Contract
EXHIBIT
10.1
AGREEMENT (“Agreement”)
entered into the 14th day
of April, 2010, by and among EMERGING VISION INC. (“EVI”),
a New York corporation having an address at 000 Xxxxxx Xxxxxx - 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; INSIGHT IPA OF NEW YORK, INC.
(“Insight IPA”), and INSIGHT
MANAGED VISION CARE (“Insight Vision Care” and, together with Insight
IPA, (“Insight”), each having an address at 000 Xxxxxx Xxxxxx - 00xx
Xxxxx, Xxx Xxxx 00000; and VISION WORLD, LLC (“Vision
World”) a Delaware limited liability company having an address at 000 Xxxxxx
Xxxxxx - 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. For purposes of this
Agreement, whenever the term “Party” is used herein, and unless otherwise
indicated, EVI and Insight will be deemed to be a single Party and Vision World
will be deemed to be a single Party.
W I T N E S S E T H:
WHEREAS, EVI owns and operates
and grants franchises to third parties to own and operate retail optical stores
doing business under the names Sterling Optical, Site For Sore Eyes and various
other authorized names; and
WHEREAS, Insight IPA is a
wholly owned subsidiary of EVI, and Insight Vision Care is a division of EVI;
and
WHEREAS, Insight IPA and
Insight Vision Care were each established (i) to enter into provider agreements
with franchisees and operators of EVI stores; and (ii) to enter into contracts
with third party organizations pursuant to which the providers would provide
specified eye care services to members of such organization; and
WHEREAS, Vision World is in
the business of soliciting and administrating third party eye care benefit
programs with third party organizations, pursuant to which members of such third
party organizations may obtain certain eye care services with authorized Vision
World professional eye care providers (the “Managed Care Plans”);
and
WHEREAS, Vision World and EVI
have agreed that Vision World will serve as a third party administrator for
providers who have entered into agreements (“Provider Agreements”) with Insight
(“Insight Providers”) and will allow certain EVI franchisees and other EVI store
operators to participate and serve as providers for Vision World;
NOW, THEREFORE, for the
consideration herein stated, the parties agree as follows:
1. Services to be Provided by
Insight.
(a) Insight will, promptly upon
execution of this Agreement, provide to Vision World copies of all Provider
Agreements it maintains with its franchisees and other operators of EVI
Stores.
(b) Insight, promptly upon execution of
this Agreement, will also provide to Vision World copies of all managed care
agreements which are currently in effect for Insight Providers.
(c) Except as otherwise described
herein, Insight may continue to enter into Provider Agreements with its
franchisees and operators of EVI Stores, and it will deliver copies of such
agreements to Vision World , promptly after signing.
(d) Except as otherwise provided
herein, EVI and/Insight will have the right to continue to enter into Managed
Care Agreements, and upon execution, they will deliver copies thereof to Vision
World to be administered in accordance with this Agreement.
2. Services to be Provided by Vision
World
(a) Vision
World will, to the extent that Insight has agreed with third party organizations
to administer Managed Care Plans (i.e., to process and forward claims from
Providers for payment, respond to eligibility determinations and receive and
distribute payments), perform such functions on behalf of Insight and, subject
to the terms of this Agreement, will collect and distribute payments, as and
when same are received, to Insight Providers. Vision World will be obligated to
perform such services in a diligent and timely manner.
(b) Vision
World will be responsible for the credentialing of all Insight
Providers.
(c) Vision
World will, during its normal business hours, provide through its service
department, support for Insight Providers to seek to resolve any issues,
including requirements of applicable managed care plans and claim status, and
will utilize the telephone number provided by Insight or such other number as
the parties may agree. Upon termination of this Agreement, for any
reason, Insight will retain all rights to the telephone number.
3. Vision World Provider
Agreements.
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(a)
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Vision
World will offer to all EVI franchisees and any other eligible operators
of
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Sterling
Optical Centers, located in the areas in which Vision World shall then be
operating (hereinafter the “Vision World Territory”) which Vision World
Territory is currently the Northeast portion of the United
States, the right to become Vision World Providers, in accordance
with the terms and conditions of the current Vision World Provider Agreements, a
copy of which is annexed hereto, as Exhibit “A”; except that no initial fee will
be due to Vision World as a condition for becoming a Vision World
Provider.
(b) From and after the
commencement date of this Agreement (and subject to the disclosure of this
Agreement in any applicable Franchise Disclosure Document), and during the term
of this Agreement, and any Renewal Term, as hereinafter defined, neither EVI nor
Insight, nor any affiliate thereof, will, directly or indirectly, offer to its
franchisees or other EVI store operators, in the Vision World
Territory, through Provider Agreements or otherwise, the right to participate
in, or provide services pursuant to managed care contracts, other than those
procured through Vision World. With respect to existing Insight
Providers, within the Vision World Territory, EVI agrees that it will promptly
provide notice of non renewal to such providers, in accordance with the terms of
each such Insight Provider Agreement. To the extent that during the term of this
Agreement, or any renewal thereof, the Vision World Territory shall expand, then
EVI agrees that it will, upon not less than six (6) months prior written notice
from Vision World, cease offering Insight Provider Agreements within such
expanded territories and will provide notice of non renewal to any Insight
Providers within such expanded territory, in accordance with the terms of each
such Insight Provider Agreement, and Insight will thereafter be obligated to
offer Vision World Provider Agreements in accordance with the provisions of
Section 3(a) above.
(c) Nothing herein prohibits
EVI, Insight or any affiliate from continuing to enter into Provider Agreements
with Franchisees of EVI outside of the Vision World Territory, or from entering
into Managed Care Agreements, for services to be provided by Insight Providers
outside of the Vision World Territory.
4. Payments to Vision World and
EVI.
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(a)
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Insight Provider
Agreements: Vision World will continue to administer
the
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existing
Insight Provider Agreements for Insight Providers within the existing Vision
World Territory, until their termination or non renewal, and will, at all times,
during the term of this Agreement and any Renewal Term, administer the Insight
Provider Agreements and any claims submitted thereunder by Insight Providers
outside of the Vision World Territory. For the services provided in
administering these claims, Vision World will be entitled to receive a
processing fee, which for the first year will be equal to $4.60 per claim
submitted and collected by Vision World pursuant to Managed Care Plans (the
“Insight Administration Fee”). Vision World will deduct and retain the Insight
Administration Fee from any and all payments received from the Managed Care
Plans, on behalf of Insight Providers and thereafter Vision World will remit the
balance of the payment directly to the Insight Provider, together with the
corresponding Explanation of Benefits (“EOB”). Vision World will have
the right, not more than once each year, to increase the Insight Administration
Fee, provided the amount of the increase may not exceed five (5%) percent, in
any one year.
(b) Vision World Provider
Agreements: In accordance with its standard Vision World Provider
Agreements, for each claim submitted and collected on behalf of EVI franchisees
or other EVI store operators who shall be serving as Vision World Providers,
pursuant to the terms hereof, Vision World will be entitled to receive an
administration fee (the “Vision World Administration Fee”) equal to twenty-five
(25%) percent of the amount collected. Vision World will deduct the Vision World
Administration Fee from the amounts collected, and will thereafter remit the
balance of the payment directly to the EVI franchisees or operators, together
with the corresponding EOB.
(c) Franchisee Direct
Billing: If,
any EVI franchisees, who become Vision World Providers pursuant to the terms of
this Agreement, were, on the effective date of this Agreement, submitting claims
under certain of the Managed Care Agreements with Insight, directly to
one or more third party organizations for processing and payment,
instead of having the claim administered through Insight, then, notwithstanding
anything to the contrary contained in this Agreement or in any Vision World
Provider Agreement, such franchisees, may with respect to those third party
organizations, continue to submit such claims directly, instead of through
Vision World, and Vision World shall not be entitled to any Vision World
Administration Fee on account thereof. In the event any franchisee
described in the first sentence of this Section 4(c) subsequently becomes the
franchisee of one or more additional Sterling Optical Centers, said franchisee
shall continue to have the right to continue to submit the claims described
herein, directly to the third party organization, and not have the claims
administered by Vision World. This provision shall not be applicable to any
franchisees that become franchisees of EVI after the effective date of this
Agreement.
(d) Payments to EVI:
Vision World will, on a monthly basis, remit to EVI, an amount equal to twenty
(20%) percent of the total amount of the Vision World Administration Fees (i.e.
5% of the total amount collected as described above in Section 4(b) hereof),
which it collected during the preceding month, for claims processed on behalf of
EVI franchisees and operators (the “EVI Fee”). The EVI Fee will be
paid to EVI on or before the 15th day
of each and every month, for amounts received by Vision World during the
preceding month, and will be accompanied by statements detailing, by franchisee
and/or operator, the total amounts of claims received by Vision World and the
amounts paid to the EVI franchisee or EVI store operator.
(e) Late Payments: Any
payments due from Vision World to EVI, which are not paid within thirty (30)
days of the date that they are due will bear interest at the rate of 1.5% per
month, on the overdue amount from the date that it is due until fully
paid.
(e) Right to
Audit: Vision World will maintain, at its principal office,
adequate books, records, and accounts of all transactions and correspondence
between Vision World, EVI, Insight Providers and EVI
franchisees. Such books, accounts, and records will be maintained by
Vision World for the Term of this Agreement and any Renewal Term and for a seven
(7)-year period thereafter or longer as may be required by law. To
verify the amounts received and paid by Vision World under the terms of this
Agreement, and Vision World’s compliance with the terms hereunder, EVI will have
the right, not more than twice each year, to inspect and audit, or cause to be
inspected and audited, the books and records of Vision World and obtain copies
of such records, at Vision World’s offices, during normal business hours, upon
reasonable prior notice. If any such inspection or audit
discloses an understatement of the amount payable by Vision World hereunder,
Vision World will pay to EVI, or to such other parties as may entitled to the
payment, within 30 days after receipt of the inspection or audit report, all
amounts due plus any applicable interest due thereon, calculated at the rate set
forth in Section 4(e) above.
5. Term
This Agreement will commence as of May
1, 2010, and will continue for a period of five (5) years, to and including
April 30, 2015. Thereafter, this Agreement will be renewed for
successive terms of five (5) years each (each a “Renewal Term”),
unless either Party, elects to cancel this Agreement, by providing written
notice thereof to the other Party, at least ninety (90) days prior to the
expiration of the then current Term or Renewal Term.
6. Termination
(a) Except
as provided in subparagraph (b) below, either Party may terminate this Agreement
by providing the other Party with a minimum of sixty (60) days prior written
notice in the event the other Party commits a material breach of any provision
of this Agreement. Said notice must specify the nature of the material
breach. The breaching Party will have sixty (60) days from the date
of the breaching Party's receipt of the foregoing notice (the “Cure Period”) to
cure said material breach. In the event the breaching Party fails to
cure the material breach within the Cure Period, this Agreement will upon
written notice automatically terminate upon expiration of the Cure Period;
provided, however, in the event that the breach cannot, in good
faith, be cured within said sixty (60) day cure period, but the
breaching Party within the Cure Period commences the cure and thereafter
diligently prosecutes such cure to its completion, then the Cure Period will be
extended for such reasonable period as may be necessary to completely cure the
breach, provided such period shall not exceed sixty (60) days unless otherwise
agreed to by the non-breaching party in its sole discretion.
(b) Notwithstanding
the provisions of subparagraph (a) above, this Agreement may be terminated
immediately upon prior written notice by the terminating Party in the event (i)
of the insolvency or the filing of any action relating to the bankruptcy or
insolvency of the other Party, which action is not dismissed, withdrawn or
otherwise ceases to be effective within sixty (60) days after the filing
thereof; (ii) dissolution or liquidation of the other Party; or (iii) any loss
of license or other action by any governmental authority which precludes one
Party from carrying out its obligations hereunder, unless such license is
reinstated or such other action is withdrawn within thirty (30) days from its
initial effective date.
(c) In
the event of a termination under Sections 5, 6(a) or 6(b) above, the
right to indemnification under Section 9 shall survive for a period of one year
from the date of termination.
(d) Upon
termination of this Agreement, EVI will be entitled to continue to receive the
fees described in Paragraph 4(d), for amounts received by Vision World on
account of any EVI Franchisee who continues to be a Vision World Provider under
the terms of the Vision World Provider Agreement which is in effect on the date
of termination.
7. Representations of Vision
World
To induce EVI and Insight to enter into
this Agreement, Vision World represents and warrants to EVI and Insight as
follows:
(a) Vision
World is a duly organized validly existing limited liability company in good
standing the State of New York. Vision World has the full power and
authority to execute, deliver and perform and consummate its obligations under
this Agreement. This Agreement has been duly and validly executed and delivered
by Vision World and constitutes the valid, legal and binding obligation of
Vision World, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) The
execution, delivery and performance of this Agreement will not breach or
conflict with any of the terms, conditions or provisions of any agreement,
instrument or decree to which Vision World is a party or by which Vision World
is bound.
(c) All
required consents of any third party, if any, to enter into this Agreement
and/or the transactions contemplated hereby, have been obtained.
(d) There
is no action, suit or proceeding pending or, to the best of the knowledge of
Vision World, threatened against Vision World, at law or in equity, in any court
or before any Federal, state, county or municipal department, bureau,
commission, board or agency or any other governmental instrumentality which
would in adversely affect the ability of Vision World to carry out its
obligations under this Agreement.
(e) Vision
World will at all times during the Term of this Agreement, and any Renewal Term,
comply with all applicable federal and state statutes, including, but not
limited to, the Health Insurance Portability and Accountability Act (HIPAA) of
1996, as same may be amended, from time to time.
8. Representations of EVI and
Insight
To induce Vision World to enter into
this Agreement, EVI and Insight each represent to Vision World as
follows:
(a) EVI
and Insight IPA are each duly organized corporations validly existing, and in
good standing, under the laws of the State of New York; each has the full power
and authority to execute, deliver and perform and consummate its obligations
under this Agreement. This Agreement has been duly and validly executed and
delivered by Insight and EVI and constitutes the valid, legal and binding
obligation of each of them, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally, and subject, as
to enforceability, to general principles of equity, commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity)..
(b) The
execution, delivery and performance of this Agreement will not breach or
conflict with any of the terms, conditions or provisions of any agreement,
instrument or decree to
which EVI
or Insight is a party or by which either of them is bound.
(c) All
required consents of any third party, if any, to enter into this Agreement
and/or the transactions contemplated hereby, have been obtained.
(d) There
is no action, suit or proceeding pending or, to the best of the knowledge of EVI
and Insight, threatened against EVI or Insight, at law or in equity, in any
court or before any Federal, state, county or municipal department, bureau,
commission, board or agency or any other governmental instrumentality which
would in adversely affect the ability of EVI or Insight to carry-out its
obligations under this Agreement.
(e) EVI
and Insight will, at all times during the Term of this Agreement and any Renewal
Term, comply with all applicable federal and state statutes, including, but not
limited to, the Health Insurance Portability and Accountability Act (HIPAA) of
1996, as same may be amended, from time to time;
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9.
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Indemnification
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(a) Vision
World hereby agrees to indemnify, defend and hold harmless, EVI, Insight and
their respective officers, directors, and employees, against any
claim, loss, cost, damage, expense or other liability, including, without
limitation, all costs and reasonable attorney's fees, and liability
to third parties including regulatory authorities arising out of, or in
connection with, a breach by Vision World of its obligations
hereunder or resulting from the negligent, willful or wanton performance of
services, duties or obligations of Vision World, its officers, directors,
employees, agents, servants, under this Agreement and/or the fraudulent conduct
or embezzlement or any other defalcation, negligence, bad faith, or intentional
misconduct attributable to Vision World or its directors, officers or
employees.
(b)
EVI and Insight hereby agree to jointly and severally indemnify,
defend and hold harmless, Vision World, its officers, directors and employees,
against any claim, loss, cost, damage expense or other liability, including
without limitation all costs and attorney's fees and liability to third parties,
including regulatory authorities, arising out of, or in connection with,
a breach by EVI, Insight or their affiliates of any of their
obligations hereunder or resulting from the negligent, willful or wanton
performance of services, duties or obligations of EVI, Insight, or their
affiliates and/or their respective officers, directors, employees, and agents
under this Agreement and/or the fraudulent conduct or embezzlement or any other
defalcation, negligence, bad faith, or intentional misconduct attributable to
EVI, Insight or their directors, officers or employees.
(c) An
indemnitee entitled to indemnification under this Section 9 shall give notice to
the indemnitor of a claim or other circumstances likely to give rise to a
request for indemnification, promptly after the indemnitee becomes aware of the
same. If the indemnitor, prior to the expiration of fifteen (15) days after
receipt of notice of a claim by the indemnitee under this Section 9, has not
assumed the defense thereof, the indemnitee may thereupon undertake the defense
thereof on behalf of, and at the risk and expense of, the indemnitor with all
reasonable costs and expenses of such defense to be paid by the indemnitor. No
compromise or settlement of any such claim shall be made without the prior
consent in writing of the indemnitee.
10.
Notices
(a) Any
and all notices required to be given pursuant to the terms of this Agreement
must be given in writing, and must be delivered either personally; by certified
United States mail, postage prepaid, return receipt requested; or by Federal
Express or other overnight courier service that obtains a signed receipt upon
delivery, and forwarded to the following addresses or other to such address as
either Party may in writing submit in accordance with this
provision.
If to
Vision World:
Vision
World, LLC
000
Xxxxxx Xxxxxx - 0xx
Xxxxx
Xxx Xxxx
XX 00000
Attention:
President
If to EVI
and Insight
Emerging
Vision, Inc.
000
Xxxxxx Xxxxxx - 00xx
Xxxxx
Xxx Xxxx
XX 00000
Attention:
President
(b)
Notices delivered personally or by overnight courier will be effective on the
first business day following delivery, and notices delivered by United States
Mail will be effective three (3) business days after mailing. Should any Party
refuse to accept delivery, notice will be effective upon such
refusal
11. Governing Law
This Agreement will be governed in all
respects by the laws of the State of New York. The parties hereby agree that any
proceeding brought in connection with, or arising out of, any matter relating to
this agreement, or the relationship created hereby, will be brought in the
courts of the State of New York, County of New York and each of the parties
irrevocably consent to exclusive jurisdiction and venue of such
courts.
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12.
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Miscellaneous
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(a) Entire
Agreement. This
Agreement constitutes the entire agreement of the parties hereto with
respect to the matters stated herein, and may not be amended or modified unless
such amendment or modification shall be in writing and shall have been signed by
the Party against whom enforcement is sought.
(b) Execution in
Counterparts. This
Agreement may be executed and delivered in two or more counterparts, each of
which will be an original, but all of which will constitute one and the same
instrument.
(c) Non Waiver
No
waiver of any of the provisions of this Agreement by any Party will be deemed,
nor will it constitute, a waiver of any other provisions, whether or not
similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the Party making the
waiver.
(d) Provisions
Separable The
provisions of this Agreement are separable from each other, and no provision
will be affected or rendered invalid or unenforceable by virtue of the fact that
for any reason any other or others of them may be invalidated or made
unenforceable in whole or in part. The invalidity or unenforceability of any
terms or provisions hereof will in no way affect the validity or enforceability
of any other terms or provisions.
(e) Headings The
headings of articles and sections continued in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement.
BALANCE
OF PAGE LEFT BLANK INTENTIONALLY
IN WITNESS WHEREOF, the
parties have executed and entered into this Agreement as of the day and year
first set forth above.
VISION
WORLD, LLC
By: /s/Xxxxx
Xxxxx
Title: Chief
Operating Officer
EMERGING
VISION, INC.
By: /s/Xxxxx
Xxxxx
Title:
President and Chief Executive Officer
INSIGHT
MANAGED VISION CARE
By: /s/Xxxxx
Xxxxx
Title:
President and Chief Executive Officer
INSIGHT
IPA OF NEW YORK, INC.
By: /s/Xxxxx
Xxxxx
Title:
President and Chief Executive Officer
