CONSULTING AGREEMENT
by and between
CRESTLINE PACKAGING SOLUTIONS LLC
and
DR. NADIA PETROSIAN
Effective as of August 15, 2025
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RECITALS
WHEREAS, Crestline Packaging Solutions LLC, a Delaware limited liability company (the "Company"), has its principal office at 8400 Scioto Darby Road, Suite 300, Columbus, OH 43228; and
WHEREAS, Dr. Nadia Petrosian, an individual residing at 2801 Elmwood Avenue, Brighton, NY 14618 (the "Consultant"); and
WHEREAS, the Company, through its indirect parent CPS Holdings, Inc., a Delaware corporation, has consummated the acquisition of substantially all of the assets of Lakewood Regional Health Partners, LLC, a New York limited liability company ("Lakewood"), pursuant to that certain Asset Purchase Agreement, dated as of June 16, 2025, by and among the Company, CPS Holdings, Inc., Lakewood, Dr. Raymond Alcott, and Dr. Nadia Petrosian (the "Purchase Agreement"), with a closing date of August 15, 2025 (the "Closing Date"); and
WHEREAS, prior to the Closing Date, Consultant served as Co-Managing Member (holding a forty percent (40%) membership interest) and Medical Director of Lakewood, and in such capacities Consultant has acquired and possesses specialized knowledge of Lakewood's clinical operations, physician relationships, managed care payor networks (including, without limitation, the contractual relationship with Meridian Shield Health Plans, Inc., which represents approximately twenty-two percent (22%) of Lakewood's net revenue), credentialing processes, and regulatory compliance history across Lakewood's eleven (11) clinic locations in the State of New York and the Commonwealth of Pennsylvania; and
WHEREAS, the Company desires to retain the services of Consultant, and Consultant desires to provide such services to the Company, on the terms and conditions set forth herein, in order to ensure an orderly transition of clinical leadership, medical directorship functions, and credentialing matters following the Closing; and
WHEREAS, the execution and delivery of this Agreement by Consultant is a condition to the closing of the transactions contemplated by the Purchase Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1 — DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any entity directly or indirectly controlling, controlled by, or under common control with such Person, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, CPS Holdings, Inc. and Pinnacle River Capital Partners, LP are Affiliates of the Company.
"Agreement" means this Consulting Agreement, together with all exhibits, schedules, and amendments hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Applicable Law" means all federal, state, and local statutes, regulations, rules, ordinances, and orders applicable to the Services or the parties' performance under this Agreement, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b), the Physician Self-Referral Law (commonly known as the "Stark Law") (42 U.S.C. § 1395nn), the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, "HIPAA") (42 U.S.C. § 1320d et seq.), New York Public Health Law Article 28, the Pennsylvania Health Care Facilities Act (35 P.S. § 448.101 et seq.), the False Claims Act (31 U.S.C. §§ 3729–3733), and any regulations promulgated under any of the foregoing.
"Business" means the multispecialty outpatient healthcare practice operated by Lakewood prior to the Closing Date and by the Company following the Closing Date at the Clinic Locations, including all clinical, administrative, and ancillary services provided in connection therewith.
"Clinic Locations" means the eleven (11) facilities identified by CMS Certification Numbers 33-7021 through 33-7028 (State of New York) and 39-6011 through 39-6013 (Commonwealth of Pennsylvania), including, without limitation, the following locations:
(a) Rochester Main — 450 East Ridge Road, Rochester, NY 14621 (CMS No. 33-7021);
(b) Brighton — Brighton, NY (CMS No. 33-7022);
(c) Henrietta — Henrietta, NY (CMS No. 33-7023);
(d) Syracuse — Syracuse, NY (CMS No. 33-7024);
(e) Utica — Utica, NY (CMS No. 33-7025);
(f) Binghamtonhamton — Binghamtonhamton, NY (CMS No. 33-7026);
(g) Ithaca — Ithaca, NY (CMS No. 33-7027);
(h) Albany — Albany, NY (CMS No. 33-7028);
(i) Scranton — Scranton, PA (CMS No. 39-6011);
(j) Wilkes-Barre — Wilkes-Barre, PA (CMS No. 39-6012); and
(k) Towanda — Towanda, PA (CMS No. 39-6013).
"Confidential Information" means all non-public information, in any form or medium (whether written, oral, visual, electronic, or otherwise), that relates to the Company, its Affiliates, or the Business, that is disclosed to, accessed by, or otherwise made available to Consultant in connection with the performance of the Services or that Consultant obtained during her tenure at Lakewood, including, without limitation: (i) patient data and Protected Health Information; (ii) referral source information and relationships; (iii) payor contract terms, fee schedules, reimbursement rates, and related financial information (including, without limitation, the terms of the Company's arrangements with Meridian Shield Health Plans, Inc. and all other managed care payors); (iv) data, records, configurations, and workflows within the Clearpath Health Systems EHR platform (License Agreement No. CP-ENT-2022-0487); (v) financial statements, projections, budgets, and operational data; (vi) clinical protocols, treatment guidelines, and quality metrics; (vii) personnel information, compensation data, and employment records; (viii) strategic plans, marketing plans, and business development initiatives; (ix) trade secrets and proprietary methodologies; and (x) the terms of this Agreement. Confidential Information shall not include information subject to the exceptions set forth in Section 7.2.
"Consulting Fee" has the meaning set forth in Section 4.1.
"Effective Date" means August 15, 2025.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, governmental authority, or other entity.
"PHI" or "Protected Health Information" has the meaning ascribed to such term under HIPAA and its implementing regulations at 45 C.F.R. Parts 160 and 164.
"Services" means the consulting, advisory, and transitional services to be performed by Consultant as described in Section 2 and Exhibit A attached hereto.
"Term" has the meaning set forth in Section 3.1.
"Work Product" has the meaning set forth in Section 8.1.
SECTION 2 — ENGAGEMENT; SCOPE OF SERVICES
2.1 Engagement. The Company hereby engages Consultant, and Consultant hereby accepts such engagement, as an independent contractor to perform the Services described in this Section 2 and in Exhibit A attached hereto, subject to and in accordance with the terms and conditions of this Agreement. Consultant shall perform the Services personally and shall not subcontract or delegate the performance of any portion of the Services to any third party without the prior written consent of the Company.
2.2 Clinical Oversight Services
During the Term, Consultant shall provide ongoing clinical oversight and quality assurance guidance across all eleven (11) Clinic Locations during the transition period following the Closing. Without limiting the generality of the foregoing, Consultant shall:
(a) conduct periodic reviews of clinical protocols, treatment guidelines, and patient care standards employed at the Clinic Locations, and provide recommendations to the Company regarding modifications or improvements thereto;
(b) evaluate clinical benchmarks, patient outcomes data, and quality metrics across the Clinic Locations, and advise the Company on strategies to maintain or enhance the quality of patient care;
(c) serve as a clinical resource to the Company's incoming medical leadership team and shall be reasonably available for consultation and guidance regarding clinical operations, clinical staffing, and patient care delivery models; and
(d) participate in clinical quality committee meetings, medical staff meetings, and other clinical governance forums as reasonably requested by the Company, in accordance with the schedule set forth in Exhibit A.
2.3 Medical Director Transitional Duties
During the Term, Consultant shall perform transitional medical director functions to facilitate the orderly transfer of medical directorship responsibilities from Consultant to the Company's designated successor. Without limiting the foregoing, Consultant shall:
(a) assist the Company with the identification, recruitment, evaluation, and onboarding of a qualified successor Medical Director, including providing input on candidate qualifications, clinical competencies, and organizational fit;
(b) facilitate introductions of Company personnel, including the incoming Medical Director and other members of the Company's leadership team, to the physician staff (comprising approximately thirty-eight (38) physicians and twenty-four (24) nurse practitioners and physician assistants currently providing services at the Clinic Locations), as well as to key clinical referral sources, hospital partners, and other stakeholders;
(c) advise the Company on medical staff governance structures, including medical staff bylaws, peer review processes, quality committee structures, credentialing committee operations, and related clinical governance matters;
(d) assist with the transition of medical director responsibilities under managed care agreements with third-party payors, with particular attention to the contractual arrangement with Meridian Shield Health Plans, Inc., including participating in meetings with payor representatives, facilitating the introduction of the Company's clinical leadership to Meridian Shield's provider relations team, and ensuring continuity of medical director oversight functions required under such agreements;
(e) provide guidance, cooperation, and assistance to the Company and its counsel and regulatory advisors in connection with the ongoing inquiry by the Office of Inspector General of the U.S. Department of Health and Human Services relating to the Syracuse facility (CMS No. 33-7024) regarding CPT code 99214 upcoding matters, including, without limitation, cooperating with Company counsel and with Marchand Healthcare Regulatory Advisors, LLC as reasonably requested, reviewing relevant clinical documentation, and making herself available for interviews, depositions, or other proceedings as may be required; and
(f) provide such other transitional medical director services as are described in Part II of Exhibit A or as may be reasonably requested by the Company from time to time.
2.4 Credentialing Support
During the Term, Consultant shall assist the Company with credentialing, re-credentialing, and regulatory licensing activities. Without limiting the foregoing, Consultant shall:
(a) assist the Company with credentialing and re-credentialing activities with the Centers for Medicare & Medicaid Services ("CMS") (including with respect to all eleven (11) CMS Certification Numbers), Meridian Shield Health Plans, Inc., and all other third-party payors with which the Business maintains contractual relationships;
(b) support the preparation, filing, and follow-up of change-of-ownership and change-of-information applications with the New York State Department of Health (including with respect to Article 28 Operating Certificates D&TC-4821 through D&TC-4828) and the Pennsylvania Department of Health (including with respect to Facility License Nos. OPC-20140892 through OPC-20140894);
(c) cooperate and coordinate with Keystone MAC Services, LLC in connection with Medicare enrollment updates, CMS Certification Number reassignment or transfer, and related Medicare administrative contractor processes; and
(d) provide historical credentialing documentation, institutional knowledge, and background information to the Company's credentialing staff and regulatory personnel to facilitate timely and accurate completion of all credentialing and licensing activities.
2.5 Time Commitment
(a) Consultant shall devote an average of no fewer than twenty (20) hours per week to the performance of the Services during the first twelve (12) months of the Term (i.e., from August 15, 2025, through August 14, 2026) (the "Year 1 Period"). During the remaining twelve (12) months of the Term (i.e., from August 15, 2026, through August 15, 2027) (the "Year 2 Period"), Consultant shall devote an average of no fewer than ten (10) hours per week to the performance of the Services, unless otherwise agreed in writing by the parties. The weekly hour averages shall be calculated on a calendar-month basis.
(b) The Services may be performed at the Clinic Locations, the Company's offices, or remotely (via telephone, videoconference, electronic communication, or other means), as is reasonably appropriate for the nature of the task being performed; provided, however, that Consultant shall be physically present at one or more Clinic Locations no fewer than two (2) days per week during the Year 1 Period and no fewer than one (1) day per week during the Year 2 Period. The specific scheduling of on-site days shall be coordinated between Consultant and the Company's Chief Executive Officer (or his designee) in a mutually agreeable manner.
(c) Consultant shall maintain contemporaneous time records reflecting the hours devoted to the performance of the Services and the general nature of the work performed, and shall provide such records to the Company on a monthly basis or upon the Company's reasonable request.
2.6 Standard of Performance
Consultant shall perform the Services in a professional and workmanlike manner, consistent with the highest standards of the healthcare industry, in compliance with all Applicable Law, and in accordance with the Company's policies and procedures as communicated to Consultant from time to time. Consultant shall exercise the degree of skill, care, and diligence that would be expected of a qualified healthcare professional with comparable expertise and experience.
2.7 Reporting. Consultant shall report to the Company's Chief Executive Officer, Marcus Waverly, or such other officer or senior executive of the Company as the Company may designate in writing from time to time. Consultant shall provide periodic status updates and reports on the progress of the Services as reasonably requested by the Company, including written summaries of key activities, milestones achieved, and outstanding matters requiring the Company's attention.
SECTION 3 — TERM
3.1 Initial Term
This Agreement shall commence on the Effective Date and shall continue for a period of two (2) years, expiring at 11:59 p.m. Eastern Time on August 15, 2027 (the "Term"), unless earlier terminated in accordance with Section 10 of this Agreement.
3.2 No Automatic Renewal
This Agreement shall not automatically renew at the expiration of the Term. Any extension, renewal, or continuation of this Agreement beyond the Term shall require a written amendment duly executed by both parties in accordance with Section 16.3.
SECTION 4 — COMPENSATION
4.1 Annual Consulting Fee
In consideration of Consultant's performance of the Services, the Company shall pay Consultant an annual consulting fee of Three Hundred Seventy-Five Thousand Dollars ($375,000) per year during the Term (the "Consulting Fee"). The Consulting Fee shall be payable in equal monthly installments of Thirty-One Thousand Two Hundred Fifty Dollars ($31,250.00) each, payable in arrears on the last business day of each calendar month during the Term. The first installment payment shall be due on September 30, 2025, and shall cover the period from August 15, 2025, through September 30, 2025, prorated as appropriate. The final installment payment shall be prorated for any partial month.
4.2 Payment Method
All payments of the Consulting Fee and any expense reimbursements under this Agreement shall be made by wire transfer or ACH deposit to a bank account designated by Consultant in a written notice delivered to the Company. Consultant shall provide wire transfer or ACH instructions to the Company within five (5) business days of the Effective Date. Any change in banking information shall be communicated to the Company in writing at least ten (10) business days prior to the next scheduled payment date.
4.3 No Withholding
Consultant is an independent contractor, and the Company shall not withhold any federal, state, or local income tax, Social Security tax, Medicare tax, unemployment tax, or any other payroll or employment-related tax from payments made to Consultant under this Agreement. Consultant acknowledges and agrees that she is solely responsible for the timely payment of all such taxes. The Company shall issue IRS Form 1099-NEC to Consultant for each calendar year (or partial calendar year) in which payments are made under this Agreement, reporting the total amount of compensation paid to Consultant during such period.
4.4 Expense Reimbursement
The Company shall reimburse Consultant for reasonable, documented, out-of-pocket expenses actually incurred by Consultant in connection with the performance of the Services, including, without limitation, travel expenses (airfare, ground transportation, lodging, and meals) incurred in connection with travel to Clinic Locations outside the Rochester, New York, metropolitan area, provided that such expenses are pre-approved in writing by the Company's Chief Executive Officer (or his designee) and are submitted in accordance with the Company's expense reimbursement policy as in effect from time to time. Reimbursement requests shall be submitted within thirty (30) days of the date the expense was incurred, accompanied by itemized receipts and such other supporting documentation as the Company may reasonably require. The Company shall process approved reimbursement requests within thirty (30) days of receipt. Notwithstanding the foregoing, travel by Consultant to Clinic Locations within the Rochester metropolitan area (including the Rochester Main, Brighton, and Henrietta facilities) shall not be reimbursable.
4.5 No Benefits
Consultant shall not be entitled to participate in, and shall not be eligible for, any employee benefit plan, program, or arrangement of the Company or any of its Affiliates, including, without limitation, the Company's 401(k) retirement savings plan administered by Grandview Retirement Services, Inc., any group health insurance plan, dental or vision plan, life insurance plan, disability insurance plan, paid time off or vacation program, or any other fringe benefit or perquisite made available to employees of the Company. Consultant expressly acknowledges her obligation to obtain and maintain her own health insurance coverage, disability insurance, and retirement savings arrangements at her own expense.
SECTION 5 — INDEPENDENT CONTRACTOR STATUS
5.1 Independent Contractor Relationship
The relationship of Consultant to the Company under this Agreement is that of an independent contractor, and nothing contained in this Agreement shall be construed to create an employment, partnership, joint venture, or agency relationship between Consultant and the Company or any of its Affiliates. Consultant shall not be deemed an employee of the Company for any purpose, including, without limitation, for purposes of federal, state, or local tax withholding, workers' compensation, unemployment insurance, employee benefits, or any other purpose. Consultant retains the right to determine the manner, method, and means by which the Services are performed, subject to the general direction and oversight of the Company as set forth in this Agreement.
5.2 No Authority to Bind
Consultant shall have no authority to bind the Company, enter into any contract or agreement on behalf of the Company, incur any liability or obligation for or on behalf of the Company, or make any commitment, promise, or representation on behalf of the Company or any of its Affiliates, without the prior written authorization of the Company's Chief Executive Officer. Consultant shall not hold herself out to any third party as an employee, officer, director, partner, or agent of the Company, except as expressly authorized in writing by the Company in connection with the performance of the Services.
5.3 Compliance with Tax Obligations
Consultant is solely responsible for the reporting and payment of all federal, state, and local taxes arising from or attributable to the compensation received by Consultant under this Agreement, including, without limitation, federal and state income taxes, self-employment taxes (Social Security and Medicare), and any other applicable taxes. Consultant shall timely file all required tax returns and make all required estimated tax payments in connection therewith.
5.4 Indemnification for Reclassification
Consultant shall indemnify, defend, and hold harmless the Company and its Affiliates from and against any and all costs, expenses, penalties, interest, fines, back taxes, and other liabilities (including reasonable attorneys' fees) arising from or related to any determination by any governmental authority (including the Internal Revenue Service, any state tax authority, or any labor or employment agency) that Consultant was or should have been classified as an employee of the Company for any purpose, including, without limitation, any liability for unpaid employment taxes, employee benefits, or workers' compensation premiums.
SECTION 6 — ANTI-KICKBACK AND REGULATORY COMPLIANCE
6.1 Fair Market Value
The parties acknowledge and agree that the Consulting Fee set forth in Section 4.1 represents fair market value for the Services to be provided by Consultant under this Agreement. The Consulting Fee has been determined through arm's-length negotiations between the parties and has been established without regard to the volume or value of any patient referrals or other healthcare business generated between the parties, their Affiliates, or any other person or entity. The Company has obtained an independent fair market value assessment from a qualified third-party valuation firm in connection with the determination of the Consulting Fee.
6.2 No Referral Obligation
Nothing in this Agreement requires, obligates, or incentivizes Consultant to refer patients, order services, prescribe pharmaceuticals, or generate any healthcare business for the Company, any Affiliate of the Company, or any other person or entity. No portion of the Consulting Fee is intended as, and shall not be construed as, payment for, or inducement of, patient referrals or other healthcare business. Consultant shall be free to refer patients to any provider or facility she deems clinically appropriate in her professional medical judgment.
6.3 Personal Services Safe Harbor
The parties intend that this Agreement satisfy all of the requirements of the personal services and management contracts safe harbor under the federal Anti-Kickback Statute, as set forth in 42 C.F.R. § 1001.952(d), and this Agreement shall be interpreted, to the maximum extent possible, in a manner consistent with such safe harbor. Without limiting the foregoing, the parties acknowledge and agree that:
(a) the Term of this Agreement is set in advance for a period of not less than one (1) year, as specified in Section 3.1;
(b) the aggregate compensation to be paid to Consultant under this Agreement is set in advance for each year of the Term, is consistent with fair market value in arm's-length transactions, and is not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties; and
(c) the Services to be performed by Consultant under this Agreement are specified in advance in Section 2 and Exhibit A and do not involve the counseling or promotion of a business arrangement or other activity that violates any state or federal law.
6.4 Stark Law Compliance
The parties intend that the arrangement set forth in this Agreement comply with all applicable exceptions under the Stark Law (42 U.S.C. § 1395nn), including, without limitation, the personal services arrangement exception set forth in 42 C.F.R. § 411.357(d). To the extent that any compensation arrangement between the Company and Consultant constitutes a "compensation arrangement" within the meaning of the Stark Law, such arrangement shall be structured and interpreted so as to satisfy all requirements of an applicable exception thereunder.
6.5 Exclusion Representation
Consultant represents and warrants that, as of the Effective Date:
(a) she has not been excluded from participation in any federal health care program, as defined in 42 U.S.C. § 1320a-7b(f), including the Medicare program and any state Medicaid program;
(b) she is not listed on the Office of Inspector General's List of Excluded Individuals/Entities ("LEIE");
(c) she has not been debarred, suspended, or otherwise excluded from participation in any federal procurement or non-procurement program by the U.S. General Services Administration ("GSA"), and she is not listed on the GSA's System for Award Management ("SAM") exclusion list;
(d) she has not been convicted of any criminal offense related to healthcare fraud, patient abuse, controlled substances, or any other offense described in 42 U.S.C. § 1320a-7(a) or (b); and
(e) there is no pending or threatened investigation, proceeding, or action that could reasonably be expected to result in any exclusion, debarment, or conviction described in clauses (a) through (d) above, other than the OIG inquiry relating to the Syracuse facility (CMS No. 33-7024) as previously disclosed to the Company.
Consultant shall have an ongoing obligation to monitor her exclusion status throughout the Term and shall notify the Company in writing within two (2) business days if any of the representations set forth in this Section 6.5 become untrue or inaccurate in any respect, or if Consultant becomes aware of any event or circumstance that could reasonably be expected to result in any such representation becoming untrue or inaccurate.
SECTION 7 — CONFIDENTIALITY
7.1 Nondisclosure Obligations
Consultant shall not, during the Term or at any time thereafter, directly or indirectly, use, disclose, publish, disseminate, or otherwise make available to any Person any Confidential Information, except (a) as required in the performance of the Services under this Agreement, (b) with the prior written consent of the Company, or (c) as required by Applicable Law (subject to Section 7.3). The obligations of confidentiality and non-disclosure set forth in this Section 7 shall survive the expiration or termination of this Agreement indefinitely; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law (including the New York Trade Secrets Act and the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1836 et seq.)), the obligations set forth in this Section 7 shall continue for so long as such information qualifies as a trade secret under applicable law. Consultant acknowledges that the Confidential Information constitutes valuable and proprietary assets of the Company and its Affiliates, and that any unauthorized use or disclosure of Confidential Information would cause irreparable harm to the Company and its Affiliates.
7.2 Exceptions. The restrictions set forth in Section 7.1 shall not apply to any information that:
(a) is or becomes generally available to the public other than as a result of Consultant's breach of this Agreement or any other confidentiality obligation owed by Consultant to the Company or Lakewood;
(b) was independently developed by Consultant without the use of, reference to, or reliance upon any Confidential Information, as demonstrated by Consultant's contemporaneous written records;
(c) was lawfully received by Consultant from a third party who was not, to Consultant's knowledge, under any obligation of confidentiality with respect to such information and who did not acquire such information, directly or indirectly, from the Company or any of its Affiliates; or
(d) is approved for release or disclosure in writing by a duly authorized officer of the Company.
7.3 Compelled Disclosure
If Consultant becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, order of a court or governmental authority, or similar process) to disclose any Confidential Information, Consultant shall, to the extent legally permitted:
(a) provide the Company with prompt written notice of such compulsion so that the Company may seek a protective order, motion to quash, or other appropriate remedy;
(b) cooperate with the Company, at the Company's expense, in the Company's efforts to obtain such protective order or other appropriate remedy; and
(c) in the event that such protective order or other remedy is not obtained, or that the Company waives compliance with this Section 7.3, disclose only such portion of the Confidential Information as is legally required to be disclosed, and shall exercise commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to the Confidential Information so disclosed.
7.4 HIPAA and Patient Information
Consultant acknowledges that in the course of performing the Services, she may have access to Protected Health Information maintained by the Company or its Affiliates. Consultant shall comply with all applicable provisions of HIPAA, including the HIPAA Privacy Rule (45 C.F.R. Part 164, Subpart E), the HIPAA Security Rule (45 C.F.R. Part 164, Subpart C), and the HIPAA Breach Notification Rule (45 C.F.R. Part 164, Subpart D), in connection with any PHI accessed, used, or disclosed in the course of performing the Services. Consultant shall comply with the Company's HIPAA privacy and security policies and procedures, as communicated to Consultant from time to time, and shall complete any HIPAA training required by the Company. To the extent that Consultant's access to PHI in connection with the performance of the Services constitutes a business associate relationship under 45 C.F.R. § 160.103, Consultant shall execute the Business Associate Agreement attached hereto as Exhibit B concurrently with the execution of this Agreement.
7.5 Return of Materials
Upon the expiration or termination of this Agreement (or at any time upon the Company's written request), Consultant shall promptly return to the Company, or, at the Company's election, destroy, all Confidential Information and all documents, files, records, materials, notes, memoranda, data, and other tangible and intangible items (in any form or medium, including all electronic copies, hard copies, and backup copies) containing or constituting Confidential Information, including any copies, extracts, summaries, or compilations thereof. Within ten (10) business days following the date of expiration, termination, or the Company's request (as applicable), Consultant shall certify in writing to the Company that she has complied with this Section 7.5. Notwithstanding the foregoing, Consultant may retain one (1) copy of this Agreement and related correspondence in her personal legal files, subject to the ongoing confidentiality obligations set forth in this Section 7, and may retain Confidential Information to the extent required by Applicable Law or professional regulatory requirements, provided that such retained information remains subject to the confidentiality obligations set forth herein.
SECTION 8 — WORK PRODUCT; INTELLECTUAL PROPERTY
8.1 Definition of Work Product
"Work Product" means all works, documents, data, reports, analyses, protocols, clinical guidelines, policies, procedures, recommendations, inventions, improvements, discoveries, techniques, processes, formulas, methods, designs, software, databases, compilations, and other materials and deliverables (in any form or medium, whether written, electronic, or otherwise) created, conceived, developed, or reduced to practice by Consultant, solely or jointly with others, in connection with or arising out of the performance of the Services under this Agreement.
8.2 Ownership. All Work Product shall be and remain the sole and exclusive property of the Company. To the extent that any Work Product constitutes a "work made for hire" within the meaning of the Copyright Act of 1976, as amended (17 U.S.C. § 101 et seq.), such Work Product shall be deemed a work made for hire, with the Company being the author thereof for all purposes under copyright law. To the extent that any Work Product does not qualify as a work made for hire under the Copyright Act, Consultant hereby irrevocably assigns, transfers, and conveys to the Company all of Consultant's right, title, and interest in and to such Work Product, including, without limitation, all copyrights, patent rights, trademark rights, trade secret rights, and all other intellectual property rights therein, in perpetuity and throughout the world, including the right to sue for past, present, and future infringement.
8.3 Further Assurances
Consultant shall, upon the Company's reasonable request and at the Company's expense, execute all documents, instruments, and assignments, and take all other actions, as may be reasonably necessary or desirable to perfect, protect, evidence, or vest in the Company (or its designee) the rights assigned and transferred under this Section 8, including, without limitation, patent applications, copyright registrations, and any other filings or registrations with governmental or quasi-governmental authorities. In the event that Consultant is unable or unwilling to execute any such document, Consultant hereby irrevocably appoints the Company and its duly authorized officers and agents as Consultant's attorney-in-fact, coupled with an interest, to execute and deliver any such documents on Consultant's behalf, solely for the limited purpose of effecting the assignments described in this Section 8.
8.4 Pre-Existing Materials
To the extent that Consultant incorporates into the Work Product any pre-existing intellectual property owned by Consultant as of the Effective Date or developed by Consultant outside the scope of this Agreement (collectively, "Pre-Existing Materials"), such incorporation shall require the prior written consent of the Company. Any Pre-Existing Materials so incorporated shall remain the property of Consultant; provided, however, that Consultant hereby grants to the Company a perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up, worldwide license, with the right to sublicense, to use, reproduce, modify, distribute, display, perform, and create derivative works of such Pre-Existing Materials in connection with the Work Product and the Business.
SECTION 9 — NON-COMPETITION AND NON-SOLICITATION
9.1 Cross-Reference to Purchase Agreement
Consultant acknowledges that she is separately bound by the non-competition and non-solicitation covenants set forth in Section 6.8 of the Purchase Agreement, which provide for, among other restrictions, a three (3)-year non-competition period commencing on the Closing Date and expiring on August 15, 2028, within a seventy-five (75)-mile radius of any Clinic Location. Nothing in this Agreement shall be deemed to modify, supersede, limit, or otherwise affect the enforceability of such covenants under the Purchase Agreement, and such covenants shall remain in full force and effect in accordance with their terms regardless of the expiration or termination of this Agreement.
9.2 Covenant During Term
During the Term, Consultant shall not, directly or indirectly, whether as an owner, principal, partner, member, shareholder, officer, director, employee, consultant, advisor, agent, independent contractor, or in any other capacity:
(a) engage in, own, manage, operate, control, consult for, render services to, be employed by, or otherwise participate in or have a financial interest in, any business, practice, clinic, or enterprise that competes with the Business within a seventy-five (75)-mile radius of any Clinic Location;
provided, however, that this Section 9.2 shall not prohibit (i) Consultant's performance of the Services under this Agreement, or (ii) Consultant's passive ownership of not more than two percent (2%) of the outstanding equity securities of any corporation or other entity whose securities are listed on a national securities exchange or traded in the over-the-counter market.
9.3 Non-Solicitation of Employees
During the Term and for a period of twelve (12) months following the expiration or termination of this Agreement (the "Employee Non-Solicitation Period"), Consultant shall not, directly or indirectly, solicit, recruit, hire, engage, or attempt to solicit, recruit, hire, or engage, or assist any Person in soliciting, recruiting, hiring, or engaging, any employee, physician, nurse practitioner, physician assistant, or other healthcare professional of the Company or any of its Affiliates who is or was employed or engaged by the Business at any time during the Term. This restriction shall apply regardless of whether such individual's employment or engagement was terminated by the individual, the Company, or any other party, and regardless of the reason for such termination.
9.4 Non-Solicitation of Patients and Referral Sources
During the Term and for a period of twelve (12) months following the expiration or termination of this Agreement (the "Patient Non-Solicitation Period"), Consultant shall not, directly or indirectly, solicit, divert, or attempt to solicit or divert any patient, referral source, or referring physician of the Business for the purpose of providing healthcare services that are competitive with the services offered by the Business at the Clinic Locations. For the avoidance of doubt, this restriction shall not prohibit Consultant from treating any patient who independently seeks care from Consultant without any solicitation by Consultant.
9.5 Reasonableness; Enforcement
Consultant acknowledges that the restrictions set forth in this Section 9 are reasonable and necessary to protect the Company's legitimate business interests, including its goodwill, patient relationships, referral source relationships, workforce stability, and Confidential Information. Consultant further acknowledges that the scope, duration, and geographic limitations of such restrictions are reasonable in light of the nature and extent of the Business, the consideration received by Consultant under the Purchase Agreement and this Agreement, and the specialized knowledge and relationships of Consultant. If any court or arbitrator determines that any restriction set forth in this Section 9 is unenforceable as written, such restriction shall be modified and enforced to the maximum extent permitted by Applicable Law.
SECTION 10 — TERMINATION
10.1 Expiration. This Agreement shall expire at the end of the Term (11:59 p.m. Eastern Time on August 15, 2027) without further action by either party, unless earlier terminated in accordance with this Section 10.
10.2 Termination by the Company for Cause
The Company may terminate this Agreement immediately upon written notice to Consultant upon the occurrence of any of the following events (each, a "Cause Event"):
(a) a material breach of any provision of this Agreement by Consultant that remains uncured for a period of fifteen (15) days after written notice of such breach is delivered by the Company to Consultant specifying in reasonable detail the nature of the breach and the actions required to cure such breach; provided, however, that no cure period shall apply to any breach that is incapable of being cured;
(b) Consultant's conviction of, or plea of guilty or nolo contendere to, any felony (under federal or state law) or any crime involving moral turpitude, fraud, dishonesty, or financial misconduct;
(c) Consultant's exclusion or debarment from participation in any federal or state healthcare program, including Medicare or any state Medicaid program;
(d) the loss, suspension, revocation, or material restriction of Consultant's medical license in the State of New York or the Commonwealth of Pennsylvania, or the initiation of any disciplinary proceeding by any medical licensing board that results in a suspension or material restriction;
(e) Consultant's willful misconduct or gross negligence in the performance of the Services, including any act or omission that could reasonably be expected to result in material harm to the Company, the Business, or any patient; or
(f) Consultant's material violation of any Applicable Law in connection with the performance of the Services or in connection with the Business.
In the event of a termination for Cause, the Company shall have no further obligation to pay any Consulting Fee or other compensation to Consultant, except for amounts accrued through the effective date of termination.
10.3 Termination by the Company Without Cause
The Company may terminate this Agreement at any time, with or without reason, upon sixty (60) days' prior written notice to Consultant. In the event of a termination by the Company without Cause pursuant to this Section 10.3, the Company shall pay Consultant:
(a) the Consulting Fee through the effective date of such termination, calculated on a pro rata basis for any partial month; and
(b) a termination payment in an amount equal to three (3) months of the Consulting Fee (i.e., Ninety-Three Thousand Seven Hundred Fifty Dollars ($93,750.00)), payable in a lump sum within thirty (30) days following the effective date of termination.
Payment of the termination amount under clause (b) shall be conditioned upon Consultant's execution and non-revocation of a general release of claims in a form reasonably acceptable to the Company within twenty-one (21) days following the effective date of termination.
10.4 Termination by Consultant
(a) Consultant may terminate this Agreement upon thirty (30) days' prior written notice to the Company in the event of a material breach of this Agreement by the Company (including, without limitation, the failure to pay the Consulting Fee when due) that remains uncured for a period of fifteen (15) days after written notice of such breach is delivered by Consultant to the Company specifying in reasonable detail the nature of the breach and the actions required to cure such breach.
(b) Consultant may terminate this Agreement for any reason or no reason upon ninety (90) days' prior written notice to the Company. In the event of a termination by Consultant under this clause (b), the Company shall have no obligation to pay any Consulting Fee or other compensation for the period following the effective date of termination, and no termination payment shall be due under Section 10.3.
(c) Notwithstanding any termination by Consultant under this Section 10.4, the non-competition covenants set forth in the Purchase Agreement and the restrictive covenants set forth in Section 9 shall remain in full force and effect in accordance with their respective terms regardless of such termination.
10.5 Effect of Termination
Upon the expiration or termination of this Agreement for any reason:
(a) Consultant's obligation to perform the Services shall immediately cease as of the effective date of expiration or termination;
(b) the Company's obligation to pay the Consulting Fee shall cease as of the effective date of expiration or termination, except for (i) amounts accrued through the effective date of expiration or termination that remain unpaid, (ii) any termination payment due under Section 10.3, and (iii) reimbursable expenses properly incurred prior to the effective date of expiration or termination;
(c) Consultant shall comply with the obligations set forth in Section 7.5 (Return of Materials);
(d) the following provisions of this Agreement shall survive the expiration or termination hereof and shall remain in full force and effect in accordance with their respective terms: Section 1 (Definitions, to the extent necessary for the interpretation of surviving provisions), Section 5.4 (Indemnification for Reclassification), Section 6.5 (Exclusion Representation), Section 7 (Confidentiality), Section 8 (Work Product; intellectual Property), Section 9 (Non-Competition and Non-Solicitation), Section 10.5 (Effect of Termination), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 14 (Governing Law; Dispute Resolution), Section 15 (Representations and Warranties, to the extent they relate to ongoing obligations or surviving provisions), and Section 16 (General Provisions); and
(e) termination of this Agreement shall not relieve either party of any liability or obligation that accrued prior to the effective date of such termination.
SECTION 11 — INDEMNIFICATION
11.1 Indemnification by Consultant
Consultant shall indemnify, defend, and hold harmless the Company and its Affiliates (including, without limitation, CPS Holdings, Inc. and Pinnacle River Capital Partners, LP) and their respective officers, directors, members, managers, partners, employees, agents, successors, and assigns (collectively, the "Company Indemnitees") from and against any and all losses, claims, demands, damages, liabilities, judgments, settlements, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys' fees and costs of investigation) (collectively, "Losses") arising from, related to, or in connection with:
(a) any material breach of any provision of this Agreement by Consultant, including any breach of Consultant's representations, warranties, or covenants hereunder;
(b) any negligent, reckless, or wrongful act or omission of Consultant in the performance of the Services;
(c) any claim, demand, investigation, audit, or proceeding by any governmental authority, third-party payor, patient, or other person or entity alleging or asserting that Consultant is or should have been classified as an employee of the Company for any purpose; or
(d) any violation of Applicable Law by Consultant in connection with the performance of the Services or Consultant's obligations under this Agreement.
11.2 Indemnification by Company
The Company shall indemnify, defend, and hold harmless Consultant and her heirs, executors, administrators, and personal representatives (collectively, the "Consultant Indemnitees") from and against any and all Losses arising from, related to, or in connection with:
(a) any material breach of any provision of this Agreement by the Company, including any breach of the Company's representations, warranties, or covenants hereunder; or
(b) any negligent, reckless, or wrongful act or omission of the Company's employees, officers, directors, or agents (other than Consultant) in connection with the Services or the Business.
11.3 Indemnification Procedures
The party seeking indemnification (the "Indemnified Party") shall provide prompt written notice to the other party (the "Indemnifying Party") of any claim or proceeding for which indemnification is sought; provided, however, that the failure to provide timely notice shall not relieve the Indemnifying Party of its indemnification obligations except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall have the right to assume and control the defense of any such claim or proceeding with counsel of its choosing (reasonably acceptable to the Indemnified Party), at the Indemnifying Party's expense. The Indemnified Party shall cooperate with the Indemnifying Party in the defense of such claim and shall have the right to participate in such defense at its own expense. The Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned, or delayed) if such settlement would impose any obligation or liability on the Indemnified Party or would not include an unconditional release of the Indemnified Party from all liability with respect to such claim.
SECTION 12 — LIMITATION OF LIABILITY
EXCEPT IN THE CASE OF (A) BREACHES OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7, (B) CONSULTANT'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11.1, OR (C) CLAIMS ARISING FROM WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT IN THE CASE OF (A) BREACHES OF SECTION 7 (CONFIDENTIALITY), (B) CLAIMS ARISING FROM WILLFUL MISCONDUCT OR FRAUD, OR (C) CONSULTANT'S OBLIGATIONS UNDER SECTION 5.4 (INDEMNIFICATION FOR RECLASSIFICATION), CONSULTANT'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL CONSULTING FEE PAID OR PAYABLE TO CONSULTANT DURING THE TERM (I.E., SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00)).
THE LIMITATIONS SET FORTH IN THIS SECTION 12 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
SECTION 13 — INSURANCE
13.1 Professional Liability Insurance