Exhibit 10.3
April 13, 2004
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into
effective as of April 11, 2004 by and between ProxyMed, Inc., a Florida
corporation ("ProxyMed"), PlanVista Corporation, a Delaware corporation
("PlanVista"), and Xxxxxxx X. Xxxxxx ("Consultant").
A. Consultant and PlanVista entered into an Employment and
Noncompetition Agreement dated June 1, 2000, as amended from
time to time (the "Employment Agreement").
B. Consultant and PlanVista and ProxyMed entered into an
employment letter dated as of December 4, 2003 (the
"Employment Letter"), pursuant to which the Employment
Agreement was terminated and Consultant continued to be
employed by PlanVista pursuant to the terms of the Employment
Letter.
C. Effective March 2, 2004, PlanVista was merged with and into a
wholly-owned subsidiary of ProxyMed (the "Merger"), with
PlanVista as the surviving corporation, and as a result
PlanVista is a wholly-owned subsidiary of ProxyMed.
D. Consultant has agreed and desires to continue his affiliation
with PlanVista and ProxyMed as a consultant in the capacities
and on the terms described in this Agreement.
In consideration of the mutual agreements contained herein, and other
good and valuable consideration, the parties hereby agree as follows:
1. CONTINUATION OF EMPLOYMENT. Consultant agrees to continue to serve as a
full-time employee of PlanVista pursuant to the terms of the Employment Letter
through August 31, 2004, notwithstanding any provision in the Employment Letter
to the contrary.
2. TERM.
(a) Effective on September 1, 2004 (the "Commencement Date"), unless
earlier terminated pursuant to the terms of this Agreement or the Employment
Letter, Consultant's employment with PlanVista shall be terminated. Consultant
shall serve as a consultant to PlanVista for the period commencing on the
Commencement Date and ending on March 3, 2007, unless earlier terminated (the
"Consulting Term").
(b) The Consulting Term may be immediately terminated by ProxyMed prior
to the expiration of the Consulting Term if Consultant fails to perform the
Services in a manner reasonably satisfactory to the Board of Directors of
ProxyMed or if Consultant refuses to perform the Services for any reason (the
"Termination Date"). Notwithstanding the foregoing, no such termination shall be
effective unless ProxyMed has given Consultant notice of the alleged failure or
refusal to perform, specifying in detail the failure or refusal to perform, and
Consultant shall not have cured such failure or refusal to perform within ten
days after receipt of such notice.
3. ENGAGEMENT OF CONSULTANT.
(a) For the period commencing on the Commencement Date and ending on
August 31, 2005, PlanVista retains Consultant (i) to consult with PlanVista and
ProxyMed regarding pending, threatened and other litigation proceedings against
PlanVista, (ii) to assist PlanVista and ProxyMed on an as needed basis in
negotiating final settlements or otherwise resolving such proceedings, and (iii)
to consult with PlanVista and ProxyMed regarding other matters relating to
Consultant's tenure with PlanVista or the integration of the operations of
PlanVista and ProxyMed (collectively, the "Services"). During such period,
Consultant agrees to provide the Services from time to time as may be reasonably
requested by PlanVista or ProxyMed or their respective officers. Consultant
agrees to be available to provide the Services during regular business hours as
reasonably requested of him; provided that PlanVista and ProxyMed acknowledge
that the Services requested of Consultant will be limited in scope to telephonic
or e-mail inquiries, such that they will not interfere with Consultant's ability
to carry out his responsibilities to a full-time employer; provided that
Consultant may be requested to travel to PlanVista's Tampa location upon
reasonable notice to Consultant and at times that are reasonably acceptable to
Consultant so as not to interfere with Consultant's full-time employment. Any
such travel shall be at PlanVista's expense but shall be without further
compensation to Consultant. Consultant agrees that neither PlanVista nor
ProxyMed shall be required to pay any compensation to Consultant for providing
the Services, except as described in paragraph 4 of this Agreement. If
performance of the Services requires travel to any ProxyMed or PlanVista
location, other than to PlanVista's Tampa location as provided above, or to any
other location more than five (5) miles from Consultant's home, Consultant shall
have the option of accepting such Services under a expense reimbursement
arrangement to be negotiated at the time; provided that Consultant's
unwillingness to undertake such travel shall not be grounds for ProxyMed to
terminate this Agreement and shall not result in the forfeiture of any of
Consultant's unvested stock options.
(b) Commencing September 1, 2005 and ending on March 1, 2007,
Consultant agrees to continue to provide the Services by consulting with
PlanVista and ProxyMed regarding matters relating to Consultant's tenure with
PlanVista and relating to the integration of the operations of PlanVista and
ProxyMed.
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4. COMPENSATION. In consideration for Consultant entering into this Agreement
and providing the Services during the entire Consulting Term, PlanVista and
ProxyMed agree to the following compensation terms.
(a) CASH COMPENSATION. PlanVista agrees pay Consultant the aggregate
amount of $50,000, payable in equal monthly installments over the 12 month
period commencing on the Commencement Date.
(b) BONUS COMPENSATION. Consultant shall be eligible to receive a bonus
of up to $50,000 payable on August 31, 2004, in accordance with the bonus
objectives attached hereto as Exhibit A.
(c) STOCK OPTION TERMS. ProxyMed agrees that the stock options to
purchase up to 68,543 shares of ProxyMed common stock previously awarded to
Consultant (the "Stock Options") shall continue to vest in accordance with the
terms of such options as if Consultant were a full-time employee of PlanVista
until the earlier of the expiration of the Consulting Term and the Termination
Date; provided, however, that all of such Stock Options shall immediately vest
upon the occurrence of a "Change in Control," as such term is defined in the
ProxyMed, Inc. 2002 Stock Option Plan (the "Plan"). All vested options will be
exercisable for 90 days following the earlier of the expiration of the
Consulting Term and the Termination Date. All unvested options on the
Termination Date shall be forfeited and immediately cancelled. The parties
acknowledge that the Stock Options were granted pursuant to the Plan.
Notwithstanding any other provision of this Agreement or the Plan, the parties
intend that the Stock Options shall remain in effect and shall continue to vest
as provided herein. Therefore, in the event that there is any conflict between
the terms of this Agreement and the Plan or agreement pursuant to which
Consultant received the Stock Options, the terms of this Agreement shall govern.
5. TERMINATION OF EMPLOYMENT AGREEMENTS. Consultant acknowledges and agrees that
the Employment Agreement, including all amendments thereto, is terminated, and
except as provided herein and in Sections 8, 9 and 10 of the Employment
Agreement, neither PlanVista nor ProxyMed shall have any ongoing obligations,
financial or otherwise, arising from or relating to the Employment Agreement.
Consultant acknowledges and agrees that the Employment Letter shall be
terminated effective as of the Commencement Date.
6. MUTUAL RELEASE. The parties hereby forever release and discharge each other,
and their respective subsidiaries, affiliates, successors, and assigns, and each
of the other's respective present and former officers, directors, managers,
agents, employees, attorneys, and predecessors, from any and all claims, causes
of action, charges, complaints, injunctions, liens, demands, obligations,
damages, liabilities, rights and losses of whatever nature, whether known or
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unknown, suspected or unsuspected, asserted or unasserted, that each party had,
now has, or may hereafter claim to have against the other party for any acts,
events or occurrences from the beginning of time through the effective date of
this Agreement; provided however that the foregoing shall not release PlanVista,
ProxyMed or Consultant from any of their respective obligations hereunder or
from any of their respective post termination obligations under the Employment
Agreement or the Employment Letter.
7. INDEPENDENT CONTRACTOR. For all purposes of this Agreement, and the
transactions contemplated hereby, Consultant is and shall be deemed to be an
independent contractor and Consultant shall not have the right, without the
prior written consent of ProxyMed, to enter into any agreement on behalf of
PlanVista or ProxyMed or any of their affiliates or to do any other act which
may subject PlanVista or ProxyMed or any of their affiliates to liability or
obligate any of them in any manner whatsoever. Nothing in this Agreement shall
be deemed or construed (i) to create a partnership or joint venture between
Consultant and PlanVista or ProxyMed, (ii) to cause Consultant to be responsible
in any way for the debts, liabilities or obligations of PlanVista or ProxyMed,
or (iii) to constitute Consultant as an employee, officer or agent of PlanVista
or ProxyMed after the Commencement Date.
8. NON DISPARAGEMENT. Consultant agrees not to do or say anything in the future
to disparage or otherwise impugn the commercial or personal reputations of
PlanVista or ProxyMed or any of such party's officers, directors, employees,
and/or agents. PlanVista and ProxyMed on behalf of themselves and their
officers, directors, employees, and/or agents agree not to do or say anything in
the future to disparage or otherwise impugn the commercial or personal
reputation of Consultant.
9. AFFIRMATIVE COVENANTS.
(a) Consultant agrees that during the Consulting Term and for one (1)
year following the earlier of the expiration of Consulting Term or the
Termination Date, Consultant will not, directly or indirectly, without the prior
written consent of ProxyMed, induce or solicit any person employed or hereafter
employed by PlanVista or ProxyMed to leave the employ of PlanVista or ProxyMed,
or solicit, recruit, hire or attempt to solicit, recruit or hire any person
employed by PlanVista or ProxyMed.
(b) Consultant agrees that until March 3, 2008, Consultant will not,
directly or indirectly, without the prior written consent of ProxyMed, solicit
or attempt to solicit, divert or take away, or attempt to divert or take away,
Customers and their medical cost containment or other financial, administrative
or clinical transaction business from PlanVista, ProxyMed and/or any of their
then-current affiliates.
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As used in the preceding sentence, the term "Customer" shall include,
however known to Consultant as of such date, (i) any current end-user of
PlanVista, ProxyMed or their then-current affiliates' products or services, or
any potential end-user thereof with whom PlanVista, ProxyMed or their
then-current affiliates have had contact within the preceding six (6) months;
(ii) any current suppliers of PlanVista, ProxyMed or their then-current
affiliates; and/or (iii) any vendor of PlanVista, ProxyMed or their then-current
affiliates or any reseller of PlanVista, ProxyMed or their then-current
affiliates; and/or (iv) their affiliates, successors or assigns.
(c) Consultant agrees and acknowledges that Consultant will disclose
promptly to PlanVista and ProxyMed every discovery, improvement and invention
made, conceived or developed by Consultant during the entire Consulting Term
(whether or not during working hours) which discoveries, improvements or
inventions are capable of use in any way in connection with the business of
PlanVista or ProxyMed. To the fullest extent permitted by law, all such
discoveries, inventions and improvements will be deemed works made-for-hire.
Consultant grants and agrees to convey to ProxyMed or its nominee the entire
right, title and interest, domestic and foreign, which Consultant may have in
such discoveries, improvements or inventions, or a lesser interest therein, at
the option of ProxyMed. Consultant further agrees to promptly, upon request,
sign all applications for patents, copyrights, assignments and other appropriate
documents, and to perform all acts and to do all things necessary and
appropriate to carry out the intent of this section, whether or not Consultant
is still a consultant of PlanVista or ProxyMed at the time of such requests.
(d) Consultant agrees and acknowledges that the Confidential
Information of PlanVista and ProxyMed is valuable, special and unique to their
businesses, that such businesses depend on such Confidential Information, and
that PlanVista and ProxyMed wish to protect such Confidential Information by
keeping it confidential for the exclusive use and benefit of PlanVista and
ProxyMed. Based on the foregoing, Consultant agrees to undertake the following
obligations with respect to such Confidential Information:
(i) Consultant agrees to keep any and all Confidential
Information in trust for the use and benefit of PlanVista and ProxyMed;
(ii) Consultant agrees that, except as required by
Consultant's duties or authorized in writing by ProxyMed, Consultant
will not at any time during and for a period of three (3) years after
the Termination Date, disclose, directly or indirectly, any
Confidential Information to any third party; except as may be required
by applicable law or court order, in which case
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Consultant shall promptly notify PlanVista and ProxyMed so as to allow
it to seek a protective order if they so elect;
(iii) Consultant agrees to take all reasonable steps
necessary, or reasonably requested by PlanVista or ProxyMed, to ensure
that all Confidential Information is kept confidential for the use and
benefit of PlanVista and ProxyMed and their subsidiaries; and
(iv) Consultant agrees that, upon the Termination Date or at
any other time PlanVista or ProxyMed may in writing so request,
Consultant will promptly deliver to PlanVista and ProxyMed all
materials constituting Confidential Information (including all copies
and derivatives thereof) that are in the possession of or under the
control of Consultant. Consultant further agrees that, if requested by
PlanVista or ProxyMed to return any Confidential Information pursuant
to this Subsection (iv), Consultant will not make or retain any copy or
extract from such materials.
"Confidential Information" means any and all information, including
derivative works, developed by or for PlanVista or ProxyMed or entrusted to
PlanVista or ProxyMed in confidence by its customers, of which Consultant gained
knowledge by reason of Consultant's relationship with PlanVista and ProxyMed,
which is not generally known in any industry in which PlanVista or ProxyMed is
engaged, but does not apply to information which is generally known to the
public or the trade, unless such knowledge results from an unauthorized
disclosure by Consultant. Confidential Information includes, but is not limited
to, any and all information developed by or for PlanVista or ProxyMed concerning
plans, marketing and sales methods, materials, processes, business forms,
procedures, devices used by PlanVista or ProxyMed, their suppliers and customers
with which PlanVista or ProxyMed had dealt prior to the Termination Date, plans
for development of new products, services and expansion into new areas or
markets, internal operations, and any trade secrets, proprietary information of
any type owned by PlanVista or ProxyMed, together with all written, graphic and
other materials relating to all or any part of the same. PlanVista and ProxyMed
will receive all materials, including, software programs, source code, object
code, specifications, documents, abstracts and summaries developed in connection
with Consultant's work. Consultant acknowledges that the programs and
documentation developed in connection with Consultant's work with PlanVista and
ProxyMed shall be the exclusive property of PlanVista and ProxyMed, and that
PlanVista and ProxyMed shall retain all right, title and interest in such
materials, including without limitation patent and copyright interests. Nothing
herein shall be construed as a license from PlanVista or ProxyMed to Consultant
to make, use, sell or copy any inventions, ideas, trade secrets, trademarks,
copyrightable
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works or other intellectual property of PlanVista or ProxyMed during the
Consulting Term or subsequent to the Termination Date.
10. ENTIRE AGREEMENT/AMENDMENT. This Agreement and the Employment Letter set
forth the entire agreement and understanding of the parties hereto with respect
to the subject matter hereof and supersedes any prior agreement, proposal,
negotiation or discussion relating thereto. No amendment or modification to the
terms of this Agreement shall be effective unless in writing and signed by the
parties hereto.
11. ASSIGNMENT. Consultant acknowledges that the services to be rendered by him
are unique and personal; accordingly, Consultant may not assign any of his
rights or delegate any of his duties or obligations under this Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns.
12. MISCELLANEOUS.
(a) The failure of any party to enforce any provision of this Agreement
shall in no manner affect the right to enforce the same, and the waiver by any
party of any breach of any provision of this Agreement shall not be construed to
be a waiver by such party of any succeeding breach of such provision or a waiver
by such party of any breach of any other provision.
(b) In the event any one or more of the provisions of this Agreement
shall for any reason be held invalid, illegal or unenforceable, the remaining
provisions of this Agreement shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a mutually acceptable valid, and
enforceable provision which comes closest to the intent of the parties.
(c) This Agreement was fully negotiated by PlanVista, ProxyMed and
Consultant, and neither party shall be considered the drafter, such that any
provision of this Agreement might be construed against it on that basis.
(d) This Agreement may be executed in any number of counterparts, which
may be by facsimile, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
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NOW THEREFORE, the parties have executed this Agreement as of the date
first above written.
PROXYMED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Chairman & CEO
PLANVISTA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------------------------
Xxxxxxx X. Xxxxxx
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