1
EXHIBIT 10.1
BUSINESS MANAGEMENT AGREEMENT
This Professional Business Management Agreement is made and entered
into effective as of February 27, 2000, by and between Eye Care Centers of
America, Inc., a Texas corporation ("Professional Business Manager"), and X.X.
Xxxxxxxxxxx, O.D. & Associates, P.C., an Arizona professional corporation (the
"Practice").
R E C I T A L S
A. The Practice is currently engaged in the provision of Professional
Eye Care Services (as defined below) to the general public in the state of
Arizona (the "Practice Area") through individual Professionals (as defined
below) each of whom is licensed to practice optometry and/or ophthalmology in
Arizona and is employed or otherwise retained by the Practice;
B. The Practice desires to provide Professional Eye Care Services to
the general public at office(s) located adjacent to certain optical retail
stores operating under the name "EyeMasters" in Arizona and engage the
Professional Business Manager to provide management services at such offices
(such office locations, each to be listed on Exhibit A as attached hereto and
amended from time to time, are hereinafter referred to as the "EyeMasters
Practice Locations"); and
C. The Practice desires to engage Professional 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 at
each of the EyeMasters Practice Locations, and Professional 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:
ARTICLE I
DEFINITIONS
For the purposes of this Professional 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 Adjusted Gross Revenue. The term "Adjusted Gross Revenue" shall
mean all revenues for Professional Eye Care Services, or otherwise, generated by
or on behalf of the Practice and/or its Professionals or other personnel at,
relating to, or arising out of the EyeMasters Practice Locations during the term
of this Professional Business Management Agreement, calculated on an accrual
basis under GAAP, including all technical fees from ancillary services, all
proceeds from key person life and disability insurance policies purchased by
Professional Business Manager in agreement with the Practice in accordance with
Section 3.15, all amounts paid by third parties for contractual liabilities,
including, but not limited to, payments under non-shareholder Professionals'
non-competition agreements and compensation
2
payments under any service agreement between the Practice and another entity,
and all consultant, teaching and expert witness fees 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.
1.2 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).
1.3 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.
1.4 Clinical Duties. The term "Clinical Duties " shall mean those
duties of Non-Professional Personnel (as defined below) which entail directly or
indirectly assisting a Professional (as defined below) in the scheduling,
examination or care of patients in the course of providing Professional Eye Care
Services, regardless of whether the performance of such duties requires
licensure under applicable state law.
1.5 Confidential Information. The term "Confidential Information" shall
mean any information of Professional 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
Professional 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 Professional Business Management
Agreement or the Existing Business Management Agreements. Confidential
Information shall also include the terms and provisions of this Professional
Business Management Agreement and any transaction or document executed by the
Parties pursuant to this Professional 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 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.
1.6 Executive Office Administrator. The term "Executive Office
Administrator" shall mean the employee of Professional Business Manager having
executive authority and responsibility for the general and active management of
the Professional Business Manager.
1.7 EyeMasters Practice Locations. The term "EyeMasters Practice
Locations" shall have the meaning set forth in the Recitals.
2
3
1.8 GAAP. The term "GAAP" shall mean generally accepted United States
accounting principles.
1.9 Management Fee. The term "Management Fee" shall mean the
Professional Business Manager's compensation established as described in Article
V hereof.
1.10 Management Services. The term "Management Services" shall mean the
business, administrative, and management services to be provided for the
Practice and the Office hereunder, including, without limitation, the provision
of equipment, inventory and supplies, support services, personnel (excluding
Professionals) management, administration, financial record keeping, and
reporting, and other business office services, all as reasonably contemplated by
this Professional Business Management Agreement and which are necessary for the
conduct of the Practice's business at the EyeMasters Practice Locations.
1.11 Non-Professional Personnel. The term "Non-Professional Personnel"
shall mean those individuals employed primarily at the Office who are not
Optometrists or Ophthalmologists.
1.12 Office. The term "Office" shall mean the facilities and locations
used by the Practice with respect to the EyeMasters Practice Locations, all
business operations related to the Practice's optometric and/or therapeutic
optometric practice at the EyeMasters Practice Locations, and all related
business operations of the Practice which are to be administered by Professional
Business Manager under this Professional Business Management Agreement.
1.13 Office Expense. The term "Office Expense" shall mean all operating
and non-operating expenses incurred by the Professional Business Manager in the
provision of Management Services to the Office and shall include all operating
and non-operating expenses incurred by the Practice relating to the items set
forth in this Section. The Professional Business Manager shall be reimbursed by
the Practice for any reasonable Office Expense incurred by the Professional
Business Manager in the provision of services to the Practice hereunder, upon
request by the Professional Business Manager. Office Expense shall not include
any Professional Business Manager Expense, Practice Expense or Shareholder
Expense or any state, local or federal income or franchise tax. Without
limitation, Office Expense shall include the following expenses to the extent
relating to the EyeMasters Practice Locations:
(a) the salaries, benefits, payroll taxes, and other direct
costs of all employees of Professional Business Manager primarily working at the
Office and the salaries, benefits, payroll taxes, and other direct costs of the
Non-Professional Personnel of the Practice primarily working at the Office, but
not the salaries, benefits, payroll taxes or other direct costs of the
Professionals;
(b) the direct cost of any employee or consultant that
provides services at or in connection with the Office for improved Office
performance, such as management, billing and collections, business office
consultation, and accounting and legal services, but only when such services are
coordinated by Professional Business Manager and/or included in the Budget;
(c) reasonable recruitment costs and out-of-pocket expenses of
Professional Business Manager or the Practice associated with the recruitment of
additional Professionals, other employees of the Practice and Professional
Business Manager's employees primarily located at the Office;
3
4
(d) personal property and intangible property taxes assessed
against Professional Business Manager's assets used in connection with the
operation of the Office;
(e) comprehensive general and professional liability insurance
covering the Office, employees of the Practice in connection with the operation
of the Office and employees of Professional Business Manager in connection with
the operation of the Office;
(f) the expense of using, leasing, purchasing or otherwise
procuring and maintaining the Office;
(g) the cost of capital (whether as actual interest on
indebtedness incurred on behalf of the Practice or reasonable imputed interest
on capital advanced by Professional Business Manager which shall be equal to the
average cost of borrowing by Professional Business Manager as reflected on its
most recent published financial statements, or in the absence of either of the
foregoing, eight percent (8%)) to finance or refinance obligations of the
Practice incurred in connection with the Office, or to finance new ventures of
the Practice in connection with the Office; in any such case only as such cost
of capital is set forth in the Budget or otherwise approved in advance by the
Practice Advisory Council;
(h) the reasonable travel expenses associated with attending
meetings, conferences, or seminars to benefit the Practice so long as such
expenses are related to individuals located at the Office and the Practice's pro
rata share for individuals who are consultants of or employed by Professional
Business Manager who provide material services to the Office;
(i) the cost of office supplies, inventory and utilities;
(j) billing and collection costs and expenses;
(k) the Practice's pro-rata share of reasonable corporate
overhead charges or other reasonable expenses (including computer and data
processing costs) which are incurred by Professional Business Manager in
connection with corporate headquarters expenses which relate to the provision of
benefits or services by Professional Business Manager to the Office and are
reflected in the Budget including without limitation direct or indirect costs of
the Executive Office Administrator and other Professional Business Manager
personnel;
(l) all other expenses which are set forth in the Budget and
which directly or indirectly benefit the Practice incurred by Professional
Business Manager in carrying out its obligations under this Professional
Business Management Agreement;
(m) reasonable costs and expenses (to the extent not covered
by insurance) of lawsuits or claims against the Professional Business Manager or
its personnel, or the Practice, its Professional(s), or its other personnel
related to their performance of duties at the Office or their interest in assets
used in connection with the Office, provided that if any of the Professional
Business Manager or its personnel, or the Practice, its Professional(s), or its
other personnel do not prevail in the lawsuit or claim or settle the matter with
a material payment by the party (the party at "fault"), such costs and expenses
shall be deemed a Professional Business Manager Expense in the event of
Professional Business Manager's fault or the fault of its personnel and a
Practice Expense in the event of fault by the Practice, its Professional(s), or
its other personnel whereupon the Practice and such Professional(s) or other
personnel shall be jointly responsible for the immediate reimbursement of the
sums advanced by Professional Business Manager;
4
5
provided further that Professional Business Manager shall not advance such costs
and expenses from the Account if the Practice Advisory Council concludes that
(i) it is unlikely that the Account will be reimbursed if the party involved
will not prevail in the lawsuit or claim, or (ii) a reasonable third person
would believe that obtaining a reimbursement of the advanced sums will be
difficult to achieve; and the Parties acknowledge that nothing in this Section
shall create any liability on the part of a Professional who would otherwise be
shielded from personal liability by the corporate or limited liability structure
of the Practice;
(n) key person life and disability insurance premiums related
to policies which the Parties agree to acquire on the life of the Practice's
Shareholders or Professionals, whereupon any proceeds shall be paid to the
Account as Adjusted Gross Revenues, unless the Parties agree to a specific split
of the proceeds. Should only the Practice choose to obtain key person life
insurance, the Practice shall pay all premiums as a Practice Expense and shall
receive all proceeds. Further, if only the Professional Business Manager chooses
to obtain such insurance, Professional Business Manager shall pay all premiums
as a Professional Business Manager Expense and shall receive all proceeds. The
Practice shall cause its Shareholders and Professionals to submit to a medical
examination necessary to obtain such insurance.
In the event that any of the individuals described in Section 1.14(b)
devote a substantial amount of time to serving one or more optometric practices
other than the Practice with respect to the EyeMasters Practice Locations, which
is not prohibited hereunder, or the above described Office is utilized to a
substantial degree by one or more optometric practices other than the Practice
with respect to the EyeMasters Practice Locations, the Office Expenses shall be
allocated between the Practice with respect to the EyeMasters Practice Locations
and such other optometric practices to reflect each practice's pro-rata share of
any expenses or costs relating to such individuals or Office (including the
recruitment costs of such individuals and the comprehensive and general
liability insurance expenses with respect to such individuals). Expenses
contemplated in this paragraph which potentially and primarily relate to
Sections 1.14 (b), (c), (d), (e), (f), (g), (h), (k), and (l) shall be in the
Budget or approved by the Practice Advisory Council, and where reasonably
determinable, are intended to be reasonable and customary based upon similar
relationships generally existing between national practice management companies
and practices they manage. The Practice's pro-rata portion of expenses related
to individuals who are consultants of or employed by Professional Business
Manager and who provide services benefiting practices other than the Practice
with respect to the EyeMasters Practice Locations shall be based upon the actual
time expended by the individuals in performing such services as compared to the
time spent by such individuals with other practices managed by the Professional
Business Manager, or, if not reasonably calculable, as determined by the
Professional Business Manager, based upon the estimated proportionate revenue
size of the Practice with respect to the EyeMasters Practice Locations as
compared to the aggregate revenue size as estimated in all of the Budgets of all
other practices managed by the Professional Business Manager which are
benefiting from such individual's services. Likewise, other benefits provided by
the Professional Business Manager to the Practice with respect to the EyeMasters
Practice Locations and other practice locations shall be split pro-rata based
upon the use or benefit derived by each practice, but if not calculable, shall
be based upon the estimated proportionate revenue size as set forth in the
preceding sentence. Notwithstanding anything to the contrary herein, unless
expressly designated as a Professional Business Manager Expense, a Practice
Expense or a Shareholder Expense in this Professional Business Management
Agreement or any exhibit thereto, all expenses incurred by Professional Business
Manager in providing services pursuant to this Professional Business Management
Agreement shall be considered Office Expenses
5
6
1.14 Optometrist. The term "Optometrist" shall mean each individually
licensed Optometrist, if any, who is employed or otherwise retained by or
associated with the Practice, and shall meet at all times the qualifications
described in Section 4.3 and Section 4.4.
1.15 Ophthalmologist. The term "Ophthalmologist" shall mean each
individually licensed Ophthalmologist, if any, who is employed or otherwise
retained by or associated with the Practice, and shall meet at all times the
qualifications described in Section 4.3 and Section 4.4.
1.16 Parties. The term "Parties" shall mean the Practice and
Professional Business Manager.
1.17 Permitted Shareholder Expense. The "Permitted Shareholder Expense"
shall mean the amount equal to (i) $5,000 per EyeMasters Practice Location on an
annualized basis (such amount to be prorated for any partial year in which an
EyeMasters Practice Location operates) plus (ii) the amount of any compensation
paid to the Shareholder under the President's Employment Agreement described in
Section 4.3 hereof. The Parties acknowledge that the amount referenced in clause
(i) of this paragraph may be (A) expended by the Practice on additional benefits
to be provided to Shareholder that would not otherwise be included as an Office
Expense or Practice Expense or provided under the President's Employment
Agreement, (B) paid to an affiliate of the Practice for consulting or other
services to the Practice, or (C) distributed to Shareholder.
1.18 Practice. The term "Practice" shall have the meaning set forth in
the Recitals.
1.19 Practice Advisory Council. The term "Practice Advisory Council"
shall have the meaning set forth in Section 2.6 of this Agreement.
1.20 Practice Expenses. The term "Practice Expenses" shall mean, to the
extent relating to the EyeMasters Practice Locations, (a) all reasonable
non-shareholder Professionals' salaries, benefits, payroll taxes and other
direct costs related to their services to the Practice (including reasonable and
customary professional dues, subscriptions, continuing education and technical
training expenses, and severance payments), (b) the cost of optometric supplies
(including, but not limited to, drugs, pharmaceuticals, products, substances,
items or optometric devices); (c) reasonable and customary professional
liability insurance expenses of Professionals; (d) travel costs for continuing
education, technical training and necessary business travel for non-shareholder
Professionals; (e) to the extent not covered by insurance and subject to the
advance provisions contained herein, the defense costs and expenses of any
litigation or claims brought against the Practice, its Professionals, or its
other personnel by any third party in which the Practice, its Professionals, or
its other personnel do not prevail or the matter settles with a material payment
and the Practice, its Professionals, or other personnel are at fault, and any
liability judgment or material settlement assessed against the Practice or its
Professionals or other personnel; (f) certain equipment expenses described in
Sections 3.2(c) and 3.2(d) of this Professional Business Management Agreement;
(g) interest on any funds advanced to the Practice by Professional Business
Manager to the extent that Professional Business Manager is a net lender in
accordance with the terms of this Professional Business Management Agreement;
(h) any income taxes or franchise taxes of the Practice; and (i) consulting,
accounting, or legal fees which relate solely to the Practice. Notwithstanding
the foregoing, the term Practice Expenses shall specifically exclude (i)
business travel requested by Professional Business Manager, which shall be an
Office Expense, (ii) any and all compensation or expenses attributable to
Shareholders, which shall be Shareholder Expenses (except reasonable and
customary expenses for malpractice insurance which shall be a Practice Expense),
(iii) "tail" insurance coverage for Shareholders, which shall be a Shareholder
Expense, or (iv) such other items agreed to in advance in writing by the Parties
6
7
hereto. During this Professional Business Management Agreement, for so long as a
current Shareholder of the Practice is an employee of, contractor to, or
Shareholder of the Practice, such Shareholder shall be deemed to be a
Shareholder for the purposes of this definition. Such expenses are to be
approved annually in the Budget.
1.21 Professional. The term "Professional" shall mean any Optometrist
or Ophthalmologist.
1.22 Professional Business Management Agreement. The term "Professional
Business Management Agreement" shall mean this instrument as originally executed
and delivered, or, if amended or supplemented, as so amended or supplemented.
1.23 Professional Business Manager. The term "Professional Business
Manager" shall have the meaning set forth in the Recitals hereto.
1.24 Professional Business Manager Expense. The term "Professional
Business Manager Expense" shall mean an expense or cost incurred by the
Professional Business Manager, for which the Professional Business Manager is
financially liable and is not entitled to reimbursement from the Practice.
Professional Business Manager Expense shall specifically include: (a) any income
or franchise taxes of the Professional Business Manager; (b) the expense of
providing, leasing, purchasing or otherwise procuring and maintaining the Office
equipment, including depreciation in the case of furniture and equipment; and
(c) any other expenses or costs that are not reasonable and customary
reimbursements based upon a national practice management company's usual
arrangement with a practice it manages.
1.25 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 Optometrists, Ophthalmologists,
and other professional health care providers that are retained by or
professionally affiliated with the Practice.
1.26 Professional Practice Account. The term "Professional Practice
Account" shall mean the bank account described in Section 3.10.
1.27 Representatives. The term "Representatives" shall mean a Party's
officers, directors, managers, employees, or other agents.
1.28 Shareholder. The term "Shareholder" shall mean any current or
future shareholder of the Practice.
1.29 Shareholder Expense. The term "Shareholder Expense" shall be
limited to the following expenses: (a) Shareholders' salaries, benefits, payroll
taxes, and other direct costs as provided in the President's Employment
Agreement (including professional dues, subscriptions, continuing education
expenses, severance payments, and entertainment and travel costs for continuing
education or other business travel but excluding business travel requested by
Professional 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) "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; and (c) consulting,
accounting, or legal fees which relate solely to the Shareholders. The Practice
shall reimburse the Professional Business Manager for any Shareholder Expense
incurred by the Professional
7
8
Business Manager. Unless expressly designated as a Management Fee, a
Professional Business Manager Expense, an Office Expense, or a Practice Expense
in this Professional Business Management Agreement or in any exhibit hereto or
in any written agreement of the Parties, any expense 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.
1.30 Term. The term "Term" shall mean the initial and any renewal
periods of duration of this Professional Business Management Agreement as
described in Section 6.1.
ARTICLE II
APPOINTMENT OF PROFESSIONAL BUSINESS MANAGER
2.1 Appointment. The Practice hereby appoints Professional Business
Manager as its sole and exclusive agent for the management and administration of
the business functions and business affairs of the Office, and Professional
Business Manager hereby accepts such appointment, subject at all times to the
provisions of this Professional Business Management Agreement. Notwithstanding
any provisions in this Agreement to the contrary, Professional Business
Manager's duties, responsibilities and authority hereunder shall only extend to
the management of the EyeMasters Practice Locations set forth on Exhibit A
hereto, which may be amended from time to time with the consent of the Practice
and Professional Business Manager or as provided in Section 6.2(c) hereof.
2.2 Authority. Consistent with the provisions of this Professional
Business Management Agreement, Professional Business Manager shall have the
responsibility and commensurate authority to provide Management Services for the
Practice at the EyeMasters Practice Locations. The Practice shall give
Professional Business Manager thirty (30) days' prior notice of the Practice's
intent to execute any agreement creating a binding legal obligation on the
Practice to the extent relating to the EyeMasters Practice Locations. 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. Professional 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. Professional Business Manager and the Practice
agree that the benefits to the Practice and to Professional Business Manager
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 Professional Business Manager to patients of the
Practice in any facility, laboratory, center, or health care operation
controlled, managed, or operated by Professional Business Manager or upon the
referral, admission, or any other arrangement for the provision of any item or
service offered by the Practice.
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 pension and investment
planning shall remain the responsibility of the Practice and the Shareholders of
the Practice. The Professional Business Manager may not and shall not directly
or indirectly control or
8
9
attempt to control, dictate or influence, directly or indirectly, the
professional judgment, including, but not limited to, the level or type of care
or services rendered, the manner of practice, or the practice of the Practice or
any Professional employed by the Practice.
2.5 Practice of Optometry. The Parties acknowledge that Professional
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 to be performed by Professional
Business Manager should be construed by a court of competent jurisdiction or by
the Board of Optometry to constitute the practice of optometry, the requirement
to perform that act or service by Professional Business Manager shall be deemed
waived and unenforceable. Although Professional Business Manager shall provide
Non-Professional Personnel to the Practice and Professional Business Manager
shall manage the administrative aspects of their employment, all
Non-Professional Personnel shall be subject to the direction, supervision, and
control of the Practice and its Professionals in the performance of any and all
Clinical Duties and in the performance of Clinical Duties shall not be subject
to any direction or control by, or liability to, Professional Business Manager.
Professional Business Manager may not and shall not control or attempt to
control, directly or indirectly, the professional judgment, the manner of
practice, or the practice of the Practice or any Professional employed by the
Practice. In this regard, Professional Business Manager shall not attempt to
dictate, influence, or control the scope, level, or type of Professional Eye
Care Services provided to patients of the Office, the frequency of patient
contacts at the Office (except to the extent necessary to establish the Budget),
the discipline of any Professionals who are Practice employees, the fees charged
for Professional Eye Care Services provided to patients of the Office (except to
the extent necessary to establish the Budget or negotiate managed care
contracts), or any other matter that impinges on the professional judgment of
the Practice or any Professional employed by the Practice.
2.6 Formation and Operation of the Practice Advisory Council. The
Parties hereby establish a Practice Advisory Council which shall be responsible
for advising Professional Business Manager and the Practice with respect to
developing the Office and implementing management and administrative policies
for the overall operation of the Office and for providing dispute resolution on
certain matters. The Practice Advisory Counsel shall consist of four (4)
members. Professional 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 Advisory Council shall be the act of
the Practice Advisory Council, provided that the affirmative vote of the
Practice member(s) shall be required on all votes of the Practice Advisory
Council relating to or affecting the provision of Professional Eye Care
Services. The decisions, resolutions, actions, or recommendations of the
Practice Advisory Council shall be implemented by Professional 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, to the extent relating to the EyeMasters
Practice Locations:
(a) Facility Improvements and Expansion. Any renovation and
expansion plans and capital equipment expenditures with respect to the
Practice's facilities at the EyeMasters Practice Locations
9
10
shall be reviewed by the Practice Advisory Council which shall make
recommendations to the Practice 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 and ancillary services rendered by the
Practice at the EyeMasters Practice Locations.
(c) Patient Fees; Collection Policies. 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 at the EyeMasters Practice
Locations.
(d) Ancillary Services. The Practice Advisory Council must
approve any new non-professional ancillary services to be rendered by the
Practice at the EyeMasters Practice Locations and 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 the Practice regarding the
establishment or maintenance of relationships between the Practice and
institutional health care providers and third-party payors, and the Practice
shall review and approve all agreements with institutional health care providers
and third-party payors. The Practice Advisory Council shall also make
recommendations to the Practice concerning discounted fee schedules, including
capitated fee arrangements of which the Practice shall be a party, and the
Practice shall review and approve all such capitated fee arrangements.
(f) Strategic Planning. The Practice Advisory Council may make
recommendations to the Practice concerning development of long-term strategic
planning objectives for the Practice.
(g) Capital Expenditures. The Practice Advisory Council shall
make recommendations to the Practice concerning the priority of major capital
expenditures, and shall review and approve any commitment to make any capital
expenditures 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 agreement of the Parties.
(h) Fee Dispute Resolution. At the request of Professional
Business Manager or the Practice, the Practice Advisory Council shall make
recommendations to Professional Business Manager with respect to any dispute
concerning a set off or reduction in Management Fees.
(i) Grievances Referrals. The Practice Advisory Council shall
consider and make recommendations to Professional Business Manager and the
Practice regarding grievances pertaining to matters not specifically addressed
in this Professional Business Management Agreement as referred to it by
Professional Business Manager or the Practice's Board of Directors.
(j) Termination of Professional Business Manager's Personnel.
The Practice Advisory Council shall review and approve any decision by the
Professional Business Manager to terminate
10
11
any of Professional Business Manager's personnel primarily located at the Office
who occupy office manager or high level positions.
(k) Approval of New Offices or Dispensary. The Practice
Advisory Council shall approve any move of any current Office location or
expansion to an additional Office location.
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 Professional 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 Professional Business Manager and the Practice and
that the Practice Advisory Council does not have the power to bind Professional
Business Manager or the Practice. Where discretion with respect to any matter is
vested in Professional Business Manager or the Practice under the terms of this
Agreement, Professional Business Manager or the Practice, as the case may be,
shall have ultimate responsibility for the exercise of such discretion,
notwithstanding any recommendations of the Practice Advisory Council.
Professional 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. Notwithstanding anything herein
to the contrary, all decisions required by applicable law to be made solely by
health care professionals will be made solely by the appropriate Professionals.
The Practice shall have ultimate and exclusive authority concerning issues
related to:
(a) Types, levels, and scope 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 non-professional
ancillary services);
(b) Recruitment of Professionals to the Practice, including
the specific qualifications and specialties of recruited Professionals;
(c) Any optometric related functions;
(d) Fee schedules;
(e) Frequency, volume and/or scheduling of patient encounters;
(f) The discipline of any Professionals or Non-Professional
Personnel with respect to the performance of Professional Eye Care Services or
Clinical Duties, as applicable; and
(g) 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 Professional
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 Professional
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.
11
12
ARTICLE III
OBLIGATIONS AND RESPONSIBILITIES OF BUSINESS MANAGER
3.1 Management Services. Professional 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 at the
EyeMasters Practice Locations, pursuant to the terms of this Professional
Business Management Agreement. Professional 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 Professional
Business Manager's performance of the Management Services. Professional Business
Manager will provide in good faith and with due diligence its services
consistent with management services generally provided in the operations of
optometric practice similar in size, type and operations in the Practice Areas.
All reasonable costs and expenses related to Professional Business Manager's
duties contained in this Article III shall be Office Expenses unless limited or
excluded as an Office Expense pursuant to the terms of this Professional
Business Management Agreement. Subject to Section 6.2(c), Professional Business
Manager hereby consents and agrees to provide all Management Services to all
Office facilities and locations at the EyeMaster Practice Locations; provided,
however, that during the Term of this Agreement the Practice shall not engage
any individual or entity other than Professional Business Manager to provide
Management Services to the Practice at the EyeMasters Practice Locations without
the consent and approval of the Practice Advisory Council.
3.2 Office, Facilities and Equipment.
(a) Professional Business Manager shall procure, for or on
behalf of the Practice, one or more Offices for EyeMasters Practice Locations
that are deemed by the Parties to be reasonable, necessary and appropriate, and
the expense associated therewith shall be an Office Expense. Professional
Business Manager shall consult with the Practice regarding the condition, use
and needs of Office facilities, offices and improvements. The Practice shall pay
when due all rents and expenses of the Office, including without limitation
expenses for leasehold or facility improvements. Such rents and expenses shall
be Office Expenses.
(b) To the extent required to provide Office space to the
Practice, Professional Business Manager shall negotiate and administer all
leases of and agreements for Office facilities at the EyeMasters Practice
Locations on behalf of the Practice, provided, however, that Professional
Business Manager shall consult with the Practice on all professional or clinical
matters relating thereto and that the Practice shall consent to any lease
negotiated by Professional Business Manager, which consent shall not be
unreasonably withheld.
(c) Professional 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 at the EyeMasters Practice
Locations. If the Practice wishes to choose additional equipment, which the
Professional 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 Practice Expense.
12
13
(d) Professional Business Manager shall provide, finance, or
cause to be provided or financed health care related equipment as reasonably
required by the Practice with respect to the EyeMasters Practice Locations. The
Practice shall have final authority in all health care equipment selections;
provided, however, that if the Practice chooses to acquire health care equipment
for the EyeMasters Practice Locations which is not in the Budget and which
Professional Business Manager reasonably chooses not to acquire, expenses
related thereto shall be treated as a Practice 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 after a
period of six months of use such equipment is reasonably certain to result in
material profit to Professional Business Manager (taking into account the cost
or expense and anticipated revenues associated with such equipment) then
Professional Business Manager shall acquire such equipment from the Practice by
either (at Professional 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 Professional Business Manager, it shall reimburse the Practice
for previous expenses applied thereto. Except for equipment which Professional
Business Manager elects not to acquire or lease which is 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 at the EyeMasters Practice Locations shall be owned by
Professional Business Manager and the depreciation and related capital charge
shall be a Professional Business Manager Expense. Professional 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 at the EyeMasters Practice Locations.
(e) Professional Business Manager shall be responsible for the
repair and maintenance of the Office, consistent with the Practice's
responsibilities under the terms of any lease or other use arrangement, and for
the prompt repair, maintenance, and replacement of all 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 Practice
Expense and not an Office Expense. Replacement equipment shall be acquired where
Professional Business Manager in good faith determines, in consultation with the
Practice, that such replacement is necessary or where the Budget has made
allowances for such replacement.
3.3 Health Care Supplies. Professional Business Manager shall order,
procure, purchase and provide on behalf of and as agent for the Practice all
reasonable health care supplies relating to the EyeMasters Practice Locations
unless otherwise prohibited by federal and/or state law. Furthermore,
Professional 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 Office and required for the provision of
Professional Eye Care Services at the EyeMasters Practice Locations. 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 an Office Expense. As used in this
provision, the term "health care supplies" shall mean all drugs,
pharmaceuticals, products, substances, items or devices whose purchase,
possession, maintenance, administration, prescription or security 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. Professional Business Manager shall provide or
arrange for all printing, stationery, forms, postage, duplication or
photocopying services, and other support services as are
13
14
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.
Professional 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
provided by the Practice at the EyeMasters Practice Locations, and shall
provide, administrative support for the Practice's overall quality assurance,
risk management, and utilization review programs relating to the EyeMasters
Practice Locations. Professional 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. Professional 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 Office and the equipment
(existing and future) located at the EyeMasters Practice Locations, 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 shall be deemed Office Expenses.
3.7 Personnel.
(a) Selection and Retention of Professional Business Manager's
Personnel. Except as specifically provided in Section 4.3 of this Professional
Business Management Agreement, Professional Business Manager shall, in
consultation with the Practice, employ or otherwise retain and shall be
responsible for selecting, hiring, training, supervising, and terminating, all
management, administrative, technical, clerical, secretarial, bookkeeping,
accounting, payroll, billing and collection and other personnel (excluding
Professionals) as Professional Business Manager deems reasonably necessary and
appropriate for the operation of the Office at the EyeMasters Practice Locations
and for Professional Business Manager's performance of its duties and
obligations under this Professional Business Management Agreement. Consistent
with reasonably prudent personnel management policies, Professional Business
Manager shall seek and consider the advice, input, and requests of the Practice
in regard to personnel matters. Professional 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. Professional Business Manager reserves the right to
change the number, composition or employment terms of such personnel in the
future at Professional Business Manager's discretion; provided, however, that
the termination of any of Professional Business Manager's personnel who occupy
office manager or high level positions, and are primarily located at the Office
must receive the approval of the Practice Advisory Council. Professional
Business Manager and the Practice recognize and acknowledge that Professional
Business Manager and personnel retained by Professional Business Manager may
from time-to-time perform services for persons other than the Practice. This
Professional Business Management Agreement shall not be construed to prevent or
prohibit Professional Business Manager from performing such services for others
or restrict Professional Business Manager from using its personnel to provide
services to others. Professional 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.
14
15
(b) Termination of Professional Business Manager's Personnel.
If the Practice is dissatisfied with the services of any employee of
Professional Business Manager or any personnel under Professional Business
Manager's direction, supervision and control, at the EyeMasters Practice
Locations, the Practice shall consult with Professional Business Manager.
Professional Business Manager shall in good faith determine whether the
performance of that employee could be brought to acceptable levels through
counsel and assistance, or whether such employee should be relocated or
terminated. All of Professional Business Manager's determinations regarding
Professional Business Manager's personnel shall be governed by the overriding
principle and goal of providing high quality optometric and/or therapeutic
optometric support services. Employee assignments shall be made to assure
consistent and continued rendering of high quality optometric and/or therapeutic
optometric support services. The Professional Business Manager shall maintain
established working relationships wherever possible, and Professional Business
Manager shall make every effort consistent with sound business practices to
honor the specific requests of the Practice with regard to the assignment of
employees. Notwithstanding that which is contained in this Section 3.7(b), the
Practice shall have the right and obligation to determine the direction,
supervision, and control of any personnel while said personnel are involved in
the performance of Clinical Duties at the EyeMasters Practice Locations,
including prohibiting said personnel from being involved in the performance of
Clinical Duties.
3.8 Contract Negotiations. Professional Business Manager shall
evaluate, assist in negotiations and administer on behalf of the Practice
contracts relating to the EyeMasters Practice Locations that do not relate to
the provision of Professional Eye Care Services as set forth in this
Professional Business Management Agreement and/or as approved in the Budget. To
the extent permitted by law, Professional 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 at
the EyeMasters Practice Locations, including, without limitation, negotiated
price agreements with third-party payors, alternative delivery systems, or other
purchasers of group health care services. The Professional Business Manager
shall review and make recommendations to the Practice regarding the
establishment or maintenance of relationships between the Practice (with respect
to the EyeMasters Practice Locations) and institutional health care providers
and third-party payors, and the Practice shall review and approve all agreements
with institutional health care providers and third-party payors. The
Professional Business Manager shall also make recommendations to the Practice
concerning discounted fee schedules, including capitated fee arrangements of
which the Practice (with respect to the EyeMasters Practice Locations) shall be
a party, and the Practice shall review and approve all such capitated fee
arrangements. The Practice shall have the final authority with regard to the
entry into all such contractual arrangements relating to the provision of
Professional Eye Care Services at the EyeMasters Practice Locations.
3.9 Billing and Collection As an agent on behalf of and for the account
of the Practice, Professional 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 fees for all billable
Professional Eye Care Services provided by the Practice, the Professionals or
other personnel employed or otherwise retained by the Practice at the EyeMasters
Practice Locations. 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 Professional Business Manager an
exclusive special power of attorney and appoints Professional 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 Professional Business Manager hereby accepts such special power of attorney
and appointment, for the following purposes to the extent relating to the
EyeMasters Practice Locations:
15
16
(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
at the EyeMasters Practice Locations;
(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 at the EyeMasters Practice
Locations;
(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 Professional Business Manager to undertake extraordinary collection
measures, such as filing lawsuits, discharging or releasing obligors, or
assigning or selling accounts at a discount to collection agencies. Professional
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 on behalf of the Practice
into the Professional Practice Account which shall be and at all times remain in
the Practice's name. The Practice covenants to transfer and deliver to the
Professional Practice Account all funds received by the Practice from patients
or third-party payors for billable Professional Eye Care Services rendered at
the EyeMasters Practice Locations. Upon receipt by Professional Business Manager
of any funds from patients or third-party payors or from the Practice pursuant
hereto for billable Professional Eye Care Services rendered at the EyeMasters
Practice Locations, Professional Business Manager shall immediately deposit the
same into the Professional Practice Account. Professional Business Manager shall
administer, be responsible for, and be obligated to pay for all Office Expenses;
provided, however, that Professional Business Manager shall only be liable for
Office Expenses to the extent of funds in the Professional Practice Account.
Professional Business Manager shall disburse funds from the Professional
Practice Account to creditors and other persons on behalf of the Practice,
maintaining records of such receipt and disbursement of funds;
(e) To take possession of, endorse in the name of the
Practice, and deposit into the Professional Practice Account any notes, checks,
money orders, insurance payments, and any other instruments received in payment
of accounts receivable of the Practice relating to the EyeMasters Practice
Locations; and
(f) To sign checks on behalf of the Practice, and to make
withdrawals from the Professional Practice Account for payments specified in
this Professional Business Management Agreement. Upon request of Professional
Business Manager, the Practice shall execute and deliver to the financial
institution wherein the Professional Practice Account is maintained, such
additional documents or instruments as may be necessary to evidence or effect
the special power of attorney granted to Professional 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
Professional Business Manager's written consent. The irrevocable power of
attorney shall expire when this Professional Business
16
17
Management Agreement has been terminated, all accounts receivable payable to
Professional Business Manager pursuant to this Professional Business Management
Agreement have been collected, and all Management Fees due to Professional
Business Manager have been paid. If Professional Business Manager assigns this
Professional 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 Professional Business Manager.
3.10 Maintenance of Professional Practice Account.
(a) Power of Attorney. Professional Business Manager shall
have access to the Professional Practice Account solely for the purposes stated
herein. In connection herewith and throughout the term of this Professional
Business Management Agreement, the Practice hereby grants to Professional
Business Manager an exclusive special power of attorney for the purposes stated
herein and appoints Professional Business Manager as the Practice's exclusive,
true, and lawful agent and attorney-in-fact, and Professional Business Manager
hereby accepts such special power of attorney and appointment, to deposit into
the Professional Practice Account all funds, fees, and revenues received from
collection by Professional Business Manager for Professional Eye Care Services
rendered to patients of the Office, and for all other professional and Office
services relating to the EyeMasters Practice Locations and to make withdrawals
from the Professional Practice Account for payments specified in this
Professional Business Management Agreement and as requested from time-to-time by
the Practice. Notwithstanding the exclusive special power of attorney granted to
Professional Business Manager hereunder, the Practice may, upon reasonable
advance notice to Professional Business Manager, draw checks on the Account;
provided, however, that the Practice shall neither draw checks on the
Professional Practice Account nor request Professional Business Manager to do so
if the balance remaining in the Professional Practice Account after such
withdrawal would be insufficient to enable Professional Business Manager to pay
on behalf of the Practice any Office Expense attributable to the operations of
the Office or to the provision of Professional Eye Care Services and/or any
other obligations of the Practice to the extent relating to the EyeMasters
Practice Locations. Limits on authority to sign checks and purchase orders shall
be mutually agreed upon by Professional Business Manager and the Practice.
(b) Payments from the Professional Practice Account. From the
funds collected and deposited by the Professional Business Manager in the
Professional Practice Account, the Professional Business Manager shall pay in
the following order of priority and in accordance with applicable requirements
under law or contract:
(i) any refunds owed to patients by the Practice;
(ii) all Office Expenses;
(iii) Practice Expenses;
(iv) Permitted Shareholder Expenses;
(vi) the current Management Fee compensation owed to
the Professional Business Manager pursuant to Section 5.1 hereof; and
(vii) all remaining Shareholder Expenses.
17
18
Notwithstanding the foregoing priorities of payment, the Permitted
Shareholder Expenses (other than the expenses arising out of the President's
Employment Agreement) and other Shareholder Expenses shall be paid at the end of
each consecutive 12-month period of this Agreement unless otherwise consented to
by the Professional Business Manager.
(c) Additional Documents. Upon request of Professional
Business Manager, the Practice shall execute and deliver to the financial
institution wherein the Professional Practice Account is maintained, such
additional documents or instruments as may be necessary to evidence or effect
the special power of attorney granted to Professional Business Manager by the
Practice pursuant to this Section 3.10. The special power of attorney granted
herein shall be coupled with an interest and shall be irrevocable except with
Professional Business Manager's written consent. The irrevocable power of
attorney shall expire when this Professional Business Management Agreement has
been terminated, all accounts receivable payable to Professional Business
Manager pursuant to this Professional Business Management Agreement have been
collected, and all Management Fees due to Professional Business Manager have
been paid. If Professional Business Manager assigns this Professional 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 Professional
Business Manager. Professional Business Manager shall not make any withdrawal
from the Professional Practice Account unless expressly authorized in this
Professional Business Management Agreement.
(d) Payroll Account. A Practice payroll account in the name of
the Practice 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. The Practice, as employer of said non-shareholder
Professionals, and Professional Business Manager, as agent and attorney of the
Practice shall each have signing capacity to access the account for payroll.
3.11 Fiscal Matters.
(a) Annual Budget. The initial Annual Budget shall be agreed
upon by the parties before the execution of this Professional Business
Management Agreement. Thereafter, annually and at least thirty (30) days prior
to the commencement of each fiscal year of the Practice, the Professional
Business Manager, in consultation with the Practice, 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 with respect to the
EyeMasters Practice Locations. The Practice shall review the proposed Budget and
either approve the proposed Budget or request any changes within twenty-one (21)
days after receiving the proposed Budget. Disputes concerning the Budget shall,
at the request of either party hereto, be submitted to the Practice Advisory
Council. In the event the Parties are unable to agree on a Budget by the
beginning of the fiscal year, until an agreement is reached, the Budget for the
prior year shall be deemed to be adopted as the Budget for the current year,
with each line item in the Budget (with the exception of the Management Fee
which shall be established pursuant to the terms of this Professional Business
Management Agreement) increased or decreased by one of the following, whichever
is most appropriate relative to the particular item of income or expense, (i)
the percentage by which the Adjusted Gross Revenue in the current year,
excluding any damages paid by any Professional to the Practice under any
Restrictive covenant or otherwise, has increased or decreased compared to the
corresponding period of the prior year; (ii) the increase or decrease from the
prior year in the Consumer Price Index - Health/Medical Services for the
relevant region; and (iii) the proportionate increase or decrease in mutually
agreed upon personnel costs as measured by the increase or decrease in
full-time-equivalent personnel. The Practice Advisory Council may revise or
modify the Budget from time to time during the applicable fiscal year to reflect
changing
18
19
circumstances affecting the Practice. Additionally, notwithstanding the above,
no change in an adopted Budget shall be contrary to the terms and spirit of this
Professional Business Management 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) Obligations of Professional Business Manager. Professional
Business Manager shall use commercially reasonable efforts to manage and
administer the operations of the Office as herein provided so that the actual
revenues, costs and expenses of the operation and maintenance of the Office
during any applicable period of the Practice's fiscal year shall be consistent
with the Budget.
(c) Accounting and Financial Records. Professional 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 Office and the provision of Professional Eye Care Services at the
EyeMasters Practice Locations, all of which shall be prepared and maintained in
accordance with GAAP. The Practice shall have the right to inspect such records
and books of account at its expense at any time, upon reasonable notice to
Professional Business Manager. Professional 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 ninety (90)
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 at the EyeMasters Practice Locations
as of the end of such period, all of which shall be prepared in accordance with
GAAP consistently applied. In addition, Professional Business Manager shall
prepare or assist in the preparation of any other financial statements or
records as the Practice may reasonably request.
(d) Sales and Use Taxes. Professional Business Manager and the
Practice acknowledge and agree that to the extent that any of the services to be
provided by Professional Business Manager hereunder may be subject to any state
sales and use taxes, Professional 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 Professional
Business Manager hereunder treated as an Office Expense.
3.12 Reports and Records.
(a) Health Care Records. All files and records relating to the
operation of the Office, including without limitation, accounting, billing and
collection, and patient records shall at all times be and remain the property of
the Practice and shall remain under its possession, custody, and control.
Subject to the foregoing and to the extent permitted by applicable law,
Professional Business Manager shall, in consultation with the Practice,
establish, monitor, and maintain procedures and policies for the timely,
appropriate, and efficient preparation, filing, retrieval, and secure storage of
such records. Patient records shall be located at Office facilities so that they
are readily accessible for patient care. Patient records shall not be removed
from Office premises without the express written consent of the Practice, except
as specified herein. Patient records for patients not seen within the last three
years may be stored in a commercial storage facility or other location
Professional Business Manager shall designate, provided that Professional
Business Manager shall notify the Practice of the location of said records. All
such health care records shall be retained and maintained by the Practice and
the Professional Business Manager as agent for the Practice in accordance with
all applicable state and federal laws relating to the confidentiality and
retention thereof. In this regard, Professional Business Manager shall use its
best efforts to preserve the confidentiality of patient records and shall use
19
20
information contained in such records only as the agent for the Practice and for
the limited purposes necessary to perform the services set forth herein.
(b) Other Reports and Records. Professional 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 at the EyeMasters Practice Locations, 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, Professional Business Manager shall coordinate, supervise or perform
all administrative services reasonably necessary and appropriate to recruit
potential Professionals to become employees of the Practice at the EyeMasters
Practice Locations. 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 at the EyeMasters Practice Locations.
3.14 Confidential and Proprietary Information.
(a) Professional Business Manager agrees that it shall not
disclose any Confidential Information of the Practice to other persons without
the Practice's express written authorization, that such Confidential Information
shall not be used in any way detrimental to the Practice, and that Professional
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
Professional Business Manager may disclose Confidential Information to those of
its Representatives who need to know Confidential Information for the purposes
of this Professional Business Management Agreement, it being understood and
agreed by Professional 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 Professional Business
Manager not to disclose to any other person any Confidential Information.
(b) Notwithstanding clause (a) above, Professional Business
Manager may share, subject to the restrictions of this Section, with other
professional corporations, limited liability companies, associations,
ophthalmology and optometry practices, or health care delivery entities the
practice statistics of the Practice, including utilization review data, quality
assurance data, cost data, outcomes data, or other practice data. The Practice
statistics and confidential information may be disclosed within the Practice, to
managed care providers or other third party payors for the purpose of obtaining
or maintaining third party payor contracts or reimbursements, or to financial
analysts and underwriters; provided that any disclosure outside the Practice for
any purpose not related to managed care contracting shall not identify any
Professional by name without the Practice's consent and will not disclose or
divulge patient identifying information.
3.15 Professional Business Manager's Insurance. Throughout the Term,
Professional 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 Professional Business Manager's
employed personnel provided pursuant to this Professional Business Management
Agreement, and professional, casualty and comprehensive general liability
insurance covering Professional Business Manager, Professional Business
Manager's personnel, and all of Professional Business Manager's equipment in
such amounts, on such basis and upon such terms and conditions as Professional
Business Manager deems appropriate but which insurance is consistent with the
insurance which is maintained by the
20
21
Practice pursuant to Section 4.5 of this Professional Business Management
Agreement. Professional Business Manager shall cause the Practice to be named as
an additional insured on Professional Business Manager's professional, casualty
and comprehensive general liability policy. Upon the request of the Practice,
Professional Business Manager shall provide the Practice with a certificate
evidencing such insurance coverage. Professional Business Manager, in agreement
with the Practice, may also carry, as an Office expense, key person life and
disability insurance on any Shareholder or Professional employee of the Practice
in amounts determined reasonable and sufficient by the Professional Business
Manager. Professional Business Manager shall be the owner and beneficiary of any
such insurance, although the Parties hereby agree that the proceeds of any such
insurance shall be paid to the Professional Practice Account as Adjusted Gross
Revenues unless the Parties agree to a specific split of the proceeds. Should
only the Practice choose to obtain key person life and disability insurance, the
Practice shall pay all premiums as a Practice Expense and shall receive all
proceeds. Further, if only the Professional Business Manager chooses to obtain
such insurance, Professional Business Manager shall pay all premiums as a
Professional Business Manager Expense and shall receive the proceeds. The
Practice shall cause its Professionals to submit to a medical examination
necessary to obtain such insurance.
3.16 No Warranty or Representations. The Practice acknowledges that
Professional Business Manager has not made and will not make any express or
implied warranties or representations that the Management Services provided by
Professional Business Manager will result in any particular amount or level of
income to the Practice. Specifically, Professional 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 Marketing and Public Relations. Professional Business Manager
acknowledges that the Practice desires a public relations program to enhance its
optometric and/or therapeutic optometric practice and to extend the Office's
ability to provide Professional Eye Care Services to patients at the EyeMasters
Practice Locations. Subject to the Practice's approval, Professional Business
Manager shall design and implement an appropriate public relations program on
behalf of the Practice, with appropriate emphasis on public awareness of the
availability of Professional Eye Care Services at the EyeMasters Practice
Locations. The public relations program shall be conducted in compliance with
applicable laws and regulations governing advertising by the ophthalmological
and optometric professions.
3.18 Acquisition of Services and Supplies. In obtaining services,
supplies and personnel for or on behalf of the Practice pursuant to this
Professional Business Management Agreement, Professional Business Manager shall
be authorized to obtain such services, supplies and personnel from an affiliate
of Professional Business Manager provided that the Office Expenses which are
incurred by or on behalf of the Professional Business Manager shall be
consistent with the expenses of optical dispensaries similar in size, type, and
operations in the area in which the Practice operates.
ARTICLE IV
OBLIGATIONS AND RESPONSIBILITIES OF THE PRACTICE.
4.1 Professional Services. The Practice shall diligently conduct the
business of an optometric and/or therapeutic optometric practice, including
utilizing its capacities to the greatest extent practicable to provide
Professional Eye Care Services to patients of the Office at the EyeMasters
Practice
21
22
Locations. The Practice shall retain that number of Professionals at the
EyeMasters Practice Locations as are reasonably necessary and appropriate in the
sole discretion of the Practice for the provision of Professional Eye Care
Services at the EyeMasters Practice Locations and shall determine their
assignment and scheduled hours of practice at the EyeMasters Practice Locations.
The Practice shall provide Professional Eye Care Services to the Office's
patients in compliance at all times with ethical standards, laws, and
regulations applying to the optometric and/or therapeutic optometric
professions. The Practice shall ensure that each Professional associated with or
employed by the Practice to provide optometric and/or therapeutic optometric
care to the Office's patients at the EyeMasters Practice Locations is licensed
in each jurisdiction in which he or she provides such services. The Practice
shall establish and implement a program to monitor the quality of Professional
Eye Care Services provided at the EyeMasters Practice Locations (the "Continuous
Quality Improvement Program"). The Continuous Quality Improvement Program shall
be designed to promote and maintain quality care consistent with accepted
practices prevailing from time to time in the area where each EyeMasters
Practice Location is situated
4.2 Optometric and Therapeutic Optometric Practice. The Practice shall
use and occupy the Office for the provision of Professional Eye Care Services
and shall comply with all applicable local rules and ordinances and all
standards of optometric and/or therapeutic optometric care. It is expressly
acknowledged by the parties that the optometric and/or therapeutic optometric
practice or practices conducted at the Office shall be conducted solely by
Professionals employed by or under contract with the Practice, and no other
Professional shall be permitted to use or occupy the Office without the prior
written consent of Professional Business Manager.
4.3 Employment of Professionals. Subject to Section 3.13 hereof, the
Practice shall be responsible for the hiring, compensation, supervision,
evaluation, and termination of all Professionals at the EyeMasters Practice
Locations. At the request of the Practice, Professional Business Manager shall
be available to consult with the Practice respecting such matters. The Practice
shall be responsible for the payment of such Professionals' salaries and wages,
payroll taxes, benefits, and all other taxes and charges now or hereafter
applicable to them. The Practice shall employ and contract only with licensed
Professionals who meet applicable credentialing guidelines established by the
Practice. The Practice shall not in any fiscal year contract in the aggregate
with Professionals for an amount (including the cost of associated benefits,
payroll expense, and professional liability coverage) which is greater than the
amount provided for such purpose in the Budget for such fiscal year. The
Practice represents, warrants and covenants that, if requested by the
Professional Business Manager, on or before ninety (90) days from the date of
such request, it will use its best efforts to obtain, shall in the future
obtain, and shall enforce formal written employment agreements from each of its
present full-time (an average of thirty (30) or more hours per week)
Professionals, except for the President of the Practice, and those employed in
the future in a form mutually acceptable to the parties ("Employment Agreement")
containing a restrictive covenant (the "Restrictive Covenant"). The Practice
further represents, warrants and covenants that the President of the Practice
has entered into an employment agreement in substantially the form attached
hereto as Exhibit 4.3B (the "President's Employment Agreement) which agreement
is currently and shall remain in force and effect during the term of this
Agreement without amendment unless terminated in accordance therewith. The
President shall devote his full time and attention to the operation of the
Practice and shall not provide optometric services other than at the EyeMasters
Practice Locations.
4.4 Professional Standards. As a continuing condition of Professional
Business Manager's obligations hereunder each Professional and any other
Professional personnel retained by the Practice to
22
23
provide Professional Eye Care Services at the EyeMasters Practice Locations must
(i) have and maintain a valid and unrestricted license to practice optometry or
ophthalmology in the jurisdiction in which such Professional provides services,
(ii) comply with, be controlled and governed by, and provide Professional Eye
Care 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 Office is located, and (iii) provide on
a continual basis, quality care to its patients.
4.5 Practice's Insurance. The Practice shall, as a Practice Expense,
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 involved in the provision of Professional
Eye Care Services. The comprehensive general liability coverage with respect to
each of the Professionals 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 One Million Dollars
($1,000,000) annual aggregate. 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. Upon the termination of this Professional 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 Arizona's statute of repose (or if no statute of
repose exists, Arizona'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 Practice Expense "tail" professional liability
coverage, in the amounts specified in this Section for the shorter period of (i)
the period set forth in Arizona's statute of repose (or if no statute of repose
exists, Arizona'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.
4.6 Confidential and Proprietary Information. The Practice agrees that
it shall not disclose any Confidential Information of the Professional Business
Manager to other persons without Professional Business Manager's express written
authorization, such Confidential Information shall not be used in any way
detrimental to Professional 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 Professional Business
Management Agreement, it being understood and agreed 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.
4.7 Non-Competition. The Practice hereby recognizes, acknowledges, and
avers that Professional 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
Professional Business Management Agreement and that in the process of providing
services under this Professional 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
23
24
services to be provided by Professional 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, acknowledges, and avers that the non-competition covenants described
hereunder are necessary for the protection of Professional Business Manager, and
that Professional Business Manager would not have entered into this Professional
Business Management Agreement without the following covenants.
(a) Except as specifically agreed to by Professional Business
Manager in writing, the Practice covenants and agrees that during the Term of
this Professional Business Management Agreement and for a period of one (1) year
from the date this Professional 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 Professional 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
Professional Business Manager, within a 10 mile radius of any EyeMasters
Practice Location; and/or (ii) offering any type of service(s) or product(s) to
third parties substantially similar to those offered by Professional Business
Manager to the Practice hereunder in competition with Professional Business
Manager within a 10 mile radius of any EyeMasters Practice Location.
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 practice after the termination of this
Professional 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 Professional Business Management Agreement;
(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, 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.
(b) Restrictive Covenants by Optometrists. Under the
Restrictive Covenant, to the extent then required by the Professional Business
Manager, the non-Shareholder Professionals shall agree not to practice optometry
and/or therapeutic optometry within a certain radius, as set forth in Exhibit
4.7A, of any EyeMasters Practice Location at which such non-Shareholder
Professionals performed services for sixteen (16) or more hours per week on a
regular basis or for one thousand (1,000) hours during the last twelve (12)
months of such Professionals' employment with the Practice. The Restrictive
Covenant shall be effective for a period of one (1) year following termination
of employment with the Practice and may be subject to a liquidated damages
provision as authorized hereafter.
(c) Liquidated Damages. The Practice represents, warrants, and
covenants that the Restrictive Covenant described above, if then required by the
Professional Business Manager, will contain a liquidated damages provision,
consistent with the laws of the State of Arizona, mandating the payment of
$25,000.00 in liquidated damages. Any liquidated damage amount collected by the
Practice through enforcement of the Restrictive Covenant shall be delivered
immediately to Professional Business Manager for deposit in the Professional
Practice Account and included in the Adjusted Gross Revenue. The Practice hereby
stipulates and agrees that Professional Business Manager will suffer severe harm
if the Practice fails or refuses to obtain and enforce the Restrictive Covenant,
including the aforesaid liquidated damages provision. The Practice further
stipulates and agrees that the parties may be unable
24
25
to quantify such severe harm, and, accordingly, the Practice shall pay to
Professional Business Manager the amount of $25,000.00, as agreed upon
stipulated damages in the event of such failure or refusal to obtain and enforce
the Restrictive Covenant. Any liquidated damage amount collected from the
Practice as a result of its failure or refusal to enforce the Restrictive
Covenant, shall be immediately paid to Professional Business Manager, and shall
not be included in the Adjusted Gross Revenue for the Practice.
(d) The Practice understands and acknowledges that
Professional Business Manager shall suffer severe harm in the event that the
foregoing non-competition covenants in Section 4.7 are violated, and
accordingly, if the Practice breaches any obligation of Section 4.7, in addition
to any other remedies available under this Professional Business Management
Agreement, at law or in equity, Professional Business Manager shall be entitled
to enforce this Professional Business Management Agreement by injunctive relief
and by specific performance of the Professional Business Management Agreement,
such relief to be without the necessity of posting a bond, cash or otherwise.
Additionally, nothing in this Section 4.7(d) shall limit Professional 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 Professional Business Management 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 4.7.
4.8 Name, Trademark. The Practice covenants and agrees that during the
term of this Professional Business Management Agreement, the Practice shall
conduct its professional practice at the EyeMasters Practice Locations under the
name of, and only under the names of "Xxxxxxx X. Xxxxxxxxxxx & Associates" and
"X.X. Xxxxxxxxxxx Consulting, P.C." (unless otherwise consented to by
Professional Business Manager) and that such name is, or will be, duly and
timely registered, qualified, or licensed under the laws of the jurisdiction in
which they are being used. The Practice covenants and promises that, without the
prior written consent of the Professional 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;
(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, professional limited liability company, office or any other entity;
or
(d) cease conducting the professional practice of the Practice
under the name.
25
26
4.9 Billing Information and Assignments; Establishment of Fees. The
Practice shall promptly provide the Professional Business Manager with all
billing and other information reasonably requested by the Professional Business
Manager to enable it to xxxx and collect the Office'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 Professional Business Manager to obtain
payment or reimbursement from third parties for such fees, other charges and
claims.
4.10 Provider Agreements. The Practice shall have ultimate authority
with regard to all contractual arrangements with third parties for the
Practice's provision of Professional Eye Care Services at the EyeMasters
Practice Locations, and the Practice may at its sole discretion reject or
otherwise refuse to enter into any such contractual arrangement.
4.11 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 Professional Practice Account.
A pro rata portion of the costs and expenses relating to the preparation of such
returns and reports shall be deemed a Practice Expense.
4.12 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 4.12 by such Shareholders to
ensure that the covenants not to compete described in Section 4.7 of this
Professional Business Management Agreement are enforced by the Practice against
any individuals violating such covenants.
4.13 Limitations on Actions of the Practice. The Practice shall not
take any of the following actions without the express prior written consent of
Professional Business Manager:
(a) Any action leading to or intended to result in the merger,
combination or consolidation of the Practice or Office with, or acquisition of
the Practice, the Office, or their businesses by, any other entity;
(b) Mortgage or encumber any of the Practice's real, personal
or mixed property as security for any indebtedness which is not contemplated by
the Budget;
(c) Pay any dividend or make any other distribution, whether
in cash or in kind, to Shareholders of the Practice, if any compensation owed by
the Practice to Professional Business Manager hereunder has not been paid in
full, and if any and all monetary obligations of the Practice to Professional
Business Manager have not been fully paid in accordance with the terms of any
and all documents governing such obligations; provided, however, that the
foregoing shall not prevent payment of Shareholder's salary, Bonus, payroll
taxes thereon, and certain Shareholder Expenses as set forth in Section 3.10(b);
(d) Dissolve or liquidate the Practice, or take any action
with a view to or likely to have the result of the dissolution or liquidation of
the Practice; or
(e) Authorize the provision of professional services such that
the income derived therefrom is not owned by the Practice; provided that no such
consent is necessary for (i) professional
26
27
services performed by Professionals during said Professionals' vacation time, or
(ii) professional services performed in connection with duties and
responsibilities as a member of the Reserves or National Guard.
4.14 Leases of Office. The Practice shall maintain and fulfill all of
the obligations under primary leases of the Office facilities or locations. The
leases for the Office facilities or locations shall be in the name of the
Business Manager and provided to the Practice for the consideration set forth in
Section 5.1.
ARTICLE V
BUSINESS MANAGER'S COMPENSATION.
5.1 Base Management Fee. The Practice and Professional Business Manager
agree to the compensation set forth herein as being paid to Professional
Business Manager in consideration of a substantial commitment made by
Professional Business Manager hereunder and that such fees are fair and
reasonable. Each month Professional Business Manager shall be paid that
percentage set forth in Exhibit 5.1 (as may be amended from time to time) of
Adjusted Gross Revenue for such month plus the allocated portion for such month
of the other amount set forth Exhibit 5.1 representing and estimate of the rent
at the Practice locations and certain other assets provided by Professional
Business Manager (the "Fixed Amount"); provided, however, in no event shall the
aggregate Management Fees paid to the Professional Business Manager during any
fiscal year of the Practice exceed Adjusted Gross Revenues less Office Expenses
less Practice Expenses less the Permitted Shareholder Expenses for such fiscal
year. The Parties agree that in the event that additional Practice locations are
opened, or some of the Practice locations are abandoned, the Fixed Amount shall
be adjusted as mutually agreed upon by the Parties.
5.2 Reasonable Value. Payment of the Management Fee is not intended to
be and shall not be interpreted or applied as permitting Professional 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 Professional 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, management, administration, strategic management and other items and
services furnished by Professional Business Manager pursuant to the Professional
Business Management Agreement, considering the nature and volume of the services
required and the risks assumed by Professional Business Manager. The Practice
and Professional Business Manager recognize and acknowledge that Professional
Business Manager will incur substantial costs and business risks in undertaking
to pay all Office Expenses and in providing the support services, personnel,
marketing, management, administration, and other items and services that are the
subject matter of this Professional Business Management Agreement. It is the
intent of the Parties that the Management Fee reasonably compensate Professional
Business Manager for the value to the Practice of Professional Business
Manager's administrative expertise, given the considerable business risk to
Professional Business Manager, in providing the Management Services that are the
subject of this Professional Business Management Agreement.
5.3 Payment of Management Fee. To facilitate the payment of the
Management Fee as provided in Section 5.1 hereof, the Practice hereby expressly
authorizes Professional Business Manager to make withdrawals of the Management
Fee from the Professional Practice 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. Professional Business Manager shall deliver to the
Practice an invoice for the Management Fee
27
28
accompanied by a reasonably detailed statement of the information upon which the
Management Fee calculation is based.
5.4 Disputes Regarding Fees.
(a) It is the Parties' intent that any disputes regarding
performance standards of the Professional 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 Professional 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 Professional Business Manager notice of the perceived
failure and request in the notice a set-off or reduction in Management Fees.
Professional 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. At the request of Professional Business
Manager or the Practice, the Practice Advisory Council shall make
recommendations to Professional Business Manager with respect to any dispute
concerning a set off or reduction in Management Fees.
(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 American Arbitration Association's Commercial
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.
ARTICLE VI
TERM AND TERMINATION
6.1 Initial and Renewal Term. The Term of this Professional Business
Management Agreement will be for an initial period of one (1) year after the
effective date, and shall be automatically renewed for successive one (1) year
periods thereafter, provided that neither Professional Business Manager nor the
Practice shall have given notice of termination of this Professional Business
Management Agreement at least thirty (30) days before the end of the initial
term or any renewal term, or unless otherwise terminated as provided in Section
6.2 of this Professional Business Management Agreement. Notwithstanding any
provision to the contrary, the rights and obligations of the parties with
respect to any EyeMasters Practice Location shall terminate upon the termination
of the underlying lease or sublease pursuant to which the Practice operates such
Office.
6.2 Termination.
(a) Termination by the Practice. The Practice may immediately
terminate this Professional Business Management Agreement at its discretion,
upon written notice pursuant to Section 8.3, as follows:
(i) If Professional 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
28
29
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;
(ii) If the Professional Business Manager fails to
comply with any material provision of this Professional Business Management
Agreement and does not correct such failure within ninety (90) days after
written notice of such failure to comply is delivered by the Practice specifying
the nature of the breach in reasonable detail; or
(iii) Professional Business Manager commits any act
of fraud, misappropriation or embezzlement, or any other felony and as a result
the Professional Business Manager is unable to substantially perform under the
terms of this Professional Business Management Agreement.
(b) Termination by Professional Business Manager Professional
Business Manager may immediately terminate this Professional Business Management
Agreement at its discretion, upon written notice pursuant to Section 8.3, upon
thirty (30) days prior notice for any reason, or immediately for the following
reasons:
(i) The revocation, suspension, cancellation or
restriction of any Shareholders' license to practice optometry in Arizona if, in
the reasonable discretion of the Professional Business Manager, the Practice
will not be financially viable after such revocation, suspension, cancellation,
or restriction.
(ii) 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;
(iii) If the Practice fails to comply with any
material provision of this Professional Business Management Agreement, or any
other agreement with Professional Business Manager, or the President fails to
comply with the provisions of the President's Employment Agreement and does not
correct such failure within thirty (30) days after written notice of such
failure to comply is delivered by Professional Business Manager specifying the
nature of the breach in reasonable detail;
(iv) If the Practice or any of the Practice
Professionals commit any act of fraud, misappropriation or embezzlement, or any
other felony and as a result the Practice as an entire entity is unable to
substantially perform under the terms of this Professional Business Management
Agreement; or
(v) If any of the material representations of the
Practice are false or incorrect when made or hereafter become materially false
or incorrect or any warranty of the Practice is materially breached.
29
30
(c) Termination of Location. Professional Business Manager may
terminate its obligation with regard to any individual EyeMasters Practice
Location upon thirty days' prior written notice to the Practice.
(d) Termination by Agreement. In the event the Practice and
Professional Business Manager shall mutually agree in writing, this Professional
Business Management Agreement may be terminated on the date specified in such
written agreement.
(e) Legislative, Regulatory or Administrative Change. In the
event there shall be a change in the Medicare or Medicaid statutes, federal
statutes, state statutes, case law, administrative interpretations, regulations
or general instructions, the adoption of new federal or state legislation, a
change in any third-party reimbursement system, or any finding, ruling, or
decree of any regulatory body concerning this Professional Business Management
Agreement, 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 Professional Business Management Agreement or which shall make this
Professional Business Management Agreement or any related agreements unlawful or
unenforceable, or which would be reasonably likely to subject either Party to
this Professional Business Management 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 furnished pursuant to this Professional Business
Management Agreement that complies with the law, regulation, policy, finding,
ruling, or decree, 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 sixty (60) days, this Professional Business
Management Agreement shall be terminated upon ninety (90) days written notice by
either party to the other.
6.3 Effects of Termination.
(a) Obligation After Termination. Upon termination of this
Professional 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 Professional
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 Professional
Business Management Agreement;
(iii) the obligation of the Practice described in
Section 6.4; and
(iv) the obligation of the Practice to repay amounts
advanced by Professional Business Manager to the Practice.
(b) Receipt of Collections After Termination. In effectuating
the provisions of this Section 6.3, the Practice specifically acknowledges and
agrees that if this Professional Business
30
31
Management Agreement terminates pursuant to Sections 6.1, 6.2(b) or 6.2 (d),
Professional 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 Professional
Business Management Agreement is terminated, it being understood that
(i) such cash collections will represent compensation
to Professional Business Manager to the extent of all outstanding obligations to
Professional Business Manager by the Practice pursuant to this Agreement; for
Management Services already rendered;
(ii) Professional Business Manager shall not be
entitled to collect accounts receivable after the termination date if this
Agreement is terminated pursuant to Section 6.2(a);
(iii) the Professional Business Manager shall deduct
from such cash collections any other amounts owed to Professional Business
Manager under this Professional Business Management Agreement, including,
without limitation, ten percent (10%) of such cash collections as its Management
Fee during any period after the termination of this Professional Business
Management Agreement while such collections are taking place and any reasonable
costs incurred by Professional Business Manager in carrying out the post
termination procedures and transactions contemplated herein; and
(iv) Professional Business Manager shall remit
remaining amounts from such collection activities, if any, to the Practice.
(c) Surrender of Books After Termination. Upon the expiration
or termination of this Professional Business Management Agreement for any reason
or cause whatsoever, Professional Business Manager shall surrender to the
Practice all books and records pertaining to the Office.
6.4 Purchase Obligation. Upon expiration of this Professional Business
Management Agreement in accordance with Section 6.1 or termination of this
Professional Business Management Agreement by Professional Business Manager, as
set forth in Sections 6.2(b) or 6.2(d) above, the Practice shall upon
Professional Business Manager's demand and in its sole discretion:
(a) Purchase from Professional Business Manager at book value
all of the assets, tangible and intangible, including without limitation
equipment, furniture, goodwill, intellectual property, inventory, and supplies,
used in, or related to, the operations of the Office at the EyeMasters Practice
Locations and all replacements and additions thereto made by Professional
Business Manager pursuant to the performance of its obligations under this
Professional Business Management Agreement, set forth on the books of
Professional 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 Professional Business Manager;
(b) Assume all contracts and leases and the Practice's pro
rata share of all debts and payables that are obligations of Professional
Business Manager and that relate principally to the performance of Professional
Business Manager's obligations under this Professional Business Management
Agreement; provided, however, that the Practice shall only be obligated to
assume such contracts and leases if a reasonable third person would conclude
that the Practice will be able to enjoy the benefits of the contracts and leases
following such assumption; and
31
32
(c) Cause to be executed by Shareholders of the Practice such
security agreements reasonably required by Professional Business Manager in
connection with the purchase described in this Section 6.4. All current
Shareholders of the Practice shall on or before the effective date of this
Professional Business Management Agreement, and all individuals who become
Shareholders of the Practice after the effective date of commencement of this
Professional Business Management Agreement shall upon becoming a Shareholder of
the Practice, execute and deliver to Professional Business Manager an
undertaking to comply with this Section 6.4 which shall be in the form of
Exhibit 6.4.
6.5 Closing of Purchase. When the Practice purchases the assets
pursuant to Section 6.4, the Practice shall pay cash or deliver a note payable
in equal monthly installments over five (5) years at an interest rate not to
exceed "prime" plus one (1%) percent ("prime" being the commercial lending rate
of Bank of America), per annum, for the purchased assets. The amount of the
purchase price shall be reduced by the amount of debt and liabilities of
Professional Business Manager, if any, assumed by the Practice, by any payment
the Professional Business Manager has failed to make under this Professional
Business Management Agreement, and by any unpaid portion of any promissory notes
payable by Professional Business Manager to any Shareholder of the Practice. 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(b) and to
remove Professional Business Manager from any liability with respect to such
purchased assets. The closing date for the purchase shall be determined by the
Parties, but shall in no event occur later than the expiration date of this
Professional 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. The termination of this Professional 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 4.7 on the closing date. From and after any termination,
each Party shall provide the other Party with reasonable access to 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.
6.6 Limitation of Liability. IN NO EVENT SHALL PROFESSIONAL BUSINESS
MANAGER BE LIABLE TO THE PRACTICE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS PROFESSIONAL BUSINESS
MANAGEMENT AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF PROFESSIONAL
BUSINESS MANAGER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF; PROVIDED, HOWEVER,
THAT THE FOREGOING SHALL NOT PREVENT RECOVERY OF ACTUAL DAMAGES ARISING OUT OF
OR RELATED TO THIS PROFESSIONAL BUSINESS MANAGEMENT AGREEMENT.
ARTICLE VIII
INDEMNIFICATION; THIRD PARTY CLAIMS
7.1 Indemnification by the Practice. The Practice shall indemnify and
hold harmless Professional Business Manager and Professional 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 acts or omissions or misconduct of the Practice or its
members, Shareholders, directors, officers, employees, agents or independent
contractors, including but not limited to any such claims, demands,
32
33
liabilities, losses, damages, costs and expenses which accrued or arose prior to
the date of execution of this Professional Business Management Agreement.
7.2 Indemnification by Professional Business Manager. Professional
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 acts or omissions or
misconduct of Professional 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 Professional Business Management 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 Professional Business Manager) or
Professional 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.
7.4 Matters Involving Third Parties.
(a) If the Practice or Professional 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 Professional Business Management Agreement, then: (i) if such notice or
knowledge is received or acquired by the Practice, the Practice shall promptly
notify Professional Business Manager; and (ii) if such notice or knowledge is
received or acquired by Professional Business Manager, the Professional Business
Manager shall promptly notify the Practice; except that no delay in giving such
notice shall diminish any obligation under this Professional Business Management
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
33
34
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
not satisfied, 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
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 Professional Business Management 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.
ARTICLE VIII
MISCELLANEOUS
8.1 Administrative Services Only. Nothing in this Professional Business
Management Agreement is intended or shall be construed to allow Professional
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 Professional Business Manager shall not
interfere in any manner or to any extent therewith. Nothing contained in this
Professional Business Management Agreement shall be construed to permit
Professional 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 Professional 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.
8.2 Status of Independent Contractor. The Practice and Professional
Business Manager and their shareholders are not, and shall not be deemed to be
by virtue of this Professional Business Management Agreement, joint venturers,
partners, employees or agents of each other (except as expressly provided in
this Professional Business Management Agreement). Except as may be expressly
provided herein, neither Party shall have any authority to bind the other
without the other's express written consent; and then only to the extent of the
authority conferred by such express written consent.
34
35
Each Party is an independent contractor, and each Party shall remain
professionally and economically independent of the other. In the course of the
business relationship contemplated in this Professional Business Management
Agreement only the Practice and its Professionals shall practice optometry
and/or therapeutic optometry, and they shall do so as independent professionals
with no employment relationship to Professional Business Manager. Professional
Business Manager and the Practice agree that the Practice shall retain absolute
authority to direct the optometric, professional, and ethical aspects of its
optometric and/or therapeutic optometric practice, any authority granted herein
to Professional Business Manager concerning the business and administrative
aspects of such practice notwithstanding. Each Party shall be solely responsible
for and shall comply with all state and federal laws applicable to that Party
pertaining to employment taxes, income tax withholding, unemployment
compensation contributions, and other employment related matters.
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:
X.X. Xxxxxxxxxxx, O.D. & Associates, P.C.
c/o Xx. Xxxxxxx X. Xxxxxxxxxxx
00 X. Xxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Professional Business Manager: Eye Care Centers of America, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
with a copy to: Xxx & Xxxxx Incorporated
000 X. Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: J. Xxxxxx Xxxxxxx or Xxxxxx X. Xxxxx
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 Professional Business Management Agreement
shall in all respects be governed, interpreted and construed in accordance with
the laws of the State of Arizona without giving effect to principles of comity
or conflicts of laws thereof.
8.5 Jurisdiction and Venue. Professional 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 Professional Business Management Agreement shall inure to the
benefit of and be binding upon the Parties
35
36
hereto and their respective legal representatives, successors, and assigns;
provided, however, that the Practice may not assign this Professional Business
Management Agreement without the prior written consent of Professional Business
Manager, which consent may be withheld. Professional Business Manager may assign
or transfer its rights and obligations under this Professional Business
Management Agreement only in the following situations: (a) pursuant to a merger
of Professional Business Manager into another entity or the sale of
substantially all of the assets of Professional Business Manager; (b) pursuant
to the sale and/or assignment of all of this Professional Business Management
Agreement with the Practice's consent, which shall not be unreasonably withheld;
(c) pursuant to a transfer or assignment of this Professional Business
Management Agreement to one of Professional Business Manager's subsidiaries;
affiliates, or sister corporations or (d) pursuant to any transfer or assignment
to or by any financial lender of the Professional Business Manager, and this
Professional Business Management 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 Professional Business
Management Agreement.
8.7 Arbitration. Any and every dispute of any nature whatsoever that
may arise between the Parties, whether sounding in contract, statute, tort,
fraud, misrepresentation, discrimination or any other legal theory, including,
but not limited to, disputes relating to or involving the construction,
performance or breach of this Agreement or any other agreement between the
Parties, whether entered into prior to, on, or subsequent to the date of this
Agreement, or those arising under any federal, state or local law, regulation or
ordinance, shall be determined by binding arbitration in accordance with the
then--current commercial arbitration rules of the American Arbitration
Association, to the extent such rules do not conflict with the provisions of
this paragraph. If the amount in controversy in the arbitration exceeds Two
Hundred Fifty Thousand Dollars ($250,000), exclusive of interest, attorneys'
fees and costs, the arbitration shall be conducted by a panel of three (3)
neutral arbitrators. Otherwise, the arbitration shall be conducted by a single
neutral arbitrator. The Parties shall endeavor to select neutral arbitrators by
mutual agreement. If such agreement cannot be reached within thirty (30)
calendar days after a dispute has arisen which is to be decided by arbitration,
any Party or the Parties jointly shall request the American Arbitration
Association to submit to each Party an identical panel of fifteen (15) persons.
Alternate strikes shall be made to the panel, commencing with the Party bringing
the claim, until the names of three (3) persons remain, or one (1) person if the
case is to be heard by a single arbitrator. The Parties may, however, by mutual
agreement, request the American Arbitration Association to submit additional
panels of possible arbitrators. The person(s) thus remaining shall be the
arbitrator(s) for such arbitration. If three (3) arbitrators are selected, the
arbitrators shall elect a chairperson to preside at all meetings and hearings.
The arbitrator(s), or a majority of them, shall have the power to determine all
matters incident to the conduct of the arbitration, including without limitation
all procedural and evidentiary matters and the scheduling of any hearing. The
award made by a majority of the arbitrators shall be final and binding upon the
Parties thereto and the subject matter thereof. The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16, and
judgment upon the award rendered by the arbitrator(s) may be entered by any
court having jurisdiction thereof. The arbitrators shall have no authority to
award punitive or exemplary damages or any statutory multiple damages, and shall
only have the authority to award compensatory damages, arbitration costs,
attorney's fees, declaratory relief, and permanent injunctive relief, if
applicable. Unless otherwise agreed by the parties, the arbitration shall be
held in San Antonio, Texas. This Section 8.7 shall not prevent either Party from
seeking a temporary restraining order or temporary or preliminary injunctive
relief from a court of competent jurisdiction in order to protect its rights
under this Agreement. In the event a Party seeks such injunctive relief pursuant
to this Agreement, such action shall not constitute a waiver of the provisions
of this Section 8.7, which shall continue to govern any and every dispute
between the Parties, including without limitation the right to damages,
permanent injunctive relief and any other remedy, at law or in equity.
36
37
8.8 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE OF ANY NATURE WHATSOEVER THAT MAY
ARISE BETWEEN THEM, INCLUDING, BUT NOT LIMITED TO, THOSE DISPUTES RELATING TO,
OR INVOLVING IN ANY WAY, THE CONSTRUCTION, PERFORMANCE OR BREACH OF THIS
AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE PROVISIONS OF ANY
FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDINANCE NOTWITHSTANDING. By
execution of this Agreement, each of the parties hereto acknowledges and agrees
that it has had an opportunity to consult with legal counsel and that he/she it
knowingly and voluntarily waives any right to a trial by jury of any dispute
pertaining to or relating in any way to the transactions contemplated by this
Agreement, the provisions of any federal, state or local law, regulation or
ordinance notwithstanding.
8.9 Waiver of Breach. The waiver by either Party of a breach or
violation of any provision of this Professional 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.
8.10 Enforcement. In the event either Party resorts to legal action to
enforce or interpret any provision of this Professional 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.
8.11 Gender and Number. Whenever the context of this Professional
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.
8.12 Additional Assurances. Except as may be herein specifically
provided to the contrary, the provisions of this Professional 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 Professional Business Management Agreement.
8.13 Consents, Approvals, and Exercise of Discretion. Whenever this
Professional Business Management Agreement requires any consent or approval to
be given by either Party, or either Party must or may exercise discretion, and
except where specifically set forth to the contrary, the Parties agree that such
consent or approval shall not be unreasonably withheld or delayed, and that such
discretion shall be reasonably exercised.
8.14 Force Majeure. Neither Party shall be liable or deemed to be in
default for any delay or failure in performance under this Professional Business
Management Agreement or other interruption of service deemed to result, directly
or indirectly, from acts of God, civil or military authority, 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
Professional Business Management Agreement. Notwithstanding the same, the
Parties hereto agree to continue this Professional Business Management Agreement
to the best degree they can so long as reasonably possible and the Practice
shall not be excused from its obligations under Sections 4.1, 6.4 and 6.5
pursuant to this Section 8.14.
37
38
8.15 Severability. The Parties hereto have negotiated and prepared the
terms of this Professional 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 Professional Business Management Agreement or the application thereof to
any person or circumstance shall be adjudged or rendered to any extent invalid,
unenforceable, void or voidable for any reason whatsoever by a court of
competent jurisdiction, an arbitration tribunal, a regulatory agency, or
statute, 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
Professional 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
Professional Business Management Agreement is in violation of applicable law,
then the Parties agree to negotiate in good faith to amend the Professional
Business Management Agreement, to the extent possible consistent with its
purposes, to conform to law.
8.16 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 Professional 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.
8.17 Divisions and Headings. The division of this Professional 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 Professional
Business Management Agreement.
8.18 Amendments and Execution. This Professional 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 Professional
Business Manager by its President. Each multiple copy shall be deemed an
original, but all multiple copies together shall constitute one and the same
instrument.
8.19 Licenses, Permits and Certificates. Professional Business Manager
and the Practice shall each obtain and maintain in effect, at all times during
the term of this Professional Business Management Agreement, all licenses,
permits and certificates required by law which are applicable to the performance
of their respective obligations pursuant to this Professional Business
Management Agreement.
8.20 No Third Party Beneficiaries. Except as otherwise provided herein,
this Professional Business Management Agreement shall not confer any rights or
remedies upon any person other than Professional Business Manager and the
Practice and their respective successors and permitted assigns.
8.21 Compliance with Applicable Laws. Professional 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 Professional Business Management Agreement.
8.22 Language Construction. The Practice and Professional Business
Manager acknowledge that each Party hereto and its counsel have reviewed and
revised this Professional Business Management Agreement and agree that the
normal rule of construction to the effect that any ambiguities are to be
38
39
resolved against the drafting Party shall not be employed in the interpretation
of this Professional Business Management Agreement.
8.23 Entire Professional Business Management Agreement. With respect to
the subject matter of this Professional Business Management Agreement, this
Professional 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 Professional 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
Professional Business Management Agreement, the Parties rely solely upon the
representations and agreements contained in this Professional Business
Management Agreement and no others. Notwithstanding the foregoing, the Existing
Management Agreements shall remain in full force and effect.
8.24 Authority. Professional Business Manager and the Practice hereby
warrant and represent to each other that they have the requisite corporate
authority to execute and deliver this Professional Business Management Agreement
in their respective names.
IN WITNESS WHEREOF, the Practice and Professional Business Manager have
caused this Professional Business Management Agreement to be executed by their
duly authorized representatives, all as of the day and year first above written.
"The Practice"
X.X. XXXXXXXXXXX, O.D. & ASSOCIATES, P.C.
By:
-------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx, O.D., President
"Professional Business Manager"
EYE CARE CENTERS OF AMERICA, INC.
By:
-------------------------------------------
Title:
---------------------------------------
39
