EXHIBIT 10.4
AGREEMENT
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THIS AGREEMENT ("Agreement") is entered into as of the 20th day of
June, 1996, by and between AUTOMATED DISPATCH SYSTEMS, INC., a Florida
corporation ("ADS") and HEALTH TRANS OF SOUTH FLORIDA, INC., a Florida
corporation ("HTSF").
WHEREAS, HTSF is in the business of providing medical transportation
services; and
WHEREAS, HTSF wishes to hire ADS for the purpose of fulfilling certain
obligations of HTSF in providing such medical transportation services;
NOW, THEREFORE, in consideration of mutual covenants and promises
contained therein the parties agree as follows:
1. PROVIDING SERVICES. ADS agrees to provide in a businesslike
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manner to HTSF, those services set forth in items #12 through #16 of Exhibit A
of the Consulting Agreement attached hereto as Exhibit 1, as it may be modified
from time to time so long as such modifications do not materially increase the
obligations of ADS. In addition to those obligations set forth in Exhibit A to
Exhibit 1, in the event HTSF charges its customers on a "capitated" fee basis,
ADS shall provide those additional services necessary to allow HTSF to provide,
xxxx and collect on a capitated fee basis.
2. COMPENSATION. (a) HTSF shall pay ADS for the services it is
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providing under this Agreement the sum of $115.00 per week per van, subject to a
minimum weekly payment of $500.00, during the term of this Agreement; provided,
however, that as to new initial contracts entered into by HTSF after the fifth
anniversary of this Agreement, HTSF shall pay ADS a minimum of $115.00 per week
per van as well as a proportionate increase in such amount to the extent that
HTSF receives more than $1400.00 per week per van (for example, if HTSF receives
$1400.00 per week per van, (for example, if HTSF receives $1400 per week per van
ADS receives $115; if HTSF receives $1600 per week per van, ADS receives $115;
if HTSF receives $1600 per week per van, ADS receives approximately $131).
Notwithstanding the foregoing, if HTSF receives an increase over its initial
contract rate in the per van per week charge it charges its customers, HTSF
shall provide written notice to ADS of such increase, and increase the fee paid
to ADS hereunder by an amount equal to the percentage increase in the amount it
receives from said customer.
(b) In the event HTSF charges its customer on a capitated fee basis,
HTSF shall (i) consult with ADS before determining the amount it charges to such
customer, and (ii) in lieu of the compensation amount set forth in paragraph (a)
of this Section 2, pay to ADS nine percent (9%) of such capitated fee.
(c) The fees payable to ADS as set forth in paragraphs (a) and (b) of
this Section 2 shall be paid weekly within seven (7) days f rom the end of each
week in which such service was rendered.
(d) Notwithstanding any provisions in this Agreement to the contrary,
if (i) HTSF becomes wholly owned by Health Trans, Inc., or (ii) eighty percent
(80%) or more of the stock of HTSF is sold to a person or persons who were not
previously shareholders or affiliates of HTSF, or (iii) HTSF becomes part of a
public company operating medical transportation services nationally (in any of
these three cases, the owning entity is the "National"), for which or whom ADS
also provides services, ADS Is rate of compensation hereunder for services
related to all initial contracts entered into by HTSF after it becomes owned by
or part of the National shall be equal to the rate of compensation paid to ADS
for such contracts by the National.
3. TERM. This Agreement shall commence on July 1, 1996 and shall
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continue until December 31, 2025. If during the term either party wishes or
purports to terminate this Agreement as a result of a breach of this Agreement
of any sort by the other party, such first party shall first give the second
party written notice setting forth the alleged breach. After receipt of such
written notice, the second party shall have thirty (30) days to cure such
alleged breach. No such termination of this Agreement shall take place unless
the second party fails to cure such breach within such period.
4. PERSONNEL. ADS shall supply sufficient personnel with adequate
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training and skill to perform all tasks required by this Agreement and any
applicable Federal, State or local law, rule or regulation.
5. EQUIPMENT. ADS shall provide, as it has historically, radios in
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the vans, radio airtime, all necessary dispatch center and computer hardware,
and all necessary software and shall be responsible for all related variable
telephone utilization costs.
6. EXCLUSIVITY. (a) HTSF is now and shall be ADS's exclusive
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customer in Dade and Broward Counties, Florida (the "Territory") for any
routing, scheduling, call-taking and consulting services (the "Core Services")
related to non-emergency non-governmental medical transportation (the
"Business") ; provided that ADS may provide Core Services related to the
Business to entities other than HTSF in the Territory ("ADS Customers") if (i)
such Core Services are for ADS Customers whose non-emergency medical
transportation business is solely and exclusively the transportation of persons
who require a stretcher for transportation, or (ii) ADS has itself obtained the
Business from medical service providers (e.g., HMOs, PPOs, PHOs, hospitals,
etc.) or medical service payors (e.g., TPAs, insurance companies) and HTSF
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declines its Right of First Refusal described in paragraph (b) of this Section.
(b) HTSF recognizes that ADS sometimes acts as a general contractor
for medical service payors, and that under such contractual arrangements (the
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"Contracts") ADS customarily provides certain services, such as dispatch,
directly and sub-contracts for the provision of certain other services, such as
medical transportation. ADS hereby grants to HTSF an exclusive right of first
refusal, subject to the terms and conditions set forth in this paragraph, to
serve as the sole provider of non-emergency medical transportation services (the
"Transportation Services") under any such Contract within the Territory (the
"Right of First Refusal"). Prior to the execution by ADS of any Contract (or
otherwise becoming legally bound and entitled if such Contract is an oral
contract) or upon receipt of such a Contract, ADS shall give HTSF written notice
of its consequent Right of First Refusal to provide Transportation Services,
which written notice shall be accompanied by the financial terms pursuant to
which ADS proposes that HTSF provide such Transportation Services (the "Offer").
HTSF shall have 15 days to accept or reject each Offer. If HTSF rejects an
Offer, ADS may contract with any other person or entity for the Transportation
Services under such Contract; provided, however, that ADS may not so contract
with any such person or entity for such Transportation Services on financial
terms that are more favorable than those contained in the Offer to HTSF without
first making a subsequent Offer ("Subsequent Offer") to HTSF containing those
more favorable terms. HTSF shall have five business days to respond to the
Subsequent offer.
(c) For purposes of this Section 6, (i) "non-governmental medical
transportation" shall mean any transportation service in which a state, federal
or local governmental agency is not the contracting party for the transportation
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and/or brokerage services; and (ii) "non-emergency medical transportation" shall
mean the transportation of persons requiring medical care or persons being
transported at the request of a medical facility or medical provider or medical
payor other than by ambulance, airplane, helicopter or watercraft.
7. JURISDICTION; VENUE; GOVERNING LAW.
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A. Each party hereby irrevocably submits, in any suit, action
or proceeding against it arising out of or in connection with this Agreement, to
the jurisdiction of the United States District Court for the Southern District
of Florida and the jurisdiction of any court of the State of Florida located in
Dade County, and waives any and all objection to such jurisdiction.
B. Each party also agrees that in the event of any suit, action
or proceeding against it arising out of or in connection with this Agreement,
the proper venue for an action shall be in a United States or a Florida court
sitting in Dade County, Florida.
C. This Agreement shall be governed by and construed and
enforced in accordance with the laws of Delaware without regard to conflicts of
laws provisions.
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8. NOTICES.
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A. Any notice required by this Agreement shall be effective and
deemed delivered three (3) business days after posting with the United States
Postal Service when mailed by certified mail, return receipt requested, properly
addressed and with the correct postage; or one (1) business day after pickup by
the courier service when sent by overnight courier, properly addressed and
prepaid; or one (1) business day after the date of the sender's electronic
confirmation of receipt when sent by facsimile transmission. Notices shall be
sent to the addresses or FAX numbers set forth below, unless either party
notifies the other in writing of an address or FAX number change.
To HTSF: Health Trans of South Florida, Inc.
ATTN: Xxxxxx Xxxxxx, President
0000 X.X. 000 Xxxxxx
Xxxxx, XX 00000
Facsimile No. (000) 000-0000
To ADS: Automated Dispatch Systems, Inc.
ATTN: Xxxx Xxxxxxxx
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Facsimile No. (___) ____-____
Any party may change the address or facsimile number to which notices under this
Agreement are to be sent to it by giving written notice of a change of address
in the manner provided in this Agreement for giving notice.
9. HEADINGS. The descriptive headings contained in this Agreement
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are for convenient reference only, and shall not in any way affect the meaning
or interpretation of this Agreement.
10. SEVERABILITY. Each provision hereof is severable from this
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Agreement and, if one or more provisions hereof are declared invalid, such
provision(s) shall be deemed not to have been written, and the remaining
provisions shall nevertheless remain in full force and effect. If any provision
of this Agreement is so broad, in scope or duration or otherwise, as to be
unenforceable, such provision shall be interpreted to be only so broad as is en
forceable.
11. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding
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upon and inure to the benefit of the parties and their respective successors and
assigns, but this Agreement may not be assigned by either Party without the
prior written consent of the other party.
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12. CONFIDENTIALITY. No party shall disclose or use in competition
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the contents of this Agreement, nor any confidential or proprietary information
or trade secrets communicated to it by the other party, whether before or during
the performance of this Agreement, or of which it otherwise becomes aware,
without obtaining the prior written consent of the other party. All such
information shall be deemed confidential or proprietary unless otherwise
designated and agreed by the parties.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement
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of the Parties with respect to this transaction and supersedes all prior
understandings and agreements of the parties with respect to the subject matter
of this Agreement. This Agreement may be amended only by a writing specifically
referring to this Agreement and executed by the parties. The undersigned
represent that they have the authority to sign this Agreement.
14. CONSTRUCTION. This Agreement has been prepared jointly by, and
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is the product of extensive negotiations between, the parties hereto, and,
accordingly, shall not be interpreted more strictly against any one party.
15. WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY
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AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
ALL PARTIES ENTERING INTO THIS AGREEMENT.
16. COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. NON-WAIVER. Any delay in or to failure to enforce at any time
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any provision of this Agreement, or to require at any time performance by the
other party of any of the provisions hereof, shall in no way be construed to be
a waiver of such provisions or to affect the validity of this Agreement, or any
part thereof, or the right of either party thereafter to enforce each and every
such provision in accordance with the terms of this Agreement. No waiver of any
provision of this Agreement shall be effective unless in writing and signed by
the party against whom such waiver is to be enforced.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
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for the benefit of the parties hereto and their successors and assigns.
19. GUARANTEE AND RIGHT OF FIRST REFUSAL BY RADIOSOFT. ADS, as of
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the date hereof, is a wholly owned subsidiary of RadioSoft, Inc., a Delaware
corporation. In the
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event, for any reason whatsoever, ADS is unable or unwilling to perform its
obligations set forth herein, RadioSoft agrees it shall perform, or cause to be
performed, the obligations of ADS set forth herein for the compensation to be
paid to ADS as provided in section 2. If at any time or from time to time
RadioSoft proposes or purports to assign, sell, pledge or otherwise transfer or
encumber any of its ownership interest in ADS, or consents to the sale by ADS of
all or substantially all of its assets, to a third party (a "Transfer"), HTSF
shall have a right of first refusal to purchase such interest under the terms
set forth in this paragraph. Not less than 45 days prior to any proposed
Transfer, RadioSoft shall give HTSF notice of the terms and conditions of the
proposed Transfer (the "Offer") and the name and address of the proposed
transferee. HTSF may, within 30 days after receipt of such notice, give notice
of its intent to exercise its right to enter into the transaction set forth in
the Offer in place of the proposed transferee. If HTSF fails to accept such
Offer, RadioSoft may thereafter transfer or encumber its interest in ADS on the
terms and conditions set forth in the Offer. Subject to the terms of the right
of first refusal contained in this paragraph, upon the sale by RadioSoft of all
of the issued and outstanding stock (or all of its ownership interest if not
expressed in shares of stock) of ADS, RadioSoft may delegate to the purchaser of
such stock its guarantee obligation hereunder, so long as HTSF consents to such
delegation, which consent may not unreasonably be withheld if such purchaser's
net worth determined under generally accepted accounting principles (GAAP) is at
least one million dollars ($1,000,000) at the time of such delegation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HEALTH TRANS OF SOUTH FLORIDA, INC.
By:
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AUTOMATED DISPATCH SYSTEMS, INC.
By:
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RADIOSOFT, INC.
By:
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EXHIBIT I
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of ____________, 1996, by
and between HEALTH TRANS OF KENTUCKY, L.L.C., a Delaware limited liability
company ("HTNH"), and HEALTH TRANS, INC., a Delaware corporation ("Consultant").
WHEREAS, Consultant has experience and knowledge in medical
transportation services and the systems and personnel software necessary to
provide routing and scheduling of patients for transportation to and from
medical facilities, and provides certain consulting and management services
based on such experience and knowledge; and
WHEREAS, HTNH is in the business of providing medical transportation
services to the medical community within 20 miles of _____________, Kentucky
(the "Territory"); and
WHEREAS, HTNH wishes to hire Consultant to provide such consulting and
management services.
NOW, therefore, in consideration of mutual covenants and promises
contained herein, the parties agree as follows:
1. RECITALS.
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The above recitals are true.
2. DUTIES.
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HTNH hereby engages Consultant to provide those consulting and
management services set forth on Exhibit A to HTNH as necessary to assist it in
providing dispatch services to its customers.
3. COMPENSATION.
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Throughout the term of this Agreement, HTNH shall pay to Consultant,
as weekly compensation for its services under this Agreement, an amount equal to
the product of (a) Two Hundred Dollars ($200.00) and (b) the number of vehicles
owned or leased by HTNH and used during said week to provide medical
transportation services (such number to be equal to the aggregate number of such
vehicles under HTNH's contracts with its clients). In addition, HTNH shall pay
or reimburse Consultant weekly for all out-of-pocket expenses incurred by
Consultant in providing the services set forth in Exhibit A, such as travel and
lodging, long distance telephone calls, etc.
4. PAYMENT.
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HTNH shall pay to Consultant the sums set forth in paragraph 3 on or
before the Wednesday following the week to which such payment relates or in
which such reimbursable expense was incurred.
5. TERM. This Agreement shall commence on March 1, 1996 and shall
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continue until December 31, 2020.
6. JURISDICTION; VENUE; GOVERNING LAW.
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a. Each party hereby irrevocably submits, in any suit, action
or proceeding against it arising out of or in connection with this Agreement, to
the jurisdiction of the United States District Court for the Southern District
of Florida and the jurisdiction of any court of the State of Florida located in
Dade County, and waives any and all objection to such jurisdiction.
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b. Each party also agrees that in the event of any suit, action or
proceeding against it arising out of or in connection with this Agreement, the
proper venue for an action shall be in a United States or a Florida court
sitting in Dade County, Florida.
c. This Agreement shall be governed by and construed and enforced in
accordance with the laws of Delaware without regard to conflicts of laws
provisions.
7. NOTICES.
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a. Any notice required by this Agreement shall be effective and
deemed delivered three (3) business days after posting with the United States
Postal Service when mailed by certified mail, return receipt requested, properly
addressed and with the correct postage; or one (1) business day after pickup by
the courier service when sent by overnight courier, properly addressed and
prepaid; or one (1) business day after the date of the sender's electronic
confirmation of receipt when sent by facsimile transmission. Notices shall be
sent to the addresses or FAX numbers set forth below, unless either party
notifies the other in writing of an address or FAX number change.
To Consultant: Health Trans, Inc.
ATTN: Xxxxxx Xxxxxx, President
0000 X.X. 000 Xxxxxx
Xxxxx, XX 00000
Facsimile No. (000) 000-0000
To HTNH: Health Trans of Kentucky, L.L.C.
Any party may change the address or facsimile number to which notices
under this Agreement are to be sent to it by giving written notice of a change
of address in the manner provided in this Agreement for giving notice.
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8. HEADINGS. The descriptive headings contained in this Agreement
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are for convenient reference only, and shall not in any way affect the meaning
or interpretation of this Agreement.
9. SEVERABILITY. Each provision hereof is severable from this
------------
Agreement and, if one or more provisions hereof are declared invalid, such
provisions shall be deemed not to have been written, and the remaining
provisions shall nevertheless remain in full force and effect. If any provision
of this Agreement is so broad, in scope or duration or otherwise, as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
10.. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding
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upon and inure to the benefit of the parties and their respective successors and
assigns, but this Agreement may not be assigned by either Party without the
prior written consent of the other party.
11. CONFIDENTIALITY. No party shall disclose or use in competition
---------------
the contents of this Agreement, nor any confidential or proprietary information
or trade secrets communicated to it by the other party, whether before or during
the performance of this Agreement, or of which it otherwise becomes aware,
without obtaining the prior written consent oi the other party. All such
information shall be deemed confidential and proprietary unless otherwise
designated and agreed by the parties.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement
----------------
of the Parties with respect to this transaction and supersedes all prior
understandings and agreements of the parties with respect to the subject matter
of this Agreement. This Agreement may be amended only by a writing specifically
referring to this Agreement and
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executed by the parties. The undersigned represent that they have the authority
to sign this Agreement.
13. CONSTRUCTION. This Agreement has been prepared jointly by, and
------------
is the product of extensive negotiations between, the parties hereto, and,
accordingly, shall not be interpreted more strictly against any one party.
14. WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY
--------------------
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
ALL PARTIES ENTERING INTO THIS AGREEMENT.
15. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. NON-WAIVER. Any delay in or to failure to enforce at any time
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any provision of this Agreement, or to require at any time performance by the
other party of any of the provisions hereof, shall in no way be construed to be
a waiver of such provisions or to affect the validity of this Agreement, or any
part thereof, or the right of either party thereafter to enforce each and every
such provision in accordance with the terms of this Agreement. No
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waiver of any provision of this Agreement shall be effective unless in writing
and signed by the party against whom such waiver is to be enforced.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
HEALTH TRANS, INC.
By:
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Xxxxxx Xxxxxx, President
HEALTH TRANS, OF KENTUCKY, L.L.C.
By:
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Authorized Representative
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EXHIBIT A
(1) Develop and update a business plan.
(2) Provide initial and update training and education to staff.
(3) Provide assistance in the purchasing of equipment and insurance.
(4) Provide customized accounts receivable, payroll and personnel
management software systems.
(5) Assist with permitting and licensing.
(6) Provide marketing and sales support.
(7) Provide standard proposal templates customized to fit client's
need.
(8) Assist in prospective client presentations.
(9) Train sales staff for client presentations and accompany sales
staff when necessary.
(10) Provide patient and cost data for clients.
(11) Accompany staff to meet with medical facility personnel to
establish transportation system.
(12) Complete order taking capability through phone, fax, or modem
line.
(13) Telephone access to client for all incoming service and
information requests.
(14) Routing and scheduling of all patient trips.
(15) Radio dispatching services.
(16) Reconciliation of accurate trip information.
(17) Continuing support materials and training seminars to assist and
update your operation.
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