EXHIBIT 10.KK
AGREEMENT
This Agreement (the "Agreement") is entered into by and between
Provident American Corporation, a Pennsylvania corporation ("Provident") and
HealthPlan Services, Inc., a Florida corporation ("HPS"), effective as of
October ___, 1997 (the "Effective Date").
BACKGROUND
A. On even date herewith Provident Indemnity Life Insurance Company
("PILIC") and Provident American Life and Health Insurance Company ("PALHIC")
and HPS have entered into a services agreement (the "Services Agreement")
whereby HPS will provide administrative and other services to PILIC and PALHIC
with regard to a block of business (the "Block of Business") developed through
Provident's own distribution system of agents, subagents and general agents
specified in the Services Agreement, and in return therefor will receive various
fees as set forth in the Services Agreement.
B. HPS hereby acknowledges Provident's efforts in inducing PILIC, a
wholly-owned subsidiary of Provident, and PALHIC, a wholly-owned subsidiary of
PILIC, to enter into the Services Agreement and to transfer to HPS the
performance of administrative and other services in connection with the Block of
Business.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Provident and HPS hereby agree as
follows:
1. Obligations of Provident.
1.1 Provident hereby agrees to cause PILIC and PALHIC to each
enter into the Services Agreement.
1.2 Provident guarantees the prompt and timely payment and
performance by each of PILIC and PALHIC of the obligations thereof to HPS as
set forth in the Services Agreement.
1.3 Provident further agrees to provide reasonable assistance
to PILIC and PALHIC with respect to the transition of the administration of the
Block of Business pursuant to the Services Agreement.
2. Obligations of HPS.
2.1 HPS agrees to pay to Provident the sum of $5 Million
Dollars (the "Fee"), $1 Million Dollars by wire transfer on or before October
16, 1997, and the balance of $4 Million Dollars by wire transfer on or before
October 31, 1997, to be represented by a promissory note in the form attached
hereto as Exhibit "B", as an inducement to Provident to perform the obligations
of Provident under Paragraph 1 above and as payment to offset transition costs.
2.2 The Fee shall be non-refundable, and Provident shall not
have any obligation of any kind whatsoever to return any portion of the Fee.
3. Warranties of Provident.
3.1 Provident is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania.
3.2 This Agreement constitutes a valid and binding obligation
of Provident enforceable against Provident in accordance with its terms. The
undersigned officers have the full power and authority to execute and deliver
this Agreement and perform the obligations of Provident hereunder, and no
further action or authorization is necessary on the part of Provident or the
undersigned officers in order to consummate the transaction herein contemplated.
3.3 Provident is the owner of 100% of the issued and
outstanding shares of the capital stock of PILIC.
3.4 PILIC is the owner of 100% of the issued and outstanding
shares of the capital stock of PALHIC.
4. Warranties of HPS.
4.1 HPS is a corporation duly organized, validly existing and
in good standing under the laws of the State of Florida.
4.2 This Agreement constitutes a valid and binding obligation
of HPS enforceable against HPS in accordance with its terms. The undersigned
officers have the full power and authority to execute and deliver this Agreement
and perform the obligations of HPS hereunder, and no further action or
authorization is necessary on the part of HPS or the undersigned officers in
order to consummate the transaction herein contemplated.
5. Term. The term of this Agreement shall commence on the
Effective Date and shall continue in effect during the term of the Services
Agreement.
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6. Miscellaneous Provisions.
6.1 Modification; Waivers. No modification, amendment or
waiver of this Agreement, or any part of it, shall be valid unless in writing,
signed by the party sought to be charged therewith. No waiver of any breach or
condition of this Agreement shall be deemed to be a waiver of any subsequent
breach or condition, whether of like or different nature.
6.2 Governing Law/Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Florida. The parties hereto agree to consent to the jurisdiction and venue of
the courts of the State of Florida located in Hillsbourgh County, Florida, and
of the United States District Court for the Middle District of Florida, and
agree that all disputes between the parties shall be litigated only therein.
6.3 References and Section Headings. Any reference to the
singular shall include reference to the plural, and vice versa. Part and section
headings are intended for the purpose of description only and shall not be used
for purposes of interpretation of this Agreement.
6.4 Severability. In the event any court of competent
jurisdiction holds that a particular provision or requirement of this Agreement
is in violation of any applicable law, such provision or requirement shall be
enforced only to the extent it is not in violation of such law or is not
otherwise unenforceable, and all other provisions and requirements of this
Agreement shall remain in full force and effect.
6.5 Notices. Any notice, demand or other document required or
permitted to be delivered hereunder shall be in writing and shall be (i) mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid, (ii) delivered in person, by reputable delivery service, (iii) sent by
telegram, or (iv) transmitted by facsimile, and shall be addressed to the
recipient party at the address indicated below, or at such other address as such
party shall indicate in a notice to the other party sent in accordance with this
Section 6.5:
IF TO PROVIDENT:
If Delivered by Hand or by U.S. Mail:
Xx. Xxxxx X. Xxxxxx
President and Chief Operating Officer
Provident American Corporation
0000 XxXxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
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If Delivered by Fax:
0-000-000-0000
WITH A COPY TO:
X. X. Xxxxxxxx, Xx., Esquire
Butera, Beausang, Xxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000-0000
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IF TO HPS: Xxxxxxx X. Xxxxxx
Senior Vice President & Chief Counsel
HEALTHPLAN SERVICES, INC.
If Delivered by Hand:
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
If Delivered by U.S. Mail:
X.X. Xxx 00000
Xxxxx, Xxxxxxx 00000-0000
If Delivered by Fax:
0-000-000-0000
X.X. Xxx 00000
Xxxxx, Xxxxxxx 00000-0000
6.6 Entire Agreement. This Agreement contains the whole of the
understanding between the parties hereto relating in any manner to its subject
matter, and any representation, warranty, covenant, understanding or agreement
not contained or incorporated in it by reference shall be of no force or effect.
As of the Effective Date, this Agreement supersedes all prior proposals,
discussions, writings, and agreements between any of the parties to this
Agreement relating to the subject matter hereof.
6.7 Binding Agreement; Assignment. This Agreement and all the
provisions hereof will be binding upon and inure to the benefit of the parties
hereto and their permitted assigns. Neither this Agreement nor any other rights,
interests, or obligations hereunder may be assigned by either party without the
prior written consent of the other party hereto, which consent will not be
unreasonably withheld. Any assignment in violation of this Agreement shall be
void and to no effect. Notwithstanding the foregoing, HPS may assign its rights
and obligations hereunder to a corporation affiliate of HPS, as such term is
defined in the Services Agreement.
6.8 Third Party Beneficiaries. This Agreement shall not, and
is not intended to, confer upon any party, other than the parties hereto and
their successors and permitted assigns, any rights, remedies, obligations or
liabilities, except as expressly provided herein.
6.9 Execution in Counterparts. This Agreement may be executed
by the parties hereto signing the same instrument, or by
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each party hereto signing a separate counterpart or counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument. The parties agree that documents executed by
facsimile shall be acceptable in his transaction, and the signatures thereof
shall have the same force and effect as original signatures.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals the day and year first above-written.
PROVIDENT AMERICAN CORPORATION
Attest:
_____________________________________ By:__________________________________
X. X. Xxxxxxxx, Xx., Secretary Xxxxx X. Xxxxxxx, Chairman and
Chief Executive Officer
HEALTHPLAN SERVICES, INC.
Attest:
_____________________________________ By:__________________________________
Xxxxxxx X. Xxxxxxxx,
Chief Operating Officer,
Small Group Business
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