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EXHIBIT 10.10
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement") is entered into as of the 3rd
day of December, 1996, by and between HEALTH CARE DIVISION, INC., a Georgia
corporation ("HCD") and INFO SYSTEMS OF NORTH CAROLINA, INC., a North Carolina
corporation ("ISI").
WHEREAS, HCD is a wholly-owned subsidiary of American Medcare
Corporation, a Delaware corporation ("AMC");
WHEREAS, AMC and ISI have entered into the Asset Purchase Agreement
("Purchase Agreement") dated December 3, 1996 for the sale of certain assets and
business (as defined therein) of ISI to AMC;
WHEREAS, the execution of this Agreement is a precondition to the
closing of the transactions contemplated in the Purchase Agreement.
NOW THEREFORE, in consideration of the mutual promises herein made and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT OF ISI.
(a) HCD hereby engages ISI, and ISI hereby agrees, to provide
the necessary personnel services, support services and use of equipment
("Services") to operate the business of HCD substantially in the manner in which
such business was conducted heretofore by ISI, subject to such changes as
requested from time to time on behalf of HCD ("Business"); provided, however,
that any change that (i) would increase the cost of providing the Services shall
be subject to the mutual agreement of the parties regarding such increase in
costs or (ii) would make the providing of the Services more burdensome to ISI
shall be subject to the mutual agreement of the parties, excluding insignificant
changes in the undertakings. ISI shall be responsible for the day to day
operations of the Business subject to the review and direction by a
representative of HCD. ISI will make commercially reasonable efforts to make
available, for the providing of the Services, all of the employees of ISI who
were employees of the Info/Cure Group of ISI upon the sale of the Business by
ISI to HCD pursuant to the Purchase Agreement. The names of such employees who
are to provide the Services hereunder ("Employees") as designated by HCD and
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their salaries are listed on Schedule 1 hereto. The Services will be rendered in
a professional manner consistent with past practices.
(b) It is understood that ISI intends to transfer certain
Employees of the Info/Cure Group to other operations of ISI when a position
becomes available and they are no longer required by HCD to render any Service
hereunder. HCD shall advise ISI at least two weeks prior to any release of any
Employee from the providing of Services hereunder. ISI shall promptly advise HCD
of any Employee who has advised ISI that he/she intends to voluntarily terminate
or who has voluntarily terminated said employment with ISI. If practicable, HCD
may make arrangements for the engagement of personnel (including temporary
personnel) to provide such services on the Premises (as hereafter defined) to
replace such terminating Employees and/or to transfer functions performed by ISI
hereunder to another location of HCD. ISI shall not offer employment to such
employees. In addition, neither ISI nor HCD, nor any of their affiliates, shall
at any time during the term of this Agreement and for a period of six (6) months
thereafter offer to employ, employ or hire as an independent contractor, any
employee of the other party or any person who was employed by the other party at
any time within six (6) months prior to any such offer of employment, employment
or hiring of such person as an independent contractor except any employee on the
attached Schedule 3. Notwithstanding the foregoing, HCD and ISI within thirty
(30) days of the date of this Agreement, will use their best efforts to develop
a mutually agreed upon schedule setting forth the number and qualifications or
job title and/or names of Employees who are to be retained or released at
specified dates or milestones;
(c) HCD shall make commercially reasonable efforts to transfer
the Business conducted at Charlotte, North Carolina to a location in Georgia
during the term of this Agreement. The Services shall include such assistance by
the Employees reasonably necessary to effect the transfer of the Business,
including training of personnel designated by HCD. HCD shall present to ISI a
tentative plan providing for such transfer and each shall use commercially
reasonable efforts to implement the plan. It is understood that changes to the
plan may be required from time to time.
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(d) ISI will not be required to engage any employee to replace
an Employee who voluntarily terminates his/her employment with ISI.
(e) ISI agrees that HCD may discuss with Employees employment
with HCD, including as a consultant, upon prior written notice to ISI. Should
HCD elect to hire any Employee, HCD will give ISI prompt written notice thereof.
(f) ISI will reassign any Employee that HCD advises ISI in
writing that HCD no longer desires for the providing of the Services to HCD
hereunder as hereinabove provided and thereafter such Employee shall not be
subject to employment by HCD pursuant to subparagraphs (b) and (e).
(g) ISI will provide to each Employee written notice advising
the Employee that each continues to be an employee of ISI and reports to a
supervisor designated by ISI. In addition, all Employees have executed
non-disclosure agreements and assignments of intellectual property with ISI
substantially in the form attached hereto.
(h) ISI and HCD shall each appoint a representative
responsible for implementing the provisions of this Agreement.
2. SUPERVISION. The representative designated by HCD from time to time
shall provide ISI with instructions of the work and changes thereto to be
performed in the operation of this Business and ISI shall use commercially
reasonable efforts to cause these instructions to be carried out.
3. EMPLOYEES. The parties agree that the Employees, for all purposes,
are employees of ISI. ISI shall be solely responsible for all employment
matters, including maintaining personnel records, payments and withholdings of
all applicable federal, state and local taxes of any kind or nature, maintaining
workers' compensation insurance, and providing employee welfare benefits.
4. PREMISES.
(a) ISI shall make available to the Employees and invitees of
HCD during the term of this Agreement the facilities ("Premises") previously
used by ISI in the conduct of the Business on the Premises described in Schedule
2. For the period of six (6) months from the date of the closing there shall be
no charge for the use of the premises. Thereafter, the monthly rent shall be the
portion of the actual rent allocated based upon the number of Employees and
others
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on the Premises performing services for the benefit of HCD during such month
versus the total number of employees of ISI and its affiliated companies and
such others who are working at the Charlotte, North Carolina location. In no
event shall the monthly rent be more than the average monthly rent allocated to
the InfoCure division during the previous twelve (12) months.
(b) The right of the Employees and invitees to use the
Premises includes also the right to use the common areas, including parking
facilities, provided by ISI to its employees and shall be subject to reasonable
security procedures established by ISI from time to time.
(c) ISI shall be responsible for all costs of repairs to the
premises except those caused by employees of HCD, reasonable wear and tear
excepted.
5. UTILITIES.
(a) ISI shall cause all water, heat, air conditioning,
electricity, telephone and all other utilities to be available for use in the
conduct of the Business on the Premises substantially as heretofore made
available to ISI in the conduct of the Business.
(b) The cost of utilities to the extent not included in the
rental payments, where specifically identifiable and used in the conduct of the
Business, shall be paid by HCD or HCD shall reimburse ISI for such payments.
Where such costs cannot be specifically identified, the parties shall mutually
agree on a fair and equitable allocation of such costs.
6. OFFICE EQUIPMENT. To the extent office equipment of ISI has
been used heretofore in the conduct of the Business which will not be acquired
by HCD pursuant to the Purchase Agreement, including computers, copiers and
telecopiers, such equipment shall continue to be made available to the Business
of HCD conducted on the Premises. All additional out of pocket costs incurred by
ISI by reason of the use of the office equipment on behalf of HCD shall be paid
or reimbursed by HCD. Such cost shall include paper, telephone charges, postage,
and other similar charges.
7. CONTRACTS/INVOICING AND COLLECTIONS. (a) No Employee of ISI
may enter into a contract on behalf of HCD. All agreements on behalf of HCD
arising from the conduct of the Business must be forwarded to the
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representative of HCD. No agreement shall be valid and binding upon HCD until
accepted and executed by an authorized officer or employee of HCD.
(b) Invoices issued to customers of the Business shall be on
invoices bearing the name of HCD. In the event of any delay in the printing of
such invoices, invoices of ISI may be used on a temporary basis. Any monies paid
to ISI in error, shall promptly be delivered to or deposited in an account of
HCD designated by HCD.
8. FEES AND OTHER CHARGES.
(a) HCD will pay to ISI for the providing of the Services a
fee ("Fee") for each Employee providing Services hereunder, an amount equal to
the sum of (i) the salary of the Employee before deductions, and (ii) an amount
equal to 14% of the Employee's base salary to cover social security, Medicare
payments, and other similar payments related to the Employee's compensation paid
or payable by ISI, employee benefits and other costs to ISI of providing the
Services hereunder to HCD. In addition, HCD shall pay ISI $5,000 per month for
all administrative support, all other services and use of equipment provided to
or for use by the business conducted by HCD on the Premises; such amount to be
reduced monthly based upon the reduction in the number of Employees and others
on the Premises providing Services hereunder during such month.
(b) ISI shall invoice HCD for such Fee three (3) business days
before each payroll payment date. On or before the payroll payment date, HCD
shall transfer in immediately available funds to the account of ISI designated
by ISI the applicable Fee.
(c) All other monies payable by HCD, including for the monthly
fee provided in paragraph 8(a) and costs incurred, that are to be reimbursed by
HCD shall be invoiced by ISI as of the end of each calendar month. Payment shall
be due and payable by HCD within ten (10) days of receipt of the invoice. Upon
HCD's reasonable request, ISI shall provide supporting documents for any
disputed charge.
9. TERM. This Agreement shall commence on the date hereof and
shall continue until such time as all of the Employees have voluntarily resigned
or are no longer required by HCD.
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This Agreement shall terminate eighteen (18) months after date hereof unless
earlier terminated as set forth in the preceding sentence.
10. INSURANCE. ISI shall maintain insurance coverage currently
maintained by ISI and AMC shall be named a coinsured or a named payee under
ISI's current policies.
11. DISCOVERIES, PATENTS, INVENTIONS AND COPYRIGHTS.
(a) Definition of Proprietary Property. The term "Proprietary
Property" for the purposes of this Agreement shall mean ideas, discoveries,
inventions, improvements, trade secrets, techniques, methods, know-how,
technical and non-technical data, writings and other works of authorship,
computer program code, compilations, mathematical models, copyrights and any
other matter which is legally protectible or recognized as forms of property,
whether or not reduced to practice or to a writing.
(b) Assignment of Proprietary Property to HCD. ISI hereby
agrees to assign, transfer and set over, and does hereby assign, transfer and
set over, to HCD, without further compensation, all of the rights, title and
interest of ISI in and to any and all Proprietary Property which ISI, including
its Employees, either solely or jointly with others, has conceived, made or
suggested or may hereafter conceive, make or suggest in the course of the
rendering of Services hereunder.
(c) Disclosure of Proprietary Property and Execution of
Documents. ISI further agrees to disclose promptly to HCD any and all
Proprietary Property which ISI has assigned, transferred and set over, as
provided in Paragraph 14(b) and ISI agrees to execute, acknowledge and deliver
to HCD, without additional compensation and without expense to ISI, any and all
instruments reasonably requested in order to vest in HCD all property rights
with respect to such Proprietary Property. The obligation to execute instruments
under this subparagraph (c) shall continue beyond the term of this Agreement.
12. TRADE SECRETS AND CONFIDENTIAL INFORMATION OF OTHERS. To the extent
ISI or any Employee has or possesses any Trade Secrets (as hereinafter defined)
or Confidential Information (as hereinafter defined) belonging to others,
(except as provided in paragraph 16),
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ISI will not use such Trade Secrets or Confidential Information in the providing
of Services hereunder or disclose to HCD any such Trade Secrets or Confidential
Information.
13. TRADE SECRETS AND CONFIDENTIAL INFORMATION OF HCD AND ITS
CUSTOMERS.
(a) During the providing of Services hereunder and at all
times thereafter, ISI agrees not to use or disclose to others, without prior
written consent of HCD, any Trade Secrets or Confidential Information
(collectively "Information") of HCD or of its customers obtained by ISI, except
to use such Information as is necessary in the course of performing the Services
hereunder.
(b) Upon the termination of this Agreement or the termination
or completion of the Services to be provided hereunder, ISI shall not retain or
take any document, data, program code, technical data, manuals, or other
documents and instruments (collectively "documents") obtained by ISI as a result
of the engagement of ISI hereunder, or developed or created by ISI in the course
of performing the Services hereunder, or any reproductions thereof, in whole or
in part, including, but not limited to all those containing or pertaining to the
Information of HCD or of its customers. All such documents and all copies
thereof shall be surrendered to HCD at any time upon request of HCD and/or upon
the termination of the term of this Agreement and upon the request of HCD all
Information on any media, including, computer memory, is to be destroyed and ISI
shall so certify in writing upon request by HCD.
(c) ISI agrees at all times to hold the Information in
confidence and shall not disclose the Information, in whole or in part, and
shall not use the Information, in whole or in part, except in connection with
the providing of the Services. In addition, ISI agrees to disclose the
Information only with, and transmit the Information only to, its Employees who
need to know the Information in order to provide the Services.
(d) ISI agrees to take reasonable security precautions to
prevent the unauthorized use and disclosure of the Information to any person or
entity, except those permitted herein, and shall take commercially reasonable
security precautions to prevent any Employee who has access to the Information
from using or disclosing the Information, except
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as herein permitted. ISI shall use not less than the same degree of care to
prevent unauthorized use and/or disclosure of the Information which ISI applies
with respect to its own trade secrets and confidential information of like
importance.
(e) "Trade Secrets" shall mean Information which constitutes a
Trade Secret within the meaning of Section 10-1-761(4) of the Georgia Trade
Secrets Act of 1990 ("Act"), including source and object code.
(f) "Confidential Information" shall mean all information and
data which is protectible as a legal form of property or nonpublic information
that the owner or others designate as being a "Trade Secret", "Proprietary" or
"Confidential" or other similar designations or which, under the circumstances
surrounding disclosure, ought to be treated as Confidential Information.
Confidential Information shall not include any information or data which
constitutes a Trade Secret within the meaning of the Act.
(g) The parties agree that the limitations herein on
disclosure and the use of Confidential Information of HCD shall be for a period
of five (5) years from the date of its disclosure, subject to the earlier
termination as provided in subparagraph (h). Trade Secrets shall be kept
confidential at all times hereafter subject to the earlier termination as
provided in subparagraph (h).
(h) Information shall not include such information (i) which
becomes publicly known through no wrongful act of ISI (including its Employees);
or (ii) is lawfully received by ISI from a third party without a similar
restriction regarding confidentiality and without a breach of this Agreement.
14. SECURITY INTEREST. To secure the amounts payable hereunder to ISI,
HCD grants to ISI a security interest in accounts receivable of the Info/Cure
Group sold by ISI pursuant to the Purchase Agreement, which assets have been
assigned to HCD. ISI shall have the rights and remedies with respect to said
accounts receivable as provided in Article 9 of the Uniform Commercial Code as
adopted by the State of North Carolina. HCD will execute and file appropriate
financing statements.
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15. HEADINGS. The paragraph headings contained in this Agreement are
for reference purposes only and shall not be deemed to be part of this Agreement
or to affect its meaning or interpretation.
16. FURTHER ASSURANCES. The parties hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as the other party hereto may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement.
17. FORCE MAJEURE. Neither party hereto shall be liable for failure or
delay in performing any of its obligations hereunder if such failure or delay is
occasioned by compliance with any governmental regulation, request or order, or
by circumstances beyond the reasonable control of the party so failing or
delaying, including, but not limited to, Acts of God, war, insurrection, fire,
flood, accident, labor strikes, or inability to obtain materials, supplies,
power or equipment necessary to enable such party to perform its obligations
hereunder. Each party shall (a) promptly notify the other in writing of any such
event of force majeure, the expected duration thereof and its anticipated effect
on the ability of such party to perform its obligations hereunder, and (b) make
reasonable efforts to remedy any such event of force majeure.
18. CUMULATIVE REMEDIES. The parties shall have all remedies for
breaches of this Agreement available to them provided by law or equity.
19. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties hereto regarding the providing of the services of employees
and other services relating to the operation of the Business on the Premises. No
representations or agreements heretofore entered into, whether written or oral,
other than those contained or referenced herein, shall be binding on the
parties. This Agreement may be amended only by a writing duly executed by the
parties hereto.
20. SPECIFIC PERFORMANCE. This Agreement may be specifically
enforceable in accordance with applicable principles of law and equity. The
parties hereby acknowledge that it is impossible to measure the monetary damages
which would result from a party's failure to perform any obligation imposed upon
such party by this Agreement. Therefore, if any party hereto should
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institute an action or proceeding to enforce the provisions hereof, the other
party against whom such action or proceeding is thereby brought hereby waives
the claim or defense that such party has an adequate remedy at law, and such
person shall not urge in any action or proceeding the claim or defense that an
adequate remedy at law exists.
21. NOTICES. All notices or other communications required or permitted
to be given hereunder shall be given in writing to the last authorized
address/telecopier number of the intended recipient, provided in writing to the
party giving such notice and shall be deemed to have been duly given on (i) the
date of receipt if personally delivered or delivered by overnight courier, (ii)
five (5) business days after posting if transmitted by postage prepaid
registered or certified mail (return receipt requested), or (iii) the date of
transmission if transmitted by telecopy (with postage prepaid registered or
certified mail confirmation) to the party to whom such notice or communication
is being given. Any party hereto may change such party's address or the person
to whom notice is given for purposes hereof by written notice to the other
parties. Such notices are effective only upon receipt.
22. NON-WAIVER OF DEFAULT. Any failure by any party hereto at any time
or from time to time to enforce and/or require strict compliance with any term
or condition of this Agreement shall not constitute a waiver of such term or
condition. All waivers hereunder must be in writing executed by the party
waiving the right. The consummation of the transactions with knowledge of a
breach of a warranty, representation or covenant shall not constitute a waiver
of any such warranty, representation or covenant.
23. PARTIAL INVALIDITY. If any term or provision of this Agreement, not
essential to the basic purposes of the transactions contemplated herein, shall
be held to be illegal, invalid or unenforceable by a court or arbitrator, it is
the intention of the parties hereto that (i) the remaining terms hereof shall
constitute the agreement with respect to the subject matter hereof, (ii) all
such remaining terms shall remain in full force and effect and shall be deemed
to constitute the entirety of this Agreement as though such illegal, invalid or
unenforceable provision had never been part hereof, and (iii) such illegal,
invalid, or unenforceable provision shall be construed as closely as
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possible to the parties' original intent in order to render such provision
legal, valid, or enforceable, as applicable.
24. ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of ISI and HCD and their successors and
assigns. HCD may assign this Agreement to an affiliated company.
25. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Georgia (regardless of the laws that might be applicable under
principles of conflicts of law) as to all matters, including, but not limited
to, matters of validity, construction, effect and performance.
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26. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
INFO SYSTEMS OF NORTH CAROLINA,
INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice Persident
ADDRESS FOR NOTICE:
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
HEALTH CARE DIVISION, INC.
By: /S/ ▇▇▇▇▇▇▇▇▇ ▇. Fine
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Name: ▇▇▇▇▇▇▇▇▇ ▇. Fine
Title: President
ADDRESS FOR NOTICE:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: 404/636-7525
Attention: President
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