Exhibit 10.14
ECLIPSE/REALMED AGREEMENT
This Agreement ("Agreement") is dated and effective as of June 15, 1999 and
is by and among Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, Eclipse America Corporation
("Eclipse America"), Eclipse Computing, Inc. ("Eclipse Computing"), RealMed
Capital Corporation, Eclipse Consulting Group, Inc., Eclipse Powernet, Inc.,
Eclipse Financial Corporation, Eclipse Group, Inc. (the foregoing persons and
entities shall be collectively referred to as the "Eclipse Parties") and RealMed
Corporation (the "Company").
RECITALS
A. Contemporaneously with the execution and delivery of this Agreement,
the Company and Newcourt Financial USA Inc. ("Newcourt") are entering into a
Loan Agreement pursuant to which, among other things, Newcourt will commit,
subject to certain terms and conditions, to loan up to $17,500,000 to the
Company.
B. In connection with the Loan Agreement and the transactions
contemplated thereby, Newcourt and the other parties to this Agreement desire to
establish with certainty the nature and extent of any and all relationship
between the Company, on the one hand, and the Eclipse Parties, on the other
hand.
C. Newcourt will not execute and deliver the Loan Agreement or
consummate the transaction contemplated thereby unless, among other things, this
Agreement is executed and delivered by the parties hereto.
D. The parties hereto believe it is desirable for the Company and
Newcourt to enter into the Loan Agreement and are, therefore, willing to enter
into this Agreement in order to induce Newcourt to enter into the Loan
Agreement. Each of the parties also believes it is in its best interest to enter
into this Agreement in order to establish with certainty the matters set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. Each of the Eclipse Parties (on its own behalf and on
behalf of its Affiliates), on the one hand, and the Company, on the other hand,
agree that, except as set forth in this Agreement, each and every agreement,
commitment, contract and/or understanding, whether oral or written, between such
Eclipse Party (or any of its Affiliates) and the Company (including, but not
limited to each agreement, commitment, contract and understanding listed on
Exhibit A) (collectively, the "Terminated Agreements") is hereby terminated and
rendered null and void and the Company is hereby released from any and all
obligations, covenants and duties under each of the Terminated Agreements.
Notwithstanding the foregoing, none of the agreements listed on Exhibit B (the
"Surviving Agreements") shall be included in the term "Terminated Agreements"
and the validity, enforceability and continuing force and effect of the
Surviving Agreements shall be unaffected by this Agreement. For purposes of this
Agreement, (a) the term "Affiliate" (or "Affiliates") means, with respect to any
specified Person, any other Person controlling, controlled by, or under common
control with, the specified Person (however, the Company shall not be considered
to be an Affiliate of any Interested Party), and (b) the term "Person" means any
natural person, corporation, partnership, trust, limited liability company,
estate, association or other entity.
2. Each of the Eclipse Parties (on its own behalf and on
behalf of its Affiliates) absolutely, irrevocably and unconditionally releases
the Company from any and all claims, causes of action, demands, and rights,
which he or it has, or may have, whether known or unknown, absolute or
contingent, matured, or unmatured, in connection with or arising under (a) any
of the Terminated Agreement, and/or (b) any transaction, event or occurrence
occurring on or prior to the date of this Agreement; provided, however, that the
foregoing release shall not extend to claims, causes of action, demands or
rights arising under this Agreement or any Surviving Agreement.
3. Eclipse Computing acknowledges and agrees that it has
previously transferred, assigned and conveyed, free and clear of any liens,
claims, and encumbrances, to Company, good and marketable title to all of
Eclipse Computing's rights in the property described on the attached Exhibit C
(the "Proprietary Rights") and such transfer assignment and conveyance is hereby
ratified and confirmed. Each of the other Eclipse Parties hereby acknowledges
that neither it nor any of its Affiliates has any right, title and interest in
or to any of the Proprietary Rights. If, nonetheless, any of the Eclipse Parties
or any of their Affiliates should have any right, title or interest in or to the
Proprietary Rights, each such Eclipse Party (on its own behalf and/or on behalf
of any applicable Affiliate) hereby transfers, assigns and conveys good and
marketable title, free and clear of any liens, claims and encumbrances, to all
such right, title and interest, and any goodwill associated therewith, to the
Company.
4. (a) Subject to the terms and conditions this Agreement,
upon request by the Company and to the extent that Eclipse America has employees
available to provide services, Eclipse America agrees to provide the Company
with personnel acceptable to the Company (the "Leased Employees") for the
purpose of providing computer programming and other related services to the
Company ("Services"). Such Services shall be provided from time to time as
requested by the Company. The Company shall be obligated to pay only for time
spent by Leased Employees on behalf of the Company to the extent such time is
reflected on a time sheet signed by the Company.
(b) Company may release any Leased Employee without prior
notice to Eclipse America if, in the Company's opinion, such Leased Employee
does not perform satisfactorily, does not comply with the Company's security
requirements or other rules and regulations applicable to the conduct of the
Company employees, or for other good cause.
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(c) Eclipse America may withdraw any Leased Employee from
providing Services on thirty days prior written notice to the Company, provided
Eclipse America, if requested by the Company, provides the Company with a
replacement Leased Employee acceptable to the Company. If any Leased Employee
performing Services terminates his or her employment with Eclipse America,
Eclipse America shall provide the Company with a replacement Leased Employee
acceptable to the Company as soon as possible.
(d) Company agrees to pay Eclipse America an hourly fee for
the performance of the Services of each Leased Employee equal to Eclipse
America's actual cost of employing such Leased Employee, which costs are set
forth on Exhibit D. Company may request changes in the costs set forth in
Exhibit D no more often then twice per year; however, such changes shall not be
effective until accepted in a writing signed by the Chief Executive Officer of
the Company.
(e) Eclipse America shall submit invoices (with the required
time sheets) to Company monthly for Leased Employees who performed Services
during the preceding month. Invoices shall be sent to RealMed Corporation, 00000
X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxx, or such other address indicated by Company.
(f) Invoices shall be payable thirty (30) days after receipt;
however, in the event Company has questions concerning any invoiced item,
payment of that item shall be made only after the satisfactory resolution of
those questions.
(g) During the term of Section 4 of this Agreement and for a
period of three years after final payment by Company, all of Eclipse America's
records relating to Services performed and amounts invoiced by Eclipse America
under this Agreement shall be open to inspection and subject to audit and
reproduction by Company or Company's agent or representative.
(h) Eclipse America and Company acknowledge and agree that,
although Leased Employees performing Services for Company shall perform Services
pursuant to Company's general instructions, such Leased Employees shall at all
times and for all purposes be deemed employees of Eclipse America and not
employees of Company. Eclipse America shall be responsible for Leased Employees
being advised of this fact.
(i) Eclipse America shall be responsible for all contract
obligations it may have with the Leased Employees, for the payment of all wages
and salaries payable to Leased Employees, and the cost of providing Leased
Employees with any fringe benefits to which they are entitled by reason of being
employed by Eclipse America. Eclipse America shall also be responsible for
withholding payroll taxes from the wages and salaries paid to Leased Employees
and the payment of all payroll taxes relating to their employment to government
agencies and shall provide worker's compensation insurance, unemployment
insurance and any other insurance required by statute.
(j) Eclipse America shall indemnify and hold Company harmless
from any loss, damage, cost or expense which Company may incur by reason of or
arising out of (1) any Leased Employee filing any lien against any property of
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Company or any claim or lawsuit against Company in which the Leased Employee
claims payment from Company for Services to Company, (2) any injury (including
death) to any Leased Employee arising from providing Services pursuant to this
Agreement, not caused by the intentional act or omission of Leased Employee, or
(3) any personal injury (including death) or property damage caused by the
negligent or intentional act or omissions of any Leased Employee, excluding
property damage to the Company's property arising out of any Leased Employee's
failure to perform Services in an professional and competent manner, regardless
of whether such failure arises out of a negligent or intentional act of the
Leased Employee or omission of the Leased Employee.
(k) Company agrees that it will not actively solicit the
employment of any Leased Employees who have performed Services for Company under
this Agreement until at least twelve months after such employees first performed
Services for Company; provided, however, the foregoing shall not apply to Leased
Employees who, on their own initiative, seek employment by Company.
(l) Each of the Eclipse Parties agrees (on its own behalf and
on behalf of its Affiliates) that it will not, at any time, solicit the
employment of, hire, retain or employ, any employees of Company.
(m) In the course of the performance of this Agreement,
Eclipse Parties may acquire information that Company deems confidential,
including trade secrets and unpublished technical information and data to which
Company has proprietary rights. Confidential Information shall also include
information of a third party which Company is under an obligation to maintain in
confidence. All such information is referred to hereinafter as Disclosed
Information. Eclipse America shall retain such Disclosed Information in strict
confidence and shall not use it for the benefit of Eclipse America or others or
communicate it to others without the written agreement of the Company's Chief
Executive Officer. Eclipse America shall not duplicate any documents, or permit
others to do so, without prior written approval of the Company's Chief Executive
Officer. Documents made available to Eclipse America by Company shall remain the
property of Company and shall be delivered along with all copies thereof to
Company upon request, upon termination of Section 4 or this Agreement.
(n) All work product arising out of or in connection with any
Services is work for hire for Company and shall be the property of Company, with
Company owning the copyright and all other rights with respect thereto. In the
event any part of the work product does not qualify as a work for hire, Eclipse
America hereby assigns the entire copyright and all other rights to the work
product to Company. All originals and copies of such work product shall be
delivered to Company upon request or at the termination of this Agreement,
whichever is earlier. Eclipse America agrees to execute, without further
consideration, assignments or other documents that may be necessary to establish
Company's ownership of such work product.
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(o) Section 4 of this Agreement may be terminated by either
Eclipse America or the Company by giving at least thirty days advanced written
notice to the other; provided, however, that subsection 4(g), (i), (j), (k),
(l), (m) and (n) shall survive any such termination.
5. Eclipse America hereby leases to Company, and Company
hereby leases from Eclipse America, the property listed in Exhibit E (the
"Leased Property") for $16,000 per month, payable in arrears for 45 months (the
"Lease Term"). All such payments shall be due ten days after month end.
Notwithstanding the foregoing, Company shall have the right, with respect to any
Leased Property, to make payments directly to any person who is the lessor of,
or has a security interest in, such property ("Direct Payments") and to reduce
the payments otherwise due Eclipse America by the amount of any such Direct
Payment. Eclipse America represents and warrants to Company that Eclipse America
owns all such property free and clear of all liens, claims, charges and
encumbrances of any kind, except for liens which, in the aggregate, secure debt
of $16,000 per month or less, which debt does not continue beyond the Lease
Term. Upon the earlier of the end of the Lease Term or the closing of an Initial
Public Offering, Company shall have the option to purchase the Leased Property
on an "AS IS, WHERE IS" basis for $1.00, which shall be deemed to be good,
valuable and sufficient consideration. In such event, upon Company's request,
Eclipse America shall execute and deliver a xxxx of sale evidencing such
conveyance. Each Eclipse Party acknowledges and agrees that all property on the
Premises (as defined below) is either owned by the Company or is Leased Property
and that any new equipment, furniture or fixtures which shall become located on
the Premises will be the property of the Company, free and clear of all liens
created by or through the Eclipse Party and that each Eclipse Party shall have
no interest in such property. In the event that any of the Eclipse Parties
desire to use any personal property located on the Premises and the Company
finds such use to be acceptable, then the Company and such Eclipse Party shall
enter into a lease agreement on commercially reasonable terms.
6. The applicable Eclipse Party hereby subleases to the
Company, and Company hereby subleases from the applicable Eclipse Party, the
premises known as 00000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
(the "Premises"). The term of the sublease shall be for the remaining term of
the underlying lease between the applicable Eclipse Party and the landlord (the
"Real Estate Lease"), a true and correct copy of which has been provided to the
Chief Executive Officer of the Company. The sublease rent payable by the Company
shall be equal to the rent due under the Lease. If any Eclipse Party occupies
any portion of the Premises from time to time, it shall pay to the Company a
prorata portion of the sublease rent paid by the Company based on the actual
square footage of the space occupied by such Eclipse Party. No Eclipse Party
shall modify, amend, terminate, or exercise any options which it may have under,
the Real Estate Lease without the written consent of the Chief Executive Officer
of the Company. Any notices received by any Eclipse Party in connection with the
Real Estate shall be promptly provided to the Company.
7. The parties acknowledge and agree that the Company owes
$36,170 to Eclipse America. The Company shall pay such amount to Eclipse America
within 15 business days after the date of this Agreement. The parties
acknowledge and agree that no other payables are due from the Company to any of
the Eclipse Parties or any of their Affiliates.
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8. Within six weeks of the date of this Agreement, each
Eclipse Party agrees to cease any use of the name "RealMed" (or any variation
thereof) and RealMed Capital Corporation shall change its name to a name that
does not include the term "RealMed" or any variation thereof.
9. Each party agrees that, from time to time, it will execute
and deliver, or cause to be executed and delivered, such additional agreements,
instruments, certificates and documents and take all such actions as any other
party to this Agreement may reasonably request for purposes of implementing or
effectuating the provisions of this Agreement.
10. This Agreement shall be binding upon and shall inure to
the benefit of all parties to this Agreement and their respective heirs,
executors, administrators, assigns and successors in interest.
11. The parties affirm that this Agreement has been entered
into in the State of Indiana and shall be governed by and construed in
accordance with the substantive laws of the State of Indiana, notwithstanding
any state's choice of law rules to the contrary. Further, the parties expressly
agree that any and all action concerning any dispute arising under this
Agreement shall be filed and maintained only in a state or federal court sitting
in the State of Indiana, and each party hereby consents and submits to the
jurisdiction of such state or federal court.
12. If any term or provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
13. No change, amendment, modification or supplement to this
Agreement shall be valid or effective unless it is in writing and is duly
executed by each party to this Agreement or its duly authorized successor or
assign.
14. The failure of any party to this Agreement to enforce at
any time any provision of this Agreement shall not be construed to be a waiver
of such provision, nor in any way to affect the validity of this Agreement or
any part of it or the right of such party to enforce each and every provision of
this Agreement. Any waiver of any breach or provision of this Agreement must be
in a writing signed by the waiving party in order to be effective and, except as
otherwise clearly expressed in such a writing, no waiver of any breach or
provision of this Agreement shall constitute a waiver of any other breach or
provision or a continuing waiver. The performance by any party to this Agreement
of any act not required of it by the terms of this Agreement shall not
constitute either an agreement that such act is required or a waiver of the
scope of, or limitations on, its obligations under this Agreement and no such
performance shall estop such party from denying any obligation to perform such
act or asserting such scope or limitations with respect to any further or future
acts or failures to act.
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15. When used in this Agreement, words denoting the singular
include the plural and vice versa and words of any gender include all genders.
16. This Agreement constitutes a complete and total
integration of the understanding of the parties with respect to the subject
matter of this Agreement and it supersedes all prior and all contemporaneous
agreements and understandings (whether written, oral or implied) of the parties,
or their respective agents, with respect to such subject matter.
17. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one agreement. Any facsimile transmission of a
signed counterpart of this Agreement shall be deemed to be an original
counterpart and all signatures appearing thereon shall be deemed to be
originals.
18. In the event of any litigation among any of the parties to
this Agreement regarding the matters governed hereby or the enforcement hereof,
the losing party shall pay to the prevailing party all reasonable expenses and
costs, including reasonable attorneys' fees, incurred by the prevailing party in
connection with such litigation.
19. Each of Newcourt, JLT, LP and the French Shareholders (as
defined in the Shareholder Agreement of even date herewith) shall be a third
party beneficiary of this Agreement entitled to enforce this Agreement in its
own name, so long as it owns at least 5% of the issued and outstanding common
stock of the Company.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date set forth at the beginning of this Agreement.
REALMED CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
ECLIPSE AMERICA CORPORATION
By: /s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
By:
Its only officers, directors and shareholders
REALMED CAPITAL CORPORATION ECLIPSE COMPUTING, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
By:________________________________ By:________________________________
Its only officers, directors and shareholders
Its only officers, directors and shareholders
ECLIPSE POWERNET, INC. ECLIPSE CONSULTING GROUP, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
By:________________________________ By:________________________________
Its only officers, directors and shareholders
Its only officers, directors and shareholders
(Signatures continued on next page)
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(Signatures continued from preceding page)
ECLIPSE GROUP, INC. ECLIPSE FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
By:________________________________ By:________________________________
Its only officers, directors and shareholders
Its only officers, directors and shareholders
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Exhibit A
Partial List of Terminated Agreements
1. Services Contract, dated April 23, 1997, between Eclipse Consulting
Group, Inc. and Eclipse Medisave America Corporation.
Exhibit B
Surviving Agreements
1. Asset Purchase Agreement, dated April 25, 1997 and effective as of
January 1, 1997 between Eclipse Computing, Inc. and Eclipse Medisave
America Corporation.
2. Xxxx of Sale, effective as of January 1, 1997, signed by Eclipse
Consulting, Inc. in favor of Eclipse Medisave America Corporation.
3. The Release and Termination Agreement dated as of June 15, 1999 among
the Company, Newcourt Financial USA Inc., Candel & Partners, Gemplus
SCA, Gemplus Corp., West Plaines Investment, Inc., Finno SCA, Xxxxx
Xxxxx, JLT, L.P., Xxxxxx X. Xxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx,
and any "Surviving Agreement" set forth on Exhibit A thereto.
4. Memorandum signed by the Company and agreed to by Xxxxxxxx
memorializing the loan on May 4, 1998 made to the Company by Xxxxxxxx
in the principal amount of $150,000 with an interest rate of 4%.
Exhibit C
Proprietary Rights
All customer lists, software, source code, trade secrets, copyrights,
and other intellectual property related to processing, adjudicating, paying and
documenting medical insurance claims for providers of medical services and
medical insurance companies and all goodwill associated therewith and all
trademarks, trade names, and service marks including:
Medisave America Master Group Administration Reference
Manual registered effective December 9, 1997.
Medisave America Master Group Administration - Version 2.4
registered effective December 10, 1997.
The names "RealMed Corporation," "RealMed" and all variations and
derivations thereof.
Exhibit D
Leased Employees
Computer Programming Consultants................................$95.00 per hour
Other Personnel....................................To Be Agreed Upon by RealMed
CEO and Applicable Eclipse Party
Exhibit E
Leased Property
Leased Property consists of the property listed on the following 6
pages on Exhibit E-1 and all property listed on pages 1-7 of Exhibit E-2 that is
not owned by RealMed Corporation.
