EXHIBIT 10.3
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, INC., a Delaware corporation ("HT").
WHEREAS, HT is in the business, together with others through the formation
of limited liability companies ("LLC"), of providing medical transportation
services; and
WHEREAS, HT obligates itself to the LLC to perform certain consulting
services which are more specifically set out in the limited liability company
agreements and consulting agreements ("Consulting Agreement") between HT and the
LLC; and
WHEREAS, HT wishes to hire ADS for the purpose of fulfilling certain
obligations of HT set forth in the Consulting Agreement,
NOW, THEREFORE, in consideration of mutual covenants and promises contained
herein the parties agree as follows:
1. PROVIDING SERVICES. ADS, at HT's request, agrees to provide in a
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businesslike manner to any entity with which HT is associated (i.e., one in
which HT owns a 15% or greater ownership interest) , including, but not limited
to, those LLCs or other entities (i) with which HT enters into a Consulting
Agreement, or (ii) to which an LLC is sold, or (iii) that are the successors
and/or assigns of HT, those services set forth in items #12 through #16 of
Exhibit A of the Consulting Agreement, attached here to 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 any LLC (or other entity covered by this
Section) charges its customers on a "capitated" fee basis, ADS shall provide
those additional services necessary to allow the LLC to provide, xxxx and
collect on a capitated fee basis.
2. Compensation. (a) HT shall cause each LLC to pay ADS for the services
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it is providing under this Agreement the sum of $125.00 per week per van,
subject to a minimum weekly payment of $500.00, during the first seven years of
this Agreement; provided, however, that as to new initial contracts entered into
by an LLC after the third anniversary of this Agreement, the LLC shall pay ADS a
minimum of $125.00 per week per van as well as a proportionate increase in such
amount to the extent that the LLC receives more than $1400.00 per week per van
(for example, if the LLC receives $1400 per week per van, ADS receives $125; if
the LLC receives $1600 per week per van, ADS receives approximately $157).
Commencing July 1, 2003, the per year rate shall be equal to that rate then
customarily charged in the industry which will be agreed upon by the parties
hereto. Notwithstanding the foregoing, prior to July 1, 2003, if the LLC
receives an increase over its
initial contract rate in the per van per week charge it charges its customers,
HT 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 the LLC (or other entity referred to in Section 1) charges
its customer on a capitated fee basis, HT shall (i) consult with ADS before
determining the amount charged by the LLC to such customer, and (ii) in lieu of
the compensation amount set forth in paragraph (a) of this Section 2, cause the
LLC to 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 thirty (30) days from the end of each week
in which such service was rendered. In addition, HT shall reimburse ADS for
reasonable travel expenses incurred by ADS for installation trips by ADS
personnel on HT's behalf and approved in advance by HT, within thirty (30) days
after submission by ADS of receipts or other documentation satisfactory to HT
for such expenses.
3. TERM. This Agreement shall commence on July 1, 1996 and shall continue
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until December 31, 2011. 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. HT shall require the LLC or other entity (i) to provide
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vehicles, (ii) to pay for the first $2000 of dispatch center computer hardware
required by ADS to perform its obligations hereunder, and (iii) to pay for radio
airtime to the extent that the cost of such airtime is in excess of the cost of
airtime for ADS's operations in Miami, Florida. ADS shall provide in-vehicle
radios, dispatch center computer equipment in excess of $2000, and all necessary
software. In addition, ADS shall be responsible for all related variable
telephone utilization costs and for the cost of airtime up to the cost of
airtime for ADS's operations in Miami, Florida.
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
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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.
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 HT: Health Trans, 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.
8. HEADINGS. The descriptive headings contained in this Agreement are for
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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
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and, if one or more provisions hereof are declared invalid, such provisions
shall be deemed not to
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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 upon
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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
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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.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
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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.
13. CONSTRUCTION. This Agreement has been prepared jointly by, and is the
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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
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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
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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.
16. NON-WAIVER. Any delay in or to failure to enforce at any time any
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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
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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.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and for
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the benefit of the parties hereto and their successors and assigns.
18. GUARANTEE BY RADIOSOFT. ADS, as of the date hereof, is a wholly owned
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subsidiary of RadioSoft, Inc., a Delaware corporation. In the 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. Subject to the right of first refusal to purchase ADS
granted by RadioSoft to Health Trans of South Florida, Inc. ("HTSF") in
connection with RadioSoft's guarantee of ADS's obligations under that certain
agreement between ADS and HTSF of even date herewith, upon the sale by RadioSoft
of all of the issued and outstanding stock of ADS, RadioSoft may delegate to the
purchaser of such stock its guarantee obligation hereunder, so long as HT
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, INC.
By:
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AUTOMATED DISPATCH SYSTEMS, INC.
By:
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RADIOSOFT, INC.
By:
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EXHIBIT 1
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.
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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 are
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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
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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
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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 and proprietary unless otherwise
designated and agreed by the parties.
12. 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
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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.
13. 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.
14. 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.
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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