EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ J. Xxxxxx Xxxxxxx, M.D.
Printed Name: J. Xxxxxx Xxxxxxx
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx X. Xxxxx III
Printed Name: Xxxxx X. Xxxxx III
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxxxxxxx X. Xxx, M.D.
Printed Name: Xxxxxxxxx X. Xxx, M.D.
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx Xxxxx
Printed Name: Xxxxx Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name:Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxx X. Xxxxxx, M.D.
Printed Name: Xxxx X. Xxxxxx, M.D.
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx Xxxxx
Printed Name: Xxxxx Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name:Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ D. Xxxxx Xxxx, M.D.
Printed Name: D. Xxxxx Xxxx, M.D.
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx Xxxxx
Printed Name: Xxxxx Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxxxxx X. Xxxxxxx, M.D.
Printed Name: Xxxxxxx X. Xxxxxxx, M.D.
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx Xxxxx
Printed Name: Xxxxx Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxxxxx X. Xxxxxxx, M.D.
Printed Name: Xxxxxxx X. Xxxxxxx, M.D.
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx Xxxxx
Printed Name: Xxxxx Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxxxxx X. Xxxxxx, M.D.
Printed Name: Xxxxxxx X. Xxxxxx, M.D.
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx Xxxxx
Printed Name: Xxxxx Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
-------------------------
S-1
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxxxxx Xxxxxxxx, M.D.
Printed Name: Xxxxxxx Xxxxxxxx
Title:
(if signing in a representative capacity)
HORIZON: Horizon Vision Centers, Inc.
Signature: /s/ Xxxxx X. Xxxxx
Printed Name: Xxxxx X. Xxxxx
Title: President
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXCLUSIVE USE AGREEMENT
This Exclusive Use Agreement (this "Agreement") is entered into as of
the 1st day of September, 1999 (the "Effective Date"), by the undersigned
shareholder (the "Equity Holder") of Horizon Vision Center, Inc., a Nevada
corporation ("Horizon") for the benefit of Horizon and Prime/BDR Acquisition,
L.L.C., a Delaware limited liability company ("Prime") and the parent companies
and affiliates of each of Horizon and Prime.
RECITALS:
WHEREAS, the Equity Holder is a shareholder of Horizon.
WHEREAS, the Equity Holder is a physician or other licensed medical
professional.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Prime and Horizon are consummating that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated September 1, 1999.
WHEREAS, in order to induce Horizon and Prime to consummate the
transactions contemplated by the Stock Purchase Agreement, the Equity Holder has
agreed, for a period of five (5) years, to perform all Refractive Surgery
Services (as defined herein) exclusively at the facilities of, and using the
equipment of, Horizon.
THEREFORE, the parties hereto agree as follows:
AGREEMENTS:
1. Exclusive Use. Except as expressly otherwise provided below, during
the term of this Agreement, the Equity Holder hereby agrees that, without the
prior written consent of both Horizon and Prime, the Equity Holder will perform,
and will direct all other medically trained or licensed medical professionals
under the direction or control of Equity Holder to perform, all Refractive
Surgery Services only at the facilities of, and using the equipment of, Horizon.
For purposes of this Agreement, "Refractive Surgery Services" shall include all
refractive surgery modalities, now or at any time during the term of this
Agreement performed, offered or made available, including, without limitation,
implantable contact lenses, instromal corneal rings, laser in situs
keratomileusis photorefractive keratectomy, radial keratotomy, automated
lemellar keratoplasty, astigmatic keratotomy and similar or replacement
procedures.
Provided, however, that nothing in this Agreement shall be construed to
require Equity Holder to perform Refractive Surgery Services at the facilities
of, or use the equipment of, Horizon, if in Equity Holder's professional medical
judgment, such use would be detrimental to Equity Holder's patients. Provided
further, that this Agreement shall not apply to any Refractive Surgery Services
to be paid for, or reimbursed by, Medicare, Medicaid, Champus, or any other
state or federal health care program, or in any other instance where the
operation of this Agreement would constitute a violation of applicable law.
2. Access. Horizon and Prime each agree that during the term of this
Agreement, and for as long Equity Holder continues to meet the credentialing
requirements of Horizon's credentialing program as in effect from time to time,
Equity Holder shall be given access to Horizon's facilities, equipment and staff
in the same manner such access has generally been provided to Equity Holder
prior to the date of this Agreement.
3. Other Agreements. Horizon and Prime each agree that during the term
of this Agreement and for as long as Equity Holder continues to meet the
credentialing requirements of Horizon's credentialing program as in effect from
time to time, Equity Holder's compensation arrangement will be modified to
incorporate the terms of any compensation arrangement with any other physician
utilizing the facilities, equipment and staff, to the extent such other terms
are substantially more favorable than the terms enjoyed by Equity Holder.
4. Allocation of Procedures. Horizon and Prime each agree that
inquiries generated by Horizon and not by a particular physician shall be
distributed among the physician shareholders of Horizon (including Equity
Holder) in a manner consistent with the allocation methods employed by Horizon
prior to the date of this Agreement, limited, however, in instances where a
physician is not available to perform the procedure.
5. Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years thereafter.
6. Breach. The Equity Holder agrees that a violation of any covenant
contained in Section 1 will irreparably damage Horizon and Prime for which
remedies at law may be insufficient, and for that reason, the Equity Holder
further agrees that Horizon and Prime shall each be entitled as a matter of
right to equitable remedies, including specific performance and injunctive
relief, therefor. The right to specific performance and injunctive relief shall
be cumulative and in addition to whatever other remedies, at law or in equity,
that Horizon and Prime may have, including, specifically, recovery of additional
damages.
7. Miscellaneous.
(a) Amendments. This Agreement may be modified or amended only by
an instrument in writing executed by each of the parties hereto.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but in
making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas, and not
the conflicts of law provisions thereof.
(e) Parties Bound. This Agreement shall be binding upon and be
enforceable against the Equity Holder. This Agreement shall inure to
the benefit of Horizon, Prime and their respective successors,
representatives and assigns.
(f) Assignment. This Agreement and the rights granted hereunder
may not be assigned by Equity Holder without the written consent of
both Horizon and Prime.
(g) Construction. This Agreement shall be construed without
regard to the identity of the person who drafted the various provisions
of this Agreement. Each and every provision of this Agreement shall be
construed as though all of the parties participated equally in the
drafting of this Agreement. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
(h) Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable
laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance,
shall, for any reason and to any extent, be invalid or unenforceable
but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the
remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be effected thereby, but
rather shall be enforced to the fullest extent permitted by law.
[Signature page to follow]
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S-1
SIGNATURE PAGE TO
EXCLUSIVE USE AGREEMENT
EXECUTED to be effective as of the date first above written.
EQUITY HOLDER:
Signature: /s/ Xxxxxx X. Xxxxx
Printed Name: Xxxxxx X. Xxxxx
Title:
(if signing in a representative capacity)
PRIME: Prime/BDR Acquisition, L.L.C.
Signature: /s/ Xxxxxx Xxxxxxxx
Printed Name: Xxxxxx Xxxxxxxx
Title: Vice President
