power of attorney and
appointment, to deposit into the Medical Practice Account all funds, fees, and
revenues generated including those from the provision of Medical Services by
Medical Practice and collected by Manager, and to make withdrawals from the
Medical Practice Account for payments set forth in this Agreement, for regular
expenses of Medical Practice and any other Medical Practice Expense
attributable to the operations of the Office or to the provision of Medical
Services, and/or any other reasonable obligations of Medical Practice. From the
amounts collected by Manager on behalf of Medical Practice, Manager shall pay
all reasonable expenses of operating the practice in accordance with the budget
developed by Manager, as well as reasonable administrative expenses of Manager
associated with the performance of its duties set forth herein, including, but
not limited to, use of an automobile, car phone, pager, reimbursement for
gasoline and automobile repair expenses, professional dues, journals, CME
conferences, office expenses, related travel and entertainment expenses, etc.,
and expenses associated with the retention of personnel for radiation safety,
quality assurance and utilization review, all of which shall be documented.
Manager at its option shall maintain an office at each of the offices of the
Medical Practice and shall have reasonable secretarial services provided by the
Medical Practice for each of Manager’s offices.


 


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5.12 Fiscal Matters.


 


A. Annual Budget.
Annually, and at least thirty (30) days prior to the commencement of each
fiscal year of Medical Practice, Manager, in consultation with the Managing
Physician, shall prepare a Budget setting forth an estimate of Medical Practice’s
revenues and expenses (including, without limitation, all costs associated with
the services provided by Manager under this Agreement). Manager shall endeavor
to manage and administer the operations of Medical Practice as herein provided
so that the actual revenues, costs, and expenses of the operation and maintenance
of Medical Practice during any applicable period of the Medical Practice’s
fiscal year shall be consistent with the Budget. In the event of a material
change in the Medical Practice, including but not limited to personnel,
regulatory, reimbursement and other changes, the Budget maybe amended by
Manager in an equitable manner to take into account the impact of the material
change.


 


B. Accounting and
Financing Records. Manager shall establish and administer accounting
procedures, controls, and systems for the development, preparation, and
safekeeping of administrative or financial records and books of account
relating to the business and financial affairs of Medical Practice and the
provision of Medical Services, all of which shall be prepared and maintained in
accordance with generally accepted accounting principles consistently applied.
Manager shall-prepare within ninety (90) days of the end of each calendar year
a balance sheet and a profit-and-loss statement reflecting the financial status
of Medical Practice in respect of the provision of Medical Services as of the
end of the prior calendar year.


 


C. Review of Accounting
and Financial Records. The Managing Physician shall have the right to
review all expenditures related to the operation of the Medical Practice, but
shall not have the power to prohibit or invalidate any expenditure deemed
reasonable by Manager.


 


D. Financial Information
in Support of Tax Returns. Manager shall prepare necessary financial
information required for appropriate tax returns and reports required of
Medical Practice by an accountant selected by Manager.


 


5.13 Reports and Records.


 


A. Medical Records.
Manager shall establish, monitor, and maintain procedures and policies for the
timely creation, preparation, filing, release, and retrieval of all medical
records generated by Medical Practice in connection with Medical Practice’s
provision of Medical Services; and, subject to applicable law, shall ensure
that medical records are promptly available to the Physicians and any other
appropriate persons. All medical records shall be retained and maintained in
accordance with all applicable State and Federal laws relating to the
confidentiality and retention thereof. Copies of medical records shall be
available to the Medical Practice as needed. Custody shall remain with Manager.


 


B. Other Reports and
Records. Manager shall timely create, prepare, and file such additional
reports and records as are reasonably necessary and appropriate for Medical
Practice’s provision of Medical Services, and shall be prepared to analyze and
interpret such reports and records.


 


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5.14 Recruitment of
Physicians. Manager shall coordinate recruiting of physicians including
advertising for recruitment of Physicians to become shareholders, employees or
independent contractors of the Medical Practice. It shall be a joint
responsibility of Medical Practice and Manager to interview, select, contract
with, supervise, control, and terminate all Physicians performing Medical
Services. It shall be and shall remain the sole and complete responsibility of
Manager to select, contract with, administratively supervise, control and
terminate all Personnel performing Medical Services. Costs of recruiting not
identified in the yearly budget on a continual basis shall be borne as an
additional expense to the Medical Practice.


 


5.15 Insurance.
Throughout the Term, Manager shall, as a Manager Expense, obtain and maintain
with commercial carriers, through self-insurance, or by some combination
thereof, appropriate workers’ compensation coverage for Manager’s employed
personnel being provided pursuant to this Agreement, and professional,
casualty, and comprehensive general liability insurance covering Manager,
Manager’s personnel, and all of Manager’s equipment in such amounts, on such
basis, and upon such terms and conditions as Manager deems appropriate.


 


5.16 Indemnification by
Manager. Manager shall indemnify and hold Medical Practice harmless from
and against any and all liability, losses, damages, claims, causes of action,
and expenses, including reasonable attorney’s fees, associated with or directly
or indirectly resulting from any intentional act or omission of Manager or the
personnel under its supervision. To be entitled to such indemnification,
Medical Practice shall give Manager prompt written notice of the assertion by a
third party of any claim with respect to which Medical Practice might bring a
claim for indemnification hereunder, and in all events must provide such
written notice to Manager within the applicable period for defense of such
claim by Manager. Manager shall, as a Manager Expense, have the right to defend
and litigate any such third-parry claim.


 


VI. Covenants
and Responsibilities of Medical Practice.


 


6.1 Organization and
Operation. As a continuing condition of Manager’s obligations under this
Agreement, Medical Practice shall at all times during the Term be and remain
legally organized and operated to provide Medical Services in a manner
consistent with all state and federal laws.


 


6.2 Medical Practice
Personnel.


 


A. Physicians.
Medical Practice shall retain, as a Medical Practice Expense, the number of
radiation oncologists and other Physicians sufficient in the discretion of
Manager that are necessary and appropriate for the provision of Medical
Services, each of whom shall be bound by and subject to applicable provisions
of this Agreement. Each Physician shall hold and maintain a valid and
unrestricted license to practice medicine in the State of Michigan and shall be
competent in the practice of medicine and shall be Board Certified or Board
eligible in his/her specialty. Medical Practice shall enter into and maintain
with each radiation oncologist who is not at least a 10% shareholder of Medical
Practice, a written employment or independent contractor agreement. Medical
Practice shall be responsible for paying the compensation for all Physicians
and any other physician personnel or other contracted or affiliated physicians,
and for withholding, as required by law, any sums for income tax, unemployment
insurance, social security, or any other withholding required by applicable
law. Manager shall, on behalf of Medical Practice, establish and administer the
compensation with respect to such individuals and enter on behalf of Medical
Practice into a written agreement between Medical Practice and each Physician.
Manager shall neither control nor direct any Physician in the performance of
Medical Services for patients.


 


11

















 


B. Professional and
Technical Personnel. All Professional and Technical Personnel who provide
Medical Services shall be employed by or retained by Medical Practice and shall
be under Medical Practice’s direction in the performance of Medical Services
for patients. Manager shall, on behalf of Medical Practice, manage and
supervise the employees and establish and administer the compensation of these
individuals.


 


6.3 Professional
Standards. As a continuing condition of Manager’s obligations under this
Agreement, each Physician must (i) have and maintain a valid and
unrestricted license to practice medicine in the State, (ii) comply with,
be controlled and governed by, and otherwise provide, Medical Services in
accordance with applicable federal, state, and municipal laws, rules,
regulations, ordinances, and orders, all applicable Medicare, Medicaid and
other third party payor requirements and the ethics and standard of care of the
medical community wherein the principal office of the Medical Practice is located,
(iii) obtain and retain appropriate medical staff membership with
appropriate clinical privileges at any hospital or health care facility at
which Medical Services are to be provided and Manager deems appropriate, (iv) obtain
Board Certification by ABR or its equivalent within 3 years of hiring; and (v) follow
the guidelines of NRC, JCAHO and ACR and other applicable agencies. Procurement
of temporary staff privileges pending the completion of the medical staff
approval process shall satisfy the medical staff appointment condition of this
provision, provided the Physician actively pursues full appointment and
actually obtains full appointment. Professional Personnel shall be duly
licensed, accredited or certified, as relevant.


 


6.4 Medical Services.
Medical Practice shall ensure that Physicians are available as necessary to
provide Medical Services to patients. Medical Practice and Manager shall be
responsible for scheduling Physician coverage and work together to establish
Technical, Professional and other Personnel coverage of all medical procedures.
Medical Practice shall cause all Physicians to exert their best effort to
develop and promote Medical Practice in a manner consistent with Manager’s
business objectives and designed to ensure that Medical Practice is able to
serve the diverse needs of the community.


 


6.5 Peer Review/Quality
Assurance. Medical Practice shall adopt a peer-review/quality assurance
program to monitor and evaluate the quality and cost effectiveness of Medical
Services provided by physician personnel of Medical Practice. Manager shall
provide administrative direction and act as the agent of Medical Practice in
ensuring the performance of Medical Practice’s peer-review/quality-assurance
activities.


 


6.6 Medical Practice’s
Insurance. Medical Practice shall, as a Medical Practice Expense, obtain
and maintain with commercial carriers acceptable to Manager appropriate workers’
compensation coverage for Medical Practice’s Physicians and Professional,
Personnel and professional and comprehensive general liability insurance
covering Medical Practice, each Physician, and Professional Personnel.


 


12

















 


6.7 Indemnification by
Medical Practice. Medical Practice shall defend, indemnify and hold Manager
harmless from and against any and ail liability, losses, damages, claims,
causes of action, and expenses, including without limitation, reasonable
attorney’s fees and costs associated with or directly or indirectly resulting
from any act or omission of Medical Practice, its employees, agents, or
independent contractors during the Term. To be entitled to such
indemnification, Manager shall give Medical Practice prompt written notice of
the assertion by a third party of any claim with respect to which Manager might
bring a claim for indemnification hereunder, and in all events must provide
written notice to Medical Practice within the applicable period for defense of
such claim by Medical Practice. Medical Practice shall, as a Medical Practice
Expense, have the right to defend and litigate any such third-party claim.


 


6.8 Confidential and
Proprietary Information. Medical Practice and Manager acknowledge the
confidentiality of its relationship with Manager and Medical Practice and of
any Confidential Information which it may learn or obtain during the Term of
this Agreement. For purposes of this Agreement, “Confidential Information”
includes, but is not limited to all books, manuals, documents, materials,
business or technical information, trade secrets, systems, and strategy
concerning Manager’s business plans or policies related to the Management
Services described hereunder, and not otherwise available to the public domain.
Medical Practice shall not, either during the Term of this Agreement or at any
time after the expiration or sooner termination thereof, directly or
indirectly, disclose to any person or entity other than employees, agents or
independent contractors engaged by Medical Practice, any Confidential
Information obtained or learned by Medical Practice. Further, Medical Practice
agrees to place any person, including all Physicians, Technical, Administrative
and Professional Personnel to whom Confidential Information is disclosed for
the purpose of performance, under legal obligation to treat Confidential
Information as strictly confidential.


 


6.9 Provision of Medical
Services. Medical Practice recognizes and acknowledges that Manager will
incur substantial costs in providing office, equipment, support services,
personnel, marketing, management, administration, and other items and services
that are the subject matter of this Agreement. The parties also recognize that
the services to be provided by Manager will be feasible only if Medical
Practice operates an active practice to which the Physicians associated with
Medical Practice devote their full time and attention. Medical Practice shall
use its best efforts to obtain and enforce formal agreements from its
shareholders and physician employees pursuant to which the Physicians agree to
devote their full time and attention to the practice of medicine as described
herein.


 


6.10 Non-Competition.
Medical Practice agrees that during the term of this Agreement and for a period
of five (5) years thereafter Medical Practice and its employees will not:


 


(i) render
medical services of type or nature provided by Medical Practice in the
preceding 12 month period, or other related treatment, personally or
participate in any capacity (for example, shareholder, partner or investor)
with someone who offers such services, except pursuant to this Agreement,
within a thirty (30) mile radius of any of the offices, or within a thirty (30)
mile radius of any practice or Hospital location to which Manager renders
business operations and support services or other comparable services, at the
time of termination, (a list of which will be provided upon termination of the
Agreement) without the prior written consent of Manager, as applicable, which
in its sole discretion may withhold consent; or


 


13














 


(ii) market
the Medical Practice’s services or assist others in marketing medical services
including medical and/or radiation oncology services in any area to which
Manager markets such services at the time of termination. The Medical Practice
also agrees that it will not solicit or otherwise contact, or assist any other
person in contacting, patients treated at RADS.


 


VII. Financial
Arrangement.


 


7.1 Amount of Management
Fee. Medical Practice and Manager mutually recognize and acknowledge that
Manager will incur substantial costs and risks in providing the management
administration, and other items and services that are the subject matter of
this Agreement. It is the intent of the parties that the fees paid to Manager
approximate its costs and expenses plus a rate of return reflective of the
magnitude of the investment and high risk taken by Manager and the value of the
services provided by Manager. In consideration of the services to be famished
by Physician Shareholders, Medical Practice shall  retain 1% of the Gross Patient Revenues collected from
radiation oncology services and pay a Management Fee equal to the balance of
Gross Collections (as defined in Subsection 7.2 herein) collected based on
services and goods provided during the Term or any Renewal Term including Gross
Collections collected following the Term or any Renewal Term hereof that are
based on such services and goods, after the payment of all reasonable Practice
and Manager expenses.


 


7.2 Gross Collection.
“Gross Collections” shall include collections of any and all fees, charges and
accounts of medical practice which are due and payable on or after the
commencement date of this Agreement, notwithstanding the location where such
services were rendered, and shall include, without limitation, the following:


 


A. All capitation payments
payable to Medical Practice under managed care agreements, and any other
payments to Medical Practice under such agreements, including but not limited
to, all fluids from shared risk pools under any risk-sharing arrangements
wherein Medical Practice is a provider of professional medical services;


 


B. Any and all coordination
of benefits and third-party liability recoveries;


 


C. Any and all revenues
derived by Medical Practice, its stockholder-physicians, employee-physicians or
independent contractor-physicians from any professional, community or education
programs or projects;


 


D. Any and all proceeds from
a policy or policies of business interruption insurance or stop-loss insurance
relating to Medical Practice, if any; and


 


E. Any and all revenues from
other sources of income including, but not limited to, interests, rental
income, real estate sales or lease, grants, and donations.


 


14

















 


7.3 Payment of the
Management Fee. To facilitate the payment of the Management Fee, Medical
Practice expressly authorizes Manager to draw its Management Fee from the
Medical Practice Account on the  fifth
business day of each calendar month (or on the date of expiration or
termination of this Agreement if not on the first business day of a calendar
month) following the payment of all Practice and Manager’s expenses. The
payment of the Management Fee shall commence during the second calendar mouth
of the Term and continue monthly thereafter, and shall be based upon the Gross
Collections during the immediately preceding calendar month.


 


Manager shall have the right
to obtain loans for any business purpose the Manager deems reasonable either on
behalf of Medical Practice or for Manager and to use any or all tangible and
intangible assets of the  Medical
Practice as collateral for these loans from financial institutions whether or
not such loans are obtained in the name of Manager or Medical Practice.


 


VIII. Term
and Termination.


 


8.1 Initial and Renewal
Terms. The Term of this Agreement shall  commence
on the Closing Date which shall be on or before October 15, 1999, and
shall terminate 30 years thereafter. Notwithstanding the foregoing, this
Agreement shall be reviewed annually and the 30 year termination date
automatically extended for additional one year periods, unless written
notification is given by Phoenix not less than 60 days prior to October 14,
2000, and each October 14th thereafter. All terms and conditions contained
in this Agreement shall remain in full force and effect during the Renewal
Term.


 


8.2 Termination.


 


A. Termination by Manager.
This Agreement may be terminated by Manager upon the occurrence of any of the
events set forth below.


 


1.
The revocation, suspension, cancellation, surrender, or restriction of the
Managing Physician’s license to practice medicine in the State;


 


2.
The revocation, suspension, cancellation, surrender, or restriction of any
Physician’s license or DEA number to practice medicine in the State, and the
failure by Medical Practice to cause such Physician to cease the rendering of
Medical Services on behalf of Medical Practice;


 


3.
Medical Practice’s loss or suspension of its Medicare or Medicaid provider
number and/or Medical Practice’s restriction from treating beneficiaries of the
Medicare or Medicaid programs, or other major existing contracted managed care
entities;


 


4.
The dissolution of Medical Practice or the filing of a voluntary petition in
bankruptcy, an assignment for the benefit of creditors, or any other action
taken voluntarily or involuntarily under any state or federal statute for the
protection of debtors;


 


5.
The transfer of any percentage of the voting ownership interests or control of
Medical Practice to any person or entity (other than one in which Medical
Practice owns or controls a one hundred percent (100%) voting interest) without
Manager’s written consent; and


 


15

















 


6.
The death or permanent disability of the Managing Physician.


 


7.
In the event of a material change in the Medical Practice, including but not
limited to personnel, regulatory, reimbursement and other changes.


 


B. Termination by
Agreement. If Medical Practice and Manager shall mutually agree in writing,
this Agreement may be terminated on the date specified in the written
agreement.


 


C. Legislative,
Regulatory or Administrative Change. If there shall be a change in the
Medicare or Medicaid laws, regulations or general instructions, the adoption of
new legislation, or a change in any third-party reimbursement system, any of
which materially affects the manner in which either party may perform or be
compensated for its services under this Agreement, the parties shall
immediately propose a new service arrangement or basis for compensation for the
services furnished pursuant to this Agreement. If such notice of new service
arrangement or basis for compensation is given in writing to Manager, and if
Manager on behalf of Medical Practice is unable, within ninety (90) days
thereafter, to arrive at a new service arrangement or basis for compensation,
either party may terminate this Agreement by providing the other party with
written notice at least thirty (30) days prior to the specified termination
date. Medical Practice shall continue its liability to Manager for all expenses
incurred by Manager on behalf of Medical Practice including all Medical
Practice’s liabilities to Manager who will continue to hold the Power of
Attorney to direct the sale and transfer of stock so as to pay all Manager’s
debts and obligations.


 


D. Termination on Notice
of Default. If either party shall give notice to the other that the other
party has substantially defaulted in the performance of any obligation under
this Agreement, and the default shall not have been cured within sixty (60)
days following the giving of the notice, the parties will obtain three (3) mutually
agreeable arbitrators who will either resolve the issues of disagreement or
will arbitrate and decide as to whether the Agreement must be terminated.
Except as provided in Section 9.8, the expense of such Arbitration shall
be paid 50% by the Manager and 50% to be allocated proportionately among the
Shareholders of Medical Practice. Until the final decision of the Arbitration,
Manager shall continue as the Manager under this Agreement.


 


8.3 Effects of
Termination. Upon termination of this Agreement, as hereinabove provided in
8.2(4)(B) or (C), neither party shall have any further obligations under
this Agreement except for (i) obligations accruing prior to the date of
termination, including, without limitation, payment of the Management Fee
relating to services provided prior to the termination of this Agreement, and (ii) obligations,
promises, or covenants set forth in this Agreement that are expressly made to
extend beyond the Term, including, without limitation, indemnity and
confidentiality provisions, which provisions shall survive the expiration or
termination of this Agreement. Upon termination or default by Medical Practice,
Manager in addition to the remedies set forth above shall be entitled to
recover the acquisition costs of the Medical Practice and equipment, and any
funds advanced to permit the redemption of stock. In effectuating the
provisions of this Section, Medical Practice specifically acknowledges and
agrees that Manager shall continue to collect and receive on behalf of Medical
Practice for a period of one hundred eighty (180) days following the date of
such termination, all cash collections from accounts receivable in existence at
the time this Agreement is terminated, it being understood that such cash
collections will represent, in part, Manager’s Management Fee for management
services already rendered.


 


16

















 


Manager and Medical Practice
agree that Manager’s contract with Medical Practice is of significant value. As
such, in the event Medical Practice terminates this Agreement with or without
cause, before its term, the Manager is entitled to obtain from Medical
Practice, a sum equal to the total fair market value of the Medical Practice as
of the day before the termination.


 


In any event, if Medical
Practice exercises its option to terminate Manager’s Agreement, the following
will become immediately due and payable by Medical Practice:


 


A.                      All loans
obtained by Manager on behalf of Medical Practice, or owed by Medical Practice
to Manager or to third parry.


 


B.                        All loans
obtained by Manager for the benefit of Medical Practice whether in Manager’s or
Medical Practice’s name.


 


C.                        All loans,
balance of leases and contracts, taken for the benefit of Medical Practice
obtained by Manager and/or Medical Practice.


 


D.                       Any and all
loans that Manager and/or President of Manager has guaranteed.


 


E.                         The expected
balance of future value of Manager’s contract with Medical Practice.


 


F.                         A lump sum for
the balance of the compensation of all Manager’s employees for the remainder of
all such employment/independent contractors’ contracts.


 


G.                        All fringe
benefits for the remainder of the term under the employment contracts.


 


IX. Miscellaneous.


 


9.1 Dispute Resolution.


 


Any dispute which may arise
under or pursuant to this Agreement shall be exclusively submitted to and
governed by the determination reached as a result of arbitration in the County
of Oakland consistent with the Commercial Arbitration Rules of the
American Arbitration Association in effect at the time of any such dispute
(although it need not be conducted under the auspices of the American
Arbitration Association). The arbitration shall be conducted by a panel of
three arbitrators, each of whom must be an attorney or certified public
accountant licensed to practice in the State of Michigan, except where the
matter in dispute is clinical in nature, in which case, the third mutually
agreed to arbitrator shall be a physician, licensed to practice allopathic or
allopathic medicine in the State of Michigan, who is not an interested person.
One arbitrator shall be selected by each of the parties subject to the
arbitration, and those two arbitrators shall select the third arbitrator. Each
arbitrator shall execute an agreement with the parties which shall provide as
follows:


 


17

















 


(a) Each arbitrator
shall accept the appointment and agree to complete the arbitration with
reasonable diligence, and pursuant to a majority vote and otherwise in
accordance with the then pertaining Commercial Arbitration Rules of the
American Arbitration Association (which shall administer the arbitration if it
agrees to do so);


 


(b) Each arbitrator
shall agree to keep all information made available to him with respect to
Manager and Medical Practice in strict confidence; and


 


(c) The parties to the
arbitration shall agree to be jointly responsible for the costs of the
arbitration (including the hourly charges of the arbitrators at their customary
levels), which in turn may be awarded to any or all parties to the arbitration
as the arbitrators shall determine.


 


A demand for arbitration
shall be made within six (6) months after the claim shall have accrued,
plus the time of any written extensions given to the party demanding
arbitration from the other parry. The foregoing requirement for arbitration
shall not foreclose the institution of litigation by any party hereto in the
Oakland County Circuit Court (in which exclusive jurisdiction and venue is
acknowledged) seeking immediately injunctive relief for a breach of the
provisions of tills Agreement pending the outcome of arbitration or to compel
the arbitration process. Any arbitration award shall be entitled to enforcement
by decree of any court of competent jurisdiction and shall be final and binding
upon all parties hereto or claiming an interest herein. Arbitration may proceed
in the absence of any party who fails or refuses to attend after notice deemed
by the arbitration panel to be appropriate.


 


9.2 Administrative
Services Only. Except as Agent of Medical Practice, nothing in this
Agreement is intended or shall be construed to allow Manager to exercise
control or direction over the manner or method by which Medical Practice and
its Physicians perform Medical Services. The rendition of all Medical Services,
including but not limited to, the prescription or administration of medicine
and drugs, shall be the sole responsibility of Medical Practice and its
Physicians and Manager shall not interfere in any manner or to any extent
therewith. Nothing in this Agreement shall be construed to permit Manager to
engage in the practice of medicine, it being the intention of the patties that
the services to be rendered to Medical Practice by Manager are solely for the
purpose of providing management and administrative services so that Medical
Practice can devote its full time and energies rendering patient treatment
services and to the provision of Medical Services to its patients.


 


9.3 Status of Contractor.
It is expressly acknowledged that the parties are independent contractors, and
nothing in this Agreement is intended and nothing shall be construed to create
an employer-employee, partnership, joint venture, or other type of
relationship, or to allow either party to exercise control or direction over
the manner or method by which the other performs the services that are the
subject matter of this Agreement; provided, however, that the services to be
provided under this Agreement shall always be furnished in a manner consistent
with the standards governing those services and the provisions of this
Agreement.


 


18

















 


Each party understands and
agrees that (i) the other will not be treated as an employee for federal
income tax purposes, (ii) except in cases by leased employees, neither
will withhold on behalf of the other any sums for income tax, unemployment
insurance, social security, or any other withholding pursuant to any law or
requirement of any governmental body or make available any of the benefits
afforded to its employees, (iii) all of such payments, withholdings, and
benefits, if any, are the sole responsibility of the party incurring the liability,
and (iv) each will indemnify and hold the other harmless flora any and all
loss or liability arising with respect to such payments, withholdings, and
benefits, if any.


 


9.4 Notices. Any
notice, demand, or communication required, permitted, or desired to be given
under this Agreement shall be in writing and shall be deemed given if delivered
in person or deposited in United States Mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to the parties as set forth
opposite their respective names below:


 


	
   

  	
  Medical Practice:

  	
  X-Ray Treatment Center,
  P.C.

  
	
   

  	
   

  	
  Attention: Medical
  Director

  
	
   

  	
   

  	
  23333-23337 Gratiot

  
	
   

  	
   

  	
  Eastpointe, MI 48021

  
	
   

  	
   

  	
   

  
	
   

  	
  Manager:

  	
  Phoenix Management
  Company, LLC

  
	
   

  	
   

  	
  Attention: Farideh R.
  Bagne, Ph.D, J.D.

  
	
   

  	
   

  	
  P.O. Box 1628

  
	
   

  	
   

  	
  Birmingham, 48012

  



 


or to another address, or to
the attention of another person or officer, that either party may designate by
written notice. Notice shall be deemed given if personally served on the date
it is personally delivered, or if mailed, the date it is deposited in the mail
in accordance with the foregoing.


 


9.5 Governing Law.
TMs Agreement shall be governed by the laws of the State of Michigan and is
performable and shall be enforceable in Oakland County, Michigan.


 


9.6 Assignment. Except
as may be specifically provided in this Agreement to the contrary, this
Agreement shall inure to the benefit of and be binding upon the patties and
their respective legal representatives, successors, and assigns; provided,
however, that Medical Practice, may not assign this Agreement without the prior
written consent of Manager, which consent Manager may withhold in its sole
discretion.


 


9.7 Waiver of Breach.
The waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as or be construed to constitute a waiver of any
subsequent breach of the same or another provision.


 


9.8 Enforcement. Each
party waives its right to any legal action, except by means of arbitration, to
enforce or interpret any provision of this Agreement. The prevailing parry
shall be entitled to recover the costs and expenses of arbitration, including
without limitation, reasonable attorney’s fees.


 


19

















 


9.9 Gender and Number.
Whenever the context of this Agreement requires, the gender of all words shall
include the masculine, feminine, and neuter, and the number of all words shall
include the singular and plural.


 


9.10 Additional
Assurances. Except as may be specifically provided in this Agreement to the
contrary, the provisions of this Agreement shall be self-operative and shall
not require further agreement by the parties; except by mutual agreement of the
parties.


 


9.11 Consents, Approvals,
and Exercise of Discretion. Whenever this Agreement requires any consent or
approval to be given by either party or either party must or may exercise
discretion, the parties agree that the consent or approval shall not be
unreasonably withheld or delayed and that the discretion shall be reasonably
exercised.


 


9.12 Force Majeure.
Neither party shall be liable or deemed to be in default for any delay or
failure in performance under this Agreement or other interruption of services
deemed to result, directly or indirectly, from acts of God, civil or military
authority, acts of public enemy, war, accidents, fires, explosions,
earthquakes, floods, failure of transportation, third party actions against
Medical Practice and/or Manager, strikes or other work interruptions by either
party’s employees, or any other similar cause beyond the reasonable control of
either party unless the delay or failure in performance is expressly addressed
elsewhere in this Agreement


 


9.13 Severability.
The parties have negotiated and prepared the terms of this Agreement in good
faith and with the intent that every term, covenant, and condition be binding
upon and inure to the benefit of the respective parties. Accordingly, if any
one or more of the terms, provisions, promises, covenants, or conditions of
this Agreement or the application thereof to any person or circumstance shall
be adjudged to any extent invalid, unenforceable, void, or voidable for any
reason whatsoever by a court of competent jurisdiction, that provision shall be
as narrowly construed as possible, and all the remaining terms, provisions,
promises, covenants, and conditions of this Agreement or their application to
other persons or circumstances shall not be affected thereby, and shall be
valid and enforceable to the fullest extent permitted by law. To the extent
this Agreement is in violation of applicable law, the parties agree to
negotiate in good faith to amend the Agreement to the extent possible to remain
consistent with its purposes and to conform to applicable law.


 


9.14 Survivability.
Notwithstanding the termination of this Agreement, the provisions of Sections
5.10, 5.11, 6.7, 6.8, 7.1 and 8.3 shall survive.


 


9.15 Divisions and
Headings, The division of this Agreement into articles, sections, and
subsections and the use of captions and headings in connection therewith is
solely for convenience and shall not affect in any way the meaning or
interpretation of this Agreement.


 


9.16 Amendments and
Agreement Execution. This Agreement and its amendments, if any, shall be in
writing and executed in multiple copies on behalf of Medical Practice by its
duly authorized officer and on behalf of Manager by its duly authorized
officer. Each multiple copy shall be deemed an original, but all multiple
copies together shall constitute one and the same instrument.


 


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9.17 Entire Agreement.
With respect to the subject matter of this Agreement, this Agreement supersedes
all previous contracts except the Binding Letter of Intent, and together with
the Durable Power of Attorney Agreement, constitutes the entire Management
Agreement between the parties. No prior oral statements or contemporaneous
negotiations or understandings or prior written material not specifically
incorporated into this Agreement shall be of any force and effect, and no changes
in or additions to this Agreement shall be recognized unless incorporated by
amendment as provided in this Agreement, such amendment(s) to become
effective on the date stipulated in the amendment(s). The parties specifically
acknowledge that in entering into and executing this Agreement, the parties
rely solely upon the representations and agreements in this Agreement and upon
no other.


 


9.18 Contingency. The
effectiveness of this Agreement is contingent upon the acquisition by Bagne of
any and all interests of DRs. Krot and Bagne, Manager and Medical Practice, and
the Limited Durable Power of Attorney between DRs. Krot and Bagne granting
Bagne certain authority over shares in Medical Practice held by Krot.


 


IN WITNESS
WHEREOF, Medical Practice and Manager have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.


 


	
  MEDICAL PRACTICE:

  	
   

  	
  MANAGER:

  
	
   

  	
   

  	
   

  
	
  X-RAY TREATMENT CENTER P.C.

  	
   

  	
  PHOENIX
  MANAGEMENT COMPANY, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Alexandra Krot

  	
   

  	
  By:

  	
  /s/ Farideh R. Bagne

  
	
   

  	
  Alexandra Krot, D.O.

  	
   

  	
   

  	
  Farideh R. Bagne, Ph.D.,
  J.D.

  
	
  Its:

  	
  President

  	
   

  	
  Its:

  	
  President

  



 


21

















 


	
  STATE OF MICHIGAN

  	
  )

  
	
  STATE OF OAKLAND

  	
  )ss.

  



 


Before me this 20th day of July, 1999 did personally appear
Alexandra Krot, D.O., President of X-Ray Treatment Center, P.C. and being first
duly sworn did execute the foregoing instrument on behalf of X-Ray Treatment
Center, P.C.


 


	
   

  	
  /s/ Nancy J. Beck

  
	
   

  	
  Notary Public

  



 


	
  STATE OF MICHIGAN

  	
  )

  
	
  STATE OF OAKLAND

  	
  )ss.

  



 


Before me this 20th day of July, 1999 did personally appear
Farideh R. Bagne, Ph.D., J.D., President of Phoenix Management Company, LLC and
being first duly sworn did execute the foregoing instrument on behalf of
Phoenix Management Company, LLC.


 


	
   

  	
  /s/ Nancy J. Beck 

  
	
   

  	
  Notary Public

  



 


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