Exhibit 10.2
AMENDED MANAGEMENT SUPPORT AND
MARKETING AGREEMENT
This AMENDED
MANAGEMENT SUPPORT AND MARKETING AGREEMENT
(“Agreement,”) amends the Management Support and
Marketing Agreement, which originally became effective on
October 1, 2008, and is entered into and effective as of the
1 st day of October, 2008
(notwithstanding the date of actual execution) by and between
OTTO REGENT LIMITED , (“ OTTO ”), and
SINO BOND INC., LIMITED (“ SBI ”) as a
wholly owned subsidiary and agent of DYNACQ HEALTHCARE, INC. and as
an affiliate and agent of DYNACQ HUAI BEI HEALTHCARE, INC.
(collectively referred to herein as
“DYNACQ”).
WITNESSETH:
WHEREAS, OTTO is a duly and
validly existing corporation that has been organized for the
purpose of providing investment opportunities and management
support and marketing services for medical and related healthcare
providers (“Healthcare Services”) to the general public
in the nation of China;
WHEREAS, SBI enters into this
Agreement on behalf of DYNACQ for the provision of
Healthcare Services by DYNACQ subsidiaries and affiliates in
China and Southeast Asia.
WHEREAS, DYNACQ is engaged in
faciliating management and related items and services to
physicians, professional associations, and other professional
healthcare entities and in faciliating the provision of Healthcare
Services to individuals in the nation of China;
WHEREAS, SBI desires and
intends to facilitate such management, administrative, and business
services, and the provision of Healthcare Services on behalf of
DYNACQ in China and Southeast Asia, and OTTO is
capable of assisting SBI in providing, all such management,
administrative, and business services; and
WHEREAS, SBI and OTTO
mutually desire an arrangement that:
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(1)
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ensures
consistency of service, quality of care, and safety of
DYNACQ’s patients;
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(2)
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facilitates
effective utilization of Healthcare Services;
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(3)
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ensures
consistent and customary patterns for the provision of Healthcare
Services;
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(4)
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facilitate the
establishment and maintenance of a public image of excellence and
high quality for DYNACQ , all for the benefit of those
persons seeking Healthcare Services as patients of DYNACQ
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NOW, THEREFORE, for and in
consideration of the mutual covenants set forth herein, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and confessed, the parties agree as
follows:
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Covenants and Conditions
Regarding Management and Advertising:
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1.1.
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OTTO agrees that it has the primary responsibility
for the marketing of the facilities, including but not limited to
the following:
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(a)
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recruitment of
physicians to use and otherwise employ the services of the
hospital;
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(b)
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general efforts
to improve the reputation and market the benefits of DYNACQ
; and
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(c)
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creation and
publication of multi-media advertising (subject to advance
SBI approval).
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1.2 SBI agrees to pay a
minimum of Seventy-five Thousand Dollars ($75,000) and a maximum of
Two Hundred Fifty Thousand Dollars ($250,000.00) a month at
SBI’s discretion to be used for adverstising and to
pay fees and expenses of OTTO . OTTO and SBI
agree that these funds will be deposited in an account to be
managed and controlled solely by OTTO . From these funds,
OTTO agrees to expend at least Eighty-Three Percent
(83%) of the amount paid by SBI monthly, directly on
advertising and the general marketing of DYNACQ , and the
associated services of its healthcare facilities in China. Further,
OTTO will provide to SBI a written report of these
expenditures quarterly, with said report being due not later than
thirty (30) days after the end of each respective
quarter.
1.3 Management and Clerical
Personnel . OTTO shall employ or otherwise retain,
and shall be responsible for selecting, training, supervising,
scheduling, and terminating, all management and clerical personnel
as OTTO deems reasonably necessary and appropriate in the
performance of its duties and obligations under this Agreement.
OTTO shall have sole responsibility for determining the
salaries, wages, and fringe benefits of all such management and
clerical personnel, for paying such salaries and wages, and for
providing such fringe benefits, and for withholding as required by
law, any sums for income tax, unemployment insurance, social
security, or any other withholding required by applicable law or
governmental requirement.
1.4 Indemnification by
OTTO . OTTO shall indemnify and hold SBI
harmless from and against any and all liability losses, damages,
claims, causes of action, and expenses, including, without
limitation, reasonable attorney’s fees and associated costs,
associated with or resulting, directly or indirectly, from any act
or omission of OTTO , its employees, agents, or independent
contractors in or about the DYNACQ’s facilities during
the Term. To be entitled to such indemnification, SBI shall
give OTTO prompt written notice of the assertion by a third
party of any claim with respect to which SBI might bring a
claim for indemnification hereunder, and in all events must provide
such written notice to OTTO within the applicable period for
defense of such claim by OTTO . OTTO shall, at its
own expense, have the right to defend and litigate any such
third-party claim.
2.1 Organization and
Existence . SBI is a Hong Kong corporation duly
organized, validly existing and in good standing under the laws of
Hong Kong and has all requisite legal and
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corporate power to carry on its business as now
conducted and to enter into and perform this Agreement.
2.2 Compliance with
Laws . SBI is in compliance in all material respects
with all applicable foreign, federal, state, municipal and other
political subdivision or governmental agency statutes, ordinances
and regulations, including, without limitation, those imposing
taxes, in every applicable jurisdiction in respect of the ownership
of SBI properties and conduct of SBI’s
business.
2.3 Brokers .
SBI in not a party to or in any way obligated under any
contract or other agreement for, and there are no outstanding
claims against SBI for the payment of any broker’s or
finder’s fee in connection with the origin, negotiation,
execution or performance of this Agreement.
2.4 SBI’s Authority
Relative to this Agreement . The execution, delivery and
performance of this Agreement by SBI has been duly
authorized and approved by the Board of Directors and no further
corporate action is necessary on the part of SBI to make
this Agreement valid and binding upon SBI in accordance with
its terms. Neither the execution, delivery nor performance of this
Agreement by SBI will result in a violation or breach of any
term or provision under the Articles of Incorporation or Bylaws of
SBI or constitute a default or breach of, or accelerate the
performance required under, any indenture, mortgage, deed of trust
or other contract or agreement to which SBI is a party
or by which it or any of its respective assets are bound or
governmental body.
3.1 Organization and
Existence. OTTO is a Hong Kong corporation duly
organized pursuant to the laws of Hong Kong and in good standing,
and has all requisite legal power to enter into and perform this
Agreement.
3.2 Authority Relative to this
Agreement . The execution, delivery and performance of this
Agreement has been duly authorized, and no further action is
necessary on the part of OTTO to make this Agreement valid
and binding upon OTTO in accordance of its terms. Neither
the execution, delivery nor performance of this Agreement by
OTTO will result in a violation or breach of any term or
provision or constitute a default or breach of, or accelerate the
performance required under any other contract or agreement to which
OTTO is a party or by which it or its properties are bound,
or violate any order, writ, injunction or decree of any court,
administrative agency or governmental body.
3.3 Brokers .
OTTO is not a party to or in any way obligated under any
contract or agreement for, and there are no outstanding claims
against OTTO for the payment of a broker’s or
finder’s fee in connection with the origin, negotiation,
execution, or performance of this Agreement.
4.1 Confidential
Information . OTTO acknowledges that in the course
of the performance of this Agreement, it has had and will continue
to have access to certain know-how, formulae, processes, data,
proprietary information, supplier and patient records and
information and other confidential knowledge and trade secrets of
SBI and DYNACQ’s business and operations. OTTO
understands that all such information is confidential and has been
or will be
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conceived or learned by OTTO in
confidence, and agrees not to reveal any such information to any
third person for any reason or under any circumstances. OTTO
further agrees that it will at no time use any such information for
the purpose of competing with or assisting others in competing with
the business of DYNACQ , or for any purpose which may be
harmful or detrimental to the business or interests of
DYNACQ . The restrictions in this section shall not apply
and shall not prohibit the use or disclosure of suc