CONSULTING AGREEMENT
AGREEMENT ("Agreement") made this 24th day of December 2008 by and
between Xxxxxxx Xxxxx, residing at 00 Xxxxxxxxxxx Xxxx, Xxxxxxx Xxxxxxx, Xxx
Xxxx 00000 ("Consultant") and IntegraMed America, Inc., a Delaware Corporation
with its principal place of business at Two Manhattanville Road, Purchase, N.Y.
10577 (the "Company"). Consultant and the Company are individually referred to
herein as a "Party" and jointly as "Parties."
RECITALS:
Consultant retired from the Company effective December 31, 2005 and has
served as a consultant to the Company for the years 2006-2008; and
Company desires to continue retention of Consultant's services and
utilize Consultant's experience, skills, and relationships for the period
January 1, 2009 through December 31, 2009 (the "Term"), and Consultant desires
to accept such engagement upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the terms and the mutual covenants
of this Agreement, the parties agree as follows:
1. Services To Be Performed. The Company hereby retains Consultant and
Consultant hereby accepts retention, to assist the Company with strategy,
business development and planning, and such other areas as may be determined. In
connection therewith, Consultant agrees to be available to Company management
two (2) days per month during the Term, as defined herein, of this Agreement,
2. Extent and Place of Services. The services to be performed by the
Consultant under and pursuant to this Agreement will be performed by the
Consultant in Purchase, New York or from the Consultant's home. Consultant will
report to, and work under the direction of IntegraMed's President, or his
designee. The Consultant shall perform all services in such manner as shall be
consistent with the practices and policies of the Company, and all applicable
requirements of law, and such services shall be performed in a timely manner
3. Compensation and Personal Benefits
3.1 In consideration of Consultant being available for
consulting services two (2) days per month, Consultant will be
paid Thirty-Six Thousand ($36,000.00) Dollars annually in twelve
monthly installments of Three Thousand ($3,000.00) Dollars on or
about the first business day each month.
3.2 Payment on Early Termination.
(a) If this Agreement is terminated because of the death or
permanent disability of Consultant, the remaining payments due Consultant
through the Term shall be paid to Consultant or Consultant's estate, whichever
is applicable, within 60 days of written notification to Company of Consultant's
death or permanent disability.
(b) If this Agreement is terminated because of a
conflict-of-interest as described herein under Other Employment, Consultant's
Fee shall be paid to the date of a written notice from the Company to the
Consultant notifying Consultant of termination due to a conflict-of-interest.
(c) If this Agreement is terminated by the Company because
of the Consultant's discharge for Cause pursuant to the provisions of Section 8,
Consultant's Fee hereunder shall be paid only to the date of discharge for
Cause. Upon termination for Cause, the Company shall retain whatever rights, if
any, it may have against Consultant under this Agreement or otherwise.
(d) If this Agreement is terminated by the Company without
cause, Consultant's Fee hereunder shall be paid through the expiration date of
this Agreement.
4. Other Employment.
4.1 During the term of this Agreement and for a period of
one (1) year thereafter, Consultant agrees not to be employed by or serve as a
consultant to, officer or director of any person or business or have an
ownership interest in a business that engages in business or management services
competitive to services provided by the Company.
4.2 Consultant agrees to disclose to the Company's President
or his designee any other employment by the Consultant, whether as an employee,
Consultant, director or other agent of any other person, firm or corporation for
the purpose of determining whether or not there is, or may be, a
conflict-of-interest with Consultant's engagement by the Company. If the
Company, in its sole discretion, determines there is a conflict-of-interest,
then the Company may void this Agreement without liability to Consultant for any
claims or damages.
5. Expenses. The Company shall pay or reimburse Consultant for all
reasonable travel and other expenses that have been approved prior to the
expense being incurred by Consultant in connection with the performance of
Consultant's duties under this Agreement provided that Consultant shall comply
with all applicable Company policies relating to reimbursement for travel, cell
phone and other expenses.
6. Confidentiality. Both during the term of Consultant's retention
hereunder and at all times thereafter, Consultant shall not, without the prior
written consent of the Company, divulge to any third party or use for
Consultant's own benefit or the benefit of any third party, or for any purpose
other than the exclusive benefit of the Company, any information whatsoever
about the consulting services including, but not limited to, any confidential or
proprietary business or technical information revealed, obtained or developed in
the course of Consultant's retention by the Company or which is otherwise the
property of the Company, including but not limited to, trade secrets, client
lists, formulae and processes. In the event Consultant is ordered by subpoena or
other legal process to divulge any information about the consulting services,
including, but not limited to, any confidential or proprietary information with
respect to the Company or the Practice or their businesses, Consultant agrees to
provide Company with prompt notification of such Order or other legal process
and provide Company with copies of all documents or Order directed to Consultant
immediately upon receipt.
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7. Property. Both during the term of Consultant's retention hereunder
and at all times hereafter, Consultant shall not remove from the Company's
offices or premises any documents, records, notebooks, files, correspondence,
reports, memoranda and similar materials or property of any kind unless
necessary for the performance of Consultant services hereunder (and, in the
event that any such material or property is removed, it shall be returned to its
proper file or place of safekeeping as promptly as possible) nor shall
Consultant make, return, remove or distribute any copies of any of the foregoing
for any reason whatsoever, or divulge to any third person the nature or contents
of any of the foregoing or of any other oral or written information to which
Consultant may have access or with which for any reason Consultant may become
familiar, except as disclosure shall be approved in advance by the Company as
necessary for the performance of Consultant's services hereunder. Upon the
termination of this Agreement, Consultant shall leave with or return to the
Company all originals and all copies of the foregoing then in Consultant's
possession or subject to Consultant's control, whether prepared by Consultant or
by others.
8. Term and Termination.
8.1 The term of this Agreement is as set forth in the
Recitals of this Agreement.
8.2 This Agreement shall terminate upon the occurrence of
the first to occur of the following:
(a) Expiration of the Term; or
(b) The death or permanent disability of Consultant; or
(c) The delivery to Consultant by the Company of written
notice setting forth the decision of the Company to terminate this Agreement for
"Cause." For purposes of this Agreement, "Cause" shall be limited to
Consultant's willful breach of duty of loyalty to, or commission of an act of
fraud or dishonesty upon the Company; or
(d) The delivery to Consultant by the Company of written
notice setting forth the decision of the Company to terminate this Agreement
"without cause," in which event the Company will include with such written
notice, the balance of the payments due Consultant through the expiration of the
Term.
9. Survival of Provisions. The obligations of Consultant pursuant to
Sections 6 and 7 of this Agreement shall survive the termination of this
Agreement.
10. Consultant as Independent Consultant. Consultant acknowledges that
Consultant is acting hereunder on Consultant's own behalf as an independent
Consultant. Nothing in this Agreement shall be construed or deemed to constitute
Consultant as an employee of the Company for any purpose whatsoever or give rise
to, or imply the existence of, a relationship between the Company and Consultant
or partnership or joint venture or any other relationship other than that of one
of independent Consultant. Consultant agrees to make no representation to any
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person or business entity that may lead such person or business entity to
believe that Consultant has authority to bind or obligate the Company in any
manner. Consultant further agrees to pay all federal and state withholding
taxes, FICA taxes, unemployment benefits and other federal, state and local
taxes and charges arising in connection with Consultant's performance of
services or receipt of compensation hereunder and covenants and agrees to
indemnify and hold the Company harmless from and against any and all claims made
against the Company by any federal, state or local governmental agency arising
from, or in any manner whatsoever attributable to, Consultant's failure to
timely pay the full amount of the same.
11. Successors and Assigns. The Company may assign this Agreement to,
and upon such assignment this Agreement shall inure to the benefit of, any
parent, subsidiary, affiliate or successor of the Company. This Agreement shall
not be assignable by Consultant and shall be binding upon his executors and
other legal representatives.
12. Notice. Any notice or communication required or permitted under
this Agreement shall be made in writing and personally delivered to the other
party or sent by certified or registered mail, return receipt requested and
postage prepaid, addressed as follows:
If to Consultant:
Xxxxxxx Xxxxx
00 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxx Xxxx 00000
If to Company:
Xxx Xxxxxx, President
IntegraMed America, Inc.
Two Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
and
Xxxxxx X. Xxxxx, Esq.
General Counsel
IntegraMed America, Inc.
Two Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or to such other address as either party may from time to time duly specify by
written notice given to the other party in the manner specified above.
13. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties relating to the Company's retention
of Consultant and supersedes all prior discussions, agreements and
understandings of every nature between them regarding Consultant's retention by
the Company, except that Section 20.3 of the June 6, 2005 agreement ( the "Prior
Agreement") between the Company and Consultant with respect to Consultant and
Consultant's covered dependent being covered under the Company's medical and
group life insurance shall continue in accordance with the terms of Section 20.3
of the Prior Agreement . This Agreement may not be changed or modified, except
by an agreement in writing signed by all of the parties hereto.
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14. Waiver. The waiver of a breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
15. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
16. Invalidity. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the validity of any other provision of this Agreement, and such
provision(s) shall be deemed modified to the extent necessary to make it (them)
enforceable.
17. Enforcement. It is agreed that it would be difficult, if not
impossible, to measure fully, in money, the damages which would accrue to the
Company in the event of a breach or threatened breach of Sections 6 and 7
hereof, and, that in any action or proceeding to enforce the provisions of
Sections 6 or 7 hereof, the Company shall be entitled as a matter of right to
injunctive relief to enforce the provisions of such sections in addition to
exercising any and all other rights and remedies available to it at law or in
equity.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
INTEGRAMED AMERICA, INC.
By:/s/Xxx Xxxxxx
_________________________________
Xxx Xxxxxx, President
By:/s/Xxxxxxxxx X. Xxxxxxx
_________________________________________________
Xxxxxxxxx X. Xxxxxxx, Chairperson
Compensation Committee, Board of Directors
CONSULTANT
/s/Xxxxxxx Xxxxx
________________________________________________
Xxxxxxx Xxxxx
