[LOGO]
December 31, 2005
Mr. Xxxxxxxx Doctor
Chief Executive Officer and President
PracticeXpert, Inc.
00000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Mr. Doctor:
The purpose of this letter is to set forth the agreement by and between
Transcend Services, Inc., a Delaware corporation ("Transcend"), and
PracticeXpert, Inc., a Nevada corporation ("PXpert"), regarding the provision of
medical transcription services to current customers of PXpert after December 31,
2005, as more fully described below (the "Agreement").
PXpert, through its wholly-owned subsidiary, PracticeXpert of Texas, Inc., a
Texas corporation ("PXTX"), currently provides medical transcription services to
various entities (each a "Qualified Customer") under written and/or verbal terms
and conditions (the "Service Contracts") for fees (the "Service Fees") payable
in cash at specified times (the "Business").
PXpert, through PXTX, employs medical transcriptionists (the "Employee
Transcriptionists") and engages independent contractors (the "IC
Transcriptionists") to perform medical transcription services for the Qualified
Customers. In addition, PXpert, through PXTX, employs certain other management,
supervisory, quality assurance, technical and administrative personnel (the
"Infrastructure Employees") and utilizes various systems (each a "System") in
the operation of the Business.
The following information is set forth in Exhibit I for each Qualified Customer:
1. The name, address and contact person;
2. A description of the Service Contract, if any;
3. A designation of the applicable System; and
4. The approximate current amount of Service Fee payable during a
month.
The following human resource information regarding the Business is set forth in
Exhibit II:
1. A list of current Employee Transcriptionists along with a
description of the compensation program for each Employee
Transcriptionist;
2. A list of current IC Transcriptionists along with a description of
the compensation program for each IC Transcriptionist; and
3. A list of current Infrastructure Employees along with a description
of the compensation program for each Infrastructure Employee.
Subject to the terms and conditions herein provided, the parties agree as
follows:
1. XXxxxx agrees to sell, transfer and assign to Transcend, and
Xxxxxxxxx agrees to acquire and purchase from PXpert the Business on
the terms and conditions described below.
2. Transcend agrees to offer employment to all of the Employee
Transcriptionists set forth in Exhibit II.
3. Transcend agrees to offer to engage all of the IC Transcriptionists
set forth in Exhibit II.
4. Transcend agrees to offer employment to the following Infrastructure
Employees set forth in Exhibit II:
a. Xxxxxx Xxxxxxxx;
b. Xxxxxxx Xxxxxx;
c. Xxxxxx Xxxxx
d. Xxxxx Xxxxxxxx;
e. Xxxxxxxx Xxxxxxx; and
f. Xxx Xxxxxxx.
5. Transcend agrees to retain the services of Xxxxxxx Xxxx [and perhaps
others] on a fee-for-service basis at the compensation rate
presented in Exhibit II for a mutually agreeable period of not less
than two weeks (i.e., through January 15, 2006), but not longer than
three months (i.e., through March 31, 2006).
6. Transcend agrees to extend an offer not later than January 7, 2006
to each Qualified Customer to perform medical transcription services
for each Qualified Customer under similar terms and conditions as
the applicable Service Contract and to transition each Qualified
Customer who is willing to transition from the System to the
appropriate Transcend system in a coordinated effort with PXpert
that shall commence as early as January 3, 2006 and shall be
completed as soon as practical, but, in any event, not later than
March 31, 2006. Until such time as a Qualified Customer either
elects not to be served by Transcend or is transitioned to a
Transcend system, but, in any event, not later than March 31, 2006,
Transcend shall provide transcription services to the Qualified
Customers utilizing Transcend's human resources, some of which would
have been obtained from PXpert as discussed above, and the Systems.
Transcend shall have no obligation to provide medical transcription
services to Qualified Customers that decline Transcend's offer to
provide medical transcription services to them on one of Transcend's
systems. Qualified Customers that decline Transcend's offer to
provide medical transcription services to them will be notified by
Transcend to find an alternative provider of medical transcription
services as soon as possible,
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but not later than two weeks after they either decline or are not
responsive to the deadline for response in Transcend's offer.
As consideration for the acquisition of the Business as described above, and
subject to the additional terms and conditions described below, Transcend agrees
to pay a purchase price to PXpert for the Business of up to Five Hundred
Thousand Dollars ($500,000) (the "Purchase Price"). The Purchase Price shall be
payable as follows: (1) a non-refundable advance (the "Advance") against future
Earn-outs in the amount of Forty Thousand Dollars ($40,000) by wire transfer of
immediately available funds in cash at Closing; and (2) the remainder (hereafter
referred to as an "Earn-out"), if any, on a quarterly basis within 30 days after
each calendar quarter for a period of three years and 45 days from the Closing
at the rate of 50% (the "Earn-out Factor") of the cash profits (the "Cash
Profits") of the Business from Qualified Customers only in excess of the
Advance. The cash profits received by Transcend during the quarterly period
immediately preceding the then-current calendar quarter shall be determined
using the mutually agreed-upon methodology specified by way of a quarterly
Earn-out Report, as formatted in Exhibit III.
To help ensure that the payment terms of the Purchase Price, as illustrated in
the Earn-out Report in Exhibit III, are clearly understood by both parties to
the Agreement, the following provisions related to the Earn-out Report are
hereby included in the Agreement:
1. Only the amount of cash received by Transcend from the Qualified
Customers during a calendar quarter, not the amount billed by
Transcend to the Qualified Customers during a calendar quarter,
qualifies for inclusion in the Earn-out Report for the applicable
calendar quarter.
2. Further, PXpert shall not receive credit in the Earn-out Report for
any incremental cash that Transcend receives from non-qualified
customers (the "Non-Qualified Customers") as a result of Transcend's
sales efforts to the Qualified Customers. For example, if PXpert
performed medical transcription services for the radiology
department of a Qualified Customer and Transcend sold medical
transcription services to the cardiology department of the Qualified
Customer, then the cardiology department is deemed a Non-Qualified
Customer, and the cash received from the cardiology department would
not qualify for inclusion in the Earn-out Report. Similarly, cash
received by Transcend for additional medical transcription services
performed by Transcend for other entities, branches or facilities
within the Qualified Customer would be deemed Non-Qualified
Customers and would not qualify for inclusion in the Earn-out
Report. On the other hand, if a Qualified Customer currently splits
its overflow transcription work between PXpert and one or more other
vendor(s) and Transcend subsequently was awarded all of the overflow
work for said Qualified Customer, then the cash received by
Transcend from the incremental overflow work previously performed by
a third party vendor would qualify for inclusion in the Earn-out
Report. Further, if a Qualified Customer's volume of medical
transcription increased as the sole result of the internal growth of
the Qualified Customer's patient volume, then cash received by
Transcend for such incremental
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medical transcription work during a calendar quarter qualifies for
inclusion in the Earn-out Report for the applicable quarter.
3. The expenses deducted from the cash receipts included in the
Earn-out Report for
a calendar quarter are accrual-based direct expenses attributable to
the Qualified Customers, as reflected in Transcend's financial
statements and determined in accordance with generally accepted
accounting principles consistently applied, not the cash expended by
Transcend for direct expenses related to the Qualified Customers
during the applicable quarter. Direct expenses shall include only
the following: (i) payroll, payroll taxes, employee benefits,
telecommunication expenses and other direct expenses for the
Employee Transcriptionists; (ii) fees payable to the IC
Transcriptionists; (iii) payroll, payroll taxes, employee benefits
and other direct expenses for the Infrastructure Employees for the
portion of their time spent serving the Qualified Customers; (iv)
production management specifically identifiable with the Qualified
Customers; (v) customer service specifically identifiable with the
Qualified Customers; (vi) technical support for production
operations specifically identifiable with the Qualified Customers;
(vii) speech recognition expense specifically identifiable with the
Qualified Customers; (viii) depreciation and amortization related to
production operations specifically identifiable with the Qualified
Customers; and (ix) any other specifically identifiable direct
expense attributable to the Qualified Customers. Such direct
expenses shall not include an allocation of Transcend's general and
administrative overhead expenses. At the same time that Transcend
provides the Earn-out Report, Transcend shall provide a copy of its
financial statements for the Qualified Customers for a calendar
quarter to PXpert in support of the expenses shown in the Earn-out
Report for the applicable quarter. The Chief Financial Officer or
Chief Accounting Officer of Transcend shall certify said financial
statements as being complete and accurate. In addition, Transcend
shall provide supporting information for said financial statements
to PXpert within two weeks of receiving a written request from the
Chief Financial Officer of PXpert.
4. Transcend and XXxxxx agree that the Cash Profit shown in the
Earn-out Report for
a calendar quarter shall be based upon the cash received by
Transcend from Qualified Customers during the applicable quarter,
not the revenue billed by Transcend to Qualified Customers during
the applicable quarter, less accrual- based expenses reflected in
Transcend's financial statements for the Qualified Customers for the
applicable quarter, not the cash expended by Transcend for expenses
related to the Qualified Customers during the applicable quarter.
5. Transcend acknowledges that the Advance paid to PXpert at Closing
shall be non- refundable.
6. PXpert acknowledges that no additional monies are due and payable to
PXpert unless and until the Earn-out Factor multiplied by the
cumulative Cash Profits, if any, exceeds Forty Thousand Dollars
($40,000). While the maximum Purchase Price under the Agreement is
Five Hundred Thousand Dollars ($500,000), it is possible that the
Purchase Price might not exceed the amount of the Advance.
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Other than the Business and the Qualified Customers, Transcend is not acquiring
any other asset of PXpert or assuming any liabilities whatsoever of PXpert under
the Agreement.
Transcend and PXpert each agree not to solicit the other party's employees or
customers for a period of five years after the Closing without the prior written
approval of the other party. Further, XXxxxx agrees not to compete with
Transcend in the medical transcription service business for a period of five
years after Closing.
Transcend and XXxxxx further agree to negotiate in good faith to market and sell
the other party's services for a period of three years from the date of the
Agreement under mutually agreeable terms and conditions to be included in a
separate cross-selling agreement that the parties hereto expect to execute on or
before or shortly after Closing.
Subject to the satisfaction of the conditions stated in this paragraph, the
closing of the transactions contemplated by this Agreement (the "Closing") shall
take place at Transcend's offices at 11:59:59 p.m E.S.T. on December 31, 2005
(the "Closing"). The Closing is subject to (1) Transcend and PXpert developing a
mutually agreeable post-Closing transition plan with respect to the Business and
each Qualified Customer; (2) Transcend closing a new, near-final financing
facility that is required because Transcend's current financing facility
precludes additional acquisitions by Transcend at this time; and (3) approval by
the Board of Directors of both Transcend and PXpert. If by the close of business
on January 31, 2006 the Closing has not occurred, then any party hereto may
thereafter terminate this Agreement by written notice to such effect to the
other party hereto; provided, however, that any termination pursuant to this
paragraph shall not relieve any party hereto who was responsible for the Closing
having not occurred of any liability for (x) such party's willful breach of the
provisions of this Agreement or (y) the failure of such party to perform its
obligations under this Agreement on such date, if all of the conditions to such
party's obligations set forth in this paragraph have been satisfied or waived in
writing by the other party.
Any payment received from a Qualified Customer by Transcend that is attributable
to accounts receivable for services rendered by PXpert shall be remitted by
Transcend to PXpert. Any payment received from a Qualified Customer by XXxxxx
that is attributable to accounts receivable for services rendered by Transcend
shall be remitted by PXpert to Transcend. For the first three months after the
Closing, PXpert and Transcend shall settle all amounts payable pursuant to this
paragraph on a monthly basis, with payment to be made within five days after the
end of each month.
Transcend and PXpert each agree, to the extent allowed under governing law, to
indemnify and hold the other party harmless from any claim, demand, suit, loss
or liability, including reasonable expenses, such as attorney's fees, related
thereto, which the indemnified party may sustain as a result of the indemnifying
party's breach of its duties to the indemnifying party under the Agreement. As a
condition precedent to asserting a right of indemnity, the party seeking
indemnification shall have given the indemnifying party timely written notice of
the assertion of the claim to which the right of indemnification is claimed to
exist.
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Notwithstanding anything to the contrary set forth in this Agreement, an
indemnifying party hereunder shall have no obligation to indemnify a party
entitled to indemnification hereunder unless and until the aggregate amount of
any and all losses of such indemnification claims made by a party entitled to
indemnification hereunder exceeds Ten Thousand Dollars ($10,000) (the "Minimum
Aggregate Liability Amount"), after which time indemnification claims may be
made for amounts above and below the Minimum Aggregate Liability Amount.
The Agreement sets forth the entire understanding of the parties relating to the
subject matter hereof and supersedes and cancels any prior communications,
understandings and agreements with regard thereto. The Agreement cannot be
assigned, modified or amended, and none of its provisions shall be waived,
except by a prior written agreement executed by both parties hereto.
The Agreement shall be governed by and construed in accordance with the laws of
the State of Georgia, without regard to its choice of law principles. In the
event that a dispute related to the Agreement arises between the parties hereto
(a "Dispute"), the parties hereto agree to first attempt to settle each Dispute
through good faith negotiations. If any Dispute is not resolved through good
faith negotiations within 30 days, then upon written demand by either party, the
parties hereto agree to submit the Dispute to binding arbitration before a
single mutually agreeable arbitrator under the then-current rules of the
American Arbitration Association. Each party shall bear its own expenses related
to the arbitration. The parties agree to share equally the cost of the
arbitrator. The decision of the arbitrator regarding the Dispute is final and
binding on each party hereto.
If any term, condition or provision contained in the Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy, the remainder of the terms,
conditions and provisions contained in the Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
If the above and foregoing Agreement, including the Exhibits attached hereto,
completely and accurately describe the terms and conditions of our agreement,
please acknowledge XXxxxx's acceptance of this Agreement by signing in the space
designated below and returning a signed copy of the Agreement to me for
Transcend's records. I am enclosing two copies of the Agreement signed by me and
a prepaid, addressed FedEx return envelope for your convenience. The other
signed copy of the Agreement is for your records.
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Transcend looks forward to a mutually rewarding, long-term business relationship
with PracticeXpert. Thank you for your efforts and the efforts of your team in
working with Transcend to develop this relationship and the Agreement.
Sincerely,
Xxxxx X. Xxxxxx
Chief Executive Officer and President
Accepted on Behalf of PracticeXpert, Inc. Effective on December 31, 2005:
/s/ Xxxxxxxx Doctor
Xxxxxxxx Doctor
Chief Executive Officer and President
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