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EXHIBIT 10.5
MANAGEMENT AND SECURITY AGREEMENT
(CWC, INC.)
THIS MANAGEMENT AND SECURITY AGREEMENT (the "Agreement") is entered into
as of the _____ day of ________________, 199_ by and between Complete Wellness
Centers, Inc., a Delaware corporation ("CWC") having its principal office at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, licensed to do business in the
State of ((State)) or shall be so licensed at the time of Integration and
((CWMC_Name)), a ((State)) professional or business corporation, as the case
may be and referred to hereinafter as "Medcorp."
WHEREAS, CWC provides integrated practice consulting and management
services to various healthcare companies either directly or through a designee;
and
WHEREAS, CWC desires to provide comprehensive administrative and other
management services to Medcorp as more particularly described hereinafter; and
WHEREAS Medcorp desires to avail itself of the services rendered by CWC
or CWC's designee on an exclusive basis,
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
DEFINITIONS.
"Administrator" is defined as ((CWMC_Name)), a management company with
which CWC shall contract pursuant to a separate agreement (the "Integrated
Contract") to perform the day-to-day Management Services required by Medcorp.
"Advances" are defined as those funds advanced by CWC to Medcorp to fund
costs, operating deficits and expenses at an interest rate of Ten percent (10%)
per annum and secured by appropriate security as determined in CWC's sole
discretion. The Advances are not included in the Loan proceeds and shall be
evidence by appropriate documentation.
"Agreement" is defined as the Management and Security Agreement entered
into by and between Complete Wellness Centers, Inc. and Medcorp, the parties
hereto.
"Collective Advertising" is defined as regional and/or national
advertising and "Yellow Page" advertising for clusters of clinics.
"CWC Fee" is defined as the fair market value of services received by CWC
for goods and services rendered to Medcorp pursuant to Exhibit "A" attached
hereto.
"CWC Services" is defined as all services rendered by CWC such as general
consultation; marketing support; group purchasing; managed care contracts;
ongoing consulting; loan to Medcorp; agreements and protocols with regard to
the Integrated Practice; recruitment of medical doctors plus all Management
Services (as defined hereinafter).
"Confidential Information" is defined as the terms and conditions of this
Agreement or any information of any kind, nature or description concerning any
matters affecting or relating to the business of the other party hereto,
including, without limiting the foregoing, the names of Patients, the prices
paid for goods and services, manner of operation of business or plans or
processes, or any other data or information of any kind, nature or description
which effects or relates to the other's business without regard to whether any
or all of the foregoing would be deemed confidential information or a trade
secret under applicable state law.
"Equipment" is defined as office and medical equipment that the
Administrator owns or in which the Administrator has leasehold rights.
"FEP" is defined as Medicare, Medicaid, CHAMPUS and of CHAMPVA or any
other federal entitlement program.
"Integrated Contract" is defined as that certain Integrated Medical Center
Management and Security Agreement between CWC and the Administrator, inter
alia, pursuant to which the Administrator shall perform the day to day
Management Services required by Medcorp.
"Integrated Practice" is defined as a healthcare practice offering medical
care and chiropractic services, including primary and specialty healthcare, all
in accordance with applicable federal and state laws, rules and regulations.
"Integration Date" is defined as the date when the Medcorp commences
rendering medical services.
"Loan" is defined as that certain loan from CWC to Medcorp, not to exceed
Forty Thousand dollars ($40,000.00). Repayment of the Loan is waived is waived
for the first ninety (90) days after the Integration Date. Payments of interest
only, at the rate of ten percent (10%) per annum, shall commence on the ninety
first (91st) day after the Integration Date and shall be due and payable on the
same day of the next nine (9) months thereafter at which time payments of
principal as well as interest shall be due. Payments of principal plus interest
thereon shall commence immediately thereafter and shall be paid monthly in
forty eight (48) equal, consecutive payments. The Loan shall be due and payable
upon termination of the Integrated Contract and shall be secured by a blanket
lien on all of Medcorp's assets.
"Management Services" are defined as those services as may be necessary or
appropriate to meet the daily operational practice development and
administrative requirements of the Medcorp. Such services shall include but are
not limited to marketing and promotion of the Medcorp's practice, practice
development, supervision of personnel, facilities management, personnel and
human-resource administration, purchasing, billing. collecting and providing
for legal and accounting services. Specifically, Management Services shall
include: 1) record keeping and information provision; 2) billing and
collection; 3) maintenance of Medcorp identity; 4) non-professional personnel
matters; 5) computer systems; 6) equipment, supplies, furnishings; 7)
stationery, business cards and billing forms; 8) continuing education; 9)
scheduling; and 10) training.
"Medcorp" is defined as a professional or business corporation, as the
case may be, operating an Integrated Practice.
"Medcorp Expenses" are defined as including, but not limited to:
a. payroll or other compensation of professional personnel, payroll
taxes, payroll service fees, unemployment insurance and other
withholdings;
b. compensation in an amount equal to ______________________ but not
to exceed Six Thousand Dollars ($6,000.00) per annum, payable in
monthly increments, to an appropriately licensed medical doctor for
serving as Medcorp shareholder and director in such states where
Medcorp is a professional corporation;
c. employee benefits for professional employees (as determined by
Medcorp with Administrator's and CWC's approval);
d. professional liability (malpractice) or other insurance (in such
instances where the Administrator fails to provide the required
coverage for Medcorp);
e. bank fees or lockbox fees; and
f. loan interest and principal payments.
CWC Revenue is not included in Medcorp Expenses.
"Note" is defined as that certain promissory note executed by Medcorp
evidencing the Loan.
"Office Space" is defined as the office space which the Administrator owns
or in which the Administrator has leasehold rights and located at ((Address 1)).
"Patient" is defined as those persons receiving professional services or
related care at the Medcorp's professional employees' request.
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"Professional Employee Identification" is defined as the advertising of
the availability at Medcorp of Medcorp's professional employees in compliance
with appropriate advertising guidelines.
"Restricted Area" is defined as a five (5 ) mile radius if in a rural
area, two (2 ) mile radius if in a suburban area, and ten (10) block radius if
in an urban center of any Integrated Practice to which CWC is furnishing
management services, either directly or indirectly.
"Term" is defined as thirty five (35) years from the date hereof.
"Transition Period" is defined as the first ninety (90) days after
Integration Date.
1. GENERAL PROVISIONS
a. Term of Agreement. This Agreement shall commence on the Integration
Date and shall continue in full force and effect for the Term unless earlier
terminated as provided for herein.
b. Integrated Practice. Within one hundred twenty (120) days of execution
of this Agreement, CWC shall provide the services required for the proper
functioning of an Integrated Practice by the Medcorp.
c. Use of Office Space and Equipment. The Medcorp shall have the right to
use the Office Space and the Equipment in a manner which is necessary and
appropriate for the efficient and effective conduct of an Integrated Practice.
d. Payment of Costs and Expenses. Until such time that the Medcorp
generates cash receipts sufficient to cover Medcorp Expenses or in the event
that the Medcorp is operating at a deficit, CWC shall make Advances to fund
said costs . Such Advances shall be repaid upon termination of the Initial Term
of the Integrated Contract as defined therein.
e. Exclusivity. Medcorp hereby retains CWC as the sole and exclusive
manager of all non-therapeutic services required by Medcorp and CWC accepts
such assignment as provided for herein. CWC is authorized to take such actions
which, in the reasonable exercise of its discretion, it deems necessary or
appropriate in order to meet the daily requirements of Medcorp.
2. CWC OBLIGATIONS
a. Generally. In order to allow the Administrator and Medcorp to operate
on an efficient basis, CWC will provide the CWC Services, in its discretion
and at its own cost (except where otherwise noted), set forth below:
(1) General Consultation. Consultation and seminars with
regard to non-medical matters related to the management of an Integrated
Practice including, but not limited to training of professionals and
advertising.
(2) Computer Software. Initial software, installation , and
initial training (up to sixteen (16) hours) prior to the Integration Date.
(3) Managed Care Contracts. Best efforts to make managed
care contract arrangements available to the Medcorp. CWC reserves the right to
contract with one or more managed care entities on behalf of the Medcorp and to
negotiate a payment rate with respect to any and all such contractual
arrangements, subject to Medcorp and Administrator's approval.
(4) Forms, Stationery, and Business Cards. Initial starter
kit of forms to be used by the Medcorp. CWC shall also provide a thirty (30)
day initial supply of stationery and business cards.
(5) Legal Support and Documentation. Cause the legal
documentation required to establish an Integrated Practice including, but not
limited to the formation of Medcorp (as a business or professional corporation,
as appropriate) and medical and other professional employment and consulting
contracts to be provided. CWC shall cause ongoing legal support and updates to
assist the Administrator in complying with legal, regulatory, protocol and
insurance requirements to be provided.
(6) Advertising and Practice Development Support. Selected
resources in the field of promotion/advertising by making advertising programs,
group purchasing power, practice development support, and Professional Employee
Identification available to Medcorp.
(7) Medical Doctor. Assist in locating, recruiting and
training (non-medical matters) medical doctors on Medcorp's behalf and upon
selection of such medical doctors shall negotiate the terms of their employment
on the Medcorp's behalf.
(8) Office Space and Equipment Sub-Lease. Sublet to Medcorp
pursuant to the terms of a written lease, the Equipment and the Office Space at
fair market value for a period to run concurrent with the duration of the
Integrated Contract but in no event for a period less than one year unless
prevented by circumstances beyond CWC's control.
(9) Lease of CWC Name. Lease the "Complete Wellness Center"
name, or a derivation thereof, to Medcorp for the term of this Agreement.
b. Appointment of Administrator. CWC shall appoint an Administrator to
perform day-to-day services on Medcorp's behalf. The Management Services shall
be performed by the Administrator acting in its best judgement, however,
Administrator shall abide by all operating protocols, procedures, reports and
disclosure requests established jointly by Medcorp, CWC and the Administrator.
c. Billing and Collecting. CWC shall exercise best efforts to prepare and
submit all bills, claim forms and other documentation required for Medcorp to
obtain payment or reimbursement from any and all payors in connection with the
treatment of Patients at the Office.
(1) Appointment as Attorney in Fact. In seeking payment, CWC
shall act as Medcorp's agent and shall indicate on its billhead that it is
billing in the name of Medcorp. Medcorp hereby appoints CWC, for the term
hereof, as its true and lawful attorney in fact, with full power of assignment
and substitution, to ▇▇▇▇ Patients on Medcorp's behalf; collect accounts
receivable arising out of such ▇▇▇▇▇▇▇▇; and receive payments on behalf of
Medcorp from any and all insurance companies and third party payors, except as
may be precluded by law with respect to FEP accounts. In connection with its
billing activities, CWC may take possession of, and endorse in the name of
Medcorp, any and all notes, drafts and other instruments received by way of
payment.
(2) Payments received by Medcorp. Medcorp shall immediately
remit to CWC any payments received directly from payors for application in
accordance with the terms of this Agreement.
(3) Handling Proceeds of Collection. Medcorp shall not ▇▇▇▇
Patients or any third party payors for professional services rendered at the
Office other than as provided for herein. All proceeds shall be deposited by
CWC in accordance with the terms of this Agreement in a bank account(s) of its
selection. CWC may authorize designated signatories with respect to such bank
account(s) as it deems appropriate.
d. Loan to Medcorp. In order to allow the Administrator and Medcorp to
operate on an efficient basis, CWC will provide the Loan to Medcorp as
described herein:
(1) Loan. Loan to Medcorp within five (5) days of
satisfactory Verification (as defined in the Integrated Contract) an amount not
to exceed Forty Thousand Dollars ($40,000.00) at an interest rate of Ten
percent (10%) per annum during the Transition Period for the purpose of
advancing the medical doctor's salary during the Transition Period and for
providing equipment and supplies, including any additional computer hardware
required; leasehold improvements; signage; marketing advertising and
miscellaneous. CWC shall furnish Medcorp with invoices and/or other appropriate
documentation evidencing an expenditure not to exceed Forty Thousand Dollars
($40,000). Medcorp shall execute such documentation as is
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usual and customary for loans of such a nature, including, but not limited to,
the Note which shall be secured by a blanket lien on all Medcorp assets.
3. MEDCORP OBLIGATIONS
a. Sale of Equipment. Medcorp shall sell to Administrator upon
termination of the Integrated Contract and upon repayment of the Loan and
Advance(s), all non-proprietary equipment purchased from the proceeds of the
Loan and/or Advance(s) for the sum of One Dollar ($l.00).
b. Security Interest. So long as any amount of the Loan and/or Advance(s),
interest thereon, or any other sum which may be due under this Agreement and/or
the Integrated Contract remains unpaid, CWC shall have, and Medcorp hereby
grants, a continuing security interest in all assets owned by Medcorp,
including, but not limited to, all accounts receivables (unless otherwise
prohibited by law) due Medcorp, from the date of this Agreement or hereafter
acquired, evidencing any obligation to Medcorp and all accessories thereto,
substitutions therefor and replacements, products and proceeds thereof. Medcorp
agrees that from time to time, at the expense of Medcorp, Medcorp shall
promptly execute and deliver all further instruments and documents, and take
all further action, that may be necessary, or that CWC may reasonably request,
in order to perfect any security interest granted or purported to be granted by
Medcorp herein or to enable CWC to exercise and enforce its rights and
remedies hereunder with respect to the collateral in which a security interest
has been granted. Without limiting the generality of the foregoing, Medcorp
shall execute and file such security agreements, financing or continuation
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as CWC may request, in order to perfect and
preserve the security interest granted or purported to be granted hereby by
Medcorp.
4. BANK ACCOUNTS
a. Bank Account. All funds collected by the Administrator for the account
of the Medcorp shall be deposited in a bank account maintained by the
Administrator for and in the name of the Medcorp. CWC has the right to debit
the bank account of Medcorp for unpaid obligations of Medcorp with respect to
payroll, taxes and the CWC Fee and any unpaid amounts due under the Loan.
5. COMPENSATION
a. CWC Fee. In consideration of the provision of CWC's Services to the
Medcorp as provided for herein, CWC shall be entitled, under the terms and
conditions herein, to the CWC Fee which shall be paid monthly and shall be due
no later than the tenth (10th) day of each month.
6. TERMINATION
a. Termination by CWC. CWC may, at any time at its election, terminate
this Agreement by delivering written notice of termination to the Medcorp upon
the occurrence of any of the following events.
(1) a material breach by Medcorp of any of its obligations
hereunder which, after ten (10) days written notice from CWC, has not been
corrected by CWC; or
(2) the dissolution, liquidation or bankruptcy of the Medcorp,
the appointment of a receiver for the assets of the Medcorp, assignment by the
Medcorp of assets for the benefit of creditors or any action taken or suffered
by the Medcorp (with respect to the Medcorp) under any bankruptcy or insolvency
act; or
(3) The failure by the Medcorp to meet material standards of
managed care payers.
b. Termination by Medcorp. Medcorp may at any time at its election
terminate this Agreement upon the occurrence of any of the following events:
(1) a material breach by CWC of any of its obligations hereunder
which, after ten (10) days' written notice from the Medcorp, has not been
corrected by CWC, or
(2) the dissolution, liquidation or bankruptcy of CWC, the
appointment of a receiver for the assets of CWC, assignment by CWC of assets
for the benefit of creditors or any action taken or suffered by CWC under any
bankruptcy or insolvency act.
c. Effect of Termination. Expiration or early termination of this
Agreement shall not relieve, release or discharge any party hereto from any
obligation, debt or liability which may previously have accrued and which
remains to be performed upon the date of termination.
d. Distribution of Funds. Upon termination of this Agreement, CWC shall
first be paid any amount due under the CWC Fee and shall then be reimbursed for
any amount outstanding under the Loan, Advances and liquidated damages unless
otherwise agreed to in writing by CWC.
7. INSURANCE
a. Malpractice Insurance. Medcorp, at its sale cost and expense shall
provide (unless otherwise provided by professional employee,) keep and maintain
throughout the entire term of this Agreement, professional liability insurance
coverage on the Medcorp and all its professional employees in the minimum
amount of One Million Dollars ($1,000,000.00) for each occurrence and Three
Million Dollars ($3,000,000.00) in the aggregate or as legally required,
whichever amount is greater, written an a company licensed to do business in
the State of Medcorp's incorporation. The insurance policy or policies so
obtained shall name the Administrator and CWC as an additional insured party
thereunder where permitted. Such policy or policies shall also provide for at
least thirty (30) days advance written notice from the insurer as to any
alteration of coverage, cancellation or other termination be given the
Administrator and CWC and to any other person or entity designated by CWC.
b. Other Insurance. Medcorp shall maintain insurance with financially
sound and reputable insurance companies or associations in such amounts and
cowering such risks as are usually carried by companies engaged in the same or
a similar business and similarly situated, which insurance may provide for
reasonable deductibility from coverage thereof. The insurance policy or
policies so obtained shall name the Administrator and CWC as an additional
insured party thereunder where permitted. Such policy or policies shall also
provide for at least thirty (30) days advance written notice from the insurer
as to any alteration of coverage, cancellation or other termination be given
the Administrator and CWC and to any other person or entity designated by CWC.
8. COVENANTS NOT TO COMPETE OR SOLICIT, TRADE SECRETS AND CUSTOMER LISTS.
a. Medcorp's Restrictions During the Term of the Agreement. During the
term of this Agreement neither Medcorp nor any shareholder or partner of
Medcorp, shall operate, manage or otherwise be involved with any other entity
which renders chiropractic or medical services within the Restricted Area.
During the term of this Agreement neither the Administrator and/or Client, nor
any shareholder or partner of the Administrator and/or Client, shall operate,
manage or otherwise be involved with an Integrated Practice without the written
consent of CWC.
b. CWC's Restrictions During the Term of this Agreement. During the term
of this Agreement neither CWC nor any shareholder holding in excess of five
percent (5%) of CWC stock, or partner, shall operate, manage or otherwise be
involved with any other entity which renders chiropractic and/or medical
services within the "Restricted Area" of the Medcorp.
c. Confidential information. Each party hereto acknowledges and agrees
that each will have access to certain Confidential Information and trade
secrets of the other and that such information constitutes valuable, sale,
special and unique property. The parties hereto further acknowledge and agree
that each of them will not, at any time during or after the term hereof, in any
fashion, form, or manner either directly or indirectly, divulge, disclose or
communicate to any person, firm, or corporation in any manner whatsoever,
Confidential Information. During such period, each party hereto shall be
deemed to have a vital and protectable interest in such information and shall
be
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entitled to injunctive relief if necessary to protect against and remedy
wrongful disclosure or use of such information.
d. Irreparable Damage. The parties hereto acknowledge and agree that
consideration has been given to the nature and scope of the business and
activities of both Medcorp and CWC and that the covenants contained in this
Paragraph concerning territorial, substantive and time limitations are in all
respects fair and reasonable in view of the facts involved. In the event that
any court shall determine that the time, substantive and territorial
limitations contained herein are not fair and reasonable, this Agreement shall
nevertheless be enforced as to such time, substantive and territorial limits as
are reasonable.
e. Injunctive Relief. The parties further agree that in the event of the
breach of any provision of this Agreement, and particularly this Paragraph,
each party shall be entitled to a permanent injunction or similar court order
enjoining The breaching party from acting in a fashion contrary to this
Paragraph and that pending such determination the breaching party shall accede
to a temporary restraining order, without prejudice to any other rights that
the non-breaching party may have, all at the breaching party's expense.
f. Independent Agreement. The covenants contained herein shall be
construed as an independent agreement and the existence of any claim which the
breaching party may have against the non-breaching party will not constitute a
defense to the enforcement by the non-breaching party, by injunctive relief or
otherwise, of the provisions contained herein.
9. REPRESENTATIONS
a. FEP. Medcorp hereby represents to CWC that neither the Medcorp nor any
of its professional employees shall render diagnosis, treatment, or evaluation
to insureds of any FEP without first obtaining written authorization from CWC.
In the event that such treatment is rendered, CWC shall be provided with
immediate notice at which time CWC may terminate this Agreement for cause at
CWC's discretion. The parties agree that if a violation of this paragraph
results in termination of this Agreement then the party causing such breach
shall be liable to the other party for any and all damages caused and/or
sustained, including, but not limited to, the payment of any fines, liquidated
damages, attorneys fees, costs and expenses.
b. No Practice of Medicine. The parties hereto acknowledge that neither
the Administrator nor CWC are authorized or qualified to engage in any activity
which may be construed or be deemed to constitute the practice of medicine.
Therefore, and notwithstanding any provision or implication to the contrary
herein, neither CWC nor the Administrator shall engage in any activity which
shall or may be deemed to constitute the practice of medicine, nor shall either
of them in any way supervise or determine the method or standards of the
medical care provided by the Medcorp's professional employees. Specifically,
and without limitation, neither CWC nor the Administrator shall (a) determine
whether or not or when a patient shall be admitted and/or discharged; or (b)
determine or judge the standards and conduct of medical care set by the
Medcorp's professional employees.
c. No Referrals. Neither the Administrator nor CWC shall refer patients
to the Medcorp.
d. Access to Books and Records. The Medcorp agrees to give CWC or CWC's
designee such access to its books, records and data as each may require. Any
information so derived shall be subject to Paragraph 8c.
e. Independent Contracting Parties. Medcorp and CWC are independent
contracting parties and the relationship between them is that of a purchaser
and an independent supplier of non-medical services respectively. Nothing in
this Agreement shall be construed to create a principal-agent,
employer-employee, master-servant, partner or joint venture relationship
between them. The Medcorp shall, at all times, be the sole employer of its
professional personnel, arrange directly with such employees for all salaries
and other remuneration: and be ultimately responsible for the payment of all
applicable federal, state, or local withholding or similar taxes and provision
of worker's compensation and disability insurance, except as otherwise set
forth herein, no party hereto shall have the authority to bind any other party
hereto.
f. Management of the Integrated Healthcare Facilities. Medcorp
acknowledges and agrees that CWC is free to enter into agreements similar to
the one memorialized herein with other persons or other entities.
10. MISCELLANEOUS
a. Assignment. Medcorp shall not assign any of its right, title and
interest under this Agreement without the prior written consent of CWC. For
purposes hereof, any issuance, reissuance, sale, assignment or other
conveyance, or the issuance of warrants, options or rights to subscribe to,
purchase or otherwise acquire any shares of stock in Medcorp or securities
convertible into shares of its stock, or the entry into any contract regarding
same shall constitute an assignment of this Agreement. Such purported
assignment shall be null and void and of no effect whatsoever, Medcorp also
agrees that in the event of involuntary transfer of stock due to death of, or
legal action against, any stockholder, at the election of the non-transferring
entity, this Agreement shall be deemed breached by the other. CWC may assign
any of its rights hereunder.
b. Specific Performance. It is agreed that any breach or evasion of any of
the terms of this Agreement by either party hereto will result in immediate and
irreparable injury to the other party, and recourse to injunction and/or
specific performance, as well as to all other legal or equitable remedies to
which such injured party may be entitled, will be authorized under such
circumstances.
c. Indemnity. Each party hereto hereby agrees to indemnify, defend and
hold the other harmless from and against any and all costs, losses, claims,
demands and liabilities, including reasonable attorneys' fees which arise out
of or relate to any breach by the other of any of the terms and conditions in
this Agreement; any negligent or intentional wrongful act of the other; any act
or omission of the other which constitutes negligence; or any other act not
authorized under the terms of this Agreement. If either party or any of its
shareholders or affiliates is made a party to litigation or obligation or
otherwise incurs any loss or expense as a result of the other's activities
unconnected with the other's business at hereunder, such party shall forthwith
upon demand, reimburse the other party or such individuals for any and all
expenses incurred as a result thereof.
d. Waiver of Breach. The parties understand and intend that each
restriction agreed to hereunder shall be construed as separable and divisible
from every other restriction, and that the unenforceability, in whole or in
part, of any other restriction will not affect the enforceability of the
remaining restrictions. It is further understood that one or more, or all of
such restrictions, may be enforced in whole or in part as the circumstances
warrant. No waiver of any one breach of the restrictions contained in this
Agreement shall be deemed a waiver of any future breach. Each party hereby
acknowledges that it is fully cognizant of the restrictions set forth in this
Agreement and agrees that these provisions shall survive the termination of
this Agreement for any reason.
e. Notices. Except as otherwise provided herein, all requests, demands
and other communications required or permitted hereunder shall be in writing
and shall be deemed to have been given if delivered personally, by prepaid
telex, telegram, FAX or mailed first class, post prepaid, certified United
States Mail, return receipt requested, to the party who is to receive such
notice, request, demand or communication at such party's address as set forth
herein. Any party hereto may change its address for notice by giving to the
other party written notice of such change. Any notice given hereunder shall be
effective (i) if delivered personally, when delivered, (ii) if sent by telex,
telegram or FAX, twenty-four (24) hours after sending, and (iii) if mailed,
seventy-two (72) hours after the date of the mailing.
f. Commitments Binding Only Upon Written Consent. Notwithstanding any
provision herein to the contrary, it is expressly understood and agreed that
neither party hereto shall have the right to make any contracts or commitments
for or on behalf of the other party without the prior written consent of such
other party.
g. Time of Essence. Time is of the essence in regard to the obligations
established hereunder. The parties hereto agree that they shall cooperate in
good faith to accomplish the objectives of this Agreement and, documents and
take such further action as may be reasonably necessary to effectuate the
terms, conditions and purposes of this Agreement.
h. Entire Agreement. This Agreement contains the entire understanding of
The parties with respect to the subject matter hereof,
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supersedes any prior agreement between the parties, and may not be changed or
terminated orally. No change, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced.
i. Successors and Assigns. The provisions of this Agreement are intended
for the regulation of relations among the parties hereto. This Agreement is
not intended for the benefit of creditors or other third parties, and no rights
are granted to such individuals or entities except where expressly referenced
herein.
J. Captions. The headings and captions herein are intended for
convenience reference only, and shall not be deemed interpretative of the
contents of such sections.
k. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
l. Governing Law. All matters concerning the validity and interpretation
of and performance under this Agreement shall be governed by the laws of the
State of Maryland (without regard to the conflict of laws principles thereof)
and venue shall be laid in ▇▇▇▇▇▇▇▇▇▇ County.
m. Arbitration. Except for any claim based on fraud or seeking injunctive
relief, any controversy, dispute or disagreement arising out of or relating to
this Agreement, or the breach thereof, including without limitation any dispute
concerning the scope of this Arbitration clause, shall be settled by
arbitration, which shall be conducted in ▇▇▇▇▇▇▇▇▇▇ County, Maryland, in
accordance with the National Health Lawyer's Association ("NHLA") Alternative
Dispute Resolution Service Rules of Procedure of Arbitration. The courts
located in ▇▇▇▇▇▇▇▇▇▇ County, Maryland, shall have exclusive jurisdiction for
the entry of judgment upon any award rendered by such arbitration panel. The
parties hereto consent to such exclusive jurisdiction and venue.
n. Attorneys' Fees. Anything to the contrary contained herein
notwithstanding, in the event of litigation or arbitration between the parties
hereto, with respect to the subject matter hereof, the prevailing party in such
proceeding shall be entitled to an award of costs and fees, including
reasonable attorneys fees, incurred by reason of such proceeding, including
costs and fees on appeal, if any.
o. No Act Contrary To Law. Nothing herein shall be construed so as to
require the commission of any act contrary to law, and wherever there is any
statute, law, ordinance or regulation which is inconsistent with this
Agreement, such statute, law, ordinance or regulation shall prevail, and, in
such event, the provision herein in conflict automatically shall be cur-railed,
limited or eliminated to the extent necessary to bring it within legal
limitations.
p. Changes in Law and Regulations. In the event any applicable federal.
state or local law or any regulation, order or policy issued under any such law
is changed (or any judicial interpretation thereof is developed or changed) in
a way which will have a material adverse affect on the practical realization of
the benefits anticipated by one or more parties to this Agreement, the
adversely affected party or parties shall notify the other party or parties in
writing of such change and the offset of such change. The parties shall enter
into good faith negotiations to modify this Agreement to compensate for such
change. If an agreement on a method for modifying this Agreement is not
reached within thirty (30) days of such written notice, the matter shall be
submitted to a mediation with a single mediator for mediation in ▇▇▇▇▇▇▇▇▇▇
County. Maryland, pursuant to the rules and procedures of the NHLA Alternative
Dispute Resolution Service Rules of Procedure for Mediation.
q. Force Majeure. If any party's ability to perform its obligations
hereunder is limited or prevented in whole or in part due directly to acts of
God, war, invasion, acts of foreign enemy, hostilities (whether war be declared
or not), strikes and/or industrial dispute, delay on the part of a supplier or
transportation delay, such party, without liability of any kind, shall be
excused, discharged, and released from performance to the extent such
performance is limited, delayed or prevented.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands the day
and year first above written.
((CWMC_Name))
By:
-------------------------------------------
((Title)) ((First_Name)) ((Last_Name)), President
Complete Wellness Centers, Inc., a Delaware
Corporation
By:
-------------------------------------------
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
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EXHIBIT "A"
Office Space rental per annum:
Equipment rental per annum:
Marketing and promotion per annum
Supervision of personnel per annum
Facilities management per annum
Personnel and human-resource administration per annum
Group Purchasing services per annum
Billing and Collection
Forty thousand dollar loan interest cost per annum
General Consultation per annum
Negotiation of managed care contracts per annum
Training professionals in multi-disciplinary protocols per annum
Updates on protocols, public relations, and regulatory and legislative changes
per annum
Provide retail, cluster marketing and public relations campaigns per annum
Assist in locating, recruiting and training (non-medical matters) medical
doctors per annum
Record-Keeping and Information Provision per annum
Hiring of Non-Professional Personnel
Scheduling per annum
Training in systems, procedures and protocols of non-professional personnel per
annum
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