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EXHIBIT 10.18
SERVICE AGREEMENT
This SERVICE AGREEMENT (the "AGREEMENT") dated as of _____________,
1996 and effective as of the Effective Date defined below, is by and between:
VISTA LASER CENTERS OF THE PACIFIC, INC., a corporation incorporated
under the laws of the State of Nevada (herein called the "COMPANY");
and
____________________________ (herein called the "PROFESSIONAL").
R E C I T A L S:
A. The Company is in the business of managing and administering laser
vision correction equipment and related support services (collectively,
the "LVC SERVICES") to qualified ophthalmologists for vision correction
by use of advanced laser technology, focusing in particular on laser
vision correction of common refractive disorders such as myopia and
astigmatism.
B. The Professional has experience in vision correction by use of advanced
laser technology; and
C. The Professional may elect to utilize facilities, equipment and support
services of the Company for professional services rendered to patients
by the Professional.
NOW, THEREFORE, the parties hereto covenant and agree as follows:
1. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
following capitalized terms are defined as follows:
1.1. LVC Procedures, Care and Centers:
1.1(a) "PROCEDURE" shall mean a refractive surgical procedure for
treatment of a patient's eye (bilateral treatment of both eyes shall be
considered two Procedures for purposes hereof).
1.1(b) "RE-OP PROCEDURE" shall mean a Procedure for treatment of a
patient's eye required to correct or adjust a previous Procedure as to the same
eye within 18 months of the previous Procedure.
1.1(c) "POST-OP CARE" shall mean post-operative care performed with
respect to Procedures and Re-Op Procedures within 12 months of such Procedures.
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1.1(d) "LVC CARE" shall mean, collectively, Procedures, Re-Op
Procedures, Post-Op Care and any other vision eye care services rendered for
patients by licensed health care professionals covered by the terms of this
Agreement.
1.1(e) "LVC CENTERS" shall mean, collectively, the facilities and sites
established by the Company for the rendering of LVC Care by the Professional.
1.2. Professional Fees:
1.2(a) "SURGICAL FEE" shall mean a fee paid to the Professional or any
other licensed health care professional designated by the Professional for
performing a surgical Procedure and, if necessary, a Re-Op Procedure. The
parties hereto understand that any Re-Op Procedure is included free of charge
with the original Procedure, and therefore the Surgical Fee for the Re-Op
Procedure shall be considered part of the Surgical Fee for the original
Procedure.
1.2(b) "POST-OP FEE" shall mean a fee paid to the Professional or any
other licensed health care professional designated by the Professional for
Post-Op Care and treatment.
1.2(c) "PROFESSIONAL FEES" shall mean, collectively, Surgical Fees,
Post- Op Fees and any other fees for professional medical services rendered by a
licensed health care professional.
1.3. Company LVC Support Fees:
1.3(a) "SERVICE FEES" shall mean amounts charged to licensed health
care professionals and providers for use of the LVC Services to support the
Professional's LVC Care activities. Service Fees shall include, among any other
relevant charges, amounts charged for equipment use, medical supplies and for
any other charges relating to the use of equipment, but excluding all
Professional Fees.
1.3(b) "ADMINISTRATIVE FEES" shall mean all charges of the Company for
billing, collection and accounting services, training and education, marketing
and advertising, and management and administration of operations, facilities and
equipment, but excluding all Professional Fees.
1.3(c) "TOTAL SUPPORT FEES" shall mean, collectively, Service Fees and
Administrative Fees and any other fees and costs included directly or indirectly
in charges to professionals and health care providers for LVC Care, but
excluding all Professional Fees and excluding all goods and services, sales or
use taxes applicable to Total Support Fees.
1.4. "GROSS PROCEDURE FEE" shall mean the total Professional Fees
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and Total Support Fees established hereunder and charged by the Professional to
a patient for a Procedure and, if applicable, a Re-Op Procedure and other LVC
Care. The Gross Procedure Fees accordingly includes all Professional Fees
charged by the Professional and other licensed health care professionals engaged
by the Professional and all Total Support Fees charged to such health care
providers by the Company for LVC Care, all as the foregoing terms are defined
above.
Unless otherwise directed by the Professional, the
Company understands that the standard allocation distribution of the
Professional Fees portion of the Gross Procedure Fee shall be one hundred
percent (100.0%) of the Professional Fees shall be paid to the Professional or
another licensed health care provider designated by the Professional for the
Procedure, any related Re-Op Procedures and/or Post-Op Care.
2. LVC SERVICES AND SUPPORT TO BE RENDERED BY THE COMPANY. During the
term of this Agreement, the Company covenants and agrees to provide the
Professional with the following support services:
(a) To acquire and maintain LVC equipment in the metropolitan
area of ___________, Califonia, with such LVC equipment and maintenance thereof
to meet all ethical and professional standards as prescribed by the Company's
Medical Advisory Board and the manufacturer's requirements.
(b) To establish a public education and marketing program to
promote LVC Care to the public in the geographic markets of the state of
California by means of advertising and other programs conforming to ethical and
professional standards established by the Company's Board of Directors with the
advice and consent of the Company's Medical Advisory Group.
(c) To train and maintain an adequate support staff for the
management, administration, operation and maintenance of the Company's LVC
Services, consistent with ethical and professional standards established by the
Company's Board of Directors with the advice and consent of the Company's
Medical Advisory Group.
(d) To sponsor and promote general awareness of LVC Care
within the professional community by sponsoring and promoting educational and
training seminars for health care professionals at the Company's LVC Centers,
all at the cost of the Company.
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3. TOTAL SUPPORT FEES PAYABLE TO THE COMPANY.
3.1. The parties hereto agree that the Gross Procedure Fee for
each Procedure performed at an LVC Center, together with any related Post-Op
Care and related Re-Op Procedure, if necessary, shall be established by the
Professional from time to time for each such Procedure performed hereunder by
the Professional. Provided, however, that the parties covenant and agree that
the Gross Procedure Fee shall in no event be less than $1,950 per Procedure
(United States funds) unless the parties hereto shall have mutually agreed in
writing to a lower minimum Gross Procedure Fee based upon all relevant factors.
The billing, collection and payment of the Gross Procedure Fee shall be subject
to applicable laws, rules and regulations of any entity or governing body of
competent jurisdiction. Subject to the above, the Professional shall provide the
Company with a schedule of the various Gross Procedure Fees established from
time to time for LVC Care services, and shall not amend such Gross Procedure
Fees except on prior written notice to the Company.
3.2. In consideration of equipment use, accounting,
administration, general marketing and other support services to be rendered by
the Company hereunder, the parties covenant and agree that the Total Support
Fees to be charged by the Company during the term of this Agreement to the
Professional and to other licensed health care providers designated by the
Professional shall be $500 for each Procedure plus the manufacturer's patent
royalty fee to the excimer laser manufacturer and any applicable goods and
services, sales or use taxes applicable to such Total Support Fees. The Company
may change the Total Support Fees to be charged to the Professional upon two (2)
weeks written notice to the Professional.
3.3. At the Professional's request, the Company will xxxx
patients on behalf of the Professional for all such Gross Procedure Fees and
shall use its best efforts to collect the same for the joint account of the
Professional, other health care providers designated by the Professional and the
Company. The Company shall disburse to itself the sum equal to the Total Support
Fees portion of the Gross Procedure Fees collected on behalf of the
Professional. The Company shall provide the Professional with a detailed
accounting of xxxxxxxx and collections of such Gross Procedure Fees within 15
days after the end of each month, together with such additional detail as the
Professional or his representative shall request in order to calculate any
payments made to the Company under the terms of this Agreement.
4. REPRESENTATIONS OF PROFESSIONAL. The professional hereby makes the
following representaions to the Company:
(a) The Professional is duly licensed to practice ophthmalogy in the
State of California and shall be certified to perform all Procedures that he
shall perform at the Company's Laser Services Centers.
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(b) The Professional shall be covered by a medical malpractice
insurance policy with coverage on each Prodcedure to be performed by the
Professional of not less than $1,000,000 per claim at the time of performing all
Procedures at the Company's Laser Services Centers.
5. SEVERABILITY AND AGREEMENT TO REFORM.
5.1. The parties hereto agree that the covenants and agreements
contained in this Agreement shall be construed as if the covenants and
agreements are divided into separate and distinct covenants in respect of each
of the obligations of the parties hereunder. Nothing in this Agreement is
intended or shall be construed as requiring any act or agreement in violation of
law or of applicable rules and regulations of any entity or governing body
having competent jurisdiction of the subject matter, whether now in effect or as
the same may be amended or become effective during the term of this Agreement.
Should any provisions of this Agreement be determined to be unenforceable, in
violation of public policy, or contrary to applicable laws, rules or regulations
of any entity of governing body having competent jurisdiction, the parties
covenant and agree promptly to amend and reform this Agreement for the purpose
of deleting any such provisions and to substitute therefor such alternative
provisions for the purposes of implementing, to the extent possible in
compliance with applicable law, rules and regulations, (i) either the intention
of the parties in entering into this Agreement and the economic relationships
between them as originally contemplated herein, or (ii) a fair and equitable
adjustment of the remaining provisions of this Agreement to compensate any party
injured by the deletion of one or more portions of this Agreement.
5.2. Subject to the foregoing provisions of Section 5.1, in the event
any covenant or other provision contained in this Agreement shall be deemed to
be illegal, unenforceable or unreasonable by a court or other entity or
governing body of competent jurisdiction, such determination shall not affect
the enforceability of the remaining covenants and provisions of this Agreement,
all of which shall remain enforceable to the extent permitted by law.
6. TERM AND TERMINATION.
6.1. The initial term of this Agreement shall commence with the
execution of this Agreement by all parties hereto and shall be deemed effective
as of the date first above written (the "Effective Date"), and shall continue
for a period of five (5) years following the Effective Date, unless earlier
terminated in accordance with the following provisions:
6.1.1. The parties may mutually agree to terminate this
Agreement at any time by written consent executed by Company and the
Professional.
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6.1.2. In the event the Company shall be in material breach of
any covenant or agreement on its part to be performed in this Agreement, this
Agreement may be terminated by the Professional at his sole discretion at any
time thereafter upon thirty (30) days prior written notice to the Company unless
such material breach has been cured during such 30 day period of grace. The
inability of the Professional to use outpatient surgical LVC Services of the
Company by reason of force majeure shall not be deemed a material breach unless
the Company is unable to place its LVC equipment in a condition suitable for the
performance of Procedures in keeping with high medical standards of professional
care within a reasonable period. Any such termination of this Agreement shall
not relieve the parties hereto of obligations incurred through the effective
date of termination.
6.1.3. In the event the Professional shall be in material
breach of any covenant or agreement on his part to be performed in this
Agreement, this Agreement may be terminated by the Company at any time
thereafter upon thirty (30) days prior written notice to the Professional unless
such material breach has been cured during such 30 day period of grace. The
inability of the Professional to perform Procedures, whether by reason of
disability or any other cause, shall not be deemed a material breach unless such
inability is continuous for a period of at least six (6) consecutive months. Any
such termination of this Agreement shall not relieve the parties hereto of
obligations incurred through the effective date of termination.
6.2. Upon the expiration of the initial term of this Agreement, this
Agreement shall be automatically renewed for successive periods of one (1) year
each unless any party hereto shall provide the other party with written notice
of its intent to terminate this Agreement at least three (3) months prior to the
expiration of the then current term of this Agreement or any renewal thereof.
7. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail, postage prepaid, or by commercial overnight courier (such as
Federal Express, DHL, etc.) with written verification of receipt, to his last
known business address or residence in the case of the Professional or to its
last known principal office in the case of the Company.
8. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed by a waiver of any
subsequent breach.
9. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
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10. ASSIGNMENT. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
of the Company. The Professional may assign all or any portion of the benefits
of this Agreement to any professional corporation beneficially owned by the
Professional, but shall not assign any of the Professional's duties under this
Agreement which the parties hereby agree are personal and unique.
11. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties as to the subject matter hereof and thereof. This Agreement may not
be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, modification, extension or discharge is
sought.
IN WITNESS WHEREOF, the parties have executed this Agreement, effective
as of the day first written above.
"PROFESSIONAL": ________________________________________
(SIGNATURE)
________________________________________
Print Name of Professional
"COMPANY": VISTA LASER CENTERS OF THE PACIFIC, INC.
By:____________________________________
Xxxxx X. Xxxxx III, President
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ADDENDUM TO SERVICE AGREEMENT
This ADDENDUM (the "Addendum") to the Service Agreement dated as of
________________, 1996 (the "Serivce Agreement") by and between the Company and
___________________ (the "Professional"), hereby amends the Service Agreement,
but only to the extend set forth below:
A. In consideration of the mutual covenants herein contained the
Company shall conduct an extensive marketing and advertising program on behalf
of the Professional and other health care providers with which the Company has
contracted or will contract. The Company hereby agrees to refer all pertinent
information with respect to potential patients (the "Patient Leads") for Patient
Leads which indicate such patient lives or works in the following geographic
territory (the "Territory")____________________________________, California,
which comes into the Company's possession as a result of its marketing and
advertising program, to the Professional. "Patient Leads" as used herein shall
also be deemed to include all information obtained by the Company from actual
patients of the Professional or other health care providers represented by the
Company which originated from a Patient Lead provided by the Company. In the
event both the Company and the Professional have contacted the Patient Lead, it
is hereby agreed that whichever contacted the Patient Lead last shall be deemed
to have produced the patient.
B. The Professional hereby agrees to perform all LVC Procedures on his
patients which result from the Patient Leads at the Company's LVC Service
Centers and pay the Company the required Total Services Fees therefor, all as
described in the Service Agreement. In addition, the Professional agrees to pay
to the Company from the Gross Procedure Fee (defined in the Service Agreement)
collected by the Company or otherwise, a referral fee of $420 for each PRK
Procedure performed on the patient and $510 for each LASIK Procedure performed
on the patient.
C. In the event the Professional terminates this Addendum to the
Service Agreement or the Service Agreement, the Professional agrees that neither
he nor any or his employees, agents or assigns shall ever contact a patient
which resulted from a Patient Lead for the purpose of obtaining any additional
information with respect to additional patients. The Professional hereby agrees
that the Company shall be entitled to obtain preliminary injunctive relief
against the Professional as a remedy for the breach of this covenant in this
Addendum.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Addemdum, effective
as of the day first written above.
"PROFESSIONAL": ________________________________________
(SIGNATURE)
________________________________________
Print Name of Professional
"COMPANY": VISTA LASER CENTERS OF THE PACIFIC, INC.
By:____________________________________
Xxxxx X. Xxxxx III, President
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