AGENCY AGREEMENT
Agreement between Laser Photonics, Inc., (CLIENT) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ &
ASSOCIATES, (AGENCY), ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, for
the provision of designated advertising services for Laser Photonics, Inc. in
accordance with the following terms and conditions:
I. SCOPE OF SERVICES
The services to be provided by AGENCY to CLIENT under this agreement
shall be (a) Account Services; (b) Creative Advertising Services; (c)
Media Services; and Production and Traffic Services. AGENCY shall
render the above referenced services for Laser Photonics, Inc. A
description of the services to be provided to CLIENT under this
agreement is provided hereunder. (Separate agreements for Sales,
Medical Education and Public Relations services are contained in
Addenda I, II, III, respectively.
A. ACCOUNT SERVICES
AGENCY shall make itself available to CLIENT during the term of
this Agreement, as requested by CLIENT and as reasonably
appropriate to provide CLIENT with assistance in developing the
overall marketing plans, strategies, and advertising. The
services, as below outlined in terms 1 through 12 hereunder shall
be known as "Account Services:"
The AGENCY staff assigned to the Account shall be (see addendum to
staffing assignments):
-- Principal Supervision
-- Management Supervisor
-- Account Supervisor
-- Account Executive
-- Manager of Finance
-- Media Services
-- Account Traffic Coordinator
-- Production Supervisor
-- Medical Director
-- Director of Strategic Planning and Market Research
These individuals, together with the other personnel of AGENCY,
shall serve the following functions, which shall be covered as
set forth in Paragraph I. A. and B. below.
1. Serving as a resource to CLIENT in the evaluation of and/or
development of marketing research data as it applies to
CLIENT's products. Providing marketing research consultation
in connection with this Agreement to assist in analysis and
recommendations of marketing strategies.
2. Advising CLIENT on all elements of the marketing plan as
above referenced through definition of objectives,
strategies, budget, and creative concepts.
3. Developing as instructed by CLIENT, a Tactical Marketing
Plan for and providing CLIENT with budget estimates for
creative advertising services (and production and media
services, if requested by CLIENT).
4. Assisting with the resolution of problems and/or questions
concerning the Marketing Plan.
5. Aiding in the evaluation of measurement parameters used in
determining the degree to which CLIENT marketing goals are
being achieved.
6. Providing advice and creative marketing ideas for resolving
CLIENT problems and taking advantage of opportunities.
7. Providing account management through supervision and
coordination for AGENCY personnel who work with CLIENT.
8. Providing marketing input for copy and art direction for
development of basic creative concepts and promotional
themes.
9. As requested by CLIENT, providing production job estimates
and proofing.
10. As requested by CLIENT, procurement and implementation of
original and new marketing research studies or data for
third party sources and obtaining bids from these suppliers.
11. As requested by CLIENT, attendance at sales meetings and
conventions.
12. As requested by CLIENT, obtaining medical consultation and
services.
B. CREATIVE ADVERTISING SERVICES
AGENCY shall implement the Tactical Marketing Plan, developed by
or with CLIENT during the term of this agreement, through the
creation and execution of the advertisements and promotional
materials that are contained therein. As the needs of the business
dictate, changes to Tactical Plan elements are inevitable. As
changes occur, AGENCY shall obtain CLIENT's written approval of
the change and provide CLIENT with a description thereof and the
revised estimated cost for approval. All services rendered (other
than Account Services as set forth in Paragraph I. A.1 - 12 above)
and products or materials created or produced by AGENCY in the
implementation of the Tactical Plan during the term of this
Agreement shall be considered Creative Advertising Services.
Creative Advertising Services include, but are not necessarily
limited to:
1. copy supervision, preparation and copywriting;
2. art supervision, design and comprehensives;
3. proofreading and editing;
4. preparation of mechanicals, computerized or traditional;
5. printing approval and color corrections.
C. MEDIA SERVICES
AGENCY shall implement the media plans developed with CLIENT
during the term of this agreement. Media Services include, but are
not necessarily limited to:
1. media planning;
2. competitive analysis;
3. maintenance of media schedules;
4. placement of insertion orders and invoicing.
These services include the use of both AGENCY personnel time and
outside services. Out-of-pocket expenses for access to readership
audits and on-line media services will be passed on directly to
CLIENT by billing at net, with no additional costs or commissions
added. Commission on gross media costs is 15%.
You acknowledge that, in placing your advertising with various
media, AGENCY will contract with such media on the basis of
"sequential liability" pursuant to which AGENCY shall be solely
liable for payment to the extent that proceeds have cleared from
you as advertiser to AGENCY for advertising published or broadcast
in accordance with the contract. As advertiser, you will remain
solely liable for sums owing but not cleared to the AGENCY in
respect to such advertising.
Accordingly, you hereby authorize and agree that AGENCY may
contract with media on your behalf on the basis of sequential
liability, and that you will be solely liable to media with
respect to payments for such space or time to the extent that such
payments have not cleared to the AGENCY.
Solely, to the forgoing extent, AGENCY will act as agent for you
as disclosed principal in entering into contracts with media, and
a copy of this paragraph may be presented to media and/or other
third parties as evidence of AGENCY's authority to act in such
capacity for such purpose.
So that AGENCY, or any of its subsidiaries, can satisfy its
obligations to pay for media that is to be used on behalf of
CLIENT. CLIENT shall pay for its media in full prior to the media
commitment dates (release of the insertion order by the AGENCY) or
shall establish an irrevocable letter of credit with a lending
institution acceptable to AGENCY in an amount sufficient to cover
ongoing media commitments. In this regard, CLIENT acknowledges
that AGENCY may currently commit to a media purchase on behalf on
CLIENT with a media buying service. If necessary, CLIENT shall
have such letter of credit in place no later than the date that
AGENCY has to exercise a media commitment. AGENCY shall be under
no obligation to place media for which it has not received
complete payment and where such letter of credit is not in place,
if required. To the extent CLIENT does not timely advance funds to
AGENCY so that AGENCY may timely pay media, AGENCY shall have the
right to draw down such sums as are then due to media by
presentment to the lending institution issuing the letter of
credit.
II. AGENCY AUTHORIZATIONS FOR OUTSIDE SERVICES
A. AGENCY shall have the right to procure all reasonable or
necessary outside services and materials, including audio-visual
services, printing, telegrams, express mail, courier services,
freight, and similar services in the name of and for the benefit
of CLIENT and to require reimbursement for such outside services;
provided, however, that (1) AGENCY receives prior written
approval for the procurement of same from CLIENT, and (2) AGENCY
provides CLIENT with reasonable and satisfactory documentation of
the actual cost of the outside services and materials. Prior to
purchasing such goods or services, or entering into any legal
commitments therefore, AGENCY shall (1) comply with provisions
set forth in B. and C. below and with any other previously
received specific instruction of CLIENT or with any written
policy of CLIENT concerning the procurement of bids or proposals
thereof or the receipt of purchase orders prior to proceeding to
make such commitments; and (2) determine that CLIENT has not
elected to provide or procure such goods or services itself.
B. Prior to contracting for any specific purchase of these goods or
services which exceeds $20,000, excluding typesetting costs,
laser color prints, retouching, photography, and illustrations,
and which is available from a number of competitive suppliers,
AGENCY shall obtain bids from three such CLIENT suppliers and
recommend to CLIENT the supplier from which procurement of the
goods and/or services would be most appropriate. CLIENT shall
then notify AGENCY as to which competitive supplier to use.
C. AGENCY shall maintain, and on request in a timely and reasonable
manner, provide CLIENT with complete documentation for all
procurements of goods and services.
III. PAYMENT FOR SERVICES AND REIMBURSEMENT OF EXPENSES
A. MONTHLY FEE FOR ACCOUNT SERVICES
In return for all of the Account Services rendered by the Account
Management personnel set forth in Paragraph I.A. 1 - 12 above,
other than as specifically provided in Paragraph B. below, AGENCY
shall receive the annual sum of $479,960, in equal monthly
installments of $39,996.67 per month (Exhibit A), to be invoiced
30 days in advance of each month.
The fee will be subject to review by both parties every three
months. The AGENCY and CLIENT agree that this fee, by product, is
based on an estimate of hours activity as currently anticipated.
Therefore, this fee will be reconciled every three months against
actual hours worked by AGENCY during such period.
If AGENCY has worked more than the estimated hours on behalf of
CLIENT hereunder during any three month period hereunder then the
AGENCY will invoice these unreimbursed hours, at a cost of $104
per hour.
B. CREATIVE ADVERTISING SERVICES
AGENCY shall invoice CLIENT for Creative Advertising Services on
an hourly fee basis at the rate of $104 per hour. Work will not
begin on a specific project until a CLIENT project form has been
completed and a code number assigned by CLIENT. AGENCY shall
maintain detailed records of specific Creative Advertising AGENCY
Services rendered and times expended therefore and shall provide
same to CLIENT upon request in a reasonable and timely manner.
AGENCY shall not exceed the budgeted estimates for Creative
Advertising Services or for other Production Services which have
been specifically requested by CLIENT by more than ten percent
(10%) for any Tactical Plan item or project element without the
prior, written approval of CLIENT. AGENCY's invoices shall
identify specific Tactical Plan items for which Creative
Adverting and/or Production Services have been rendered.
(Exhibits B, C, D, E)
C. REIMBURSEMENT OF AGENCY EXPENSES
CLIENT shall reimburse AGENCY for all reasonable and documented
out-of-pocket expenses which have been approved by CLIENT (in
writing, if applicable) in connection with performing Account
Services and Creative Advertising Services, including travel and
living expenses, airline tickets, car rental expenses and long
distance telephone expense charges for all AGENCY personnel
authorized by CLIENT to make the trip. These expenses shall be
billed and paid for monthly.
D. PAYMENT OF REIMBURSEMENT FOR OUTSIDE SERVICES: NO COMMISSION OR
PAYMENT
1. If requested by AGENCY, all payments incurred or committed
to by AGENCY for services and materials procured outside of
AGENCY in connection with, but beyond the scope of, Creative
Advertising Services shall either be paid by CLIENT in
advance or directly to the provider of the outside service
or materials, or reimbursed by CLIENT to AGENCY following
CLIENT's receipt of reasonable and satisfactory
documentation of the cost of the outside services or
materials, if no request for direct or advanced payment is
made by AGENCY.
AGENCY shall charge no commission (except for media),
handling or other charge to CLIENT for procurement of such
services or materials. Any discount, rebate or other
allowance paid to AGENCY by a supplier which is not
reflected in the original billing shall be credited to
CLIENT in the next billing to CLIENT under this Agreement.
2. CLIENT shall also reimburse AGENCY for the actual cost of
procuring marketing data or research studies from third
parties as requested by CLIENT in connection with, but
beyond the scope of the performance of AGENCY's services.
All direct payments or reimbursements shall be made monthly
upon presentation of AGENCY's invoices and reasonable
documentation of actual cost.
E. All AGENCY invoices are to be paid by CLIENT within 15 days of
receipt of AGENCY's invoices. All past due invoices will incur a
finance charge of 1 1/2% per month.
F. RECORDS
AGENCY shall, during the course of this Agreement and for one
year thereafter, keep and make available to CLIENT for inspection
at all reasonable times, time, cost and expense records in
connection with fees and expenses, including outside expenses
incurred and services and materials procured by AGENCY under this
Agreement
IV. COPYRIGHTS: TITLE TO PROPERTY
A. ACQUISITION OF COPYRIGHTS
AGENCY shall take the steps necessary to secure on behalf of
CLIENT and in CLIENT's name, copyrights to all copyrightable
materials produced under this Agreement which shall include, but
not necessarily be limited to, the giving of all requisite
statutory notice with the first and all other publications of
such materials and filing of a claim or copyright for such
materials with the United States Patent Office when, and if,
required.
B. EXCLUSIVITY
CLIENT shall own all such copyrights, and they shall own and have
exclusive royalty-free right to use all non-copyrightable
material produced hereunder. AGENCY shall not use any
copyrightable or non-copyrightable material produced hereunder
for any purpose other than in this or any future project done by
CLIENT without the express written permission of CLIENT.
C. TITLE AND PROPERTY
All advertisements and promotional materials prepared, purchased
or furnished by AGENCY for CLIENT under this Agreement become
CLIENT's property with right of copyright, and shall be preserved
for delivery to CLIENT upon request only if AGENCY has been fully
paid by CLIENT for its services and costs. CLIENT shall have the
right to use all such materials wherever and whenever it chooses.
V. CONFIDENTIALITY
AGENCY shall keep in confidence and shall not disclose or use for the
benefit of others, any and all information, plans, strategies, and/or
materials produced hereunder for CLIENT or provided to it by CLIENT
except as necessary to carry out this agreement (1) as specifically
authorized by CLIENT; or (2) as otherwise authorized by CLIENT in
writing. The restriction will survive performance and/or termination
of this Agreement for a period of five years. Further, AGENCY shall
assure that no unpublished material prepared for its former CLIENTS
are disclosed to CLIENT, and shall not disclose to CLIENT any plans,
strategies or other information which is a trade secret of any former
CLIENT for AGENCY.
VI. TERM
The term of this Agreement shall commence on May 11, 1999 and shall
continue in effect until terminated by either party as below provided
in Paragraph VII hereunder. Any renewal or continuation of this
Agreement beyond May 10 of any year shall be by written Agreement and
signed by both CLIENT and AGENCY.
VII. TERMINATION
Both parties shall have the right to terminate this Agreement, in
whole or in part, with or without cause, upon 90 days written notice
to the other party. In the event that CLIENT elects to terminate this
Agreement, AGENCY shall not undertake further work, incur
additional expenses or enter into further commitments with regard to
this Agreement after receipt of notice of termination from CLIENT
unless requested by CLIENT to complete works in progress. AGENCY shall
be entitled to receive payment of the monthly Account Service Fee for
the three-month period following such notification. Further, upon
submission of reasonable documentation to CLIENT, AGENCY shall be
entitled to receive payment for all Creative Advertising Services
actually performed, (based on costs of materials and established pay
rates for such services as provided in Paragraph III B above); for
out-of-pocket expenses and for noncancelable commitments actually
entered into with regard to this Agreement prior to AGENCY's receipt
of CLIENT's notice of termination. Further, in the event of
termination of this Agreement by CLIENT, the total owed to AGENCY by
CLIENT shall not exceed the annual sum of Account Services and the
budgeted amounts for Creative Advertising, Production and Outside
Services. If the amount that CLIENT has previously paid to AGENCY
exceed the amount that AGENCY is actually owed, AGENCY shall reimburse
the balance to CLIENT within 45 days of receipt of CLIENT's notice of
termination. Likewise, AGENCY shall provide CLIENT with all materials
and work in progress prepared under this Agreement at the time of
termination, once total payment is received by AGENCY.
VIII. INDEPENDENT CONTRACTOR
AGENCY shall function as an independent contractor and shall not hold
itself out as an agent of CLIENT or represent that it has the capacity
to bind CLIENT in any way; provided, however, any work performed by
AGENCY under this Agreement shall be deemed work for hire by CLIENT.
IX. ASSIGNMENT
Except as otherwise provided herein, neither party to this Agreement
shall delegate any of its duties nor assign any of its rights under
this Agreement to a third party without the express written permission
of the other, and such consent shall not be unreasonably withheld.
X. MISCELLANEOUS
AGENCY represents that it is not currently debarred, suspended or
otherwise excluded by Government Agencies from receiving Federal
Contracts.
XI. CONFLICT OF INTEREST
AGENCY warrants that it does not currently have a conflict of interest
with a CLIENT
competitor pharmaceutical company or any other company for this type
of project; and that it shall not enter into a contractual agreement
for a similar therapeutic product with any CLIENT competitor or other
company during the term of this Agreement from which a conflict of
interest issue could arise without the prior, written approval of
CLIENT. Further, AGENCY agrees to indemnify and hold harmless CLIENT
from and against any and all losses, claims, damages, expenses or
liabilities, including attorney's fees, which CLIENT may incur as a
result of contractual arrangements entered into between AGENCY and
another company prior to entering into this Agreement, or during the
term of this Agreement.
XII. INDEMNIFICATION
AGENCY will indemnify and hold harmless CLIENT, servants and
employees, against all losses, claims or suits, excluding those by or
before administrative agencies, based upon AGENCY's activities
hereunder, and pertaining to libel, slander, defamation or any
infringement of copyright or of title or of slogan or piracy,
plagiarism or idea misappropriation under implied contract or any
invasion of privacy. AGENCY shall have the right to control the
defense of all such proceedings and to select and engage counsel of
its choice, consulting with CLIENT, and CLIENT shall cooperate fully
with AGENCY in such defense; provided, however, that CLIENT shall not
settle any such claims or suits without the proper written consent of
the AGENCY. The above indemnity does not apply to any matter furnished
AGENCY by CLIENT or submitted to CLIENT by third parties, or to any
other claim for which AGENCY is entitled to indemnification from
CLIENT as provided below. CLIENT shall indemnify and hold AGENCY
harmless in respect of claims (a) of third parties based on any
written matter furnished AGENCY by or through CLIENT in connection
with the services to be rendered by AGENCY hereunder; (b) based upon
the nature or use of CLIENT's products or services or (c) based upon
any materials created, produced or prepared by AGENCY and which are
approved by CLIENT or which are used in any manner other than as
intended. Upon the filing of any suit or claim CLIENT's attorneys
(which attorneys shall be reasonably satisfactory the AGENCY) shall
defend AGENCY and AGENCY shall permit such attorneys, at CLIENT's
discretion and cost, to handle and control the defense of any such
claims or suits and provided further, that no party shall settle any
such claims or suits without the proper written consent of CLIENT.
XIII. CHANGES IN AGREEMENT
No changes may be made in this Agreement except by written agreement
by the parties hereto.
XIV. COMPLETE UNDERSTANDING
This agreement is the entire and complete understanding between CLIENT
and AGENCY in regard to the subject matter covered herein. It
replaces, supersedes and renders void any and all predecessor
Agreements, if any, made between the parties, whether written or oral,
and pertain to the covered subject matters.
XV. GOVERNING LAW
This Agreement shall be construed, interpreted and enforced under the
laws of the State of New York.
If the terms of the foregoing meet with your approval, please indicate your
acceptance by signing both copies of this Agreement and returning one.
Accepted and agreed to:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 5/11/99
Chief Operating Officer
Chief Financial Officer
Laser Photonics, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 5/11/99
Chairman and CEO
Healthworld Corporation
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EXHIBIT A
MANAGEMENT FEE
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EMPLOYEE POSITION ANNUAL HOURS
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President 240
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ General Manager 360
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▇▇▇▇▇ ▇▇▇▇ Management Director 360
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Management Supervisor 800
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▇▇▇▇▇▇▇▇ Jasmine Account Supervisor 360
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▇▇▇▇▇ ▇▇▇▇▇ Account Executive, Consumer 420
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TBD Account Executive, Medical 800
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TBD Administrative Assistant 795
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Strategic Planner 300
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Market Research 180
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TOTAL 4,615
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HOURLY FEE $ 104
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TOTAL FEE $ 479,960
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EXHIBIT B
MEDICAL PROMOTION FEE SCHEDULE
PROJECTS INCLUDED IN THIS AGREEMENT
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FEE OOP TOTAL
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Strategic Planning 40,000 0 40,000
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Direct Mail 30,400 12,000 42,400
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Teleconference 18,400 12,000 30,400
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Franchise Kit 25,600 8,000 33,600
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Monograph 12,000 75,000 87,000
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Visual Aid 36,000 10,000 46,000
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Journal Ad 36,000 15,000 51,000
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Ad Space 0 15,000 15,000
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Direct Mail 16,800 24,000 40,800
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Exhibit Booth 48,000 40,000 88,000
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Clinical Reprints 1,600 8,000 9,600
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Website/Management 32,000 360,000 392,000
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TOTAL $296,800 $579,000 $875,800
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EXHIBIT C
DIRECT-TO-CONSUMER
PROJECTS INCLUDED IN THIS AGREEMENT
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PROJECT FEE OOP TOTAL
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Advertising / Marketing 144,000 4,360,000 4,504,000
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Psoriasis Advertorial 56,000 470,000 526,000
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Internet 104,000 300,000 404,000
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Office Material 32,000 110,000 142,000
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Total $336,000 $5,240,000 $5,576,000
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EXHIBIT D
MARKET RESEARCH
PROJECTS INCLUDED IN THIS AGREEMENT
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PROJECT FEE OOP TOTAL
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Secondary Research 4,800 28,000 32,800
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Field Trip 0 2,500 2,500
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MD Exploratory 2,880 24,000 26,880
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Consumer Exploratory 9,600 40,000 49,600
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Consumer Concept Testing 14,400 80,000 94,400
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Consumer Communication Test 7,200 60,000 67,200
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MD Disaster Check 3,840 20,000 23,840
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Consumer A & U 14,400 80,000 94,400
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TOTAL $57,120 $334,500 $391,620
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EXHIBIT E
MANAGED CARE
PROJECTS INCLUDED IN THIS AGREEMENT
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PROJECT FEE OOP TOTAL
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Project Management 84,000 84,000
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Market Research 34,000 34,000
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Pharmacoeconomic model 35,000 35,000
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Monograph 60,000 60,000
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Clinical Reprints 5,000 5,000
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Formulary Binder 4,000 4,000
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Presentation Binder 30,000 30,000
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Announcement Mailing 15,000 15,000
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NHMCC (to be decided) 75,000 75,000
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TOTAL $84,000 $258,000 $342,000
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ADDENDUM I
HEADCOUNT/LASER PHOTONICS INCORPORATED
LETTER OF AGREEMENT
This is to serve as our Letter of Agreement, made and entered into as of the
11th day of May, 1999, whereby Headcount agrees to complete calls for Laser
Photonics Incorporated for Laser Photonics Excimer Laser to targeted physicians,
managed care personnel and other targeted individuals during a seven-month
period beginning October 1, 1999 through April 30, 2000.
The total program would be divided into two parts:
MANAGED CARE PROGRAM
Two dedicated, full-time managed care specialty representatives will start
October 1, 1999. Their responsibility would be to call on managed care and
insurance company headquarters to educate them on Laser Photonics Excimer Laser
and to establish reimbursement procedures from them for the Laser Photonics
Incorporated laser treatment. The cost for these two representatives will be
$30,000/month. Headcount will provide management for these representatives.
The cost for the seven-month program is $210,000.
DERMATOLOGY SALES FORCE
Headcount will deploy and manage a selling team comprised of 20 dedicated
flextime sales representatives. Each will deliver an average of 100 hours per
month making calls against the identified Laser Photonics Incorporated targets
(Dermatologists and FP/GPs). The approved targets will be located within a
45-mile radius of each territory center. Headcount defines a completed call as
an active face-to-face exchange with a healthcare professional, at which time
the product is discussed and product information is offered. This sales force
will produce 8,000 hours of detailing activity in the period January 3, 2000
through April 30, 2000. The cost would be $400,000 based on an hourly coverage
rate of $50/hour. In addition to the selling cost there is a one-time $100,000
recruiting fee for this portion of the program.
Total cost for the four-month program is $500,000.
In addition to the costs listed above, Headcount assumes that there would need
to be an initial training meeting for the Dermatology Sales Representatives. We
assume the representatives would need 5 days for training (1 day for pre-reading
plus a 4-day initial training meeting that would allow for travel both to and
from the
meeting). Costs for this meeting are estimated at $40,000 and are enclosed in
attachment A. These cost would be billed separately.
MANAGEMENT
Headcount will provide field management for both program as well as headquarter
management support for the entire program. The fee for this management support
is $10,000/month for a total cost of $70,000 for the program period.
The total cost for both the Managed Care and Dermatology Sales Program with
management (not including initial training) is $780,000.
Included in Headcount's basic selling costs are the following items:
1. Total recruiting expenses throughout the contract period. This includes
recruiting expenses for any turn that may occur.
2. All field-related expenses for the professional sales representatives and
field management. These include auto expenses, parking, tolls, and
miscellaneous supplies.
3. All Headcount headquarters management expenses in the field connected with
assessment of field performance and including normal performance
reviews/planning sessions.
4. The standardized Headcount call reporting and sample accountability service
and monthly reporting.
5. All salaries, taxes and benefits for field representatives and management
as well as the Headcount payroll and administrative services systems for
all representatives and management hired.
6. Headcount Filed & Customer Services support to co-ordinate all field
shipments, field communications and meeting logistics.
7. Quarterly Performance Improvement testing of all representatives on
products and policies thoughout the term of the program.
Lasers Photonics Incorporated will pay actual costs, subject to its written
pre-approval, for the following additional items for representatives and
appropriate Headcount Management:
1. All out-of-pocket and time related expenses for the Introductory Training
Meeting. This will include representative time at a rate of $100/day per
representative, or an agreed upon flat rate plus hotel, airfare, meals and
miscellaneous incidentals. (see attachment A)
2. All out-of-pocket and time related expenses for attendance at the follow-up
Sales Meetings.
3. Regular Laser Photonics Incorporated sales bags/folders and business cards
for the field representatives in order to project a "total Company
identity" to the physicians that will be called on.
4. All out-of-pocket expenses related to client requested territory close outs
including incremental travel, shipment of all returned samples, promotional
materials and detail bags.
5. All detailing selling aids/miscellaneous materials plus coupons/samples
distributed to the targeted physicians through Headcount field
representatives (plus any outside handling/fulfillment service expenses).
In this respect, we would work closely with you and your agency to add
strategic thinking and a practical field point-of-view on all materials.
6. All expenses related to Laser Photonics Incorporated management visits to
the field/Headcount headquarters and sales meetings.
PAYMENT
Headcount payments for detailing services will be due quarterly. The first
payment will be due upon signing of this agreement and will be $220,000.
Included in this payment would be the October-December 1999 Managed Care Program
costs of $90,000, the October-December 1999 Management Fee of $30,000 plus the
one time recruiting fee of $100,000. On December 15, 1999 the January-March 2000
payment will be due in the amount of $420,000. This would include the Managed
Care Program costs of $90,000, the Dermatology Sales Program costs of $300,000
and the Management Fee cost of $30,000. On March 15, 2,000 the final payment
will be due for April 2000 activity. This will amount to $140,000 and include
cost for the Managed Care Program of $30,000, the Dermatology Sales Program
costs of $100,00 and the Management Fee of $10,000. Time related representative
costs for initial training/follow-up sales meetings will be due 15 days prior to
the meeting date with all incidental meeting charges due 30 days following the
meeting.
A late fee of 1.5% per month will be charged to Laser Photonics Incorporated for
all late payments.
Headcount requests funds be wired to:
The Chase Manhattan Bank N/A
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Bank Code 021 00 0021
For the benefit of:
Headcount LLC
100 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
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A/C #777008262
GENERAL PROVISIONS
Headcount will provide monthly status reports of its coverage to Laser Photonics
Incorporated and will work closely with Laser Photonics Incorporated to provide
ideas/advice on increasing professional support levels. Automated call reporting
and sampling data computerized call reports, summarized monthly, will be
available for Laser Photonics Incorporated to review following the close of the
months activity.
Laser Photonics Incorporated may cancel the Agreement before its scheduled
termination upon ninety (90) days written notices to Headcount. Laser Photonics
Incorporated shall be liable for payment of all completed hours made through the
date of cancellation, all pre-approved expenses incurred through such date which
are not recoverable and all costs associated with closing out the
representatives including shipment of materials. Additionally, Laser Photonics
Incorporated shall be liable for a cancellation charge of $25 per hour for each
hour originally planned and not executed for the Dermatology Program following
cancellation. Laser Photonics Incorporated has the option to extend this
Agreement but Headcount would need a firm decision from Laser Photonics
Incorporated on this matter by January 30, 2000 so Headcount does not assign
this field force to another manufacturer.
Laser Photonics Incorporated additionally agrees that it will not employ any
Headcount representative or manager assigned to this program during this
Agreement. At the completion of field activity representative and field
management will be available for rollover to the employ of Laser Photonics
Incorporated for a transfer fee of $7,500 per person.
All information, data and know-how concerning the operation, structure,
personnel, research, products and plans of the Laser Photonics Incorporated
businesses disclosed to Headcount shall be held in strictest confidence.
Laser Photonics Incorporated agrees that all claims, statements and
representations which Laser Photonics Incorporated directs to be made in
connection with the promotion of Laser Photonics Incorporated products
represented by Headcount will be subjected to, and authorized under, Laser
Photonics Incorporated regular scientific and legal/regulatory review process.
Headcount agrees that its representatives will make no claim, statement or
representations Laser Photonics Incorporated products other than claims,
statements and representations that have been so authorized and approved by
Laser Photonics Incorporated.
Laser Photonics Incorporated agrees to indemnify and hold Headcount harmless
from all costs, including reasonable attorney fees, resulting from any charges
or claims alleged to have arisen out of the sale, distribution or use of Laser
Photonics Incorporated products or the publication/distribution of any materials
authorized by
Laser Photonics Incorporated provided that Headcount shall promptly notify Laser
Photonics Incorporated of such charges or claims. Headcount agrees that it will
permit Laser Photonics Incorporated to control the defense, select counsel and
institute settlement of any charges or claims as part of this agreement and will
cooperate fully with Laser Photonics Incorporated in the defense of such claims.
Headcount agrees to indemnify and hold Laser Photonics Incorporated harmless
from all costs, including reasonable attorney fees, resulting from any charges
or claims alleged to have arisen out of any breach of Headcount of this
Agreement or from the negligent, intentionally wrongful or unauthorized
activities of Headcount and/or Headcount representatives and from any employment
related claims filed against Laser Photonics Incorporated by Headcount
representatives.
Headcount recognizes and agrees that is it acting under this Agreement as an
independent contractor. Neither Headcount nor its employees, agents or
representatives shall be considered employees of Laser Photonics Incorporated
and neither party shall be held liable or accountable for any obligations
incurred by the other party, except as specified herein, it being specifically
understood that the respective businesses of the parties are operated separately
and apart form each other.
IN WITNESS WHEREOF, the parties have executed this Letter of Agreement the day
and year written below:
HEADCOUNT LASER PHOTONICS INCORPORATED
By: By:
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Title: Title:
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Date: Date:
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ATTACHMENT A
ESTIMATED INTRODUCTORY TRAINING EXPENSES
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# Persons Est. $
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AIR
@ $600/flight 22 13,200
HOTEL
@ $150/night x 3 nights 12 5,400
MEALS
@ $75/day x 4 days 22 6,600
INCIDENTALS
@ $50/pp 22 1,100
MEETING EQUIPMENT 3,700
REPRESENTATIVE MEETING TIME 20 10,000
@ $100/day x 4 days
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TOTAL $40,000
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ADDENDUM II
MEDICAL EDUCATION
LETTER OF AGREEMENT
The purpose herein is to set forth the services to be provided to the client by
Medical Education Technologies, Inc.("MET"), the compensation in fees and
reimbursements of out-of-pockets (OOPs) to be paid to MET in recognition of
services,
TERM OF SERVICES
MET shall begin providing the services stipulated in this agreement and
attachments hereto immediately upon signature of this agreement by stipulated
parties MET shall provide said services for one year, the life of this
agreement.
MET'S RESPONSIBILITIES IN PROVIDING SERVICES
MET shall be responsible for the development of programs and content,
organization and management, and implementation for the education tactics in the
schedule of medical education launch budgets attached to and a part of this
document.
These responsibilities will include all editorial development; identification
and recruitment of participating physicians; negotiations with medical societies
and medical journals; CME accreditation for CME tactics; logistical planning and
arrangements for necessary travel, hotel accommodations, catering, and meeting
facilities; ground transportation; audiovisual equipment and technicians;
design/layout and production of print and other enduring materials; and
follow-up, including payment of physician honoraria and other related OOPs in a
timely fashion.
MET shall inform the client regarding steps of development and implementation
through consultations and status reports on a need-to-know and regular basis as
mutually determined.
COMPENSATION FOR MET'S SERVICES
MET WILL BE COMPENSATED IN VARYING AMOUNTS ON A MONTHLY BASIS ACCORDING TO THE
ATTACHED PAYMENT SCHEDULE FROM THE DOCUMENT, PROPOSED LAUNCH BUDGETS, US
MARKETS.
CLIENT-APPROVED BUDGETS FOR OUT OF POCKETS (OOPS)
MET shall provide the client with line-item estimates of OOPs for approval when,
through consultations,
specifications for education tactics are finalized. MET will proceed with
implementation of tactics when OOP estimates are approved.
All estimates will be +/- 15% of total OOP estimate.
After client approvals, any increases that will cause OOP budgets to exceed 15%
of the total estimate must be client-approved in writing.
REIMBURSEMENT OF OOPS
MET will provide 2 to 3 invoices for the OOPs on each tactic, depending on total
estimate. Estimates under $50,000 shall be invoiced in halves; over $50,000, in
thirds. MET will provide a reconciliation when each tactic is completed and,
upon request, documentation of OOPs.
CME AGREEMENTS
For tactics that are CME accredited, MET will assure that three-party CME
agreements between the Office of Continuing Medical Education (the
sponsor/provider), MET (the facilitator, organizer, and possibly co-sponsor),
and the client (the supporter) are drawn and executed as prescribed by the
American Council of Continuing Medical Education (ACCME).
MET shall abide by ACCME and AMA regulations and guidelines in developing,
managing, and implementing CME programs and will provide guidance to the client
in order that the client also abides by ACCME and AMA regulations and guidelines
in providing permissible input, such as clinical results.
STANDARD AGENCY/CLIENT CONTRACTUAL CLAUSES
MET, as independent contractor, is a party to and shall be held liable under
clauses in the executed agreement between the client and GHBM Healthworld
regarding confidentiality, ownership of work-for-hire and produced materials,
copyrights, indemnities, liabilities, ▇▇▇▇▇▇▇'▇ compensation insurance, FDA
debarment, and termination/expiration of this agreement.
TACTICS INCLUDED UNDER THIS AGREEMENT
Under this Agreement, MET shall develop and implement the following tactics for
advocate building and physician education:
Tactic Fee OOP TOTAL
Advocate Building 22,800 -- 22,800
Editorial Development 48,000 -- 48,000
One (1) Review Article 18,000 7,500 25,500
3 Clinical Articles 33,000 15,000 48,000
3 Posters / Abstracts 12,000 6,000 18,000
2 Advisory Board Meetings 56,000 60,000 116,000
3 Regional Advisory Boards 72,000 150,000 222,000
CME Symposium 52,000 85,000 137,000
Video 8,000 50,000 58,000
Slide Kit 4,000 20,000 24,000
TOTAL $325,800 $393,500 $719,300
WARRANTY
MET warrants that MET is legally able to enter into an education services
agreement with Laser Photonics and that such agreement does not conflict with
any agreement, understanding written or oral to which MET is a party or by which
is bound.
ADDENDUM III
PUBLIC RELATIONS AGREEMENT
May 11, 1999
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LASER PHOTONICS, INC.
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Dear ▇▇▇▇▇:
This Letter of Agreement, when signed by you in the space provided, will confirm
that GHB&M Public Relations has been retained by Laser Photonics, Inc. to
implement a public and professional relations program to support the launch of
the company's Excimer Laser for the treatment of psoriasis. The agreement covers
the period from May 1999 through April 2000.
In return for providing public and professional relations services and summaries
of activities and results, Laser Photonics agrees to pay GHB&M Public Relations
a monthly fee of $16,000. Out-of-pocket expenses, estimated at $236,000, will be
billed at cost. The GHB&M Public Relations fee is based on an hourly composite
rate of $130 and an estimate of the hours that will be required to successfully
implement the program as outlined in the original proposal. It covers the
services of an Account Executive, Senior Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the
consulting hours, as required, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Any involvement of GHB&M
public relations in additional programs or projects will be subject to
negotiation.
The monthly fee will be billed at the beginning of each month in which account
management services will be performed. Out-of-pocket expenses will be billed at
direct cost in the billing cycle following the month they are incurred.
Estimates will be provided for jobs billing over $10,000 in out-of-pocket
expenses and 50% of the estimate will be advance billed prior to the start of
the job, with the remainder due upon completion of the job.
We looking forward to working with Laser Photonics on this exciting new product
launch. Please return a signed copy of this letter to my attention at your
earliest convenience.
Sincerely, Agreed to__________________________
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Date _________________
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Senior Vice President
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PUBLIC/PROFESSIONALS RELATIONS LAUNCH BUDGET
ASSOCIATION RELATIONS/START-UP AND NEGOTIATION
Fee: $12,000
OOP: $30,000
PSORIASIS SECTION/AAD WEBSITE
Fee: $28,000
OOP: $65,000
LAUNCH PRODUCT PUBLICITY (6 MARKETS)
Fee: $56,000
OOP: $50,000
COMMUNITY MEETINGS/NPF (6 MARKETS)
Fee: $38,400
OOP: $60,000
MED ED SPIN-OFFS
Fee: $20,000
OOP: $31,000
TOTAL FEE: $154,400
TOTAL OOP: $236,000
GRAND TOTAL: $390,400