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Exhibit 10.22
BUSINESS MANAGEMENT AGREEMENT
(PROFESSIONAL)
This Business Management Agreement is made and entered into effective
as of December 1, 1996, by and between Vision 21, Inc., a Florida corporation
("Business Manager"), and Xxxxxxxx & Associates, #6965 P.A., a professional
association, organized and existing under the laws of the State of Florida (the
"Practice").
R E C I T A L S
A. The Practice is a professional association duly organized and
validly existing under the laws of the State of Florida (the "State") which is
engaged in the provision of Professional Eye Care Services (as defined below)
to the general public in the State through individual Professionals (as defined
below) who are licensed to practice optometry in the State and who are employed
or otherwise retained by the Practice.
B. Business Manager is a corporation duly organized and validly
existing under the laws of the State.
C. The Practice desires to devote substantially all of its
energies, expertise and time on the delivery of Professional Eye Care Services
to patients.
D. The Practice desires to engage Business Manager to provide
facilities, equipment and such management, administrative and business services
as are necessary and appropriate for the day-to-day administration of the non-
optometric aspects of the Practice's professional eye care practice, and
Business Manager desires to provide such, upon the terms and conditions
hereinafter set forth, for the purpose of enhancing the cost-efficiency and
quality of services rendered by the Practice to its patients.
NOW, THEREFORE, for and in consideration of the mutual agreements,
terms, covenants and conditions contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties agree as follows:
1. DEFINITIONS. For the purposes of this Business Management
Agreement, the following terms shall have the following meanings ascribed
thereto, unless otherwise clearly required by the context in which such term is
used:
1.1. Account. The term "Account" shall mean the bank account
described in Sections 3.9 and 3.10(a) and (c).
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1.2. Acquisition Transaction. The term "Acquisition Transaction"
shall mean the completed Asset Purchase Agreement entered into by and among
Xxxxxxxx X. Xxxxxxxx, Xxxx Xxxxx, O.D., Xxxx Xxxxxx, O.D. and Vision 21, Inc.
1.3. Adjusted Gross Revenue. The term "Adjusted Gross Revenue"
shall mean all revenues, for Professional Eye Care Services and any other
revenues, calculated on an accrual basis under GAAP, generated by or on behalf
of the Practice and its Professionals and Capitation Revenues during the term
of this Business Management Agreement, including, without limitation, all
technical fees from ancillary services, all proceeds from key person life
insurance policies purchased by Business Manager in accordance with Section
3.15, all amounts paid by third parties for contractual liabilities, including
payments under non-shareholder Professionals' non-competition agreements, and
all consultant, teaching and expert witness fees except for those fees set
forth in Exhibit 1.3 (unless the time and efforts of the individuals
responsible for such excluded revenues are materially greater than the
historical time or efforts expended in obtaining such revenues or if such
excluded revenues historically flowed through the Practice), minus any
allowances for bad debts, uncollectible accounts, Medicare, Medicaid and other
payor contractual adjustments, discounts, workers' compensation adjustments,
reasonable professional courtesies, and other reductions in collectible revenue
that result from activities that do not result in collectible charges.
1.4. Agreement or Business Management Agreement. The term
"Agreement" or "Business Management Agreement" shall mean this instrument as
originally executed and delivered, or, if amended or supplemented, as so
amended or supplemented.
1.5. Budget. The term "Budget" shall mean an operating budget and
capital expenditure budget for each fiscal year as prepared in accordance with
Section 3.11(a).
1.6. Business Manager. The term "Business Manager" shall have the
meaning set forth in the Recitals hereto.
1.7. Business Manager Consent. The term "Business Manager Consent"
shall mean the consent granted by Business Manager's representatives (or either
representative) to the Practice Advisory Council created pursuant to Article II
herein, which consent shall not be unreasonably withheld or delayed and shall
be binding on the Business Manager.
1.8. Business Manager Expense. The term "Business Manager Expense"
shall mean an expense or cost incurred by the Business Manager, for which the
Business Manager is financially liable and is not entitled to reimbursement
from the Practice. Business Manager Expense shall specifically include: (a)
any amortization of intangible assets resulting from the Acquisition
Transaction, (b) any income or franchise taxes of the Business Manager, (c) any
expense or cost relating to any underwritten initial public offering of
Business Manager's common stock pursuant to which a registration statement is
filed under the Securities Act of 1933 (except for underwriter's commissions,
charges or discounts related to the sale of stock by
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any Shareholder of the Practice which shall be borne individually by them), (d)
expenses and costs relating to the acquisition of any other health care
companies unless all or a specific portion of such expenses and costs are
approved as an Office Expense by the Practice Advisory Council, or unless the
Practice participates in the acquisition through the Practice's acquisition of
optometric assets of an acquired optometric practice, and (e) any other expense
or cost incurred by Business Manager that are not reasonable and customary
reimbursements based upon a usual national practice management company's
arrangement with a practice. Business Manager Expenses (as of the date hereof)
are more specifically identified in Exhibit 1.8. In the case of any
inconsistency between specifics in Exhibit 1.8 and the general descriptions in
(a) through (d) above, Exhibit 1.8 shall govern (as of the date hereof).
1.9. Capitation Revenues. The term "Capitation Revenues" shall
mean all collections from managed care organizations or third-party payors
where such payment is made periodically on a per member basis for the partial
or total needs of a subscribing patient, less amounts that are payable to other
providers of health care items and services to capitation patients. Capitation
Revenues shall include any co-payments and incentive bonuses received as a
result of a capitation plan.
1.10. Clinical Personnel. The term "Clinical Personnel" shall mean
those individuals who are (to the extent permitted by law) employed by or
otherwise under contract or associated with Business Manager as nurse
anesthetists, technicians, nurse practitioners or similar positions, or any
position that generates a professional charge except for Professionals. In the
event that such individuals are not permitted by the laws of the State to be
employed by or otherwise under contract with Business Manager, such individuals
shall instead be employed by or under contract with the Practice, and all
expenses associated with the employment of or contracting with such individuals
shall be Practice Expenses.
1.11. Confidential Information. The term "Confidential Information"
shall mean any information of Business Manager or the Practice, as appropriate
(whether written or oral), including all business management or economic
studies, patient lists, proprietary forms, proprietary business or management
methods, marketing data, fee schedules, or trade secrets of the Business
Manager or of the Practice, as applicable, whether or not such Confidential
Information is disclosed or otherwise made available to one Party by the other
Party pursuant to this Business Management Agreement. Confidential Information
shall also include the terms and provisions of this Business Management
Agreement and any transaction or document executed by the Parties pursuant to
this Business Management Agreement. Confidential Information does not include
any information that the receiving party can establish (a) is or becomes
generally available to and known by the public or optometric community (other
than as a result of an unpermitted disclosure directly or indirectly by the
receiving party or its affiliates, advisors, or Representatives); (b) is or
becomes available to the receiving party on a nonconfidential basis from a
source other than the furnishing party or its affiliates, advisors or
Representatives, provided that such source is not and was not bound by a
confidentiality agreement with or other obligation of secrecy to the furnishing
party of which the receiving
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party has knowledge; or (c) has already been or is hereafter independently
acquired or developed by the receiving party without violating any
confidentiality agreement with or other obligation of secrecy to the furnishing
party.
1.12. GAAP. The term "GAAP" shall mean generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity or other
practices and procedures as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date
of the determination. All financial reporting which is required pursuant to
this Agreement to be made in conformity with GAAP shall also be prepared in a
manner acceptable to the Securities and Exchange Commission for reports made
pursuant to the Securities and Exchange Commission's rules and regulations.
1.13. Local Advisory Council. The term "Local Advisory Council"
shall have the meaning set forth in Section 2.10 of this Agreement.
1.14. Management Fee. The term "Management Fee" shall mean the
Business Manager's compensation established as described in Article V hereof.
1.15. Management Services. The term "Management Services" shall
mean the business, administrative, and management services to be provided for
the Practice, including, without limitation, the provision of equipment,
inventory and supplies (including the use of all assets owned by Business
Manager which are located at the Office on the effective date hereof), support
services, personnel (including Clinical Personnel but excluding Professionals),
office space, management, administration, financial record keeping and
reporting, and other business office services, all as reasonably necessary for
the conduct of the Practice's business.
1.16. National Appeals Council. The term "National Appeals Council"
shall have the meaning set forth in Section 2.11 hereto.
1.17. Office. The term "Office" shall mean any office space,
clinic, or facility, including satellite facilities, that Business Manager
shall own or lease or otherwise procure for the use of the Practice.
1.18. Office Expense. The term "Office Expense" shall mean all
operating and non-operating expenses incurred by the Business Manager in the
provision of Management Services to the Practice and all operating and
non-operating expenses incurred by the Practice at the Office except to the
degree the Business Manager cannot by law be obligated for an expense. So long
as the Practice is in full compliance with the terms of this Business
Management Agreement, the Business Manager shall be financially liable for all
Office Expenses and the Business Manager shall reimburse the Practice for any
Office Expense incurred by the Practice relating to the items set forth in this
Section, upon request by the Practice.
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1.19. Optometrist. The term "Optometrist" shall mean each
individually licensed Optometrist, if any, who is employed or otherwise
retained by or associated with the Practice, each of whom shall meet at all
times the qualifications described in Section 4.2 and Section 4.3.
1.20. Parties. The term "Parties" shall mean the Practice and
Business Manager.
1.21. Practice. The term "Practice" shall have the meaning set
forth in the Recitals.
1.22. Practice Advisory Council. The term "Practice Advisory
Council" shall have the meaning set forth in Section 2.6 of this Agreement.
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1.23. Practice Consent. The term "Practice Consent" shall mean the
consent granted by the Practice's representatives (or either representative) to
the Practice Advisory Council created pursuant to Article II herein, which
consent shall not be unreasonably withheld or delayed and shall be binding on
the Practice.
1.24. Reserved.
1.25. Practice Territory. The term "Practice Territory" shall mean
the geographic area described in Exhibit 1.26, representing the geographic
boundaries in which the Practice renders Professional Eye Care Services.
1.26. Professional. The term "Professional" shall mean any
Optometrist.
1.27. Professional Eye Care Services. The term "Professional Eye
Care Services" shall mean professional health care items and services,
including, but not limited to, the practice of optometry, and all related
professional health care services provided by the Practice through the
Practice's Optometrists and other professional health care providers that are
retained by or professionally affiliated with the Practice. The term shall
also include any and all business whatsoever in connection with any optical
businesses owned or operated, or to be owned or operated in the future, in
whole or in part, by the Practice or any of its Professionals during the terms
of this Agreement.
1.28. Representatives. The term "Representatives" shall mean a
Party's officers, directors, managers, employees, or other agents.
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1.29. Shareholder. The term "Shareholder" shall mean any current or
future shareholder of the Practice.
1.30. Shareholder Expense. The term "Shareholder Expense" or "Practice
Expense" shall be limited to the following expenses, as such expenses are more
specifically described in Exhibit 1.18: (a) Shareholders' salaries,
benefits, payroll taxes, and other direct costs (including professional dues,
subscriptions, continuing education expenses, severance payments,
entertainment, and travel costs for continuing education or other business
travel but excluding business travel requested by Business Manager, which shall
be an Office Expense, and excluding any other expense of a Shareholder approved
as an Office Expense in advance by the Parties); (b) those portions of
leasehold obligations of the Business Manager which are deemed in excess of
fair market value as set forth in Exhibit 1.30; (c) to the extent not covered
by insurance and subject to the advance provisions contained herein, the
defense costs of any litigation brought against the Practice or the
Professionals by any third party and any liability judgment assessed against
the Practice or the Professionals; (d) certain equipment expenses described in
Section 3.2(d); (e) interest on any funds advanced to the Practice by Business
Manager to the extent that Business Manager is a net lender in accordance with
the terms of this Agreement; (f) "tail" coverage malpractice insurance expenses
for the Shareholders and any malpractice insurance expenses of any Professional
which are in excess of those which are customary and reasonable; (g) any income
taxes or franchise tax of the Practice; and (h) consulting, accounting, or
legal fees which relate solely to the Shareholders. The Practice shall be
financially liable for all Shareholder Expenses, and the Practice shall
reimburse the Business Manager for any Shareholder Expense incurred by the
Business Manager. Unless an expense is expressly designated as a Business
Expense or an Office Expense expenses incurred by the Practice shall
be considered a Shareholder Expense. Notwithstanding the above, the Practice
may require certain Professionals to pay certain expenses incurred for them
specifically. Nothing in this Section shall create personal liability on the
part of the Practice's Shareholders.
1.31. State. The term "State" shall have the meaning set forth in
the Recitals.
1.32. Term. The term "Term" shall mean the initial and any renewal
periods of duration of this Business Management Agreement as described in
Section 6.1.
2. APPOINTMENT OF BUSINESS MANAGER AND ESTABLISHMENT OF
PRACTICE ADVISORY COUNCIL, LOCAL ADVISORY COUNCIL AND
NATIONAL APPEALS COUNCIL.
2.1 Appointment. The Practice hereby appoints Business Manager as
its sole and exclusive agent for the management and administration of the
business functions and business affairs of the Practice and Business Manager
hereby accepts such appointment, subject at all times to the provisions of this
Business Management Agreement.
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2.2 Authority. Consistent with the provisions of this Business
Management Agreement, Business Manager shall have the responsibility and
commensurate authority to provide Management Services for the Practice. The
Practice shall give Business Manager thirty (30) days' prior notice of the
Practice's intent to execute any agreement creating a binding legal obligation
on the Practice. The Parties acknowledge and agree that the Practice, through
its Professionals, shall be responsible for and shall have complete authority,
responsibility, supervision, and control over the provision of all Professional
Eye Care Services and other professional health care services performed for
patients, and that all diagnoses, treatments, procedures, and other
professional health care services shall be provided and performed exclusively
by or under the supervision of Professionals as such Professionals, in their
sole discretion, deem appropriate. Business Manager shall have and exercise
absolutely no control, influence, authority or supervision over the provision
of Professional Eye Care Services.
2.3 Patient Referrals. Business Manager and the Practice agree
that the benefits to the Practice hereunder do not require, are not payment
for, and are not in any way contingent upon the referral, admission, or any
other arrangement for the provision of any item or service offered by Business
Manager to patients of the Practice in any facility, laboratory, center, or
health care operation controlled, managed, or operated by Business Manager.
2.4 Internal Decisions of the Practice. Matters involving the
Practice's allocation of professional income among its Shareholders and the
Professional employees of the Practice, tax planning, and investment planning
shall remain the responsibility of the Practice and the Shareholders of the
Practice.
2.5 Practice of Optometry. The Parties acknowledge that Business
Manager is not authorized or qualified to engage in any activity that may be
construed or deemed to constitute the practice of optometry. To the extent any
act or service herein required by Business Manager should be construed by a
court of competent jurisdiction or by the State Board of Optometry to
constitute the practice of optometry, the requirement to perform that act or
service by Business Manager shall be deemed waived and unenforceable.
2.6 Formation and Operation of the Practice Advisory Council. The
Parties hereby establish a Practice Advisory Council which shall be responsible
for advising Business Manager and the Practice with respect to developing and
implementing management and administrative policies for the overall operation
of the Practice's facilities and for providing dispute resolution on certain
matters. The Practice Advisory Council shall consist of four (4) members.
Business Manager shall designate, in its sole discretion, two (2) members of
the Practice Advisory Council or may have one (1) member with two (2) votes.
The Practice shall designate, in its sole discretion, two (2) members of the
Practice Advisory Council or may have one (1) member with two (2) votes. The
Practice Advisory Council members selected by the Practice shall be full-time
Professional employees of the Practice. Each Party's representatives to the
Practice Advisory Council shall have the authority to make decisions on behalf
of the respective Party. Except as may otherwise be provided, the act of a
majority of the members of the Practice
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Advisory Council shall be the act of the Practice Advisory Council. The
decisions, resolutions, actions, or recommendations of the Practice Advisory
Council shall be implemented by Business Manager or the Practice, as
appropriate.
2.7 Duties and Responsibilities of the Practice Advisory Council.
The Practice Advisory Council shall review, evaluate, make recommendations, and
where specifically authorized herein and permitted by law, make decisions with
respect to the following matters:
(a) Facility Improvements and Expansion. Any
renovation and expansion plans and capital equipment expenditures with respect
to the Practice's facilities (including with respect to any optical business)
shall be reviewed by the Practice Advisory Council which shall make
recommendations to Business Manager with respect to proposed changes therein.
Such renovation and expansion plans and capital equipment expenditures shall be
based upon economic feasibility, optometry support, productivity and then
current market conditions.
(b) Marketing and Public Relations. The Practice
Advisory Council shall review and make recommendations to the Practice with
respect to all marketing and public relations services and programs promoting
the Practice's Professional Eye Care Services.
(c) Patient Fees; Collection Policies. As a part of
the annual operating budget, the Practice Advisory Council shall review and
make recommendations to the Practice concerning the fee schedule and collection
policies for all Professional Eye Care Services and ancillary services rendered
by the Practice.
(d) Ancillary Services. The Practice Advisory Council
must approve any new non-professional ancillary services to be rendered by the
Practice including optical business, and concerning the pricing, continuation
of, access to, and quality of such services.
(e) Provider and Payor Relationships. The Practice
Advisory Council shall review and make recommendations to Business Manager and
the Practice regarding the establishment or maintenance of relationships
between the Practice and institutional health care providers and third-party
payors, and shall review and approve all agreements with institutional health
care providers and third-party payors which contain terms which are materially
different from those terms set forth in guidelines established by the Local
Advisory Council. The Practice Advisory Council shall also make
recommendations to Business Manager and the Practice concerning discounted fee
schedules, including capitated fee arrangements of which the Practice shall be
a party, and shall review and approve all such capitated fee arrangements.
(f) Strategic Planning. The Practice Advisory Council
may make recommendations to Business Manager concerning development of
long-term strategic planning objectives for the Practice.
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(g) Capital Expenditures. The Practice Advisory
Council shall make recommendations to Business Manager and the Practice
concerning the priority of major capital expenditures and shall review and
approve any commitment to make any capital expenditures for non-optometric
equipment relating to the Office involving amounts in excess of $15,000
individually, or $50,000 in the aggregate, in any one fiscal year, which
amounts may be increased from time-to-time by the Local Advisory Council.
(h) Hiring of Professionals. The Practice Advisory
Council shall recommend to the Practice the number and type of Professionals
required for the efficient operation of the Practice's facilities.
(i) Fee Dispute Resolution. At the request of Business
Manager or the Practice, the Practice Advisory Council shall make
recommendations to Business Manager with respect to any dispute concerning a
set-off or reduction in Management Fees.
(j) Grievance Referrals. The Practice Advisory Council
shall consider and make recommendations to Business Manager and the Practice
regarding grievances pertaining to matters not specifically addressed in this
Business Management Agreement as referred to it by Business Manager or the
Practice's Board of Directors.
(k) Termination of Business Manager's Personnel. The
Practice Advisory Council shall review and approve any decision by the Business
Manager to terminate any of Business Manager's personnel primarily located at
the Office who occupy office manager or higher level positions.
(l) Approval of New Office. The Practice Advisory
Council shall approve any move of the current Office location or the expansion
to an additional Office location. Additionally, the Practice Advisory Council
shall approve the establishment of any optical business of the Practice and the
move or expansion of any such business.
(m) Approval of Budget. The Practice Advisory Council
shall have the power to adopt, approve and amend the Budget and to approve
various expenses as set forth herein, which shall be subject to change upon
submission of any dispute thereon to Ernst & Young LLP (or its successor or
replacement) and appeal to the National Appeals Council as provided in Section
3.11(a).
Except in those specific instances set forth above in which the Practice
Advisory Council has been granted the authority to make decisions binding upon
the Business Manager and the Practice, it is acknowledged and agreed that
recommendations of the Practice Advisory Council are intended for the advice
and guidance of Business Manager and the Practice and that the Practice
Advisory Council does not have the power to bind Business Manager or the
Practice. Where discretion with respect to any matter is vested in Business
Manager or the Practice under the terms of this Agreement, Business Manager or
the Practice, as the case may be, shall have
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ultimate responsibility for the exercise of such discretion, notwithstanding
any recommendations of the Practice Advisory Council. Business Manager and the
Practice shall, however, take such recommendations of the Practice Advisory
Council into account in good faith in the exercise of such discretion.
2.8 Professional Health Care Decisions. Despite the above listing
of activities and areas of interest, all decisions required by applicable law
to be made solely by health care professionals will be made solely by the
appropriate Professionals, but non-Professional members of the Practice
Advisory Council may participate in the discussion process. The Professional
representatives of the Practice on the Practice Advisory Council shall have
exclusive authority to review and resolve issues related to:
(a) Types and levels of Professional Eye Care Services
to be provided; (provided, however, that the Practice Advisory Council shall
have the authority set forth in Section 2.7(d) with respect to new optical
business);
(b) Recruitment of Professionals to the Practice,
including the specific qualifications and specialties of recruited
Professionals;
(c) Any optometric related functions;
(d) Fee schedules; and
(e) Any other decisions required by applicable law to
be made solely by Professionals and not by non-Professionals.
2.9 Meetings of the Practice Advisory Council. The Practice
Advisory Council shall meet on a regular basis as mutually agreed by the
Parties. A special meeting of the Practice Advisory Council may be called by
either Business Manager or the Practice upon two (2) weeks' notice, except in
the event of an emergency, in which case a special meeting may be called by
either Business Manager or the Practice upon three (3) business days' notice.
Meetings may be held telephonically or by any other means agreeable to the
Parties.
2.10 Formation and Operation of Local Advisory Council. Business
Manager shall, within six (6) months of the effective date of this Business
Management Agreement establish a Local Advisory Council composed of delegates
from health care practices for which Business Manager is then providing
management services similar to those services contemplated in this Business
Management Agreement. All of such health care practices shall be located
within the market area described on Exhibit 2.10, as such market area may be
expanded from time-to-time by the Local Advisory Council. For six (6) years
from the date hereof, the Practice shall be entitled to appoint one delegate to
the Local Advisory Council, of which the initial delegate shall serve an
initial two (2) year term. Thereafter, for the two (2) subsequent two (2) year
terms, the Practice may appoint the same or a different delegate to the Local
Advisory Council. After
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the six (6) year period, the Practice shall have the right to vote, along with
other Practices managed in the market by the Business Manager, for the
delegates to the Local Advisory Council in accordance with the by-laws, as
modified from time to time as described below. Business Manager shall be
entitled to appoint two delegates to the Local Advisory Council who may be
replaced from time-to-time at the Business Manager's discretion, and who
together shall have a voting power equal to the combined voting power of all
delegates appointed by the health care practices. If any market contains only
one health care practice, such practice shall appoint one (1) individual to the
Local Advisory Council who shall have two (2) votes. Any matter to be
determined by the Local Advisory Council must receive the affirmative vote of a
majority of the votes cast of the delegates appointed to the Local Advisory
Council. The Local Advisory Council shall make recommendations to Business
Manager and such health care practices as to regional policy and strategy
issues within the market area and as to the following:
(a) The establishment of private pay fee schedules
where permitted by law;
(b) The establishment of guidelines for agreements with
institutional health care providers and third-party payors; and
(c) Any agreement with an institutional health care
provider or third-party payor which materially differs from guidelines
established by the Local Advisory Council.
The Local Advisory Council may, from time-to-time, select commercial
carriers for professional, casualty and comprehensive general liability
coverage for health care practices in the market area and such selection shall
be binding upon such health care practices.
The Local Advisory Council shall consider and determine any issue upon
which the Practice Advisory Council is deadlocked (except for the determination
of the Budget). In determining such disputes, the Local Advisory Council shall
make findings of fact relating to evidence presented by the Parties to the
dispute. Decisions by the Local Advisory Council may be appealed by any party
adversely affected to the National Appeals Council, which shall have the option
of hearing the appeal. The Local Advisory Council's rules of operation and
procedure shall be governed by by-laws to be adopted by the delegates, and such
by-laws may be amended or restated from time-to-time. Such by-laws shall be
reasonable and in accord with the terms and spirit of this Agreement. The
Practice and Business Manager covenant and agree to abide by the Local Advisory
Council's by-laws, as such by-laws may be amended from time-to-time.
2.11 Formation and Operation of the National Appeals Council.
Business Manager shall within six (6) months of the effective date of this
Business Management Agreement establish a National Appeals Council composed of
one (1) delegate appointed by each of the initial Local Advisory Councils to be
established by Business Manager, and two (2) delegates appointed by the
Business Manager. The initial delegates of the Local Advisory Councils shall
serve an initial two (2) year term, and thereafter, if the local advisory
council qualifies under
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the then current by-laws of the National Appeals Council with respect to the
eligibility of Local Advisory Councils to appoint delegates to the National
Appeals Council, the local advisory council may appoint the same or a different
delegate to the National Appeals Council. Business Manager's delegates to the
National Appeals Council shall together have a voting power equal to the
combined voting power of all delegates appointed by the Local Advisory
Councils. Any matter to be determined by the National Appeals Council must
receive the affirmative vote of a majority of the votes cast of the delegates
appointed to the National Appeals Council. The National Appeals Council shall
serve as a forum of appeal of any determinations of the Local Advisory Councils
over which it chooses to have jurisdiction. In resolving such appeals it
determines to hear, the National Appeals Council shall review findings of fact
made by the applicable local advisory council and shall only reverse a decision
of the local advisory council if the local advisory council's decision was
based upon manifest error. The National Appeals Council shall also determine
disputes which it chooses to have jurisdiction over and which cannot be decided
because of a deadlock among the delegates of any Local Advisory Council. In
the event of a deadlock among the delegates of the National Appeals Council,
the dispute may be submitted by either party to the dispute to arbitration in
accordance with Section 8.7 of this Agreement. In all other instances, the
determination of a dispute by the National Appeals Council shall be final. The
National Appeals Council's rules of operation and procedure shall be governed
by by-laws to be adopted by the Local Advisory Councils' and Business Manager's
delegates, and such by-laws may be amended or restated from time-to-time. Such
by-laws shall be reasonable and reflect the terms and spirit of this Agreement.
The National Appeals Council's decisions shall be binding upon the parties.
The Practice and Business Manager covenant and agree to abide by the National
Appeal Council's by-laws, as such by-laws may be amended from time-to-time.
3. OBLIGATIONS AND RESPONSIBILITIES OF BUSINESS MANAGER.
3.1 Management Services. Business Manager shall provide all
Management Services as are necessary and appropriate for the day-to-day
administration of the business aspects of the Practice's operations, pursuant
to the terms of this Business Management Agreement. Business Manager shall
operate in a reasonable and customary manner with due consideration to the
Practice's past business practices and shall operate in accordance with all
applicable laws, rules and regulations which are necessary and material to the
Business Manager's performance of the Management Services. Business Manager
will provide in good faith and with due diligence its services consistent with
management services generally provided in operations of an optometric practice
similar in size, type and operations in the State of the Practice. All costs
and expenses related to Business Manager's duties contained in this Section 3
shall be Office Expenses unless limited or excluded as an Office Expense
pursuant to the terms of this Agreement.
3.2 Office and Equipment.
(a) Business Manager shall lease, sublease, acquire or
otherwise procure one or more Offices that are deemed by the Parties to be
reasonably necessary and appropriate,
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and the expenses associated with such lease, sublease, acquisition, or
procurement shall be Office Expenses. Any Office procured by Business Manager
for the use by the Practice shall be procured at commercially reasonable rates.
Any relocation from the Practice's present Office location or expansion of the
Practice's Office into an additional Office shall be done only after Business
Manager has received Practice Consent, which shall not be unreasonably
withheld.
(b) In the event the Practice is the lessee of an
Office under a lease with an unrelated and nonaffiliated lessor, Business
Manager may require the Practice to assign such lease to Business Manager upon
receipt of consent from the lessor. The Practice shall use its best efforts to
assist in obtaining the lessor's consent to the assignment. Any expenses
incurred in the assignment shall be Office Expenses.
(c) Business Manager shall provide all non-health care
equipment, fixtures, office supplies, furniture and furnishings as are
reasonable and approved in the Budget for the operation of the Office and the
provision of Professional Eye Care Services. If the Practice wishes to choose
additional equipment, which the Business Manager determines not to acquire or
lease, the Practice may acquire or lease such equipment, and the expense
related thereto shall be deemed a Shareholder Expense.
(d) Business Manager shall provide, finance, or cause
to be provided or financed health care related equipment as reasonably required
by the Practice. The Practice shall have final authority in all health care
equipment selections; provided, however, that if the Practice chooses to
acquire health care equipment which is not in the Budget and which Business
Manager reasonably chooses not to acquire, expenses related thereto shall be
treated as a Shareholder Expense and such equipment shall be owned by the
Practice; provided further that following such acquisition or lease by the
Practice, if the Practice Advisory Council determines that after a period of
six months of use such equipment is reasonably certain to result in material
profit to Business Manager (taking into account the cost or expense and
anticipated revenues associated with such equipment), then Business Manager
shall acquire such equipment from the Practice by either (at Business Manager's
option), paying cash or by assuming the liability associated with such
equipment, or if such equipment is then being leased by the Practice, by
assuming such lease. In the event of such an acquisition by Business Manager,
it shall reimburse the Practice for previous expenses applied thereto. Except
for equipment which Business Manager elects not to acquire or lease which are
acquired or leased by the Practice pursuant to Section 3.2(c) or (d), all
health care and non-health care equipment, other than Professional-owned
automobiles, acquired for the use of the Practice shall be owned by Business
Manager and the depreciation and related capital charge shall be an Office
Expense. Business Manager may make recommendations to the Practice on the
relationship between its health care equipment decisions and the overall
administrative and financial operations of the practice.
(e) Business Manager shall be responsible for the
repair and maintenance of the Office, consistent with Business Manager's
responsibilities under the terms of any lease or other use arrangement, and for
the prompt repair, maintenance, and replacement of all
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equipment other than such repairs, maintenance and replacement necessitated by
the gross negligence or willful misconduct of the Practice, its Professionals
or other personnel employed by the Practice, the repair or replacement of which
shall be a Shareholder Expense and not an Office Expense. Replacement
equipment shall be acquired where Business Manager in good faith determines
that such replacement is necessary or where the Budget has made allowances for
such replacement.
(f) Any portion of the foregoing lease payments in
excess of fair market value (as set forth in Exhibit 1.30) relating to leases
of equipment or an Office shall be treated as a Shareholder Expense.
Reserved.
3.3 Health Care Supplies. Business Manager shall order, procure,
purchase and provide on behalf of and as agent for the Practice all reasonable
health care supplies unless otherwise prohibited by federal and/or state law.
Furthermore, Business Manager shall ensure that the Office is at all times
adequately stocked with the health care supplies that are necessary and
appropriate for the operation of the Practice and required for the provision of
Professional Eye Care Services. The ultimate oversight, supervision and
ownership for all health care supplies is and shall remain the sole
responsibility of the Practice and all costs and expenses relating to such
supplies shall be a Practice Expense. As used in this provision, the term
"health care supplies" shall mean all drugs, pharmaceuticals, optical supplies,
products, substances, items or devices the whose purchase, possession,
maintenance, administration, prescription or security of which requires the
authorization or order of a licensed health care provider or requires a permit,
registration, certification or other governmental authorization held by a
licensed health care provider as specified under any federal and/or state law.
3.4 Support Services. Business Manager shall provide or arrange
for all printing, stationery, forms, postage, duplication or photocopying
services, and other support services as are reasonably necessary and
appropriate for the operation of the Office and the provision of Professional
Eye Care Services therein.
3.5 Quality Assurance, Risk Management, and Utilization Review.
Business Manager shall assist the Practice in the Practice's establishment and
implementation of procedures to ensure the consistency, quality,
appropriateness, and necessity of Professional Eye Care Services
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provided by the Practice, and shall provide administrative support for the
Practice's overall quality assurance, risk management, and utilization review
programs. Business Manager shall perform these tasks in a manner to ensure the
confidentiality and non-discoverability of these program actions to the fullest
extent allowable under state and federal law.
3.6 Licenses and Permits. Business Manager shall, on behalf of
and in the name of the Practice, coordinate all development and planning
processes, and apply for and use reasonable efforts to obtain and maintain all
federal, state and local licenses and regulatory permits required for or in
connection with the operation of the Practice and the equipment (existing and
future) located at the Office, other than those relating to the practice of
optometry or the administration of drugs by Professionals retained by or
associated with the Practice. The expenses and costs associated with obtaining
and maintaining permits with respect to the Office and licenses for
professional practice by the non- shareholder Professionals shall be deemed an
Office Expense.
3.7 Personnel. Except as specifically provided in Section 4.2 of
this Business Management Agreement, Business Manager shall employ or otherwise
retain and shall be responsible for selecting, hiring, training, supervising,
and terminating, all management, administrative, clerical, secretarial,
bookkeeping, accounting, payroll, billing and collection and other personnel
(including Clinical Personnel but excluding Professionals) as Business Manager
deems reasonably necessary and appropriate for Business Manager's performance
of its duties and obligations under this Business Management Agreement.
Consistent with reasonably prudent personnel management policies, Business
Manager shall seek and consider the advice, input, and requests of the Practice
in regard to personnel matters. Business Manager shall have sole
responsibility for determining the salaries and providing fringe benefits, and
for withholding, as required by law, any sums for income tax, unemployment
insurance, social security, or any other withholding required by applicable law
or governmental requirement. Business Manager does not currently intend to
change the existing composition or employment terms of any of Business
Manager's personnel which have employment arrangements with the Practice on the
effective date of this Agreement (unless there are unsettled issues regarding
such arrangements as described in Exhibit 3.7). Business Manager reserves the
right, however, to change the number, composition or employment terms of such
personnel in the future at Business Manager's discretion; provided, however,
that the termination of any of Business Manager's personnel who are Clinical
Personnel or occupy office manager or higher level positions, and are primarily
located at the Office must receive the approval of the Practice Advisory
Council. Business Manager and the Practice recognize and acknowledge that
Business Manager and personnel retained by Business Manager may from
time-to-time perform services for persons other than the Practice. This
Business Management Agreement shall not be construed to prevent or prohibit
Business Manager from performing such services for others or restrict Business
Manager from using its personnel to provide services to others. Business
Manager hereby disclaims any liability relating to the effect of its employees
on the qualification of the Practice's retirement plans under the Internal
Revenue Code, and all liabilities for such classification shall be solely the
responsibility of the Practice.
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3.8 Contract Negotiations. Business Manager shall evaluate,
assist in negotiations and administer on behalf of the Practice contracts that
do not relate to the provision of Professional Eye Care Services as set forth
in this Agreement and/or as approved in the Budget. To the extent permitted by
law, Business Manager shall evaluate, assist in negotiations, administer and
execute on the Practice's behalf, all contractual arrangements with third
parties as are reasonably necessary and appropriate for the Practice's
provision of Professional Eye Care Services, including, without limitation,
negotiated price agreements with third-party payors, alternative delivery
systems, or other purchasers of group health care services. However, the
Practice shall have the final authority with regard to the entry into all of
such contractual arrangements relating to the provision of Professional Eye
Care Services.
3.9 Billing and Collection. As an agent on behalf of and for the
account of the Practice, Business Manager shall establish and maintain credit
and billing and collection services, policies and procedures, and shall use
reasonable efforts to timely xxxx and collect all Professional and other fees
for all billable Professional Eye Care Services provided by the Practice, or
Professionals employed or otherwise retained by the Practice. The Practice
Advisory Council shall make recommendations to and consult with Business
Manager and the Practice regarding the fees for Professional Eye Care Services
provided by the Practice. In connection with the billing and collection
services to be provided hereunder, and throughout the Term (and thereafter as
provided in Section 6.3), the Practice hereby grants to Business Manager an
exclusive special power of attorney and appoints Business Manager as the
Practice's exclusive true and lawful agent and attorney-in-fact (which shall be
deemed revoked in the event of termination for cause by the Practice), and
Business Manager hereby accepts such special power of attorney and appointment,
for the following purposes:
(a) To xxxx the Practice's patients, in the Practice's
name using the Practice's tax identification number and on the Practice's
behalf, for all billable Professional Eye Care Services provided by the
Practice to patients.
(b) To xxxx, in the Practice's name using the
Practice's tax identification number and on the Practice's behalf, all claims
for reimbursement or indemnification from health maintenance organizations,
self-insured employers, insurance companies, Medicare, Medicaid, and all other
third-party payors or fiscal intermediaries for all covered billable
Professional Eye Care Services provided by the Practice to patients.
(c) To collect and receive, in the Practice's name and
on the Practice's behalf, all accounts receivable generated by such xxxxxxxx
and claims for reimbursement, to administer such accounts including, but not
limited to, extending the time of payment of any such accounts; suing,
assigning or selling at a discount such accounts to collection agencies; or
taking other measures to require the payment of any such accounts; provided,
however, that the Practice shall review and approve (which approval shall not
be unreasonably withheld) any decision by Business Manager to undertake
extraordinary collection measures, such as filing lawsuits, discharging or
releasing obligors, or assigning or selling accounts at a discount to
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collection agencies. Business Manager shall act in a professional manner and
in compliance with all federal and State fair debt collection practices laws in
rendering billing and collection services.
(d) To deposit all amounts collected into the Account
which shall be a cash collateral account held in the name of Business Manager
and shall be opened at a financial institution chosen by Business Manager. All
amounts received or collected are hereby pledged to the Business Manager and
shall be held or deposited in the Account to secure the performance of the
Practice's obligations under this Agreement. The Account shall be held under
Business Manager's tax identification number. The Practice covenants to
transfer and deliver to the Account all funds received by the Practice from
patients or third-party payors for Professional Eye Care Services. Upon
receipt by Business Manager of any funds from patients or third-party payors or
from the Practice pursuant hereto for Professional Eye Care Services, Business
Manager shall immediately deposit the same into the Account. So long as the
Practice is in full compliance with the terms of this Business Management
Agreement, the Business Manager shall administer, be responsible for, and be
obligated to pay for all Office Expenses. Business Manager shall disburse such
deposited funds to creditors and other persons on behalf of the Practice,
maintaining records of such receipt and disbursement of funds. Business
Manager may borrow amounts from the Account in excess of amounts due Business
Manager pursuant to this Agreement and to the full extent of funds in the
Account. Such borrowed amounts shall bear interest to the Account in the
amount of six percent (6%) per annum, and any of such borrowed amounts
outstanding shall be repaid by Business Manager to the Account when needed to
cover all expenses and obligations under this Agreement and shall be repaid
within thirty (30) days of the termination of this Agreement.
(e) To take possession of, endorse in the name of the
Practice, and deposit into the Account any notes, checks, money orders,
insurance payments, and any other instruments received in payment of accounts
receivable for Professional Eye Care Services.
(f) To sign checks on behalf of the Practice, and to
make withdrawals from the Account for payments specified in this Business
Management Agreement. Upon request of Business Manager, the Practice shall
execute and deliver to the financial institution wherein the Account is
maintained, such additional documents or instruments as may be necessary to
evidence or effect the special power of attorney granted to Business Manager by
the Practice pursuant to this Section 3.9. The special power of attorney
granted herein shall be coupled with an interest and shall be irrevocable
except with Business Manager's written consent. The irrevocable power of
attorney shall expire when this Business Management Agreement has been
terminated, all accounts receivable payable to Business Manager pursuant to
this Business Management Agreement have been collected and all Management Fees
due to Business Manager have been paid. If Business Manager assigns this
Business Management Agreement in accordance with its terms, the Practice shall
execute a power of attorney in favor of the assignee in a form acceptable to
Business Manager.
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3.10 Maintenance of Account. During the term of this Business
Management Agreement, all Adjusted Gross Revenues collected resulting from the
rendering of Professional Eye Care Services by the Practice shall be deposited
directly into the Account in which Business Manager shall have the sole signing
capacity.
(a) Payments from the Account. Each month Business
Manager shall pay (to the extent that funds are available) from funds that are
in the Account or in the Practice's accounts described in Section 3.10(b)
hereof all sums due and payable as Practice Expenses. Additionally, on or
before the 15th day of the following month, (i) Business Manager shall pay from
funds that are in the Account to the Practice Adjusted Gross Revenue less the
accrued Management Fee, accrued Practice Expense (excluding optical supplies),
and (at the discretion of Business Manager) all or a portion of sums advanced
by the Business Manager to the Practice, and (ii) the accrued Management Fee
for the previous month shall be paid.
(b) Payments to the Practice's Account. To the extent
funds are available, the Business Manager shall be responsible for remitting
from the Account to an account to be owned by and held in the Practice's name,
separate from the Account, the amounts which the Practice is entitled to
receive under Section 3.10(a) and amounts to be used for payment of Practice
Expenses. Within sixty (60) days of the end of each of the first three (3)
fiscal quarters in each fiscal year and within one hundred twenty (120) days of
the end of each fiscal year, a settlement process shall be undertaken pursuant
to which adjustments, if necessary, shall be made in the total payments to the
Practice based upon the financial statements prepared in accordance with
Section 3.11(b). Any additional payment due to the Practice will be made
within thirty (30) days of the completion of the settlement process. Any
reduction in payments to the Practice as the result of such settlement process
shall be made by reducing future payments to the Practice, commencing with the
month following completion of the settlement process, until such adjustments
are made in full.
Business Manager and the Practice shall each have signing capacity to
withdraw funds from the Practice's account; provided however that Business
Manager shall only be entitled to withdraw funds relating to such account in
connection with the payment of Practice Expenses and Shareholders' salaries,
benefits and payroll taxes. Subject to the foregoing, the Practice hereby
grants to Business Manager a special power of attorney and appoints Business
Manager as the Practice's true and lawful agent and attorney-in-fact, and
Business Manager hereby accepts such special power of attorney and appointment,
to sign checks on behalf of the Practice for payments of the Practice Expenses
and Shareholders' salaries, benefits and payroll taxes in accordance with this
Business Management Agreement. Upon request of Business Manager, the Practice
shall execute and deliver to the financial institution wherein the Practice's
account is maintained, such additional documents or instruments as may be
necessary to evidence or effect the special power of attorney granted to
Business Manager by the Practice pursuant to this Section 3.10(b). The special
power of attorney granted herein shall be coupled with an interest and shall be
irrevocable except with Business Manager's written consent. The irrevocable
power of attorney shall expire when this Business Management Agreement has been
terminated. If
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Business Manager assigns this Business Management Agreement in accordance with
its terms, the Practice shall execute a power of attorney in favor of the
assignee in a form acceptable to Business Manager. Business Manager shall not
make any withdrawal from the Practice's account unless expressly authorized in
this Agreement.
A Practice payroll account shall be established on behalf of the
Practice for payroll to non-shareholder Professionals of the Practice. Funds
for this account shall be received as Practice Expenses. Business Manager and
the Practice shall each have signing capacity to access the account for
payroll.
(c) Insufficient Funds in Account. During the Term of
this Agreement, Business Manager shall advance sufficient funds to cover all
Practice Expenses and Shareholder Expenses only if, and to the extent that, the
amount of such advances, plus accrued interest thereon, does not exceed the
reasonably collectable value of the Practice's accounts receivable as
determined by Business Manager in its reasonable discretion plus any amounts
borrowed by Business Manager pursuant to Section 5.4 and minus the accrued
Management Fee. Business Manager may, however, elect from time to time to
advance additional funds to the Practice at its discretion. Any of such
advances shall be deemed loans to the Practice to be repaid by the Practice
along with interest at six percent (6%) per annum. Any of such advanced
amounts which have not been paid to Business Manager pursuant to Section
3.10(a)(i) on the date of termination of this Agreement shall become due and
payable on the date of such termination.
(d) Payment of Office Expenses. During the Term of
this Business Management Agreement and so long as the Practice is in full
compliance with the terms of this Business Management Agreement, Business
Manager shall pay all sums due and payable as Office Expenses from one or more
accounts owned and controlled exclusively by Business Manager.
3.11 Fiscal Matters.
(a) Annual Budget. Annually and at least thirty (30)
days prior to the commencement of each fiscal year of the Practice, the
Practice Advisory Council shall prepare and deliver to the Practice a proposed
budget, setting forth an estimate of the Practice's revenues and expenses for
the upcoming fiscal year (including, without limitation, the Management Fee
associated with the Management Services provided by Business Manager hereunder
and the salaries and benefits of all non-shareholder Professionals employed by
the Practice). The Budget may be amended by the Practice Advisory Council from
time-to-time during any applicable fiscal year to reflect changing
circumstances affecting the Practice. Disputes concerning the Budget will, at
the request of either Party hereto, be submitted to the accounting firm of
Ernst & Young LLP, any successor thereof, or such other big six accounting firm
agreed to by the Parties, which shall determine an appropriate resolution of
the dispute. Such determination shall be binding upon the Practice and the
Business Manager, subject to either Party's right to petition the National
Appeals Council to consider the determination of Ernst & Young LLP (or its
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successor or replacement), which petition may be granted at the discretion of
the National Appeals Council. In all situations described in this Agreement in
which Ernst & Young LLP or its successor or replacement is to act as an
arbitrator of any matter relating to this Agreement, Ernst & Young LLP (or its
successor or replacement) shall act as an impartial and independent arbitrator.
The Parties hereby waive and release and agree to indemnify and hold harmless
Ernst & Young LLP (and its successor or replacement) from and for any and all
claims, demands, liabilities, losses, damages, costs and expenses relating to
its determinations made in good faith pursuant to this Agreement and agree to
execute any documents reasonably requested by Ernst & Young LLP (or its
successor or replacement) to effectuate the same. Any final decision of Ernst
& Young LLP or its successor or replacement, or the National Appeals Council
concerning the Budget shall be retroactive to the first day of the Budget
period in question. Notwithstanding the above, should Business Manager be in
material default hereunder, the Practice shall have the exclusive right to
establish the Budget. Additionally, notwithstanding the above, no change in an
adopted Budget shall be contrary to the terms and spirit of this Agreement nor
shall it have any effect on the Management Fee expressly agreed to herein,
unless approved in advance in writing by the Parties hereto.
(b) Accounting and Financial Records. Business Manager
shall establish and administer accounting procedures, controls, and systems for
the development, preparation, and safekeeping of administrative or financial
records and books of account relating to the business and financial affairs of
the Practice and the provision of Professional Eye Care Services, all of which
shall be prepared and maintained in accordance with GAAP. Business Manager
shall prepare and deliver to the Practice (i) within sixty (60) days of the end
of each of the first three (3) fiscal quarters in each fiscal year, and (ii)
within one hundred twenty (120) days of the end of each fiscal year, a balance
sheet and a profit and loss statement reflecting the financial status of the
Practice in regard to the provision of Professional Eye Care Services as of the
end of such period, all of which shall be prepared in accordance with GAAP
consistently applied. In addition, Business Manager shall prepare or assist in
the preparation of any other financial statements or records as the Practice
may reasonably request.
(c) Sales and Use Taxes. Business Manager and the
Practice acknowledge and agree that to the extent that any of the services to
be provided by Business Manager hereunder may be subject to any state sales and
use taxes, Business Manager may have a legal obligation to collect such taxes
from the Practice and to remit the same to the appropriate tax collection
authorities. The Practice agrees to have applicable state sales and use taxes
attributable to the services to be provided by Business Manager hereunder
treated as an Office Expense.
3.12 Reports and Records.
(a) Health Care Records. To the extent permitted by
applicable law, Business Manager shall establish, monitor, and maintain
procedures and policies for the timely creation, preparation, filing and
retrieval of all health care records generated by the Practice in
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connection with the Practice's provision of Professional Eye Care Services;
and, subject to applicable law, shall ensure that health care records are
promptly available to Professionals and any other appropriate persons. All
such health care records shall be retained and maintained by the Practice, and
the Business Manager as agent for the Practice, in accordance with all
applicable State and federal laws relating to the confidentiality and retention
thereof. All health care records shall be and remain the property of the
Practice. The Practice shall at all times during the term of this Agreement
grant Business Manager unrestricted access to such health care records and
shall in the course of the Practice's business obtain the written consent of
the Practice's patients to Business Manager's access to, and review and use of
such records.
(b) Other Reports and Records. Business Manager shall
timely create, prepare, and file such additional reports and records as are
reasonably necessary and appropriate for the Practice's provision of
Professional Eye Care Services, and shall be prepared to analyze and interpret
such reports and records upon the request of the Practice.
3.13 Recruitment of the Practice's Professionals. Upon the
Practice's request, Business Manager shall perform all administrative services
reasonably necessary and appropriate to recruit potential Professionals to
become employees of the Practice. Business Manager shall provide the Practice
with model agreements to document the Practice's employment, retention or other
service arrangements with such individuals. It will be and remain the sole and
complete responsibility of the Practice to interview, select, contract with,
supervise, control and terminate all Professionals performing Professional Eye
Care Services or other professional services.
3.14 Confidential and Proprietary Information.
(a) Business Manager agrees and acknowledges that all
materials provided by the Practice to the Business Manager constitute
Confidential Information disclosed in confidence and with the understanding
that it constitutes valuable business information developed by the Practice at
great expenditures of time, effort, and money. Business Manager further agrees
that it shall not, directly or indirectly, disclose any Confidential
Information of the Practice to other persons without the Practice's express
written authorization, such Confidential Information shall not be used in any
way directly or indirectly detrimental to the Practice, and Business Manager
will keep such Confidential Information confidential and will ensure that its
affiliates and advisors who have access to such Confidential Information comply
with these nondisclosure obligations; provided, however, that Business Manager
may disclose Confidential Information to those of its Representatives who need
to know Confidential Information for the purposes of this Business Management
Agreement, it being understood and agreed to by Business Manager that such
Representatives will be informed of the confidential nature of the Confidential
Information, will agree to be bound by this Section, and will be directed by
Business Manager not to disclose to any other person any Confidential
Information. Business Manager agrees to be responsible for any breach of this
Section by its affiliates, advisors, or Representatives. If Business Manager
is requested or required (by oral questions, interrogatories, requests for
information or documents, subpoenas, civil investigative demands,
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or similar processes) to disclose or produce any Confidential Information
furnished in the course of its dealings with the Practice or its affiliates,
advisors, or Representatives, Business Manager will (i) provide the Practice
with prompt notice thereof and copies, if possible, and, if not, a description,
of the Confidential Information requested or required to be produced so that
the Practice may seek an appropriate protective order or waive compliance with
the provisions of this Section and (ii) consult with the Practice as to the
advisability of the Practice's taking of legally available steps to resist or
narrow such request. Business Manager further agrees that, if in the absence
of a protective order or the receipt of a waiver hereunder Business Manager is
nonetheless, in the written opinion of its legal counsel, compelled to disclose
or produce Confidential Information concerning the Practice to any tribunal
legally authorized to request and entitled to receive such Confidential
Information or to stand liable for contempt or suffer other censure or penalty,
Business Manager may disclose or produce such Confidential Information to such
tribunal without liability hereunder; provided, however, that Business Manager
shall give the Practice written notice of the Confidential Information to be so
disclosed or produced as far in advance of its disclosure or production as is
practicable and shall use its best efforts to obtain, to the greatest extent
possible, an order or other reliable assurance that confidential treatment will
be accorded to such Confidential Information so required to be disclosed or
produced. Upon expiration or termination of this Business Management Agreement
by either Party for any reason whatsoever, Business Manager shall immediately
return and shall cause its Representatives, affiliates, and independent
contractors to immediately return to the Practice all Confidential Information,
and Business Manager shall not, and will cause its Representatives, affiliates,
and independent contractors not to, thereafter use, appropriate or reproduce
such Confidential Information. Business Manager further expressly acknowledges
and agrees that any such use, appropriation, or reproduction of any such
Confidential Information by any of the foregoing after the expiration or
termination of this Agreement will result in irreparable injury to the
Practice, that the remedy at law for the foregoing would be inadequate, and
that in the event of any such use, appropriation, or reproduction of any such
Confidential Information after the termination or expiration of this Agreement,
the Practice, in addition to any other remedies or damages available to it,
shall be entitled to injunctive or other equitable relief without the necessity
of posting a bond, cash, or otherwise, and without the necessity of proving
actual damages. Such rights to relief shall not preclude the Practice from
other remedies which may be available to it hereunder.
(b) Notwithstanding clause (a) above, Business Manager
may share, subject to the restrictions of this Section, with other professional
corporations, associations, ophthalmology and optometry practices, or health
care delivery entities the practice statistics of the Practice, including
utilizing review data, quality assurance data, cost data, outcomes data, or
other practice data. In addition, Business Manager may disclose all
practice-related information necessary or desirable in connection with any
public or private offering of any debt or equity security. No such data will
disclose or divulge patient identifying information or, to the extent possible,
Professional identifying information.
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3.15 Business Manager's Insurance. Throughout the Term, Business
Manager shall, as an Office Expense, obtain and maintain with commercial
carriers, through self-insurance or some combination thereof, appropriate
workers' compensation coverage for Business Manager's employed personnel
provided pursuant to this Business Management Agreement, and professional,
casualty and comprehensive general liability insurance covering Business
Manager, Business Manager's personnel, and all of Business Manager's equipment
in such amounts, on such basis and upon such terms and conditions as Business
Manager deems appropriate. Such insurance policies shall be issued by a
carrier or carriers having a current rating of not less than "A" as rated by
A.M. Best Company, unless the Practice agrees in writing to the purchase of a
policy or policies from a carrier having a lesser rating than "A". Business
Manager shall cause the Practice to be named as an additional insured on
Business Manager's casualty and comprehensive general liability policy.
Business Manager hereby releases the Practice from any and all liability for
losses or damages caused by any act or neglect of the Practice occurring after
the effective date hereof to the extent that such losses or damages are covered
by insurance; provided, however, that such release shall not apply to any loss
or damage caused by the willful, wanton, or premeditated negligence of the
Practice. Business Manager shall obtain from any insurance company issuing the
foregoing policies its consent to the release from liability contained in this
Section. Upon the request of the Practice, Business Manager shall provide the
Practice with a certificate evidencing such insurance coverage. Business
Manager may also obtain key man life insurance policies on the life of any
Shareholder as is consistent with 1.18(n).
3.16 No Warranty. The Practice acknowledges that Business Manager
has not made and will not make any express or implied warranties or
representations that the Management Services provided by Business Manager will
result in any particular amount or level of optometry practice or income to the
Practice. Specifically, Business Manager has not represented that its
Management Services will result in higher revenues, lower expenses, greater
profits or growth in the number of patients treated by the Practice's
Professionals.
3.17 Non-Competition Covenant from Business Manager. The Business
Manager hereby recognizes and acknowledges that the Practice shall incur
substantial costs in modifying its business activities to carry out this
Business Management Agreement and that in the process of Business Manager's
providing services under this Business Management Agreement, the Business
Manager will be privy to financial and Confidential Information, to which the
Business Manager would not otherwise be exposed. Business Manager agrees and
acknowledges that the non-competition covenants described hereunder are
necessary for the protection of the Practice, and that the Practice would not
have entered into this Business Management Agreement without such covenants.
Business Manager represents, warrants and covenants that during the Term of
this Business Management Agreement and for a period of two (2) years from the
date this Business Management Agreement is terminated, other than if terminated
by Business Manager for cause, neither Business Manager nor any person or
entity affiliated directly or indirectly with Business Manager will, anywhere
within five (5) miles of any Office existing on the effective date of this
Business Management Agreement, enter into a direct or indirect relationship
similar
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to the relationship between the Practice and Business Manager, or acquire the
non-optometric assets of, any professional practice group or engage in any
other eye care business currently engaged in by the Business Manager without
approval of the Practice. The Local Advisory Council shall consult with
Business Manager with respect to any acquisition of or merger with a health
care practice outside such five (5) mile area and within the region described
in Exhibit 2.10. Notwithstanding anything to the contrary in this Section,
Business Manager (a) may establish and maintain relationships with the entities
described on Exhibit 3.17, (b) may enter into managed care agreements with (i)
other practices on the one hand, and national or regional payor entities on the
other hand, if the Practice, upon being offered the opportunity to enter into
such managed care agreements, elects not to enter into such managed care
agreements, (ii) other health care practices within the above-described file
(5) mile area if and to the extent that the Practice is unable to provide the
specific services, reasonable access to, or minimum standards as required by, a
managed care payor for all of the patients to be covered by a managed care
agreement, and (iii) other health care practices where Business Manager
reasonably believes additional providers are required to obtain a contract;
provided, however, that the exceptions to Business Manager's covenant not to
compete contained in this subsection (b) shall not permit Business Manager to
enter into business management agreements with such other health care
practices. If the Business Manager breaches any obligation set forth in this
Section, in addition to any other remedies available under this Business
Management Agreement, at law or in equity, the Practice shall be entitled to
enforce this Business Management Agreement by injunctive relief and by specific
performance of the Business Management Agreement, such relief to be without the
necessity of posting a bond, cash or otherwise. Additionally, nothing in this
Section 3.17 shall limit the Practice's right to recover any other damages to
which it is entitled as a result of the Business Manager's breach. The time
period for which the non-competition covenants are effective shall be extended
day for day for the time period the Business Manager is in violation of the
non-competition covenants. If any provision of the covenants is held by a
court of competent jurisdiction to be unenforceable due to an excessive time
period, geographic area, or restricted activity, the covenants shall be
reformed to comply with such time period, geographic area, or restricted
activity that would be held enforceable. Following termination of this
Agreement pursuant to Section 6.2(b) hereof, Business Manager shall be released
from any and all of the restrictions imposed in this Section 3.17.
3.18 Marketing and Public Relations. In accordance with applicable
laws, regulations and ethical standards, Business Manager shall use its best
efforts to provide such marketing, support, advertising and public relations
services as are appropriate to promote and market the Practice's Professional
Eye Care Services. Such services shall be subject to review by the Local
Advisory Council. At the option of Business Manager and to the extent
permitted by law, the Business Manager's corporate name may be included on any
or all signage, letterhead, advertisements, announcements and the like relating
to Professional Eye Care Services provided by the Practice. Marketing support
services include training the Practice's personnel concerning marketing
techniques, providing written materials that may be used in marketing, and
providing technical assistance to the Practice's personnel engaged in direct
marketing efforts such as administrative support and assistance in contract
negotiation and implementation. Business
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Manager shall not perform direct marketing to potential sources of business,
but shall provide assistance to the Practice's personnel who perform any such
direct marketing as set forth above. Use of the Practice's name in any
advertising or promotions shall require the Practice's advance approval.
3.19 Inconsistent Transaction by Business Manager. The Business
Manager agrees that in performing the Management Services with respect to the
Practice, it shall not enter into any agreements, commitments or transactions
or engage in any activities which are exclusively within the authority and
responsibility of the Practice as set forth in this Agreement or are otherwise
materially inconsistent with the provisions of this Agreement.
3.20 Payment of Cash Portion of Note. From and after the effective
date hereof, Business Manager covenants and agrees to use its best efforts to
either (a) obtain from a financially secure third party such third party's
direct unconditional guaranty of payment of the mandatory cash portion of any
promissory note delivered by Business Manager in connection with an Acquisition
Transaction, or arrange a commercially reasonable credit facility or financing
arrangement from a financial institution or investor to be used for the payment
or direct security in form acceptable to the Practice for the payment of the
mandatory cash portion of such promissory note. Until payment of the mandatory
cash portion of the promissory note is protected in the foregoing manner,
Business Manager shall accumulate and reserve all of its net income, shall not
make any distributions of such net income to its shareholders, and shall not
use any of such reserved funds for acquisitions of, or mergers with, additional
health care practices. Notwithstanding the foregoing, Business Manager and its
subsidiaries shall be entitled to (i) continue its acquisitions and mergers
with the founding practices from the effective date hereof until December 31,
1996, (ii) enter into mergers with additional health care practices so long as
no cash consideration is used, and (iii) acquire or merge with additional
health care practices using such reserved funds so long as 2/3rds (66 2/3%) of
the shares held by the Founding Practices are voted in favor of such
acquisition or merger. For the purposes of this section a "financially secure
third party" shall be deemed to be a financial institution or investor having a
lending ability, fund size or net worth in excess of $100.0 million.
4. OBLIGATIONS AND RESPONSIBILITIES OF THE PRACTICE.
4.1 Organization and Operation. The Practice, as a continuing
condition of Business Manager's obligations under this Business Management
Agreement, shall at all times during the Term be and remain legally organized
and operated to provide Professional Eye Care Services in a manner consistent
with all State, federal and local laws. The Practice shall operate and
maintain within the Practice Territory a full-time practice of optometry
specializing in the provision of Professional Eye Care Services and shall
maintain and enforce employment agreements in the form of Exhibit 4.1A with the
Shareholders of the Practice specified in Exhibit 4.1B; provided, however, that
after the expiration of such employment agreements, and in the event that such
Shareholders continue a relationship with the Practice thereafter, the Practice
shall maintain and enforce employment agreements with such Shareholders and all
future
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Shareholders in the form of Exhibit 4.1C. Shareholders agree and the Practice
shall take steps to obtain the executed employment agreements in the form of
Exhibit 4.1C from such Shareholders after the five (5) year period and all
future Shareholders during the entire term of this Agreement if the Shareholder
elects to continue his relationship. After five (5) years from the effective
date of this Agreement, or earlier in the event of death or permanent
disability, a Shareholder may choose a successor to replace him as a
Shareholder. A Shareholder who wishes to have a successor replace him as a
Shareholder must first demonstrate to and obtain consent from Business Manager
that the successor is licensed to practice optometry in the State, and is
competent and capable to assume ownership of the Practice. Business Manager
Consent shall not be unreasonably withheld with respect to such replacement.
In the event of disability, death or planned retirement after five years,
Business Manager will make a good faith effort in assisting the Practice in
locating a possible successor. It is understood however that Business Manager
has no ultimate responsibility to find the ultimate successor, which shall be
the sole responsibility of the Shareholder. The Practice shall not amend the
employment agreements or waive any rights thereunder without the prior approval
of Business Manager. Recognizing that Business Manager would not have entered
into this Business Management Agreement but for the Practice's covenant to
maintain employment agreements with its Shareholders, the Practice shall pay to
Business Manager, in addition to the Management Fee, any damages, compensation,
payment, or settlement received by the Practice from each Shareholder specified
in Exhibit 4.1B pursuant to any non-competition covenant contained in Exhibit
4.1A. Such payment shall constitute liquidated damages of Business Manager for
the Practice's breach of the covenant contained in this Section 4.1. All
expenses and costs in enforcing the foregoing covenants not to compete shall be
deemed to be Office Expenses. The Practice shall take steps to have all future
Shareholders execute any reasonable documentation as required by Business
Manager in connection with this Section.
4.2 Practice Personnel. The Practice shall retain, that number
of Professionals sufficient in the sole discretion of the Practice as are
reasonably necessary and appropriate for the provision of Professional Eye Care
Services, each of whom shall act in accordance with the applicable provisions of
this Business Management Agreement. Each Optometrist retained by the Practice
shall hold and maintain a valid and unrestricted license to practice optometry
in the State, and shall be competent in the practice of optometry. The Practice
shall enter into and maintain with each such retained Optometrist and enforce a
written employment agreement substantially in the form of Exhibit 4.2B.
Notwithstanding the foregoing provisions, the employment contracts currently in
effect on the effective date of this Agreement with the non-shareholder
Professionals identified on Exhibit 4.2C shall remain in force during the
existing term; provided, however, that upon completion of such term should the
non-shareholder remain at the Practice or at such time the non-shareholder
Professional is granted options by Vision 21, such Professionals' employment
contracts shall then be immediately replaced with employment contracts in
substantially the form of Exhibit 4.1C. The Practice shall be responsible for
hiring, training, supervision, discipline, termination and paying the
compensation, and benefits as applicable, for all Professional personnel and
other contracted or
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affiliated Professionals, and for withholding, as required by law, any sums for
income tax, unemployment insurance, social security, or any other withholding
required by applicable law. Business Manager shall, however, on behalf of the
Practice, administer the compensation with respect to such individuals in
accordance with the written employment agreement between the Practice and each
Professional. The Practice shall cause its Professionals to obtain and
maintain all licenses and permits required in connection with the practice of
optometry, any other business it has or the administration of drugs by such
Professionals. Business Manager shall neither control nor direct any
Professional in the performance of Professional Eye Care Services for patients.
All damages recovered for violations of non-competition covenants from
Professionals subject to employment agreements in the forms of Exhibit 4.1C,
Exhibit 4.2A, or Exhibit 4.2B shall be treated as Adjusted Gross Revenue.
4.3 Professional Standards. As a continuing condition of Business
Manager's obligations hereunder each Optometrist and any other Optometrist
personnel retained by the Practice to provide optometry services must (i) have
and maintain a valid and unrestricted license to practice optometry in the
State, (ii) comply with, be controlled and governed by and otherwise provide
optometry services in accordance with applicable federal, State and municipal
laws, rules, regulations, ordinances and orders, and the ethics and standard of
care of the optometric community wherein the principal Office of the Practice
is located, (iii) obtain and retain appropriate staff membership with
appropriate privileges at any hospital or health care facility at which
optometry services are to be provided, and (iv) provide on a continual basis,
quality care to its patients. Procurement of temporary staff privileges
pending the completion of the staff approval process shall satisfy this
provision, provided the Optometrist actively pursues full appointment and
actually receives full appointment within a reasonable time.
4.4 Professional Eye Care Services. The Practice shall ensure
that Professionals are available as necessary to provide quality Professional
Eye Care Services to patients and shall assist the Business Manager in ensuring
that Clinical Personnel are available as necessary to provide quality
Professional Eye Care Services to patients. In the event that Professionals
employed by, or Shareholders of, the Practice are not available to provide
Professional Eye Care Services coverage, the Practice shall engage and retain
locum tenens coverage. Professionals retained on a locum tenens basis shall
meet all of the requirements of Section 4.3, and the cost of providing locum
tenens coverage shall be a Practice Expense. With the assistance of the
Business Manager, the Practice and the Professionals shall be responsible for
scheduling Professional and Clinical Personnel coverage of all optometric
procedures. The Practice shall cause all Professionals to exert their best
efforts to develop and promote the Practice in such manner as to ensure the
Practice is able to serve the diverse needs of the community.
4.5 Peer Review/Quality Assurance. The Practice shall adopt a
peer review/quality assurance program to monitor and evaluate the quality and
cost-effectiveness of Professional Eye Care Services provided by Professional
personnel of the Practice, the expenses of which shall be deemed an Office
Expense. Pursuant to such program, the Practice shall designate a committee of
Professionals to function as an optometric peer review committee to review
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credentials of potential recruits, perform quality assurance functions, and
otherwise resolve optometric competence issues. The optometric peer review
committee shall function pursuant to formal written policies and procedures.
Upon request of the Practice, Business Manager shall provide administrative
assistance to the Practice in performing its peer review/quality assurance
activities, but only if such assistance can be provided consistent with
maintaining the confidentiality, immunity, and non-discoverability of the
processes and actions of the peer review/quality assurance process of the
Practice.
4.6 Practice's Insurance. The Practice shall, obtain and
maintain with commercial carriers chosen by the Practice appropriate workers'
compensation coverage for the Practice's employed personnel, if any, and
professional and comprehensive general liability insurance covering the Practice
and each of the Professionals and Clinical Personnel the Practice retains to
provide Professional Eye Care Services. The comprehensive general liability
coverage with respect to each Professional and Clinical Personnel shall be in
the minimum amount of One Million Dollars ($1,000,000) and professional
liability coverage shall be in the minimum amount of One Million Dollars
($1,000,000) for each occurrence and Three Million Dollars ($3,000,000) annual
aggregate; provided, however, that with Business Manager Consent, which shall
not be unreasonably withheld or delayed, the Practice may from time-to-time
change such liability coverage amounts to amounts which are consistent with
industry standards. The insurance policy or policies shall provide for at least
thirty (30) days' advance written notice to the Practice from the insurer as to
any alteration of coverage, cancellation, or proposed cancellation for any
cause. The Practice hereby releases Business Manager from any and all liability
for losses or damages caused by any act or neglect of Business Manager occurring
after the effective date hereof to the extent that such losses or damages are
covered by insurance; provided, however, that such release shall not apply to
any loss or damage caused by the willful, wanton, or premeditated negligence of
Business Manager. The Practice shall obtain from any insurance company issuing
the foregoing policies its consent to the release from liability contained in
this Section. The Practice shall cause to be issued to Business Manager by such
insurer or insurers a certificate reflecting such coverage and obtain the
consent of such insurer or insurers to provide prior written notice to Business
Manager equal to notice given to a Professional of the cancellation or proposed
cancellation of such insurance for any cause. Such insurance policies shall be
issued by a carrier or carriers having a current rating of not less than "A" as
rated by A.M. Best Company, unless Business Manager agrees in writing to the
purchase of a policy or policies from a carrier having a lesser rating than "A".
The Local Advisory Council may, from time-to-time, select a different commercial
carrier or carriers for such workers' compensation and professional and general
liability coverage upon the establishment of a program affecting substantially
all practice groups within the market in which the Practice is located for which
Business Manager provides management services, which decision shall be binding
upon the Practice. Upon the termination of this Business Management Agreement
for any reason, the Practice shall continue to carry professional liability
insurance in the amounts specified herein for the shorter period of (i) the
period set forth in the State's statute of repose (or if no
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statute of repose exists, the State's statute of limitations) for bringing
professional malpractice claims based upon injuries which are not immediately
discoverable plus any applicable tolling periods, or (ii) ten (10) years after
termination; or if the Practice dissolves or ceases to practice optometry, the
Practice shall obtain and maintain as a Shareholder Expense "tail" professional
liability coverage, in the amounts specified in this Section for the shorter
period of (i) the period set forth in the State's statute of repose (or if no
statute of repose exists, the State's statute of limitations) for bringing
professional malpractice claims based upon injuries which are not immediately
discoverable plus any applicable tolling periods, or (ii) ten (10) years. The
Practice shall be responsible for paying all premiums for Shareholder "tail"
insurance coverage and such coverage shall be a Shareholder Expense; provided,
however, that the Practice may cause its Professionals to be responsible for
paying the premiums for such "tail" insurance coverage. Except as determined
by the Local Advisory Council, the professional liability insurance carrier
shall not be replaced or changed without Practice Consent and Business Manager
Consent.
4.7 Confidential and Proprietary Information. The Practice agrees
and acknowledges that all materials provided by Business Manager to the
Practice constitute Confidential Information disclosed in confidence and with
the understanding that it constitutes valuable business information developed
by Business Manager at great expenditures of time, effort, and money. The
Practice further agrees that it shall not, directly or indirectly, disclose any
Confidential Information of the Business Manager to other persons without
Business Manager's express written authorization, such Confidential Information
shall not be used in any way directly or indirectly detrimental to Business
Manager, and the Practice will keep such Confidential Information confidential
and will ensure that its affiliates and advisors who have access to such
Confidential Information comply with these nondisclosure obligations; provided,
however, that the Practice may disclose Confidential Information to those of
its Representatives who need to know Confidential Information for the purposes
of this Business Management Agreement, it being understood and agreed to by the
Practice that such Representatives will be informed of the confidential nature
of the Confidential Information, will agree to be bound by this Section, and
will be directed by the Practice not to disclose to any other person any
Confidential Information. The Practice agrees to be responsible for any breach
of this Section by its affiliates, advisors, or Representatives. If the
Practice is requested or required (by oral questions, interrogatories, requests
for information or documents, subpoenas, civil investigative demands, or
similar processes) to disclose or produce any Confidential Information
furnished in the course of its dealings with Business Manager or its
affiliates, advisors, or Representatives, the Practice will (i) provide
Business Manager with prompt notice thereof and copies, if possible, and, if
not, a description, of the Confidential Information requested or required to be
produced so that Business Manager may seek an appropriate protective order or
waive compliance with the provisions of this Section and (ii) consult with
Business Manager as to the advisability of Business Manager's taking of legally
available steps to resist or narrow such request. The Practice further agrees
that, if in the absence of a protective order or the receipt of a waiver
hereunder, the Practice is nonetheless, in the written opinion of its legal
counsel, compelled to disclose or produce Confidential Information concerning
Business Manager to any tribunal legally authorized to request and entitled to
receive such Confidential Information or to
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stand liable for contempt or suffer other censure or penalty, the Practice may
disclose or produce such Confidential Information to such tribunal without
liability hereunder; provided, however, that the Practice shall give Business
Manager written notice of the Confidential Information to be so disclosed or
produced as far in advance of its disclosure or production as is practicable
and shall use its best efforts to obtain, to the greatest extent possible, an
order or other reliable assurance that confidential treatment will be accorded
to such Confidential Information so required to be disclosed or produced. The
Practice acknowledges that the disclosure of Confidential Information to it by
Business Manager is done in reliance upon its representations and covenants in
this Business Management Agreement. Upon expiration or termination of this
Business Management Agreement by either Party for any reason whatsoever, the
Practice shall immediately return and shall cause its Representatives,
affiliates, and independent contractors to immediately return to Business
Manager all Confidential Information, and the Practice will not, and will cause
its Representatives, affiliates, and independent contractors not to, thereafter
use, appropriate or reproduce such Confidential Information. The Practice
further expressly acknowledges and agrees that any such use, appropriation, or
reproduction of any such Confidential Information by any of the foregoing after
the expiration or termination of this Agreement will result in irreparable
injury to Business Manager, that the remedy at law for the foregoing would be
inadequate, and that in the event of any such use, appropriation, or
reproduction of any such Confidential Information after the termination or
expiration of this Agreement, Business Manager, in addition to any other
remedies or damages available to it, shall be entitled to injunctive or other
equitable relief without the necessity of posting a bond, cash, or otherwise,
and without the necessity of proving actual damages. Such rights to relief
shall not preclude Business Manager from other remedies which may be available
to it hereunder.
4.8 Non-Competition. The Practice hereby recognizes and
acknowledges that Business Manager will incur substantial costs in providing
the equipment, support services, personnel, management, administration, and
other items and services that are the subject matter of this Business
Management Agreement and that in the process of providing services under this
Business Management Agreement, the Practice will be privy to financial and
Confidential Information, to which the Practice would not otherwise be exposed.
The Parties also recognize that the services to be provided by Business Manager
will be feasible only if the Practice operates an active practice to which the
Professionals associated with the Practice devote their full time and
attention. The Practice agrees and acknowledges that the non-competition
covenants described hereunder are necessary for the protection of Business
Manager, and that Business Manager would not have entered into this Business
Management Agreement without the following covenants.
(a) During the Term of this Business Management
Agreement and except for its obligations pursuant to this Business Management
Agreement, the Practice shall not establish, operate, or provide Professional
Eye Care Services at a medical office, optometric office or other health care
facility anywhere within twenty (20) miles of any current or future location at
which Business Manager provides business management services similar to the
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services contemplated in this Agreement; provided, however, that the Practice
may carry on the activities described in Exhibit 1.3 without violating this
Section 4.8.
(b) Except as specifically agreed to by Business
Manager in writing, the Practice and its Shareholders covenant and agree that
during the Term of this Business Management Agreement and for a period of two
(2) years from the date this Business Management Agreement is terminated, other
than if terminated by the Practice for cause, or expires, the Practice shall
not directly or indirectly own (excluding ownership of less than one percent
(1%) of the equity of any publicly traded entity and excluding ownership of the
common stock of Business Manager), manage, operate, control, contract with,
lend funds to, lend its name to, maintain any interest whatsoever in, or be
employed by, any enterprise (i) having to do with the provision, distribution,
promotion, or advertising of any type of management or administrative services
or products to third parties in competition with Business Manager, located
anywhere in the United States of America; and/or (ii) offering any type of
service(s) or product(s) to third parties substantially similar to those
offered by Business Manager to the Practice located anywhere in the United
States of America. Notwithstanding the above restriction, nothing herein shall
prohibit (i) the Practice or any of its Shareholders from providing management
and administrative services to this or their own optometry practices after the
termination of this Business Management Agreement, (ii) the Practice or its
Shareholders from contracting with a third-party manager to provide
administrative or management services for its or their professional eye care
practices after termination of this Business Management Agreement and two (2)
years thereafter, as long as such relationship complies with the provisions of
this Section 4.8(b); (iii) any of the Practice's Shareholders from providing
management and administrative services to their own optometry practices after
the termination of their employment relationship with the Practice in
accordance with this Business Management Agreement, and (iv) such Shareholders
from contracting with a third-party manager to provide administrative or
management services for their professional eye care practices after the
termination of their employment relationship with the Practice in accordance
with this Business Management Agreement. If the Practice violates this
Section, the Practice shall pay to Business Manager the amount received as
consideration by the Practice and/or the Shareholders in connection with the
Acquisition Transaction, as agreed upon liquidated damages. The Practice and
the Shareholders acknowledge and agree that such sum is reasonable in light of
the severe harm that Business Manager would suffer as a result of the
Practice's breach of this restrictive covenant. If the Practice fails to make
payment of liquidated damages as contemplated by this Section, Business Manager
shall be entitled among all other rights and remedies available at law or
equity, to (i) cancel the number of shares of Business Manager's common stock
held by the Practice or the Shareholders or, with respect to shares of Business
Managers' common stock entitled to be received by the Practice or the
Shareholders pursuant to the Acquisition Agreement, terminate its obligation to
deliver such number of shares of Business Manager's common stock, valued at the
market price per share representing such liquidated damages sum, or (ii) set
off all or any of such liquidated damages sum against amounts payable under any
promissory note held by the Practice or the Shareholders, or do both of the
foregoing, but in no
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event shall Business Manager be entitled to offset amounts in excess of the
liquidated damages sum pursuant to this Section.
(c) The written employment agreements in the form of
Exhibit 4.1A shall contain covenants of the Shareholder employees pursuant to
which the Shareholders agree not to compete with the Practice or with the
Business Manager within the Practice Territory for two (2) years after
termination or expiration of the employment agreement.
(d) The Practice shall obtain and enforce formal
written agreements from its Optometrist employees in the form of Exhibit 4.2A
or Exhibit 4.1C, as the case may be, pursuant to which the employees agree not
to compete with the Practice or with the Business Manager within the Practice
Territory for one (1) year after termination or expiration of the employment
agreement.
(e) The Practice understands and acknowledges that
Business Manager shall suffer severe harm in the event that the foregoing
non-competition covenants in Section 4.8 are violated, and accordingly, if the
Practice breaches any obligation of Section 4.8, in addition to any other
remedies available under this Business Management Agreement, at law or in
equity, Business Manager shall be entitled to enforce this Business Management
Agreement by injunctive relief and by specific performance of the Business
Management Agreement, such relief to be without the necessity of posting a
bond, cash or otherwise. Additionally, nothing in this Section 4.8(e) shall
limit Business Manager's right to recover any other damages to which it is
entitled as a result of the Practice's breach. The time period for which the
non-competition covenant is effective shall be extended day for day for the
time period the Practice is in violation of the non-competition covenant. If
any provision of the covenants is held by a court of competent jurisdiction to
be unenforceable due to an excessive time period, geographic area, or
restricted activity, the covenant shall be reformed to comply with such time
period, geographic area, or restricted activity that would be held enforceable.
Following termination of this Agreement pursuant to Section 6.2(b) hereof, the
Practice shall not amend, alter or otherwise change any term or provision of
the restrictive covenants or liquidated damages provisions of the employment
agreements with the Professionals. Following termination of this Agreement
pursuant to Section 6.2(a) hereof, the Practice and the Professionals shall be
relieved of the restrictions imposed by this Section 4.8.
4.9 Name, Trademark. The Practice represents and warrants that
the Practice conducts its professional practice under the name of, and only
under the name of "Xxxxxxxx & Associates, #6965 P.A" and that such name is duly
registered, qualified, or licensed under the law of the State, and that, to the
Practice's knowledge, the Practice is the sole and absolute owner of the name
in the State. The Practice covenants and promises that, without the prior
written consent of the Business Manager, the Practice will not:
(a) take any action that is reasonably likely to result
in the loss of registration, qualification or licensure of the name;
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(b) fail to take any reasonably necessary action that
will maintain the registration, qualification, or licensure current;
(c) license, sell, give, or otherwise transfer the name
or the right to use the name to any optometry practice, Optometrist,
professional corporation, or any other entity; or
(d) cease conducting the professional practice of the
Practice under the name.
4.10 Lease Assignment. Upon Business Manager's request, if the
Practice is the lessee of the Office under a lease with an unrelated and
unaffiliated lessor, the Practice shall assign the lease to Business Manager
upon receipt of consent from the lessor. The Practice shall use its best
efforts to assist in obtaining the lessor's consent to the assignment. Upon
request, the Practice shall execute any instruments and shall take any acts
that Business Manager may deem necessary to accomplish the assignment of the
lease.
4.11 Billing Information and Assignments; Establishment of Fees.
The Practice shall promptly provide the Business Manager with all billing and
other information reasonably requested by the Business Manager to enable it to
xxxx and collect the Practice's fees and other charges and reimbursement claims
pursuant to Section 3.9, and the Practice shall use its best efforts to procure
consents to assignments and other approvals and documents necessary to enable
the Business Manager to obtain payment or reimbursement from third parties for
such fees, other charges and claims. The Practice shall establish reasonable
fees for all professional and ancillary services and pharmaceutical items in
connection with the provision of Professional Eye Care Services.
4.12 Provider Agreements. The Practice shall not enter into
contractual arrangements with third parties for the Practice's provision of
Professional Eye Care Services which are inconsistent with guidelines
established by the Local Advisory Council or any capitated fee arrangement
without the prior approval of the Practice Advisory Council. Subject to the
foregoing provision, the Practice shall have the final authority with regard to
all of such contractual arrangements.
4.13 Inconsistent Transaction by the Practice. The Practice agrees
that it shall not enter into any agreements, commitments or transactions or
engage in any activities which are within the authority and responsibility of
the Business Manager as set forth in this Agreement or otherwise materially
inconsistent with the provisions of this Agreement.
4.14 Recommendations. The Practice shall make recommendations to
Business Manager regarding the Office, the equipment, the business operations,
and the services to be provided by Business Manager under this Business
Management Agreement.
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4.15 General Obligations. The Practice shall take all lawful
actions reasonably necessary to maximize revenues and shall not take any action
to reduce revenues other than in the ordinary course of business.
4.16 Tax Matters. The Practice shall prepare or arrange for the
preparation by an accountant selected by the Practice of all appropriate
corporate tax returns and reports required of the Practice including such
returns and reports required with respect to the Account. All costs and
expenses relating to the preparation of such returns and reports shall be
deemed a Shareholder Expense.
4.17 Shareholders' Undertaking to Enforce Certain Provisions of
Agreement. The Practice shall cause to be executed by all Shareholders of the
Practice an undertaking in the form of Exhibit 4.17 by such Shareholders to
ensure that the corporate existence of the Practice is maintained and that the
covenants not to compete described in Sections 4.1 and 4.2 of this Agreement
are enforced by the Practice against any individuals violating such covenants.
5. BUSINESS MANAGER'S COMPENSATION.
5.1 Management Fee. The Practice and Business Manager agree to
the compensation set forth herein as being paid to Business Manager in
consideration of a substantial commitment made by Business Manager hereunder
and that such fees are fair and reasonable. Each month Business Manager shall
be paid the sum of that percentage set forth in Exhibit 5.1 of Adjusted Gross
Revenue (the "Management Fee"). Except for its obligation to pay in full all
Office Expenses, Business Manager shall not be liable for any losses generated
by the Practice.
5.2 Reasonable Value. Payment of the Management Fee is not
intended to be and shall not be interpreted or applied as permitting Business
Manager to share in the Practice's fees for Professional Eye Care Services or
any other services, but is acknowledged as the Parties' negotiated agreement as
to the reasonable fair market value of Business Manager's commitment to pay all
Office Expenses and the fair market value of the equipment, contract analysis
and support, other support services, purchasing, personnel, office space,
management, administration, strategic management and other items and services
furnished by Business Manager pursuant to the Business Management Agreement,
considering the nature and volume of the services required and the risks
assumed by Business Manager. The Practice and Business Manager recognize and
acknowledge that Business Manager will incur substantial costs and business
risks in undertaking to pay all Office Expenses, arranging for the Practice's
use of the Office and in providing the equipment, support services, personnel,
marketing, office space, management, administration, and other items and
services that are the subject matter of this Business Management Agreement, and
certain of such costs and expenses can vary to a considerable degree according
to the extent of the Practice's business and services. It is the
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intent of the Parties that the Management Fee reasonably compensate Business
Manager for the value to the Practice of Business Manager's administrative
expertise, given the considerable business risk to Business Manager in
providing the Management Services that are the subject of this Business
Management Agreement.
5.3 Payment of Management Fee. To facilitate the payment of the
Management Fee as provided in Section 5.1(a) hereof, the Practice hereby
expressly authorizes Business Manager to make withdrawals of the Management Fee
from the Account as such fee becomes due and payable during the Term in
accordance with Section 3.10(a) and after termination as provided in Section
6.3. Business Manager shall deliver to the Practice an invoice for the
Management Fee accompanied by a reasonably detailed statement of the
information upon which the Management Fee calculation is based.
5.4 Assignment of Fees for Optometry Services.
(a) As security for the performance of its obligations
under this Business Management Agreement, the Practice hereby irrevocably
assigns and sets over to Business Manager all of its right to receive payment
for Professional Eye Care Services (other than rights to receive payments
relating to the activities described in Exhibit 1.3) to the extent permitted by
law (the "Accounts Receivable") and retain such payment for its own account,
and shall obtain a like assignment from all Professionals. To the extent such
rights to receive payment cannot legally be assigned, the "Accounts Receivable"
shall include the right to have any amounts received by the Practice pursuant
to such non-assignable rights paid over to Business Manager upon receipt. The
Practice shall take such action as may be necessary to confirm to Business
Manager the rights set forth in this Section 5.4(a).
(b) Without limiting the generality of the foregoing,
it is the intent of the Parties that the assignments to Business Manager of the
rights described in Section 5.4(a) above shall be inclusive of the rights of
the Practice and the Professionals to receive payment with respect to any
services rendered prior to the effective date of any expiration or termination
of this Agreement; provided, however, that the right to receive payments
relating to the activities described in Exhibit 1.3 shall be excluded from such
assignment. The Practice agrees and shall cause each Professional to agree,
that Business Manager shall retain the right to collect and hold as security
any Accounts Receivable relating to any such services rendered prior to the
effective date of any such expiration or termination ("Pre-Termination Accounts
Receivable").
(c) The Practice acknowledges that it is the intent of
Business Manager to grant a security interest in one hundred percent (100%) of
the Pre-Termination Accounts Receivable, to the lender(s) under its working
capital credit facility (whether one or more, the "Credit Facility Lender"), as
in effect from time-to-time. The Practice agrees that such security interest
of the Credit Facility Lender is intended to be a first priority security
interest and is superior to any right, title or interest which may be asserted
by the Practice or any Professional
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with respect to the then applicable portion of the Pre-Termination Accounts
Receivable or the proceeds thereof. The Practice further agrees, and shall
cause each Professional to agree, that, upon the occurrence of an event which,
under the terms of such working capital credit facility, would allow the Credit
Facility Lender to exercise its right to collect such portion of the
Pre-Termination Accounts Receivable and apply the proceeds thereof toward
amounts due under such working capital credit facility, the Credit Facility
Lender will succeed to all rights and powers of Business Manager under the
powers of attorney provided for in Section 3.9(f) above as if such Credit
Facility Lender had been named as the attorney-in-fact therein, and the
Practice and each Professional hereby waive, and the Credit Facility Lender
shall not take the Pre-Termination Accounts Receivable subject to, any and all
defenses the Practice and/or such Professionals may have with respect to money
coming into the Account and any defenses they may have against the Credit
Facility Lender. The Practice shall, and shall cause its Professionals to,
execute any and all documents, financing statements, and agreements reasonably
requested by such Credit Facility Lender to evidence and effectuate the Credit
Facility Lender's rights contemplated in this Section.
(d) In the event that, contrary to the mutual intent of
Business Manager and the Practice, the assignment of rights described in this
Section 5.4 shall be deemed, for any reason, to be ineffective as an outright
assignment, the Practice and each Professional shall, effective as of the date
of this Business Management Agreement, be deemed to have granted (and the
Practice does hereby grant, and shall cause each Professional to grant) to
Business Manager a first priority lien on and security interest in and to any
and all interests of the Practice and such Professionals in any accounts
receivable generated by the provision of Professional Eye Care Services by the
Practice and its Professionals or otherwise generated through the operations of
the Office, and all proceeds with respect thereto, to secure the payment to
Business Manager of all amounts due to Business Manager hereunder, and this
Business Management Agreement shall be deemed to be a security agreement to the
extent necessary to give effect to the foregoing. The Practice shall execute
and deliver, and cause each Professional to execute and deliver, all such
financing statements as Business Manager may request in order to perfect such
security interest. The Practice shall not grant (and shall not suffer any
Professional to grant) any other lien on or security interest in or to such
accounts receivable or any proceeds thereof.
(e) Upon termination of this Business Management
Agreement, Business Manager shall release the foregoing lien with respect to
Accounts Receivable generated after the effective date of such termination and
shall execute and cause to be filed any termination statements relating to such
release of lien. However, it is understood that all rights of the Parties to
the Accounts Receivable shall be subordinate to any interest of the Credit
Facility Lender.
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5.5 Disputes Regarding Fees.
(a) It is the Parties' intent that any disputes
regarding performance standards of the Business Manager be resolved to the
extent possible by good faith negotiation. To that end, the Parties agree that
if the Practice in good faith believes that Business Manager has failed to
perform its obligations, and that as a result of such failure, the Practice is
entitled to a set-off or reduction in its Management Fees, the Practice shall
give Business Manager notice of the perceived failure and request in the notice
a set-off or reduction in Management Fees. Business Manager and the Practice
shall then negotiate the dispute in good faith, and if an agreement is reached,
the Parties shall implement the resolution without further action.
(b) If the Parties cannot reach a resolution within a
reasonable time, the Parties shall submit the dispute to mediation to be
conducted in accordance with the Florida Mediation Rules.
(c) If the mediation process fails to resolve the
dispute, the dispute shall be submitted by either Party to binding arbitration
under Section 8.7.
6. TERM AND TERMINATION.
6.1 Initial and Renewal Term. The Term of this Business
Management Agreement will be for an initial period of forty (40) years after
the effective date, and shall be automatically renewed for successive five (5)
year periods thereafter, provided that neither Business Manager nor the
Practice shall have given notice of termination of this Business Management
Agreement at least one hundred twenty (120) days before the end of the initial
term or any renewal term, or unless otherwise terminated as provided in Section
6.2 of this Business Management Agreement.
6.2 Termination.
(a) Termination by the Practice. The Practice may
immediately terminate this Agreement at its discretion, upon written notice
pursuant to Section 8.3, as follows:
i) If Business Manager becomes insolvent by
reason of its inability to pay its debts as they mature; is adjudicated
bankrupt or insolvent; files a petition in bankruptcy, reorganization or
similar proceeding under the bankruptcy laws of the United States or shall have
such a petition filed against it which is not discharged within thirty (30)
days; has a receiver or other custodian, permanent or temporary, appointed for
its business, assets or property; makes a general assignment for the benefit of
creditors; has its bank accounts, property or accounts attached; has execution
levied against its business or property; or voluntarily dissolves or liquidates
or has a petition filed for corporate dissolution and such petition is not
dismissed with thirty (30) days;
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ii) If the Business Manager fails to comply
with any material provision of this Agreement, or any other agreement with the
Practice, and does not correct such failure within sixty (60) days after
written notice of such failure to comply is delivered by the Practice
specifying the nature of the breach in reasonable detail.
(b) Termination by Business Manager. Business Manager
may immediately terminate this Agreement at its discretion, upon written notice
pursuant to Section 8.3, as follows:
i) If the Practice becomes insolvent by
reason of its inability to pay its debts as they mature; is adjudicated
bankrupt or insolvent; files a petition in bankruptcy, reorganization or
similar proceeding under the bankruptcy laws of the United States or shall have
such a petition filed against it which is not discharged within thirty (30)
days; has a receiver or other custodian, permanent or temporary, appointed for
its business, assets or property; makes a general assignment for the benefit of
creditors; has its bank accounts, property or accounts attached; has execution
levied against its business or property; or voluntarily dissolves or liquidates
or has a petition filed for corporate dissolution and such petition is not
dismissed with thirty (30) days; or
ii) If the Practice fails to comply with any
material provision of this Agreement, or any other agreement with Business
Manager, and does not correct such failure within sixty (60) days after written
notice of such failure to comply is delivered by Business Manager specifying
the nature of the breach in reasonable detail; or
iii) If the Practice's Adjusted Gross Revenue
for any twelve (12) month consecutive period during this Agreement falls below
eighty percent (80%) of the Practice's Adjusted Gross Revenue for the
Practice's fiscal year 1995.
(c) Termination by Agreement. In the event the
Practice and Business Manager shall mutually agree in writing, this Business
Management Agreement may be terminated on the date specified in such written
agreement.
(d) Legislative, Regulatory or Administrative Change.
In the event there shall be a change in the Medicare or Medicaid statutes,
federal statutes, state statutes, case laws, administrative interpretations,
regulations or general instructions, the adoption of new federal or state
legislation, or a change in any third-party reimbursement system, any of which
are reasonably likely to materially and adversely affect the manner in which
either Party may perform or be compensated for its services under this Business
Management Agreement or which shall make this Business Management Agreement or
any related agreements unlawful or unenforceable, or which would be reasonably
likely to subject either Party to this Agreement, or any member, shareholder,
officer, director, employee, agent or affiliated organization to any civil or
criminal penalties or administrative sanctions, the Parties shall immediately
use their best efforts to enter into a new service arrangement or basis for
compensation for the services
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furnished pursuant to this Business Management Agreement that complies with the
law, regulation, or policy, or which minimizes the possibility of such
penalties, sanctions or unenforceability, and that approximates as closely as
possible the economic position of the Parties prior to the change. If the
Parties are unable to reach a new agreement within a reasonable time, then
either Party may submit the issue to arbitration pursuant to Section 8.7 for
the purpose of reaching an alternative arrangement that is equitable under the
circumstances.
6.3 Effects of Termination. Upon termination of this Business
Management Agreement, as hereinabove provided, neither Party shall have any
further obligations hereunder except for (i) obligations accruing prior to the
date of termination, including, without limitation, payment of the Management
Fee relating to services provided prior to the termination of this Business
Management Agreement, (ii) obligations, promises, or covenants set forth herein
that are expressly made to extend beyond the Term, including, without
limitation, insurance, indemnities and non-competition provisions, which
provisions shall survive the expiration or termination of this Business
Management Agreement, (iii) the obligation of the Practice described in Section
6.4, (iv) the obligation of Business Manager to repay amounts borrowed from the
Account pursuant to Section 5.4(a), and (v) the obligation of the Practice to
repay amounts advanced by Business Manager to the Practice. In effectuating
the provisions of this Section 6.3, the Practice specifically acknowledges and
agrees that if this Business Management Agreement terminates pursuant to
Sections 6.2(b) or (d), Business Manager shall continue for a period not to
exceed ninety (90) days to exclusively collect and receive on behalf of the
Practice all cash collections from accounts receivable in existence at the time
this Business Management Agreement is terminated, it being understood that (a)
such cash collections will represent compensation to Business Manager for
Management Services already rendered, (b) Business Manager shall not be
entitled to collect accounts receivables after the termination date if this
Agreement is terminated pursuant to Section 6.2(a), and (c) the Business
Manager shall deduct from such cash collections any other amounts owed to
Business Manager under this Business Management Agreement, including, without
limitation, (i) ten percent (10%) of such cash collections as its Management
Fee during any period after the termination of this Business Management
Agreement while such collections are taking place, (ii) any reasonable costs
incurred by Business Manager in carrying out the post termination procedures
and transactions contemplated herein, and (iii) any adjustments pursuant to
Section 3.10(b). Business Manager shall remit remaining amounts from such
collection activities, if any, to the Practice. Upon the expiration or
termination of this Business Management Agreement for any reason or cause
whatsoever, Business Manager shall surrender to the Practice all books and
records pertaining to the Practice's optometry practices. All sums received or
collected by either Party after termination for Adjusted Gross Revenues earned
prior to termination shall be split in accordance with this Section 6.3.
6.4 Purchase Obligation. Upon expiration of this Business
Management Agreement in accordance with Section 6.1 or termination of this
Business Management Agreement by Business Manager, as set forth in Section
6.2(b) above, the Practice shall upon Business Manager's demand:
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(a) Pay to Business Manager the difference between the
consideration received in the Acquisition Transaction minus the book value of
the net tangible assets (for purposes of such repurchase obligations such
difference shall be amortized over a forty (40) year period), deferred charges,
and all other amounts on the books of the Business Manager relating to the
Business Management Agreement, as such amounts shall be established pursuant to
the Acquisition Transaction and including amounts, if any, for the covenants
described in Section 4.8 above, as adjusted through the last day of the month
most recently ended prior to the date of such termination in accordance with
GAAP to reflect amortization or depreciation of the intangible assets, deferred
charges, or covenants;
(b) Purchase from Business Manager any real estate
owned by Business Manager and used as an Office at the greater of the appraised
fair market value thereof or the then book value thereof. In the event of any
repurchase of real property, the appraised value shall be determined by
Business Manager and the Practice, each selecting a duly qualified appraiser,
who in turn will agree on a third appraiser. This agreed-upon appraiser shall
perform the appraisal which shall be binding on both Parties. In the event
either Party fails to select an appraiser within fifteen (15) days of the
selection of an appraiser by the other Party, the appraiser selected by the
other Party shall perform the appraisal which shall be binding on both Parties;
(c) Purchase at book value all improvements, additions,
or leasehold improvements that have been made by Business Manager at any Office
and that relate principally to the performance of Business Manager's
obligations under this Business Management Agreement;
(d) Assume all contracts and leases and the Practice's
pro rata share of all debts and payables that are obligations of Business
Manager and that relate principally to the performance of Business Manager's
obligations under this Business Management Agreement or the properties leased
or subleased by Business Manager; provided, however, that the Practice shall
only be obligated to assume such contracts and leases if the Practice will be
able to enjoy the benefits of the contracts and leases following such
assumption;
(e) Purchase from Business Manager at book value all of
the equipment leased to the Practice, including all replacements and additions
thereto made by Business Manager pursuant to the performance of its obligations
under this Business Management Agreement, and all other assets, including
inventory and supplies, tangibles and intangibles, set forth on the books of
Business Manager as adjusted through the last day of the month most recently
ended prior to the date of such termination in accordance with GAAP to reflect
operations of the Office, depreciation, amortization, and other adjustments of
assets shown on the books of Business Manager; and
(f) Cause to be executed by Shareholders of the
Practice such personal guaranties and any security agreements reasonably
required by Business Manager in connection
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with the purchase described in this Section 6.4. For purposes of this Section
6.4(f), the term "Shareholders" shall mean any individual who is a Shareholder
of the Practice on the date that notice is given of the termination of this
Business Management Agreement and any additional individual who is a
Shareholder of the Practice on the effective date of this Business Management
Agreement. However, such obligations of personal guaranties by Shareholders
shall expire effective five (5) years from the date hereof and each
Shareholder's guaranty shall terminate upon the death of such Shareholder.
All current Shareholders of the Practice shall on or before the effective date
of this Business Management Agreement, and all individuals who become
Shareholders of the Practice after the effective date of commencement of this
Business Management Agreement shall upon becoming a Shareholder of the
Practice, execute and deliver to Business Manager an undertaking to comply with
this Section 6.4(f) which shall be in the form of Exhibit 6.4(f).
Notwithstanding the above, the Practice and the Shareholders shall not permit
without Business Manager Consent, during any three (3) year period during which
this Agreement is in effect and only after five (5) years from the commencement
hereof, the transfer of over fifty percent (50%) of the ownership interests of
the Practice to any existing or new Shareholders of the Practice or
combinations of existing or new Shareholders of the Practice, except in cases
of death, disability or retirement of such transferring Shareholders or
transfers to replacement Shareholders described in Section 4.1 in accordance
with the provisions set forth in Section 4.1.
6.5 Purchase Option. Upon termination of this Business Management
Agreement by the Practice pursuant to Section 6.2(a), the Practice shall be
released from the restrictive covenants in Section 4.8 and shall have the
option but not the obligation to do all or none of the following:
(a) Pay to Business Manager the difference between the
consideration received in the Acquisition Transaction minus the book value of
the net tangible assets (for purposes of such repurchase obligations such
difference shall be amortized over a forty (40) year period), deferred charges,
and all other amounts on the books of the Business Manager relating to the
Business Management Agreement, as such amounts shall be established pursuant to
the Acquisition Transaction and including amounts, if any, for the covenants
described in Section 4.8 above, as adjusted through the last day of the month
most recently ended prior to the date of such termination in accordance with
GAAP to reflect amortization or depreciation of the intangible assets, deferred
charges, or covenants;
(b) Purchase from Business Manager any real estate
owned by Business Manager and used as an Office at the greater of the appraised
fair market value thereof or the then book value thereof. In the event of any
repurchase of real property, the appraised value shall be determined by
Business Manager and the Practice, each selecting a duly qualified appraiser,
who in turn will agree on a third appraiser. This agreed-upon third appraiser
shall perform the appraisal which shall be binding on both Parties. In the
event either Party fails to select an appraiser within fifteen (15) days of the
selection of an appraiser by the other Party,
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the appraiser selected by the other Party shall perform the appraisal which
shall be binding on both Parties;
(c) Purchase at book value all improvements, additions,
or leasehold improvements that have been made by Business Manager at any Office
and that relate principally to the performance of Business Manager's
obligations under this Business Management Agreement;
(d) Assume all contracts and leases and the Practice's
pro rata share of all debts and payables that are obligations of Business
Manager and that relate principally to the performance of Business Manager's
obligations under this Business Management Agreement or the properties leased
or subleased by Business Manager; provided, however, that the Practice shall
only be obligated to assume such contracts and leases if the Practice will be
able to enjoy the benefits of the contracts and leases following such
assumption; and
(e) Purchase from Business Manager at book value all of
the equipment leased to the Practice, including all replacements and additions
thereto made by Business Manager pursuant to the performance of its obligations
under this Business Management Agreement, and all other tangible assets,
including inventory and supplies, set forth on the books of the Business
Manager as adjusted through the last day of the month most recently ended prior
to the date of such termination in accordance with GAAP to reflect operations
of the Office, depreciation, amortization, and other adjustments of assets
shown on the books of the Business Manager.
The Practice shall provide notice to Business Manager of its intent to
exercise the option above described at the same time that the Practice provides
notice to Business Manager of the Practice's election to terminate this
Business Management Agreement for cause.
6.6 Closing of Purchase. If the Practice purchases the assets
pursuant to Section 6.4 or 6.5, the Practice shall pay cash for the purchased
assets; provided, however, that the Practice may also use Business Manager's
common stock as consideration for the purchased assets, which stock shall be
valued for purposes of this Agreement as follows: (a) in the event of a Section
6.4 termination, the shares shall be valued at the lower of the value on the
date the shares were received by the Shareholder (as agreed to by the parties),
and the value on the date of the closing of this purchase, or (b) in the event
of a Section 6.5 termination, the shares shall be valued at the higher of the
value of such shares on the dates set forth in 6.6(a) above. The amount of the
purchase price shall be reduced by the amount of debt and liabilities of
Business Manager, if any, assumed by the Practice and by any unpaid portion of
any promissory notes payable by Business Manager to any Shareholder of the
Practice, which shall be offset against the purchase price. The Practice and
all Shareholders of the Practice shall execute such documents as may be
required to assume the liabilities set forth in Section 6.4(d) or Section
6.5(c) and to remove Business Manager from any liability with respect to such
repurchased asset and with respect to any property leased or subleased by
Business Manager. The closing date
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for the purchase shall be determined by the Parties, but shall in no event
occur later than the expiration date of this Business Management Agreement if
this Agreement expires in accordance with Section 6.1, or sixty (60) days from
the date of the notice of termination for cause. The termination of this
Business Management Agreement shall become effective upon the closing of the
sale of the assets if the assets are purchased, and all Parties shall be
released from any restrictive covenants provided for in Section 3.17 or Section
4.8 on the closing date. If the Practice chooses not to purchase the assets
pursuant to Section 6.5, the termination shall be effective as of the notice
date given by the Practice under Section 6.2(b), at which time the parties
shall be released from the restrictive covenants in Section 3.17 and Section
4.8. From and after any termination, each Party shall provide the other Party
with reasonable access of the books and records then owned by it to permit such
requesting Party to satisfy reporting and contractual obligations that may be
required of it.
6.7 Limitation of Liability. In no event shall Business Manager
be liable to the Practice for any indirect, special or consequential damages or
lost profits, arising out of or related to this Agreement or the performance or
breach thereof, even if Business Manager has been advised of the possibility
thereof.
7. INDEMNIFICATION; THIRD PARTY CLAIMS.
7.1 Indemnification by the Practice. The Practice shall indemnify
and hold harmless Business Manager and Business Manager's shareholders,
directors, officers, agents and employees, from and against all claims,
demands, liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees, resulting in any manner, directly or indirectly, from the
negligent or intentional acts or omissions of the Practice or its members,
Shareholders, directors, officers, employees, agents or independent
contractors, including but not limited to any such claims, demands,
liabilities, losses, damages, costs and expenses which accrued or arose prior
to the date of execution of this Business Management Agreement.
7.2 Indemnification by Business Manager. Business Manager shall
indemnify and hold harmless the Practice, and the Practice's members,
Shareholders, directors, officers, agents and employees, from and against any
and all claims, demands, liabilities, losses, damages, costs and expenses,
including reasonable attorneys' fees, resulting in any manner, directly or
indirectly, from the negligent or intentional acts or omissions of Business
Manager or its shareholders, directors, officers, employees, agents or
independent contractors.
7.3 Notice of Claim for Indemnification. No claims for
indemnification under this Agreement relating to claims solely between the
Parties shall be valid unless notice of such claim is delivered to the Practice
(in the case of a claim by Business Manager) or Business Manager (in the case
of a claim by the Practice) within one (1) year after the Party making such
claim first obtained knowledge of the facts upon which such claim is based.
Any such notice shall set forth in reasonable detail, to the extent known by
the Party giving such notice, the facts on which such claim is based and the
resulting estimated amount of damages.
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7.4 Matters Involving Third Parties.
(a) If the Practice or Business Manager receives notice
or acquires knowledge of any matter which may give rise to a claim by another
person and which may then result in a claim for indemnification under this
Agreement, then: (i) if such notice or knowledge is received or acquired by
the Practice, the Practice shall promptly notify Business Manager; and (ii) if
such notice or knowledge is received or acquired by Business Manager, the
Business Manager shall promptly notify the Practice; except that no delay in
giving such notice shall diminish any obligation under this Agreement to
provide indemnification unless (and then solely to the extent) the Party from
whom such indemnification is sought is prejudiced.
(b) Any Party from whom such indemnification (the
"Indemnifying Party") is sought shall have the right to defend the Party
seeking such indemnification (the "Indemnified Party") against such claim by
another person (the "Third Party Claim") with counsel of the Indemnifying
Party's choice reasonably satisfactory to the Indemnified Party so long as: (i)
within fifteen (15) days after the Indemnified Party has given notice of the
Third Party Claim to the Indemnifying Party, the Indemnifying Party notifies
the Indemnified Party that the Indemnifying Party will indemnify the
Indemnified Party from and against all adverse consequences the Indemnified
Party may suffer caused by, resulting from, arising out of or relating to such
Third Party Claim; (ii) the Indemnifying Party provides the Indemnified Party
with evidence reasonably satisfactory to the Indemnified Party that the
Indemnifying Party has the financial resources necessary to defend against the
Third Party Claim and fulfill its indemnification obligations; (iii) the Third
Party Claim seeks money damages; (iv) settlement of, or an adverse judgment
with respect to, the Third Party Claim (other than an optometric malpractice
claim) is not, in the good faith judgment of the Indemnified Party, likely to
establish a precedential custom or practice adverse to the continuing business
interests of the Indemnified Party; and (v) the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section 7.4(b): (i) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim; (ii) the Indemnified
Party shall not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior consent of
the Indemnifying Party; and (iii) the Indemnifying Party shall not consent to
the entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior consent of the Indemnified Party.
(d) If any of the conditions specified in Section
7.4(b) is or becomes unsatisfied, however; (i) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any settlement
with respect to, the Third Party Claim in any manner it may deem advisable (and
the Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith); (ii) the Indemnifying Party shall
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reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable attorneys' and
accountants' fees and expenses); and (iii) the Indemnifying Party shall remain
responsible for any adverse consequences the Indemnified Party may suffer
caused by, resulting from, arising out of or relating to such Third Party Claim
to the fullest extent provided in this Agreement.
7.5 Settlement. Except as permitted by Section 7.4, a Party shall
not compromise or settle any claim for which the other Party is obligated to
indemnify it without the written consent of such Party.
7.6 Cooperation. The Indemnified Party shall make available all
information and assistance that the Indemnifying Party may reasonably request
in conjunction with assessing, defending and settling said claim.
8. MISCELLANEOUS.
8.1 Administrative Services Only. Nothing in this Business
Management Agreement is intended or shall be construed to allow Business
Manager to exercise control, authority or direction over the manner or method
by which the Practice and its Professionals perform Professional Eye Care
Services or other professional health care services. The rendition of all
Professional Eye Care Services, including, but not limited to, the prescription
or administration of medicine and drugs, shall be the sole responsibility of
the Practice and its Professionals, and Business Manager shall not interfere in
any manner or to any extent therewith. Nothing contained in this Business
Management Agreement shall be construed to permit Business Manager to engage in
the practice of optometry, it being the sole intention of the Parties hereto
that the services to be rendered to the Practice by Business Manager are solely
for the purpose of providing non-optometric management and administrative
services to the Practice so as to enable the Practice to devote its full time
and energies to the professional conduct of its professional eye care practice
and provision of Professional Eye Care Services to its patients and not to
administration or practice management.
8.2 Status of Independent Contractor. It is expressly
acknowledged that the Parties hereto are "independent contractors," and nothing
in this Business Management Agreement is intended and nothing shall be
construed to create an employer/employee, partnership, or joint venture
relationship, or to allow either to exercise control or direction over the
manner or method by which the other performs the services that are the subject
matter of this Business Management Agreement; provided always that the services
to be provided hereunder shall be furnished in a manner consistent with the
standards governing such services and the provisions of this Business
Management Agreement. Each Party understands and agrees that (i) the other
will not be treated as an employee for federal tax purposes, (ii) neither will
withhold on behalf of the other any sums for income tax, unemployment
insurance, social security, or any other withholding pursuant to any law or
requirement of any governmental body or make available any of the benefits
afforded to its employees, (iii) all of such payments, withholdings, and
benefits,
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if any, are the sole responsibility of the Party incurring the liability, and
(iv) each will indemnify and hold the other harmless from any and all loss or
liability arising with respect to such payments, withholdings, and benefits, if
any.
8.3 Notices. Any notice, demand, or communication required,
permitted, or desired to be given hereunder shall be deemed effectively given
when in writing and personally delivered or mailed by prepaid certified or
registered mail, return receipt requested, addressed as follows:
The Practice: Xxxxxxxx & Associates, #6965
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Business Manager: Vision 21, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, CFO
with a copy to: Xxxxxxxx, Loop & Xxxxxxxx, LLP
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
or to such other address, or to the attention of such other person or officer,
as any party may by written notice designate.
8.4 Governing Law. This Business Management Agreement shall in
all respects be governed, interpreted and construed in accordance with the laws
of the State without giving effect to principles of comity or conflicts of laws
thereof.
8.5 Jurisdiction and Venue. Business Manager and the Practice
hereby consent to the personal jurisdiction and venue of the state and federal
courts in the judicial circuit where the Practice has its principal corporate
office, and do hereby waive all questions of personal jurisdiction and venue,
including, without limitation, the claim or defense that such courts constitute
an inconvenient forum.
8.6 Assignment. Except as may be herein specifically provided to
the contrary, this Business Management Agreement shall inure to the benefit of
and be binding upon the Parties hereto and their respective legal
representatives, successors, and assigns; provided, however,
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that the Practice may not assign this Business Management Agreement without the
prior written consent of Business Manager, which consent may be withheld. The
sale, transfer, pledge, or assignment of any of the ownership interests held by
any Shareholder of the Practice, the sale of any material portion of its assets
by the Practice, or the issuance by the Practice of voting ownership interests
to any other person (except to replacement Shareholders as described in Section
4.1), or any combination of such transactions within a period of five (5)
years, such that the existing Shareholders in the Practice fail to maintain a
majority of the voting interests in the Practice shall be deemed an attempted
assignment by the Practice, and shall be null and void unless consented to in
writing by Business Manager prior to any such transfer or issuance. Any breach
of this provision, whether or not void or voidable, shall constitute a material
breach of the Business Management Agreement, and in the event of such breach,
Business Manager may terminate this Business Management Agreement upon
twenty-four (24) hours' notice to the Practice and shall have all rights
available at law or in equity. Except as otherwise provided in this Agreement,
the Parties agree that until an initial public offering of Business Manager's
common stock occurs, Business Manager may only assign or transfer its rights
and obligations under this Business Management Agreement with the prior written
consent of the Practice. Except as otherwise provided in this Agreement, after
an initial public offering of Business Manager's common stock occurs, Business
Manager may assign or transfer its rights and obligations under this Business
Management Agreement only in the following situations: (a) pursuant to a merger
of Business Manager into another entity or the sale of substantially all of the
assets of Business Manager to a health care company; (b) pursuant to the sale
of all of the health care contracts of Business Manager within a multistate
region in which the Practice is located with the Practice's consent, which
shall not be unreasonably withheld and which may not be withheld where the
proposed assignment or transfer is to a healthcare practice management company
with similar or greater financial standing, expertise and service capabilities
to that of Business Manager; (c) pursuant to a transfer or assignment of this
Agreement to one of Business Manager's subsidiaries or parent organizations; or
(d) pursuant to any transfer or assignment to or by any financial lender of the
Business Manager, and this Agreement is subordinate to the rights of such
lender. After such assignment and transfer, the Practice agrees to look solely
to such assignee or transferee for performance of this Business Management
Agreement. In addition, Business Manager or the assignee or transferee shall
have the right to (i) collaterally assign its interest in this Business
Management Agreement and its right to collect Management Fees hereunder to any
financial institution or other third party without the consent of the Practice,
and (ii) subject to the foregoing provisions, assign its rights and obligations
hereunder to any third party without the consent of the Practice. In the event
that Business Manager assigns its rights and obligations hereunder to one or
more of its subsidiaries, Business Manager shall unconditionally guaranty the
obligations of such subsidiary or subsidiaries. The Practice and executing
Shareholders agree to execute in the future any and all documentation
reasonably required to subordinate their rights pursuant to this Section 8.6 to
that of a lender.
8.7 Arbitration. The Parties shall use good faith negotiation to
resolve any controversy, dispute or disagreement arising out of or relating to
this Business Management
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Agreement or the breach of this Business Management Agreement. Except as
otherwise provided herein and except as it relates to Sections 3.14, 3.17, 4.7
and 4.8 of this Business Management Agreement and except for matters which are
to be determined by the Local Advisory Council and/or the National Appeals
Council as contemplated in this Business Management Agreement, any matter not
resolved by negotiation shall be submitted to mediation conducted in accordance
with the Florida Mediation Rules. If the mediation process fails to resolve
the dispute, the matter shall be submitted to binding and confidential
arbitration in accordance with the National Health Lawyers Association
Alternative Dispute Resolution Rules of Procedure for Arbitration and with one
individual knowledgeable in the health care business serving as the arbitrator.
Each Party will, upon the written request of the other Party, promptly provide
the other with copies of documents relevant to the issues raised by any claim
or counterclaim. Other discovery may be ordered by the arbitrator to the
extent the arbitrator deems additional discovery relevant and appropriate, and
any dispute regarding discovery shall be determined by the arbitrator, which
determination shall be conclusive.
8.8 Waiver of Breach. The waiver by either Party of a breach or
violation of any provision of this Business Management Agreement shall not
operate as, or be construed to constitute, a waiver of any subsequent breach of
the same or another provision hereof.
8.9 Enforcement. In the event either Party resorts to legal
action to enforce or interpret any provision of this Business Management
Agreement, the prevailing Party shall be entitled to recover the costs and
expenses of such action so incurred, including, without limitation, reasonable
attorneys' fees.
8.10 Gender and Number. Whenever the context of this Business
Management Agreement requires, the gender of all words herein shall include the
masculine, feminine, and neuter, and the number of all words herein shall
include the singular and plural.
8.11 Additional Assurances. Except as may be herein specifically
provided to the contrary, the provisions of this Business Management Agreement
shall be self-operative and shall not require further agreement by the Parties;
provided, however, at the request of either Party, the other Party shall
execute such additional instruments and take such additional acts as are
reasonable and as the requesting Party may deem necessary to effectuate this
Business Management Agreement.
8.12 Consents, Approvals, and Exercise of Discretion. Whenever
this Business Management Agreement requires any consent or approval to be given
by either Party, or either Party must or may exercise discretion, the Parties
agree that such consent or approval shall not be unreasonably withheld or
delayed, and that such discretion shall be reasonably exercised.
8.13 Force Majeure. Neither Party shall be liable or deemed to be
in default for any delay or failure in performance under this Business
Management Agreement or other interruption of service deemed to result,
directly or indirectly, from acts of God, civil or military authority,
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acts of public enemy, war accidents, fires, explosions, earthquakes, floods,
failure of transportation, strikes or other work interruptions by either
Party's employees, or any other similar cause beyond the reasonable control of
either Party unless such delay or failure in performance is expressly addressed
elsewhere in this Business Management Agreement. Notwithstanding the same, the
Parties hereto agree to continue this Agreement to the best degree they can so
long as reasonably possible and the Practice shall not be excused from its
obligations under Sections 4.2, 6.4 and 6.6 pursuant to this Section 8.13.
8.14 Severability. The Parties hereto have negotiated and prepared
the terms of this Business Management Agreement in good faith with the intent
that each and every one of the terms, covenants and conditions herein be
binding upon and inure to the benefit of the respective Parties. Accordingly,
if any one or more of the terms, provisions, promises, covenants or conditions
of this Business Management Agreement or the application thereof to any person
or circumstance shall be adjudged to any extent invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent jurisdiction or an
arbitration tribunal, such provision shall be reformed, construed and enforced
as if such unenforceable provision had not been contained herein, and each and
all of the remaining terms, provisions, promises, covenants and conditions of
this Business Management Agreement or their application to other persons or
circumstances shall not be affected thereby and shall be valid and enforceable
to the fullest extent permitted by law. To the extent this Business Management
Agreement is in violation of applicable law, then the Parties agree to
negotiate in good faith to amend the Business Management Agreement, to the
extent possible consistent with its purposes, to conform to law. If the
Parties are unable to amend the Business Management Agreement in a manner which
conforms with applicable law, then either Party may submit the matter to
arbitration pursuant to Section 8.7 for the purpose of reaching an alternative
arrangement that is equitable under the circumstances.
8.15 Press Releases and Public Announcements. Except as otherwise
required by law or by applicable rules of any securities exchange or
association of securities dealers, neither the Practice nor the Business
Manager shall issue any press release, make any public announcement or
otherwise disclose any information for the purpose of publication by any print,
broadcast or other public media, relating to the transactions contemplated by
this Agreement, without the prior approval of the other Party.
8.16 Divisions and Headings. The divisions of this Business
Management Agreement into articles, sections, and subsections and the use of
captions and headings in connection therewith are solely for convenience and
shall not affect in any way the meaning or interpretation of this Business
Management Agreement.
8.17 Amendments and Execution. This Business Management Agreement
and any amendments hereto shall be in writing and executed in multiple copies
on behalf of the Practice by its President, and on behalf of Business Manager
by its President. Each multiple copy shall
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be deemed an original, but all multiple copies together shall constitute one
and the same instrument.
8.18 Licenses, Permits and Certificates. Business Manager and the
Practice shall each obtain and maintain in effect, at all times during the term
of this Business Management Agreement, all licenses, permits and certificates
required by law which are applicable to the performance of their respective
obligations pursuant to this Business Management Agreement.
8.19 No Third Party Beneficiaries. Except as otherwise provided
herein, this Business Management Agreement shall not confer any rights or
remedies upon any person other than Business Manager and the Practice and their
respective successors and permitted assigns.
8.20 Compliance with Applicable Laws. Business Manager and the
Practice shall comply with all applicable federal, state and local laws,
regulations, rules and restrictions in the conduct of their obligations under
this Business Management Agreement.
8.21 Language Construction. The Practice and Business Manager
acknowledge that each Party hereto and its counsel have reviewed and revised
this Business Management Agreement and agree that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of this Business
Management Agreement.
8.22 Entire Business Management Agreement. With respect to the
subject matter of this Business Management Agreement, this Business Management
Agreement supersedes all previous contracts and constitutes the entire
agreement between the Parties. Neither Party shall be entitled to benefits
other than those specified herein. No prior oral statements or contemporaneous
negotiations or understandings or prior written material not specifically
incorporated herein shall be of any force and effect, and no changes in or
additions to this Business Management Agreement shall be recognized unless
incorporated herein by amendment as provided herein, such amendment(s) to
become effective on the date stipulated in such amendment(s). The Parties
specifically acknowledge that, in entering into and executing this Business
Management Agreement, the Parties rely solely upon the representations and
agreements contained in this Business Management Agreement and no others.
8.23 DISCLAIMER OF WARRANTY. BUSINESS MANAGER MAKES NO WARRANTY,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE OFFICE OR ANY EQUIPMENT PROVIDED
BY BUSINESS MANAGER PURSUANT TO THIS BUSINESS MANAGEMENT AGREEMENT, AND ALL
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY
EXPRESSLY DISCLAIMED.
8.24 Control of Board of Directors. While there is no assurance
that an initial public offering of Business Manager's common stock shall occur,
should Business Manager fail to
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complete the same on or before April 1, 1998, the Board of Directors shall be
controlled and the Business Manager managed by individuals designated by the
founding health care practices acquired in December of 1996. If such initial
public offering does not occur on or before April 1, 1998, each of such
founding health care practices shall be entitled to vote that number of shares
of Business Manager then held by such founding practices and the number of
share of Business Manager then held by the equity owners of such founding
practices to elect a new board of directors of Business Manager; provided,
however, that after April 1, 1998 and until February 28, 0000, Xxxxxxxx X.
Xxxxxxxx and his majority owned health care practice (and their respective
successors and assigns) shall not be entitled to vote their respective shares
of common stock of Business Manager in any election of directors during such
period.
8.25 Agreement for Future Good Faith Negotiation. The Parties
hereto agree that should either the chosen underwriters to a future initial
public offering or Business Manager's accounting firm make recommendations
regarding changes to this Business Management Agreement at a later date and
prior to the offering which either such underwriters or accountants reasonably
believe are necessary based upon customs in the industry to prevent any
material adverse valuation issue or to obtain favorable accounting treatment
for Business Manager, the Parties shall negotiate in good faith to modify any
terms which could have such a negative effect or which could result in such
favorable accounting treatment. In such event, the revisions shall be deemed
to be retroactive to the effective date of this Business Management Agreement.
8.26 Agreement to Transfer Stock and Stock Pledge.
Contemporaneously with the execution of this Agreement and to ensure the
continued viability and production of a Practice owned by one (1) Shareholder
(if applicable) the Parties hereto have executed and delivered that certain
Agreement to Transfer Stock and Stock Pledge pursuant to which the Business
Manager and the Shareholder of the Practice have agreed to pledge all of the
shares of common stock of the Practice to the Business Manager and have agreed
that upon the death or disability of such Shareholder, the Practice shall be
entitled to designate a replacement Professional to acquire all such shares of
common stock of the Practice in return for payment of a fair value for such
stock. Additionally, any current or future Shareholder of a Practice that
becomes a sole Shareholder shall execute such agreement at the time the
Shareholder gains such status.
8.27 Authority. Business Manager and the Practice hereby warrant
and represent to each other that they have the requisite corporate authority to
execute and deliver this Business Management Agreement in their respective
name.
8.28 Waiver of Jury Trial. Any right to trial by jury with respect
to any claim or proceeding relating to or arising out of this Business
Management Agreement is waived by the Parties.
8.29 Indemnification of Advisory Council Members. The parties
hereto (and their successors) agree to indemnify and hold harmless all future
members of any Advisory Council established pursuant to the terms hereof from
any and all liability, claims, damages, costs and
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attorneys fees resulting from their decisions and actions as a member of such
Advisory Council, so long as the decision or action is made in good faith.
IN WITNESS WHEREOF, the Practice and Business Manager have caused this
Business Management Agreement to be executed by their duly authorized
representatives, all as of the day and year first above written.
WITNESSES: "PRACTICE"
XXXXXXXX & ASSOCIATES, #6965 P.A.
/s/ By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------- --------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
/s/ Title: President
-------------------------------
"BUSINESS MANAGER"
VISION 21, INC.
/s/ By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------- ---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
/s/ Title: President
-------------------------------
STATE OF FLORIDA )
COUNTY OF HILLSBOROUGH )
The foregoing Business Management Agreement was executed before me this
___ day of December, 1996, by Xxxxxxxx X. Xxxxxxxx as President of Xxxxxxxx &
Associates, #6965 P.A. and Vision 21, Inc., who is personally known to me or
who has produced identification and who did take an oath.
NOTARY PUBLIC:
Sign:
------------------------------
Print:
------------------------------
My Commission Expires:
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EXHIBIT "5.1"
MANAGEMENT FEE
55
EXHIBIT "4.17"
SHAREHOLDERS' UNDERTAKING TO MAINTAIN PRACTICE'S
CORPORATE EXISTENCE AND ENFORCEMENT OF COVENANTS
NOT TO COMPETE
As an inducement to the Business Manager to enter into this Business
Management Agreement with the Practice or as required in the Business
Management Agreement, each of the undersigned person(s), having an ownership
interest in the Practice, irrevocably and unconditionally covenants and agrees
to maintain in good standing the corporate existence of the Practice under the
laws of the State and to cause the Practice to use its best efforts to enforce
employment agreements (including those covenants not to compete requirements
described in Sections 4.1 and 4.2) against any individuals violating such
employment agreements (and covenants not to compete). The undersigned persons
further unconditionally covenant and agree to indemnify and hold harmless
Business Manager from and against any and all claims requirements, demands,
liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees, resulting in any manner from the failure of the Practice to
remain in good standing under the laws of the State or the failure of the
Practice to use its best efforts to enforce those employment agreements and
covenants not to compete described in Section 4.1 and 4.2 of such Business
Management Agreement, a copy of which has been delivered to the undersigned for
his review. The undersigned acknowledges that he or she has received adequate
consideration for the execution hereof. After a period of five (5) years from
December 1, 1996, this Undertaking may be assumed by a successor Shareholder or
Shareholders, in accordance with the terms and conditions set forth in Section
4.1 of the Business Management Agreement, whereupon the undersigned shall be
released to the extent of such assumption, provided that any such successor
Shareholder executes a form similar to this.
IN WITNESS WHEREOF, the undersigned(s) have executed this Shareholders'
Undertaking as of the day and year written opposite such shareholder's name.
Date: December 1, 1996 /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxxx
Date: December 1, 1996 /s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx
Date: December 1, 1996 /s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
56
EXHIBIT "6.4(f)"
SHAREHOLDERS' UNDERTAKING TO CARRY OUT
PRACTICE'S PURCHASE OBLIGATION
As an inducement to the Business Manager to enter into this Business
Management Agreement with the Practice or as required in Business Management
Agreement, each of the undersigned person(s), having an ownership interest in
the Practice, irrevocably and unconditionally covenants and agrees subject to
the limitations contained in the Business Management Agreement to (i) cause the
Practice to carry out the purchase obligation described in Section 6.4(f) of
the Business Management Agreement, (ii) personally execute and deliver the
personal guarantees and security agreements referred to in Section 6.4(f) of
such Business Management Agreement, a copy of which has been delivered to the
undersigned for his review, and (iii) execute the documents described in
Section 6.6. The undersigned acknowledges that he or she has received adequate
consideration for the execution hereof.
IN WITNESS WHEREOF, the undersigned(s) have executed this Shareholders'
Undertaking as of the day and year written opposite such shareholder's name.
Date: December 1, 1996 /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxxx
Date: December 1, 1996 /s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx
Date: December 1, 1996 /s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
57
Exhibit 1.3
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Fees Excluded from Adjusted Gross Revenue
1. None.
58
Exhibit 1.8
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Business Manager Expenses
As of the Closing Date, Business Manager Expenses shall specifically
include:
1. expenses relating to services provided to Business Manager and the
Practice under current service agreements by Xxxxx Xxxxxx and BSM Consulting,
to the extent such expenses do not exceed the Practices' share (pro-rata
amongst all practices managed by the Business Manager, at any given moment,
e.g., 32 practices = 1/32nd of such expense) of the services currently
contracted for between Xxxxxx, BSM Consulting and Business Manager at an
anticipated annual cost of $480,000;
2. costs related to the current regional corporate structure, current
corporate overhead, strategic planning, and managed care administration;
3. expenses related to travel at the request of Business Manager except
as otherwise permitted in 1.18(h);
4. costs of stock option programs or grants to Physician and staff;
5. expenses related to services provided to Business Manager and the
Practice by Medical Director Xxxxxxx Xxxxxxxxx, M.D. as part of the current
Medical Director Service Agreement; and
6. corporate overhead, except as defined in Section 1.18(k).
59
Exhibit 1.18
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Office Expenses
[Table depicting breakdown of Office Expenses,
Practice Expenses and Shareholder Expenses omitted.]
60
Exhibit 1.25
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Practice Territory
1. See area within circle on attached map.
[Map(s) depicting twenty-mile radius
from each office location omitted.]
61
Exhibit 1.30
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Leasehold Obligations in Excess of Fair Market Value
1. None.
62
Exhibit 2.10
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Market Area
1. The State of Florida.
63
Exhibit 3.7
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Unsettled issues regarding personnel
1. None.
64
Exhibit 3.17
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Entities and Relationship Excluded from Non-Competition
Covenant from Business Manager
1. None.
65
Exhibit 4.1A
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
OPTOMETRIST EMPLOYMENT AGREEMENT
(FOUNDING SHAREHOLDER)
This Optometrist Employment Agreement (this "Employment Agreement")
dated as of _____________, 19__, is by and between Xxxxxxxx & Associates, #6965
P.A., a professional association (the "Practice"), and __________________,
O.D., an individual (the "Optometrist").
R E C I T A L S
A. The Practice is a professional association organized under the
laws of the State of Florida (the "State") and is authorized to practice
optometry in the State through licensed individuals.
B. Vision 21, Inc., a Florida corporation ("Vision 21") has
acquired substantially all of the business assets of the Practice pursuant to
that certain Asset Purchase Agreement (the "Acquisition Agreement") of even
date herewith.
C. The Practice and Vision 21 have entered into a Business
Management Agreement (the "Business Management Agreement") of even date
herewith, whereby Vision 21 has agreed to provide various management services
to the Practice and the Practice has agreed to have its professional employees
execute employment agreements in a form substantially the same as this
Employment Agreement, and it is intended that except as otherwise limited
herein, Vision 21 be a third-party beneficiary of the restrictive covenants
contained in this Employment Agreement.
D. The Practice desires to employ Optometrist upon the terms and
subject to the terms and conditions set forth in this Employment Agreement.
E. The Optometrist is licensed to practice optometry in the State
and desires to be employed by the Practice upon the terms and subject to the
conditions set forth in this Employment Agreement.
F. The Optometrist possesses special knowledge relating to the
business and assets acquired pursuant to the Acquisition Agreement and has
developed valuable, long-term relationships with patients to be cared for by
the Practice which make him valuable to the Practice and which will contribute
to the Practice's future success.
G. In consideration for and in connection with the Acquisition
Agreement and such employment arrangement, the parties hereto desire to enter
into a covenant not to compete and a non-disclosure covenant.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto intending to be legally bound hereby agree as follows:
66
1. Employment. The Practice hereby employs Optometrist, and
Optometrist hereby accepts employment with the Practice, all upon the terms and
subject to the conditions set forth in this Employment Agreement.
2. Duties and Responsibilities.
2.01 Full Time Practice of Optometry. The Optometrist is
employed pursuant to the terms of this Employment Agreement to practice
optometry on behalf of the Practice. The Optometrist shall devote
substantially all of his time, best efforts and attention to the practice of
optometry on behalf of the Practice and shall provide patient care of the
highest quality. In addition to the foregoing duties, the Optometrist shall
undertake additional duties as directed by the Practice. During the term
hereof and any renewal, the Optometrist shall not, without the written consent
of the Practice and Vision 21, (1) render professional services to or for any
person, firm, corporation or other organization for compensation; or (2) engage
in any activity that competes with the interest of the Practice or Vision 21
whether Optometrist is acting by himself or as an officer, director,
shareholder, employee, partner or fiduciary. Any consent granted to the
Optometrist shall be revocable by the Practice or Vision 21 at any time upon
thirty (30) days' notice, and the Optometrist agrees to cease and desist upon
receipt of such notice. Notwithstanding the above, the Practice recognizes
that the Optometrist shall have the right to engage in those matters expressly
described on Schedule 2.01 attached hereto so long as such permitted activities
do not result in materially reduced services to the Practice as compared to the
Optometrist's previous services to his practice and so long as the same does
not materially impact the Optometrist's ability to perform hereunder or
materially impact the Optometrist's anticipated productivity.
2.02 Subject to Board Standards and Requirements. The
Practice recognizes that professional regulatory groups and bodies such as the
State Board of Optometry may from time to time establish standards and
requirements with regard to the practice of optometry by optometrists licensed
to practice optometry. All restrictions contained herein with respect to the
duties and obligations of the Optometrist shall be subject to said standards
and requirements of the aforesaid groups and bodies.
3. Authority and Control of Practice.
Subject to Section 2.02 above and to the extent permitted by
law:
3.01 The Optometrist recognizes that the Practice shall
have complete authority with regard to the acceptance for treatment of or the
refusal to treat any patient and the Practice shall have complete authority
with regard to the establishment of the appropriate fee for professional
service.
3.02 The Practice shall direct and control the assignment
of patients to the Optometrist. Such determination shall be solely by the
Practice and in the best interests of the patient and the Practice. The
Optometrist agrees to treat such patients as are assigned to him by the
Practice. The Optometrist recognizes that patients treated by him may
subsequently be assigned to other employees.
3.03 The Optometrist shall perform all professional
services as are assigned to him by the Practice and all work performed by the
Practice shall be subject to the review and study of the Practice.
Exhibit 4.1A - Page 2
67
3.04 The performance of services by the Optometrist on
behalf of the Practice shall be performed at such times and at such places as
shall be determined by the Practice and in accordance with such rules as the
Practice may establish.
3.05 Hours of employment of the Optometrist shall be
determined by the Practice within reasonable standards within the profession.
3.06 The optometrist of record for each patient treated by
Optometrist shall be one of the individual owners of the Practice.
4. Term of Employment. The term of employment of Optometrist by
the Practice pursuant to this Employment Agreement shall be for five (5) years
(the "Employment Period") commencing on the date of this Agreement (the
"Commencement Date").
5. Place of Employment. Optometrist's principal place of work
shall be located where designated by the Practice.
6. Compensation. During the Employment Period, subject to all
the terms and conditions of this Employment Agreement and as compensation for
all services to be rendered by Optometrist under this Employment Agreement, the
Practice shall pay to or provide Optometrist with the compensation set forth in
Schedule 6 attached to this Agreement.
7. Adherence to Standards. Optometrist shall comply with the
written policies, standards, rules and regulations of the Practice from time to
time established for all employees of the Practice.
8. Review of Performance. The Practice may periodically review
and evaluate the performance of Optometrist under this Employment Agreement
with Optometrist.
9. Expenses. The Practice may reimburse Optometrist for
reasonable, ordinary and necessary expenses incurred by him in connection with
his employment hereunder that have been approved in advance by the Practice;
provided, however, Optometrist shall render to the Practice a complete and
accurate accounting of all such expenses in accordance with the substantiation
requirements of Section 274 of the Internal Revenue Code of 1986, as amended
(the "Code"), as a condition precedent to such reimbursement.
10. Termination with Cause by the Practice. This Employment
Agreement may be terminated with Cause (as hereinafter defined) by the Practice
provided that the Practice shall (i) give Optometrist the Notice of Termination
(as hereinafter defined) and (ii) pay Optometrist his annual base salary
through the Date of Termination (as hereinafter defined) at the rate in effect
at the time the Notice of Termination is given plus any bonus or incentive
compensation which have been earned or have become payable pursuant to the
terms of any compensation or benefit plan or have vested as of the Date of
Termination, but which have not yet been paid.
11. Definitions. In addition to the words and terms elsewhere
defined in this Employment Agreement, certain capitalized words and terms used
in this Employment Agreement shall have the meanings given to them by the
definitions and descriptions in this Section 11 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both
Exhibit 4.1A - Page 3
68
the singular and plural forms of any of the capitalized words and terms herein
defined. The following words and terms are defined terms under this Employment
Agreement:
11.01 Cause. A termination with "Cause" by the Practice
shall mean a termination of this Employment Agreement for any of the following
reasons:
(i) Optometrist's failure to promptly and adequately
perform the duties assigned by Practice after being notified by the Practice of
the specific act(s) constituting such failure and being given a period of
thirty (30) days after notification by the Practice to correct such failure;
(ii) upon Optometrist's breach of any provision of
this Employment Agreement which remains uncured for a period of thirty (30)
days after notification by Practice of the specific nature of the breach;
(iii) for good cause which shall include
insubordination, conduct reflecting moral turpitude, conduct diminishing the
goodwill or reputation of the Practice, conduct disloyal to the Practice,
material violation of any representation, warranty or covenant of this
Agreement; conviction of any felony, or suspension or revocation of
Optometrist's license to practice optometry;
(iv) upon Optometrist's death; or
(v) upon Optometrist's disability if the
disability renders Optometrist unable to practice optometry on a full-time
basis for a period of more than ninety (90) days in any consecutive six (6)
month period.
11.02 Date of Termination. "Date of Termination" shall mean
the date specified in the Notice of Termination which shall not be less than
thirty (30) days from the date such Notice of Termination is given unless the
Notice of Termination is provided pursuant to Sections 11.01(iii), (iv) or (v),
in which case the Date of Termination shall be the date that Notice of
Termination is received by the Optometrist.
11.03 Notice of Termination. "Notice of Termination" shall
mean a written notice which shall indicate the specific termination provision
in this Employment Agreement relied upon; provided, however, no such purported
termination shall be effective without such Notice of Termination.
12. Fees and Expenses. The prevailing party in any contest or
dispute under this Employment Agreement shall receive from the other party all
legal fees and related expenses (including the costs of experts, evidence and
counsel incurred by the prevailing party in any and all proceedings arising out
of this Employment Agreement, including trial, appellate and bankruptcy
proceedings.
13. Notices. For the purposes of this Employment Agreement,
notices and all other communications provided for in the Employment Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage prepaid,
or by expedited (overnight) courier with an established national reputation,
shipping prepaid or billed to sender, in either case addressed to the
respective addresses last given by each party in writing to the other (provided
that all notices to the Practice shall be directed to the attention of the
Practice with a copy to the Secretary of the Practice). All notices and
communication shall be deemed to have been
Exhibit 4.1A - Page 4
69
received on the date of delivery thereof, on the third business day after the
mailing thereof, or on the second day after deposit thereof with an expedited
courier service, except that notice of change of address shall be effective
only upon receipt.
14. Life Insurance. The Practice may, at any time after the
execution of this Employment Agreement, apply for and procure as owner and for
its own benefit, life insurance on Optometrist, in such amounts and in such
form or forms as the Practice may determine. Optometrist shall, at the request
of the Practice, submit to such medical examinations, supply such information,
and execute such documents as may be required by the insurance company or
companies to whom the Practice has applied for such insurance. Optometrist
hereby represents that to his knowledge there are no facts or circumstances
that would preclude the Practice from obtaining life insurance on Optometrist.
15. Proprietary Information and Inventions. Optometrist
understands and acknowledges that:
15.01 Trust. Optometrist's employment creates a relationship
of confidence and trust between Optometrist and the Practice (and by virtue of
the Business Management Agreement entered into by the Practice and Vision 21,
Optometrist's employment creates a relationship of confidence and trust between
the Optometrist and Vision 21) with respect to certain information applicable
to the business of the Practice and Vision 21, which may be made known to
Optometrist by the Practice or Vision 21 or learned by Optometrist during the
Employment Period.
15.02 Proprietary Information. The Practice and Vision 21
possess and will continue to possess information that has been created,
discovered, or developed by, or has otherwise become known to, the Practice or
Vision 21 (including, without limitation, information created, discovered, or
developed by or made known to Optometrist during the period of or arising out
of employment by the Practice) or in which property rights have been or may be
assigned or otherwise conveyed to the Practice or Vision 21, which information
has commercial value in the respective businesses in which the Practice and
Vision 21 are engaged and is treated by the Practice and Vision 21 as
confidential. Except as otherwise herein provided, all such information is
hereinafter called "Proprietary Information", which term, as used herein, shall
also include, but shall not be limited to, data, functional specifications,
computer programs, know-how, research, technology, improvements, developments,
designs, marketing plans, strategies, forecasts, new products, unpublished
financial statements, budgets, projections, licenses, prices, costs, patient,
supplier and potential acquisition candidates lists, and patient files and
records. Notwithstanding anything contained in this Employment Agreement to
the contrary, the term "Proprietary Information" shall not include (i)
information which is in the public domain, (ii) information which is published
or otherwise becomes part of the public domain through no fault of Optometrist,
(iii) information which Optometrist can demonstrate was in Optometrist's
possession at the time of disclosure and was not acquired by Optometrist
directly or indirectly from the Practice or Vision 21 on a confidential basis,
(iv) information which becomes available to Optometrist on a non-confidential
basis from a source other than the Practice or Vision 21 and which source, to
the best of Optometrist's knowledge, did not acquire the information on a
confidential basis or (v) information required to be disclosed by any federal
or state law, rule or regulation or by any applicable judgment, order or decree
or any court or governmental body or agency having jurisdiction in the
premises.
All Proprietary Information shall be the sole property of the Practice
and Vision 21 and their respective assigns. Optometrist assigns to the
Practice and Vision 21 any rights Optometrist may have or acquire in such
Proprietary Information. At all times, both during Optometrist's employment by
the
Exhibit 4.1A - Page 5
70
Practice and after its termination or expiration, Optometrist shall keep in
strictest confidence and trust all Proprietary Information, and Optometrist
shall not use or disclose any Proprietary Information without the written
consent of the Practice and Vision 21, except as may be necessary in the
ordinary course of performing Optometrist's duties as an employee of the
Practice. This Section 15 shall survive the termination or expiration of this
Employment Agreement.
16. Patient Files and Surrender of Documents. To the extent
permitted by law, all records contained in the files of patients shall be the
property of the Practice. Optometrist shall, at the request of the Practice,
promptly surrender to the Practice any patient files, records, or x-rays, as
well as any Proprietary Information or document, memorandum, record, patient
record, letter or other paper in his possession or under his control relating
to the operation, business or affairs of the Practice or Vision 21.
17. Prior Employment Agreements; Successor Employment Agreements.
Optometrist represents and warrants that Optometrist's performance of all the
terms of this Employment Agreement and as an employee of the Practice does not,
and will not, breach any agreement to keep in confidence proprietary
information acquired by Optometrist in confidence or in trust prior to
Optometrist's employment by the Practice. Optometrist has not entered into,
and shall not enter into, any agreement, either written or oral, which is in
conflict with this Employment Agreement or which would be violated by
Optometrist's entering into, or carrying out his obligations under, this
Employment Agreement. Immediately following the expiration of the term of this
Employment Agreement, Optometrist shall, if he intends to continue his
relationship with the Practice, execute a new Employment Agreement with the
Practice in substantially the form of Exhibit 4.1C of the Business Management
Agreement.
18. Restrictive Covenant. Optometrist acknowledges and recognizes
(i) that Optometrist shall come into possession of Proprietary Information and
(ii) the highly competitive nature of the respective businesses of the Practice
and Vision 21 and, accordingly, agrees that in consideration of the premises
contained herein Optometrist will not, during the period of Optometrist's
employment by the Practice and for a period of three (3) years following the
date of expiration or termination of this Employment Agreement, directly or
indirectly (i) except as otherwise permitted by the terms of this Employment
Agreement, practice optometry or engage in the business of managing optometry
practices or related eye care optometric facilities within the area described
in Schedule 18, whether such engagement shall be as an employer, officer,
director, owner, employee, consultant, stockholder, partner or other
participant. Optometrist further agrees that during the period of
Optometrist's employment by Practice, and for a period of three (3) years
following the termination or expiration of this Employment Agreement,
Optometrist will not, directly or indirectly, (i) solicit any employee or
consultant of Vision 21 or the Practice for the purposes of hiring or retaining
such employee or consultant, (ii) utilize the services of any entity engaged in
the business of managing optometry practices or related eye care or optometric
facilities other than Vision 21, or (iii) contact any present or prospective
client of Vision 21 to solicit such person or entity to enter into a management
contract with any organization other than Vision 21. If Optometrist violates
this Section, Optometrist shall pay to Vision 21 the one half (1/2) of the
amount of the consideration received by Optometrist in connection with the
Acquisition Agreement (including one half (1/2) of the Optometrist's pro rata
share (based on his equity ownership in the Practice) of any consideration
received by the Practice in connection with the Acquisition Agreement), as
agreed upon liquidated damages. The Optometrist acknowledges that such sum is
reasonable in light of the resulting loss of intangible asset value associated
with the Optometrist's breach of this restrictive covenant. The Optometrist
further acknowledges and agrees that such liquidated damages sum shall be in
addition to any liquidated damages which may be owed by Optometrist to the
Practice in connection with a breach by
Exhibit 4.1A - Page 6
71
Optometrist of Section 4 hereof. If the Optometrist fails to make payment of
liquidated damages as contemplated by this Section 18 within thirty (30) days
of Optometrist's receiving notice from the Practice or Vision 21 of the
violation of this Section, Vision 21, shall, in addition to all other rights
and remedies available at law or equity, be entitled to (i) cancel the number
of shares of Vision 21 common stock held by the Optometrist or, with respect to
shares of Vision 21 common stock entitled to be received by the Optometrist
pursuant to the Acquisition Agreement, terminate its obligation to deliver such
number of shares of Vision 21 common stock, valued as set forth in Section
6.6(a) of the Business Management Agreement representing all or a portion of
such liquidated damages sum, or (ii) set off all or any of such liquidated
damages sum against amounts payable under any promissory note held by the
Optometrist, or do both of the foregoing, but in no event shall Vision 21 be
entitled to offset amounts in excess of the liquidated damages sum pursuant to
this Section 18. Optometrist further agrees that (i) such liquidated damages
shall be in addition to the remedies available to the Practice or Vision 21 as
set forth in Section 19 below, (ii) Vision 21 is a third-party beneficiary of
this Section 18, (iii) this Section 18 is intended for the benefit of Vision
21, (iv) this Section 18 may be enforced by the Practice's and Vision 21's
successors and/or assigns, and (v) the enforcement of this Section 18 will not
violate public policy. This Section 18 shall survive the termination or
expiration of this Employment Agreement. Notwithstanding the foregoing, Vision
21 shall not have any right to enforce any provisions of this Employment
Agreement if the Business Management Agreement terminates pursuant to Section
6.2(a) of the Business Management Agreement.
19. Remedies. Optometrist acknowledges and agrees that the
Practice's and Vision 21's remedy at law for a breach or a threatened breach of
the provisions herein would be inadequate, and in recognition of this fact, in
the event of a breach or threatened breach by Optometrist of any of the
provisions of this Employment Agreement, it is agreed that the Practice and
Vision 21 shall be entitled to equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available, without posting bond
or other security. Optometrist acknowledges that the granting of a temporary
injunction, a temporary restraining order or other permanent injunction merely
prohibiting Optometrist from engaging in the practice of optometry or engaging
in the management of any optometric practice the prohibited period within the
prohibited area would not be an adequate remedy upon breach or threatened
breach of this Employment Agreement, and consequently agrees, upon any such
breach or threatened breach, to the granting of injunctive relief prohibiting
Optometrist from engaging in any activities prohibited by this Employment
Agreement. No remedy herein conferred is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to any other remedy given hereunder now or hereinafter existing at law
or in equity or by statute or otherwise. It is expressly understood and agreed
by Optometrist that although the parties consider the restrictions contained in
this Employment Agreement to be reasonable, if a court determines that the time
or territory or any other restriction contained in this Employment Agreement is
an unenforceable restriction on the activities of Optometrist, such provision
in this Employment Agreement shall not be rendered void but shall be deemed to
be amended to apply as to such maximum time and territory and to such extent as
such court may judicially determine or indicate to be reasonable. This Section
19 shall survive the termination or expiration of this Employment Agreement.
20. Successive Employment Notice. Within five (5) business days
after the Termination Date, Optometrist shall provide notice to the Practice of
Optometrist's next intended employment. If such employment is not known by
Optometrist at such date, Optometrist shall notify the Practice immediately
upon determination of such information. Optometrist shall continue to provide
the Practice with notice
Exhibit 4.1A - Page 7
72
of Optometrist's place and nature of employment and any change in place or
nature of employment during the period ending three (3) years after the
expiration or termination of this Employment Agreement. Failure of Optometrist
to provide the Practice with such information in an accurate and timely fashion
shall be deemed to be a breach of this Employment Agreement and shall entitle
the Practice to all remedies provided for in this Employment Agreement as a
result of such breach.
21. Business Management Agreement. Optometrist agrees not to
commit any act or engage in any omission that would cause the Practice to
breach the Business Management Agreement with Vision 21.
22. Modification and Waiver. No provision of this Employment
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Optometrist and
such officer as may be specifically designated by the Board of Directors of the
Practice and by such officer as may be specifically designated by the Board of
Directors of Vision 21. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Employment Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time, and such waiver shall not operate
or be construed as a waiver of any subsequent breach of the same provision or
condition by any of the Practice, Optometrist or Vision 21.
23. Headings. Headings used in this Employment Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
24. Amendments. No amendments or variations of the terms and
conditions of this Employment Agreement shall be valid unless the same are in
writing and signed by all of the parties hereto.
25. Severability. The invalidity or unenforceability of any
provision of this Employment Agreement, whether in whole or in part, shall not
in any way affect the validity and/or enforceability of any other provision
herein contained. Any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability. It is
expressly understood and agreed that while the Practice and Optometrist
consider the restrictions contained in this Employment Agreement reasonable for
the purpose of preserving for the Practice the good will, other proprietary
rights and intangible business value of the Practice, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in this Employment Agreement is an
unreasonable or otherwise unenforceable restriction against Optometrist, the
provisions of such clause shall not be rendered void but shall be deemed
amended to apply as to maximum time and territory and to such other extent as
such court may judicially determine or indicate to be reasonable.
26. Third-Party Beneficiary. Vision 21 is a third-party
beneficiary of Sections 4, 15, 18, 19 and 25 of this Employment Agreement and
the restrictive covenants contained in this Employment Agreement are intended
for the benefit of Vision 21. Except as otherwise provided herein, this
Employment Agreement shall not confer any rights or remedies upon any person
other than the Practice, Optometrist and Vision 21 and their respective
successors and permitted assigns.
27. Successors and Assigns. The Practice's and Vision 21's
successors and/or assigns are authorized to enforce the restrictive covenants
contained in this Employment Agreement.
Exhibit 4.1A - Page 8
73
28. Governing Law. This Employment Agreement shall be construed
and enforced pursuant to the laws of the State in which the Practice conducts
its business.
29. Counterparts. This Employment Agreement may be executed in
more than one (1) counterpart and each counterpart shall be considered an
original.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Practice and Optometrist as of the date first above written.
"PRACTICE"
Xxxxxxxx & Associates, #6965 P.A.,
a Professional Association
By
---------------------------------
Xxxxxxxx X. Xxxxxxxx, its President
"OPTOMETRIST"
------------------------------------
, O.D.
---------------------
Exhibit 4.1A - Page 9
74
Exhibit 4.1B
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
List of Practice Shareholders
1. Xxxxxxxx X. Xxxxxxxx, O.D.
2. Xxxx Xxxxx, O.D.
3. Xxxx Xxxxxx, O.D.
75
Exhibit 4.1C
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
OPTOMETRIST EMPLOYMENT AGREEMENT
(SHAREHOLDER - KEY PROFESSIONAL)
This Optometrist Employment Agreement (this "Employment Agreement")
dated as of _______________, 19__, is by and between Xxxxxxxx & Associates,
#6965, P.A., a Florida professional association (the "Practice"), and
______________________________, an individual (the "Optometrist").
R E C I T A L S
A. The Practice is a professional association organized under the
laws of the State of Florida (the "State") and is authorized to practice
optometry in the State through licensed individuals.
B. The Practice and Vision 21, Inc., a Florida corporation
("Vision 21") have entered into a Business Management Agreement (the "Business
Management Agreement") dated as of December 1, 1996, whereby Vision 21 has
agreed to provide various management services to the Practice and the Practice
has agreed to have its shareholder and key professional employees execute
employment agreements in a form substantially the same as this Employment
Agreement, and it is intended that except as otherwise limited herein, Vision
21 be a third-party beneficiary of the restrictive covenants contained in this
Employment Agreement.
C. The Practice desires to employ Optometrist upon the terms and
subject to the terms and conditions set forth in this Employment Agreement.
D. The Optometrist is licensed to practice optometry in the State
and desires to be employed by the Practice upon the terms and subject to the
conditions set forth in this Employment Agreement.
E. The Optometrist possesses special knowledge relating to the
business and assets of the Practice and Vision 21 and has developed valuable,
long-term relationships with patients to be cared for by the Practice which
make him valuable to the Practice and which will contribute to the Practice's
and Vision 21's future success.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto intending to be legally bound hereby agree as follows:
1. Employment. The Practice hereby employs Optometrist, and
Optometrist hereby accepts employment with the Practice, all upon the terms and
subject to the conditions set forth in this Employment Agreement.
2. Duties and Responsibilities.
2.01 Full Time Practice of Optometry. The Optometrist is
employed pursuant to the terms of this Employment Agreement to practice
optometry on behalf of the Practice. The Optometrist shall devote
substantially all of his time, best efforts and attention to the practice of
optometry on behalf
76
of the Practice and shall provide patient care of the highest quality. In
addition to the foregoing duties, the Optometrist shall undertake additional
duties as directed by the Practice. During the term hereof and any renewal,
the Optometrist shall not, without the written consent of the Practice and
Vision 21, (1) render professional services to or for any person, firm,
corporation or other organization for compensation; or (2) engage in any
activity that competes with the interest of the Practice or Vision 21 whether
Optometrist is acting by himself or as an officer, director, shareholder,
employee, partner or fiduciary. Any consent granted to the Optometrist shall
be revocable by the Practice or Vision 21 at any time upon thirty (30) days'
notice, and the Optometrist agrees to cease and desist upon receipt of such
notice. Notwithstanding the above, the Practice recognizes that the
Optometrist shall have the right to engage in those matters expressly described
on Schedule 2.01 attached hereto so long as such permitted activities do not
result in materially reduced services to the Practice as compared to the
Optometrist's previous services to his practice and so long as the same does
not materially impact the Optometrist's ability to perform hereunder or
materially impact the Optometrist's anticipated productivity.
2.02 Subject to Board Standards and Requirements. The
Practice recognizes that professional regulatory groups and bodies such as the
State Board of Optometry may from time to time establish standards and
requirements with regard to the practice of optometry by optometrists licensed
to practice optometry. All restrictions contained herein with respect to the
duties and obligations of the Optometrist shall be subject to said standards
and requirements of the aforesaid groups and bodies.
3. Authority and Control of Practice.
Subject to Section 2.02 above and to the extent permitted by
law:
3.01 The Optometrist recognizes that the Practice shall
have complete authority with regard to the acceptance for treatment of or the
refusal to treat any patient and the Practice shall have complete authority
with regard to the establishment of the appropriate fee for professional
service.
3.02 The Practice shall direct and control the assignment
of patients to the Optometrist. Such determination shall be solely by the
Practice and in the best interests of the patient and the Practice. The
Optometrist agrees to treat such patients as are assigned to him by the
Practice. The Optometrist recognizes that patients treated by him may
subsequently be assigned to other employees.
3.03 The Optometrist shall perform all professional
services as are assigned to him by the Practice and all work performed by the
Practice shall be subject to the review and study of the Practice.
3.04 The performance of services by the Optometrist on
behalf of the Practice shall be performed at such times and at such places as
shall be determined by the Practice and in accordance with such rules as the
Practice may establish.
3.05 Hours of employment of the Optometrist shall be
determined by the Practice within reasonable standards within the profession.
3.06 The optometrist of record for each patient treated by
Optometrist shall be one of the individual owners of the Practice.
Exhibit 4.1C - Page 2
77
4. Term of Employment. The term of employment of Optometrist by
the Practice pursuant to this Employment Agreement shall be for three (3) years
(the "Employment Period") commencing on the date of this Agreement (the
"Commencement Date"). The term of this Agreement shall renew automatically at
the end of each term of this Agreement for an additional three (3) year term
unless either party hereto provides notice to the other at least ninety (90)
days prior to the expiration of any term.
5. Place of Employment. Optometrist's principal place of work
shall be located where designated by the Practice.
6. Compensation. During the Employment Period, subject to all
the terms and conditions of this Employment Agreement and as compensation for
all services to be rendered by Optometrist under this Employment Agreement, the
Practice shall pay to or provide Optometrist with the compensation set forth in
Schedule 6 attached to this Agreement.
7. Adherence to Standards. Optometrist shall comply with the
written policies, standards, rules and regulations of the Practice from time to
time established for all employees of the Practice.
8. Review of Performance. The Practice may periodically review
and evaluate the performance of Optometrist under this Employment Agreement
with Optometrist.
9. Expenses. The Practice may reimburse Optometrist for
reasonable, ordinary and necessary expenses incurred by him in connection with
his employment hereunder that have been approved in advance by the Practice;
provided, however, Optometrist shall render to the Practice a complete and
accurate accounting of all such expenses in accordance with the substantiation
requirements of Section 274 of the Internal Revenue Code of 1986, as amended
(the "Code"), as a condition precedent to such reimbursement.
10. Termination with Cause by the Practice. This Employment
Agreement may be terminated with Cause (as hereinafter defined) by the Practice
provided that the Practice shall (i) give Optometrist the Notice of Termination
(as hereinafter defined) and (ii) pay Optometrist his annual base salary
through the Date of Termination (as hereinafter defined) at the rate in effect
at the time the Notice of Termination is given plus any bonus or incentive
compensation which have been earned or have become payable pursuant to the
terms of any compensation or benefit plan or have vested as of the Date of
Termination, but which have not yet been paid.
11. Definitions. In addition to the words and terms elsewhere
defined in this Employment Agreement, certain capitalized words and terms used
in this Employment Agreement shall have the meanings given to them by the
definitions and descriptions in this Section 11 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
11.01 Cause. A termination with "Cause" by the Practice
shall mean a termination of this Employment Agreement for any of the following
reasons:
Exhibit 4.1C - Page 3
78
(i) Optometrist's failure to promptly and adequately
perform the duties assigned by Practice after being notified by the Practice of
the specific act(s) constituting such failure and being given a period of
thirty (30) days after notification by the Practice to correct such failure;
(ii) upon Optometrist's breach of any provision of
this Employment Agreement which remains uncured for a period of thirty (30)
days after notification by Practice of the specific nature of the breach;
(iii) for good cause which shall include
insubordination, conduct reflecting moral turpitude, conduct diminishing the
goodwill or reputation of the Practice, conduct disloyal to the Practice,
material violation of any representation, warranty or covenant of this
Agreement; conviction of any felony, or suspension or revocation of
Optometrist's license to practice optometry;
(iv) upon Optometrist's death; or
(v) upon Optometrist's disability if the
disability renders Optometrist unable to practice optometry on a full-time
basis for a period of more than ninety (90) days in any consecutive six (6)
month period.
11.02 Date of Termination. "Date of Termination" shall mean
the date specified in the Notice of Termination which shall not be less than
thirty (30) days from the date such Notice of Termination is given unless the
Notice of Termination is provided pursuant to Sections 11.01(iii), (iv) or (v),
in which case the Date of Termination shall be the date that Notice of
Termination is received by the Optometrist.
11.03 Notice of Termination. "Notice of Termination" shall
mean a written notice which shall indicate the specific termination provision
in this Employment Agreement relied upon; provided, however, no such purported
termination shall be effective without such Notice of Termination.
12. Fees and Expenses. The prevailing party in any contest or
dispute under this Employment Agreement shall receive from the other party all
legal fees and related expenses (including the costs of experts, evidence and
counsel incurred by the prevailing party in any and all proceedings arising out
of this Employment Agreement, including trial, appellate and bankruptcy
proceedings.
13. Notices. For the purposes of this Employment Agreement,
notices and all other communications provided for in the Employment Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage prepaid,
or by expedited (overnight) courier with an established national reputation,
shipping prepaid or billed to sender, in either case addressed to the
respective addresses last given by each party in writing to the other (provided
that all notices to the Practice shall be directed to the attention of the
Practice with a copy to the Secretary of the Practice). All notices and
communication shall be deemed to have been received on the date of delivery
thereof, on the third business day after the mailing thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
14. Life Insurance. The Practice may, at any time after the
execution of this Employment Agreement, apply for and procure as owner and for
its own benefit, life insurance on Optometrist, in such
Exhibit 4.1C - Page 4
79
amounts and in such form or forms as the Practice may determine. Optometrist
shall, at the request of the Practice, submit to such medical examinations,
supply such information, and execute such documents as may be required by the
insurance company or companies to whom the Practice has applied for such
insurance. Optometrist hereby represents that to his knowledge there are no
facts or circumstances that would preclude the Practice from obtaining life
insurance on Optometrist.
15. Proprietary Information and Inventions. Optometrist
understands and acknowledges that:
15.01 Trust. Optometrist's employment creates a relationship
of confidence and trust between Optometrist and the Practice (and by virtue of
the Business Management Agreement entered into by the Practice and Vision 21,
Optometrist's employment creates a relationship of confidence and trust between
the Optometrist and Vision 21) with respect to certain information applicable
to the business of the Practice and Vision 21, which may be made known to
Optometrist by the Practice or Vision 21 or learned by Optometrist during the
Employment Period.
15.02 Proprietary Information. The Practice and Vision 21
possess and will continue to possess information that has been created,
discovered, or developed by, or has otherwise become known to, the Practice or
Vision 21 (including, without limitation, information created, discovered, or
developed by or made known to Optometrist during the period of or arising out
of employment by the Practice) or in which property rights have been or may be
assigned or otherwise conveyed to the Practice or Vision 21, which information
has commercial value in the respective businesses in which the Practice and
Vision 21 are engaged and is treated by the Practice and Vision 21 as
confidential. Except as otherwise herein provided, all such information is
hereinafter called "Proprietary Information", which term, as used herein, shall
also include, but shall not be limited to, data, functional specifications,
computer programs, know-how, research, technology, improvements, developments,
designs, marketing plans, strategies, forecasts, new products, unpublished
financial statements, budgets, projections, licenses, prices, costs, patient,
supplier and potential acquisition candidates lists, and patient files and
records. Notwithstanding anything contained in this Employment Agreement to
the contrary, the term "Proprietary Information" shall not include (i)
information which is in the public domain, (ii) information which is published
or otherwise becomes part of the public domain through no fault of Optometrist,
(iii) information which Optometrist can demonstrate was in Optometrist's
possession at the time of disclosure and was not acquired by Optometrist
directly or indirectly from the Practice or Vision 21 on a confidential basis,
(iv) information which becomes available to Optometrist on a non-confidential
basis from a source other than the Practice or Vision 21 and which source, to
the best of Optometrist's knowledge, did not acquire the information on a
confidential basis or (v) information required to be disclosed by any federal
or state law, rule or regulation or by any applicable judgment, order or decree
or any court or governmental body or agency having jurisdiction in the
premises.
All Proprietary Information shall be the sole property of the Practice
and Vision 21 and their respective assigns. Optometrist assigns to the
Practice and Vision 21 any rights Optometrist may have or acquire in such
Proprietary Information. At all times, both during Optometrist's employment by
the Practice and after its termination or expiration, Optometrist shall keep in
strictest confidence and trust all Proprietary Information, and Optometrist
shall not use or disclose any Proprietary Information without the written
consent of the Practice and Vision 21, except as may be necessary in the
ordinary course of performing Optometrist's duties as an employee of the
Practice. This Section 15 shall survive the termination or expiration of this
Employment Agreement.
Exhibit 4.1C - Page 5
80
16. Patient Files and Surrender of Documents. To the extent
permitted by law, all records contained in the files of patients shall be the
property of the Practice. Optometrist shall, at the request of the Practice,
promptly surrender to the Practice any patient files, records, or x-rays, as
well as any Proprietary Information or document, memorandum, record, patient
record, letter or other paper in his possession or under his control relating
to the operation, business or affairs of the Practice or Vision 21.
17. Prior Employment Agreements; Successor Employment Agreements.
Optometrist represents and warrants that Optometrist's performance of all the
terms of this Employment Agreement and as an employee of the Practice does not,
and will not, breach any agreement to keep in confidence proprietary
information acquired by Optometrist in confidence or in trust prior to
Optometrist's employment by the Practice. Optometrist has not entered into,
and shall not enter into, any agreement, either written or oral, which is in
conflict with this Employment Agreement or which would be violated by
Optometrist's entering into, or carrying out his obligations under, this
Employment Agreement. Following the expiration of the term of this Employment
Agreement, Optometrist shall, if he intends to continue his relationship with
the Practice, execute a new Employment Agreement with the Practice in
substantially the form of Exhibit 4.1C of the Business Management Agreement.
18. Restrictive Covenant. Optometrist acknowledges and recognizes
(i) that Optometrist shall come into possession of Proprietary Information and
(ii) the highly competitive nature of the respective businesses of the Practice
and Vision 21 and, accordingly, agrees that in consideration of the premises
contained herein Optometrist will not, during the period of Optometrist's
employment by the Practice and for a period of one (1) year following the date
of expiration or termination of this Employment Agreement, directly or
indirectly (i) except as otherwise permitted by the terms of this Employment
Agreement, practice optometry or engage in the business of managing optometry
practices or related eye care optometric facilities within the area described
in Schedule 18, whether such engagement shall be as an employer, officer,
director, owner, employee, consultant, stockholder, partner or other
participant. Optometrist further agrees that during the period of
Optometrist's employment by Practice, and for a period of three (3) years
following the termination or expiration of this Employment Agreement,
Optometrist will not, directly or indirectly, (i) solicit any employee or
consultant of Vision 21 or the Practice for the purposes of hiring or retaining
such employee or consultant, (ii) utilize the services of any entity engaged in
the business of managing optometry practices or related eye care or optometric
facilities other than Vision 21, or (iii) contact any present or prospective
client of Vision 21 to solicit such person or entity to enter into a management
contract with any organization other than Vision 21. If Optometrist violates
this Section, Optometrist shall pay to Vision 21 the sum of Three Hundred
Thousand Dollars ($300,000) as agreed upon liquidated damages. The Optometrist
acknowledges that such sum is reasonable in light of the resulting loss of
intangible asset value associated with the Optometrist's breach of this
restrictive covenant. Optometrist further agrees that (i) such liquidated
damages shall be in addition to the remedies available to the Practice and
Vision 21 as set forth in Section 19 below, (ii) Vision 21 is a third-party
beneficiary of this Section 18, (iii) this Section 18 is intended for the
benefit of Vision 21, (iv) this Section 18 may be enforced by the Practice's
and Vision 21's successors and/or assigns, and (v) the enforcement of this
Section 18 will not violate public policy. This Section 18 shall survive the
termination or expiration of this Employment Agreement. Notwithstanding the
foregoing, Vision 21 shall not have any right to enforce any provisions of this
Employment Agreement if the Business Management Agreement terminates pursuant
to Section 6.2(a) of the Business Management Agreement.
19. Remedies. Optometrist acknowledges and agrees that the
Practice's and Vision 21's remedy at law for a breach or a threatened breach of
the provisions herein would be inadequate, and in
Exhibit 4.1C - Page 6
81
recognition of this fact, in the event of a breach or threatened breach by
Optometrist of any of the provisions of this Employment Agreement, it is agreed
that the Practice and Vision 21 shall be entitled to equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available,
without posting bond or other security. Optometrist acknowledges that the
granting of a temporary injunction, a temporary restraining order or other
permanent injunction merely prohibiting Optometrist from engaging in the
practice of optometry or engaging in the management of any optometric practice
during the prohibited period within the prohibited area would not be an
adequate remedy upon breach or threatened breach of this Employment Agreement,
and consequently agrees, upon any such breach or threatened breach, to the
granting of injunctive relief prohibiting Optometrist from engaging in any
activities prohibited by this Employment Agreement. No remedy herein conferred
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy given
hereunder now or hereinafter existing at law or in equity or by statute or
otherwise. It is expressly understood and agreed by Optometrist that although
the parties consider the restrictions contained in this Employment Agreement to
be reasonable, if a court determines that the time or territory or any other
restriction contained in this Employment Agreement is an unenforceable
restriction on the activities of Optometrist, such provision in this Employment
Agreement shall not be rendered void but shall be deemed to be amended to apply
as to such maximum time and territory and to such extent as such court may
judicially determine or indicate to be reasonable. This Section 19 shall
survive the termination or expiration of this Employment Agreement.
20. Business Management Agreement. Optometrist agrees not to
commit any act or engage in any omission that would cause the Practice to
breach the Business Management Agreement with Vision 21.
21. Modification and Waiver. No provision of this Employment
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Optometrist and
such officer as may be specifically designated by the Board of Directors of the
Practice and by such officer as may be specifically designated by the Board of
Directors of Vision 21. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Employment Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time, and such waiver shall not operate
or be construed as a waiver of any subsequent breach of the same provision or
condition by any of the Practice, Optometrist or Vision 21.
22. Headings. Headings used in this Employment Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
23. Amendments. No amendments or variations of the terms and
conditions of this Employment Agreement shall be valid unless the same are in
writing and signed by all of the parties hereto.
24. Severability. The invalidity or unenforceability of any
provision of this Employment Agreement, whether in whole or in part, shall not
in any way affect the validity and/or enforceability of any other provision
herein contained. Any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability. It is
expressly understood and agreed that while the Practice and Optometrist
consider the restrictions contained in this Employment Agreement reasonable
Exhibit 4.1C - Page 7
82
for the purpose of preserving for the Practice the good will, other proprietary
rights and intangible business value of the Practice, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in this Employment Agreement is an
unreasonable or otherwise unenforceable restriction against Optometrist, the
provisions of such clause shall not be rendered void but shall be deemed
amended to apply as to maximum time and territory and to such other extent as
such court may judicially determine or indicate to be reasonable.
25. Third-Party Beneficiary. Vision 21 is a third-party
beneficiary of Sections 4, 15, 18, 19 and 25 of this Employment Agreement and
the restrictive covenants contained in this Employment Agreement are intended
for the benefit of Vision 21.
26. Successors and Assigns. The Practice's and Vision 21's
successors and/or assigns are authorized to enforce the restrictive covenants
contained in this Employment Agreement.
27. Governing Law. This Employment Agreement shall be construed
and enforced pursuant to the laws of the State in which the Practice conducts
its business.
28. Counterparts. This Employment Agreement may be executed in
more than one (1) counterpart and each counterpart shall be considered an
original.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Practice and Optometrist as of the date first above written.
"PRACTICE"
XXXXXXXX & ASSOCIATES, #6965, P.A.
By:
------------------------------------
Xxxxxxxx X. Xxxxxxxx, its President
"OPTOMETRIST"
----------------------------------------
, O.D.
Exhibit 4.1C - Page 8
83
Exhibit 4.2B
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
OPTOMETRIST EMPLOYMENT AGREEMENT
(NON-SHAREHOLDER)
This Optometrist Employment Agreement (this "Employment Agreement")
dated as of ____________, 19__, is by and between Xxxxxxxx & Associates, #6965,
P.A., a Florida professional association (the "Practice"), and
_______________________________, an individual (the "Optometrist").
R E C I T A L S:
A. The Practice is a professional corporation organized under the
laws of the State of Florida (the "State") and is authorized to practice
optometry in the State through licensed individuals.
B. The Practice desires to employ Optometrist upon the terms and
subject to the terms and conditions set forth in this Employment Agreement.
C. The Optometrist is licensed to practice optometry in the State
and desires to be employed by the Practice upon the terms and subject to the
conditions set forth in this Employment Agreement.
D. The Practice and Vision 21, Inc. ("Vision 21") have entered
into a Business Management Agreement (the "Business Management Agreement")
whereby Vision 21 has agreed to have its professional employees execute
employment agreements in a form substantially the same as this Employment
Agreement, and it is intended that except as otherwise limited herein, Vision
21 be a third-party beneficiary of the restrictive covenants contained in this
Employment Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
promises, covenants and conditions herein contained and for other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending to be legally bound hereby agree as
follows:
1. Employment. The Practice hereby employs Optometrist, and
Optometrist hereby accepts employment with the Practice, all upon the terms and
subject to the conditions set forth in this Employment Agreement.
2. Duties and Responsibilities.
2.01 Full Time Practice of Optometry. The Optometrist is
employed pursuant to the terms of this Employment Agreement to practice
optometry on behalf of the Practice. The Optometrist shall devote
substantially all of his time, best efforts and attention to the practice of
optometry on behalf of the Practice and shall provide quality patient care. In
addition to the foregoing duties, the Optometrist shall undertake additional
duties as directed by the Practice. During the term hereof and any renewal,
the Optometrist shall not, without the written consent of the Practice and
Vision 21, (1) render professional services to or for any person, firm,
corporation or other organization for compensation; or (2) engage in any
activity that competes with the interest of the Practice or Vision 21 whether
Optometrist is acting by himself or as an officer, director, shareholder,
employee, partner or fiduciary. Any consent granted to the Optometrist shall
be revocable by the Practice or Vision 21 at any time upon thirty (30) days'
notice, and the Optometrist agrees to cease and desist upon receipt of such
notice. Notwithstanding the above, the Practice recognizes that the
Optometrist shall have the right to engage in those matters expressly described
84
on Schedule 2.01 attached hereto so long as such permitted activities do not
result in materially reduced services to the Practice as compared to the
Optometrist's previous services to his practice and so long as the same does
not materially impact the Optometrist's ability to perform hereunder or
materially impact the Optometrist's anticipated productivity.
2.02 Subject to Board Standards and Requirements. The
Practice recognizes that professional regulatory groups and bodies such as the
State Board of Optometry may from time to time establish standards and
requirements with regard to the practice of optometry by optometrists licensed
to practice optometry. All restrictions contained herein with respect to the
duties and obligations of the Optometrist shall be subject to said standards
and requirements of the aforesaid groups and bodies.
3. Authority and Control of Practice.
Subject to Section 2.02 above and to the extent permitted by law:
3.01 The Optometrist recognizes that the Practice shall
have complete authority with regard to the acceptance for treatment of or the
refusal to treat any patient and the Practice shall have complete authority
with regard to the establishment of the appropriate fee for professional
service.
3.02 The Practice shall direct and control the assignment
of patients to the Optometrist. Such determination shall be solely by the
Practice and in the best interests of the patient and the Practice. The
Optometrist agrees to treat such patients as are assigned to him by the
Practice. The Optometrist recognizes that patients treated by him may
subsequently be assigned to other employees.
3.03 The Optometrist shall perform all professional
services as are assigned to him by the Practice and all work performed by the
Practice shall be subject to the review and study of the Practice.
3.04 The performance of services by the Optometrist on
behalf of the Practice shall be performed at such times and at such places as
shall be determined by the Practice and in accordance with such rules as the
Practice may establish.
3.05 Hours of employment of the Optometrist shall be
determined by the Practice within reasonable standards within the profession.
3.06 The optometrist of record for each patient treated by
Optometrist shall be one of the individual owners of the Practice.
4. Term of Employment. The term of employment of Optometrist by the
Practice pursuant to this Employment Agreement shall be for two (2) years (the
"Employment Period") commencing on the date of this Agreement (the
"Commencement Date") unless otherwise terminated earlier under the provisions
of this Employment Agreement. The term of this Agreement shall renew
automatically at the end of each term of this Agreement for an additional two
(2) year term unless either party hereto provides notice to the other at least
ninety (90) days prior to the expiration of the term.
5. Place of Employment. Optometrist's principal place of work shall
be located where designated by the Practice.
Exhibit 4.2B - Page 2
85
6. Compensation. During the Employment Period, subject to all the
terms and conditions of this Employment Agreement and as compensation for all
services to be rendered by Optometrist under this Employment Agreement, the
Practice shall pay to or provide Optometrist with the compensation set forth in
Schedule 6 attached to this Agreement.
7. Adherence to Standards. Optometrist shall comply with the
written policies, standards, rules and regulations of the Practice from time to
time established for all employees of the Practice.
8. Review of Performance. The Practice may periodically review and
evaluate the performance of Optometrist under this Employment Agreement with
Optometrist.
9. Expenses. The Practice may reimburse Optometrist for reasonable,
ordinary and necessary expenses incurred by him in connection with his
employment hereunder that have been approved in advance by the Practice;
provided, however, Optometrist shall render to the Practice a complete and
accurate accounting of all such expenses in accordance with the substantiation
requirements of Section 274 of the Internal Revenue Code of 1986, as amended
(the "Code"), as a condition precedent to such reimbursement.
10. Termination with Cause by the Practice. This Employment
Agreement may be terminated with Cause (as hereinafter defined) by the Practice
provided that the Practice shall (i) give Optometrist the Notice of Termination
(as hereinafter defined) and (ii) pay Optometrist his annual base salary
through the Date of Termination (as hereinafter defined) at the rate in effect
at the time the Notice of Termination is given plus any bonus or incentive
compensation which have been earned or have become payable pursuant to the
terms of any compensation or benefit plan or have vested as of the Date of
Termination, but which have not yet been paid.
11. Termination without Cause by the Practice or with Cause by
the Optometrist. This Employment Agreement may be terminated by the Practice
without cause or by the Optometrist with cause and in the event that the
Practice terminates the Optometrist without cause, the Practice shall give
written notice to the Optometrist at least ninety (90) days prior to the Date
of Termination.
12. Definitions. In addition to the words and terms elsewhere
defined in this Employment Agreement, certain capitalized words and terms used
in this Employment Agreement shall have the meanings given to them by the
definitions and descriptions in this Section 12 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
12.01 Cause. A termination with "Cause" by the Practice
shall mean a termination of this Employment Agreement for any of the following
reasons:
(i) Optometrist's failure to promptly and adequately
perform the duties assigned by Practice after being notified by the Practice of
the specific act(s) constituting such failure and being given a period of
thirty (30) days after notification by the Practice to correct such failure;
(ii) upon Optometrist's breach of any provision of
this Employment Agreement which remains uncured for a period of thirty (30)
days after notification by Practice of the specific nature of the breach;
Exhibit 4.2B - Page 3
86
(iii) for good cause which shall include
absenteeism, theft, dishonesty, insubordination, conduct reflecting moral
turpitude, conduct diminishing the goodwill or reputation of the Practice;
conduct disloyal to the Practice, violation of any representation, warranty or
covenant of this Agreement; conviction of any felony, or suspension or
revocation of Optometrist's license to practice optometry;
(iv) upon Optometrist's death; or
(v) upon Optometrist's disability if the
disability renders Optometrist unable to practice optometry on a full-time
basis for a period of more than ninety (90) days in any consecutive six (6)
month period.
12.02 Date of Termination. "Date of Termination" shall mean
the date specified in the Notice of Termination.
12.03 Notice of Termination. "Notice of Termination" shall
mean a written notice which shall indicate the specific termination provision
in this Employment Agreement relied upon; provided, however, no such purported
termination shall be effective without such Notice of Termination.
13. Fees and Expenses. The prevailing party in any contest or
dispute under this Employment Agreement shall receive from the other party all
legal fees and related expenses (including the costs of experts, evidence and
counsel) incurred by the prevailing party in any and all proceedings as a
result of a contest or dispute arising out of this Employment Agreement
including trial, appellate and bankruptcy proceedings.
14. Notices. For the purposes of this Employment Agreement, notices
and all other communications provided for in the Employment Agreement shall be
in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage prepaid,
or by expedited (overnight) courier with an established national reputation,
shipping prepaid or billed to sender, in either case addressed to the
respective addresses last given by each party in writing to the other (provided
that all notices to the Practice shall be directed to the attention of the
Practice with a copy to the Secretary of the Practice. All notices and
communication shall be deemed to have been received on the date of delivery
thereof, on the third business day after the mailing thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
15. Life Insurance. The Practice may, at any time after the
execution of this Employment Agreement, apply for and procure as owner and for
its own benefit, life insurance on Optometrist, in such amounts and in such
form or forms as the Practice may determine. Optometrist shall, at the request
of the Practice, submit to such medical examinations, supply such information,
and execute such documents as may be required by the insurance company or
companies to whom the Practice has applied for such insurance. Optometrist
hereby represents that to his knowledge there are no facts or circumstances
that would preclude the Practice from obtaining life insurance on Optometrist.
16. Proprietary Information and Inventions. Optometrist understands
and acknowledges that:
16.01 Trust. Optometrist's employment creates a relationship
of confidence and trust between Optometrist and the Practice with respect to
certain information applicable to the business of the
Exhibit 4.2B - Page 4
87
Practice, and Vision 21 which may be made known to Optometrist by the Practice
or Vision 21 or learned by Optometrist during the Employment Period.
16.02 Proprietary Information. The Practice and Vision 21
possess and will continue to possess information that has been created,
discovered, or developed by, or otherwise become known to, the Practice or
Vision 21 (including, without limitation, information created, discovered or
developed by, or made known to Optometrist during the period of or arising out
of employment by the Practice) or in which property rights have been or may be
assigned or otherwise conveyed to the Practice or Vision 21, which information
has commercial value in the respective businesses in which the Practice and
Vision 21 are engaged and is treated by the Practice and Vision 21 as
confidential. Except as otherwise herein provided, all such information is
hereinafter called "Proprietary Information", which term, as used herein, shall
also include, but shall not be limited to, data, functional specifications,
computer programs, know-how, research, technology, improvements, developments,
designs, marketing plans, strategies, forecasts, new products, unpublished
financial statements, budgets, projections, licenses, prices, costs, patient,
supplier and potential acquisition candidates lists, and patient files and
records. Notwithstanding anything contained in this Employment Agreement to
the contrary, the term "Proprietary Information" shall not include (i)
information which is in the public domain, (ii) information which is published
or otherwise becomes part of the public domain through no fault of Optometrist,
(iii) information which Optometrist can demonstrate was in Optometrist's
possession at the time of disclosure and was not acquired by Optometrist
directly or indirectly from the Practice or Vision 21 on a confidential basis,
(iv) information which becomes available to Optometrist on a non-confidential
basis from a source other than the Practice or Vision 21 and which source, to
the best of Optometrist's knowledge, did not acquire the information on a
confidential basis or (v) information required to be disclosed by any federal
or state law, rule or regulation or by any applicable judgment, order or decree
or any court or governmental body or agency having jurisdiction in the
premises.
All Proprietary Information shall be the sole property of the Practice
and Vision 21 and their respective assigns. Optometrist assigns to the
Practice and Vision 21 any rights Optometrist may have or acquire in such
Proprietary Information. At all times, both during Optometrist's employment by
the Practice and after its termination or expiration, Optometrist shall keep in
strictest confidence and trust all Proprietary Information, and Optometrist
shall not use or disclose any Proprietary Information without the written
consent of the Practice and Vision 21, except as may be necessary in the
ordinary course of performing Optometrist's duties as an employee of the
Practice. This Section 16 shall survive the termination or expiration of this
Employment Agreement.
17. Patient Files and Surrender of Documents. To the extent
permitted by law, all records contained in the files of patients shall be the
property of the Practice. Optometrist shall, at the request of the Practice,
promptly surrender to the Practice any patient files, records, or x-rays, as
well as any Proprietary Information or document, memorandum, record, patient
record, letter or other paper in his possession or under his control relating
to the operation, business or affairs of the Practice or Vision 21.
18. Prior Employment Agreements. Optometrist represents and
warrants that Optometrist's performance of all the terms of this Employment
Agreement and as an employee of the Practice does not, and will not, breach any
agreement to keep in confidence proprietary information acquired by Optometrist
in confidence or in trust prior to Optometrist's employment by the Practice.
Optometrist has not entered into, and shall not enter into, any agreement,
either written or oral, which is in conflict with this Employment Agreement or
which would be violated by Optometrist's entering into, or carrying out his
obligations under, this Employment Agreement.
Exhibit 4.2B - Page 5
88
19. Restrictive Covenant. Optometrist acknowledges and recognizes
(i) that Optometrist shall come into possession of Proprietary Information and
(ii) the highly competitive nature of the respective businesses of the Practice
and Vision 21 and, accordingly, agrees that in consideration of the premises
contained herein Optometrist will not, during the period of Optometrist's
employment by the Practice and for a period of one (1) year following the date
of expiration or termination of this Employment Agreement (unless terminated
without cause by the Practice), directly or indirectly (i) except as otherwise
permitted by the terms of this Employment Agreement, practice optometry or
engage in the business of managing optometry practices or related eye care
optometric facilities within the area described in Schedule 19, whether such
engagement shall be as an employer, officer, director, owner, employee,
consultant, stockholder, partner or other participant. Optometrist further
agrees that during the period of Optometrist's employment by Practice, and for
a period of one (1) year following the termination or expiration of this
Employment Agreement, Optometrist will not, directly or indirectly, (i) solicit
any employee or consultant of Vision 21 for the purposes of hiring or retaining
such employee or consultant, (ii) utilize the services of any entity engaged in
the business of managing optometry practices or related eye care or optometric
facilities other than Vision 21, or (iii) contact any present or prospective
client of Vision 21 to solicit such person or entity to enter into a management
contract with any organization other than Vision 21. Optometrist further
agrees that (i) Vision 21 is a third-party beneficiary of this Section 19, (ii)
this Section 19 is intended for the benefit of Vision 21, (iii) this Section 19
may be enforced by Practice's and Vision 21's successors and/or assigns, and
(iv) the enforcement of this Section 19 will not violate public policy. This
Section 19 shall survive the termination or expiration of this Employment
Agreement. Notwithstanding the foregoing, Vision 21 shall not have any right
to enforce any provisions of this Employment Agreement if the Business
Management Agreement terminates pursuant to Section 6.2(a) of the Business
Management Agreement.
20. Remedies. Optometrist acknowledges and agrees that the
Practice's and Vision 21's remedy at law for a breach or a threatened breach of
the provisions herein would be inadequate, and in recognition of this fact, in
the event of a breach or threatened breach by Optometrist of any of the
provisions of this Employment Agreement, it is agreed that the Practice and
Vision 21 shall be entitled to, equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available, without posting bond
or other security. Optometrist acknowledges that the granting of a temporary
injunction, a temporary restraining order or other permanent injunction merely
prohibiting Optometrist from engaging in the practice of optometry or engaging
in the management of any optometric practice during the prohibited period
within the prohibited area would not be an adequate remedy upon breach or
threatened breach of this Employment Agreement, and consequently agrees upon
any such breach or threatened breach to the granting of injunctive relief
prohibiting Optometrist from engaging in any activities prohibited by this
Employment Agreement. No remedy herein conferred is intended to be exclusive
of any other remedy, and each and every such remedy shall be cumulative and
shall be in addition to any other remedy given hereunder now or hereinafter
existing at law or in equity or by statute or otherwise. It is expressly
understood and agreed by Optometrist that although the parties consider the
restrictions contained in this Employment Agreement to be reasonable, if a
court determines that the time or territory or any other restriction contained
in this Employment Agreement is an unenforceable restriction on the activities
of Optometrist, as such provision in this Employment Agreement shall not be
rendered void but shall be deemed to be amended as to apply to such maximum
time and territory and to such extent as such court may judicially determine or
indicate to be reasonable. This Section 20 shall survive the termination or
expiration of this Employment Agreement.
Exhibit 4.2B - Page 6
89
21. Business Management Agreement. Optometrist agrees not to commit
any act or engage in any omission that would cause the Practice to breach the
Business Management Agreement with Vision 21.
22. Modification and Waiver. No provision of this Employment
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Optometrist and
such officer as may be specifically designated by the Board of Directors of the
Practice and by such officer as may be specifically designated by the Board of
Directors of Vision 21. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Employment Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time, and such waiver shall not operate
or be construed as a waiver of any subsequent breach of the same provision or
condition by any of the Practice, Optometrist or Vision 21.
23. Headings. Headings used in this Employment Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
24. Amendments. No amendments or variations of the terms and
conditions of this Employment Agreement shall be valid unless the same are in
writing and signed by all of the parties hereto.
25. Severability. The invalidity or unenforceability of any
provision of this Employment Agreement, whether in whole or in part, shall not
in any way affect the validity and/or enforceability of any other provision
herein contained. Any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability. It is
expressly understood and agreed that while the Practice and Optometrist
consider the restrictions contained in this Employment Agreement reasonable for
the purpose of preserving for the Practice the good will, other proprietary
rights and intangible business value of the Practice, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in this Employment Agreement is an
unreasonable or otherwise unenforceable restriction against Optometrist, the
provisions of such clause shall not be rendered void but shall be deemed
amended to apply as to maximum time and territory and to such other extent as
such court may judicially determine or indicate to be reasonable.
26. Third Party Beneficiary. Vision 21 is a third-party beneficiary
of Sections 4, 16, 17, 19, 20 and 25 of this Employment Agreement and the
restrictive covenants contained in this Employment Agreement are intended for
the benefit of Vision 21. Except as otherwise provided herein, this Employment
Agreement shall not confer any rights or remedies upon any person other than
the Practice, ophthalmologist and Vision 21 and their respective successors and
permitted assigns.
27. Successors and Assigns. The Practice's and Vision 21's
successors and/or assigns are authorized to enforce the restrictive covenants
contained in this Employment Agreement.
28. Governing Law. This Employment Agreement shall be construed and
enforced pursuant to the laws of the State in which the Practice conducts its
business.
29. Counterparts. This Employment Agreement may be executed in more
than one (1) counterpart and each counterpart shall be considered an original.
Exhibit 4.2B - Page 7
90
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Practice and Optometrist as of the date first above written.
"PRACTICE"
XXXXXXXX & ASSOCIATES, #6965, P.A.
By
----------------------------------
Xxxxxxxx X. Xxxxxxxx, its President
"OPTOMETRIST"
-------------------------------------
Exhibit 4.2B - Page 8
91
Exhibit 4.2C
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
List of Non-shareholder Professionals
in Non-standard Employment Employment Contracts
1. None.
92
Exhibit 4.17
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
SHAREHOLDERS' UNDERTAKING TO MAINTAIN PRACTICE'S
CORPORATE EXISTENCE AND ENFORCEMENT OF COVENANTS
NOT TO COMPETE
As an inducement to the Business Manager to enter into this Business
Management Agreement with the Practice or as required in the Business
Management Agreement, each of the undersigned person(s), having an ownership
interest in the Practice, irrevocably and unconditionally covenants and agrees
to maintain in good standing the corporate existence of the Practice under the
laws of the State and to cause the Practice to use its best efforts to enforce
employment agreements (including those covenants not to compete requirements
described in Sections 4.1 and 4.2) against any individuals violating such
employment agreements (and covenants not to compete). The undersigned persons
further unconditionally covenant and agree to indemnify and hold harmless
Business Manager from and against any and all claims requirements, demands,
liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees, resulting in any manner from the failure of the Practice to
remain in good standing under the laws of the State or the failure of the
Practice to use its best efforts to enforce those employment agreements and
covenants not to compete described in Section 4.1 and 4.2 of such Business
Management Agreement, a copy of which has been delivered to the undersigned for
his review. The undersigned acknowledges that he or she has received adequate
consideration for the execution hereof. After a period of five (5) years from
December 1, 1996, this Undertaking may be assumed by a successor Shareholder or
Shareholders, in accordance with the terms and conditions set forth in Section
4.1 of the Business Management Agreement, whereupon the undersigned shall be
released to the extent of such assumption, provided that any such successor
Shareholder executes a form similar to this.
IN WITNESS WHEREOF, the undersigned(s) have executed this
Shareholders' Undertaking as of the day and year written opposite such
shareholder's name.
Date: December 1, 1996
---------------------------------
Xxxxxxxx X. Xxxxxxxx
Date: December 1, 1996
---------------------------------
Xxxx Xxxxx
Date: December 1, 1996
---------------------------------
Xxxx Xxxxxx
93
Exhibit 5.1
to Business Management Agreement among Xxxxxxxx & Associates,
noninterested members of the Board of Directors and the
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
Management Fee Percentage
1. The Management Fee Percentage shall be such percentage as is
areed to from time to time and approved by Independent Audit Committee of the
Company upon its creation. Should the parties ever fail to agree as to the
gross percentage the same shall be based upon the fair market value for such
services as determined by Ernst & Young or such other big 6 accounting firm
agreed to by the parties or in the event of disagreement, as seleced by the
Company.
94
Exhibit 6.4(f)
to Business Management Agreement among Xxxxxxxx & Associates,
#6965, P.A. (the "Practice"), and Vision 21, Inc. ("Business
Manager")
SHAREHOLDERS' UNDERTAKING TO CARRY OUT
PRACTICE'S PURCHASE OBLIGATION
As an inducement to the Business Manager to enter into this Business
Management Agreement with the Practice or as required in Business Management
Agreement, each of the undersigned person(s), having an ownership interest in
the Practice, irrevocably and unconditionally covenants and agrees subject to
the limitations contained in the Business Management Agreement to (i) cause the
Practice to carry out the purchase obligation described in Section 6.4(f) of
the Business Management Agreement, (ii) personally execute and deliver the
personal guarantees and security agreements referred to in Section 6.4(f) of
such Business Management Agreement, a copy of which has been delivered to the
undersigned for his review, and (iii) execute the documents described in
Section 6.6. The undersigned acknowledges that he or she has received adequate
consideration for the execution hereof.
IN WITNESS WHEREOF, the undersigned(s) have executed this
Shareholders' Undertaking as of the day and year written opposite such
shareholder's name.
Date: December 1, 1996
---------------------------------
Xxxxxxxx X. Xxxxxxxx
Date: December 1, 1996
---------------------------------
Xxxx Xxxxx
Date: December 1, 1996
---------------------------------
Xxxx Xxxxxx
