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EXHIBIT 10.8
FORM OF AMENDMENT TO
FORM OF SERVICE AGREEMENT
This Amendment to Service Agreement (this "Amendment") is made and
entered into as of ______, 199_, by and between Plastic Surgery Company, a
Georgia corporation ("PSC"), formerly known as Better Image, Inc., and
_________________, a ______________________ (the "Practice").
RECITALS
WHEREAS, the Practice owns and operates a cosmetic and reconstructive
surgery practice and furnishes specialized medical care to the general public
though the services of surgeons affiliated with the Practice (the "Surgeons");
and
WHEREAS, PSC is a company formed to own certain assets of, provide
personnel and practice management services to, and manage the business affairs
of cosmetic and reconstructive surgery practices; and
WHEREAS, pursuant to that certain Service Agreement dated as of
___________ (the "Agreement") by and between PSC and the Practice, and the
Practice agreed to enter into a business relationship pursuant to which PSC
would provide certain services and manage the business affairs of the Practice;
and
WHEREAS, the parties desire to amend the Agreement to reflect the
understanding of the parties regarding this business relationship;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, the parties hereby agree as follows:
1. Amendment of Service Agreement. The parties agree that Section
3.1 of the Agreement shall be amended and restated as follows:
3.1 Service Fees. The Practice shall pay to PSC a fee for the
services provided hereunder (the "Service Fee"), subject to the provisions of
Section 3.3 below, of 15% of Net Cash. Except as otherwise provided, the amounts
to be paid to PSC under this section shall be payable monthly in arrears on the
date that the Practice's financial statements for such period are completed. The
amounts shall be paid based upon the previous month's operating results of the
Center. Upon preparation of quarterly financial statements within forty-five
(45) days after the end of each calendar quarter, adjustments to the Service Fee
for the applicable quarter, if any are required, shall be made. Any amounts
owing to the Practice (as a result of a quarterly adjustment) shall be remitted
by PSC to the Practice. Any amounts owing to PSC by the Practice (as a result of
a quarterly adjustment) shall be deemed a Center Expense and paid as provided
herein.
2. Amendment of Service Agreement. The parties agree that Section
3.3 of the Agreement shall be amended and restated as follows:
3.3 Definitions. For the purposes of this Agreement, the
following definitions shall apply and shall comply with generally accepted
accounting principles:
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i. "Adjustments" shall mean any adjustments to Net Cash
for uncollectible accounts, professional courtesies
and other activities, contractual allowances and
discounts that do not generate a collectible fee.
ii. "Center Expenses" shall mean all operating and
non-operating expenses incurred in the operation of
the Center, excluding any state and federal income
taxes, and including, without limitation:
(1) Salaries, benefits, payroll taxes,
workers compensation, health insurance,
401(k) and other benefit plans, and other
direct costs of all employees of PSC at the
Center, including nurses (but excluding all
Surgeons); provided that only expenses for
health insurance, 401(k) and other benefit
plans approved by the Practice shall be
included;
(2) Obligations of PSC under leases or
subleases entered into in connection with
the operation of the Center;
(3) Personal property and intangible taxes
assessed against PSC's assets used in
connection with the operation of the Center,
commencing on the Effective Date (as
hereinafter defined) of this Agreement;
(4) Malpractice insurance expenses and
Surgeon recruitment expenses as agreed by
PSC and the Practice;
(5) Property, casualty and liability
insurance for the Center and its operations;
(6) Amortization of intangible asset value
as a result of each such acquisition
referred to in subsection (vii) above;
(7) Depreciation of all assets owned by PSC
and used by the Practice in the operation of
the Center;
(8) Repayment of any advances (and the
interest thereon) made by PSC to the
Practice pursuant to Section 1.12(b);
(9) Advertising and other marketing expenses
attributable to the promotion of the Center
and/or its Surgeon(s) and consented to by
the Practice; and
(10) Other expenses incurred by PSC with the
consent of the Practice in carrying out its
obligations hereunder for the benefit of the
Center or the Practice; provided, however,
that such expenses shall not include PSC's
home office overhead expenses.
iii. "Contract" shall mean the agreement entered into by
patients with the Practice for the provision of
surgical services at a predetermined fee.
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iv. "Net Cash" shall mean all cash resulting from fees
and charges for each month earned and collected by
and on behalf of the Practice as a result of
professional medical services personally furnished to
patients by the Surgeons and those under the
Surgeons' supervision and other fees or income
generated in their capacity as a professional, less
any Adjustments.
3. Amendment of Service Agreement. The parties agree that Section
5.5 of the Agreement shall be amended and restated as follows:
5.5 Closing of Repurchase by the Practice and Effective Date
of Termination. Unless another form of payment is agreed to by PSC at such time,
the Practice shall pay cash to PSC for (i) the assets repurchased pursuant to
Section 5.4 and (ii) an amount equal to the Service Fee that would have been
payable hereunder based on Net Cash earned and collected prior to the
termination of this Agreement. The amount of the purchase price shall be reduced
by the amount of debt and liabilities of PSC assumed by the Practice and shall
also be reduced by any payment PSC has failed to make under this Agreement. The
Practice and all Surgeons shall execute such documents as may be required to
assume the liabilities set forth in Section 5.4(c) and shall use its or their
best efforts to remove PSC from any liability with respect to such repurchased
assets and with respect to any property leased or subleased by PSC. The closing
date for the repurchase shall be determined by the Practice, but shall in no
event occur later than 180 days from the date of the notice of termination. The
termination of this Agreement shall become effective upon the closing of the
sale of the assets and the Practice and PSC shall be released from the
restrictive covenants provided for hereunder on the closing date. From and after
any termination, each party shall provide the other party with reasonable access
to books and records then owned by it to permit such requesting party to satisfy
reporting and contractual obligations which may be required of it.
4. Miscellaneous.
a. Notices. All notices, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, mailed by certified mail, return receipt requested, sent by
overnight courier service or telecopies, telegraphed or telexed (transmission
confirmed), or otherwise actually delivered in accordance with the notice
provisions of Section 7.3 of the Agreement.
b. Severability and Governing Law. Should any Section or any part
of a Section within this Amendment be rendered void, invalid or unenforceable by
any court of law for any reason, such invalidity or unenforceability shall not
void or render invalid or unenforceable any other Section or part of a Section
in this Amendment. This Amendment is made and entered into in the State of
Georgia and the internal laws of the State of Georgia (without regard to the
principles of conflicts of laws) shall govern the validity and interpretation
hereof and the performance by the parties hereto of their respective duties and
obligations hereunder.
c. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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d. Captions and Section Headings. Section titles or captions
contained in this Amendment are inserted as a matter of convenience and for
reference purposes only, and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provisions hereof.
e. Further Assurances. Each party hereto agrees to do all acts
and to make, execute and deliver such written instruments as shall from time to
time be reasonably required to carry out the terms and provisions of this
Amendment.
f. Definitions. All capitalized terms used and not defined herein
shall have the meanings assigned to them in the Agreement.
g. Survival. Except as specifically modified by this Amendment,
the Agreement remains in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Service Agreement as of the day and year first above written.
THE PLASTIC SURGERY COMPANY
By:
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BY:
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