EXHIBIT 10.14
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "AGREEMENT") is dated as of the
16th day of July, 2002 by and between Xxxxxxx X. Xxxxxxx, Xx. ("CONSULTANT")
and MQ Associates, Inc., a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, Consultant is a licensed attorney, specializing in the
field of health care law;
WHEREAS, the Company is engaged in the business of providing
fixed-site outpatient single and multi-modality diagnostic imaging services;
WHEREAS, the Company and Consultant previously entered into a
Retainer Agreement, dated as of July 1, 2001 (the "ORIGINAL AGREEMENT");
WHEREAS, the Company desires to continue to avail itself of the
legal expertise of Consultant; and
WHEREAS, the Company and Consultant desire to terminate the Original
Agreement in its entirety and enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
Section 1. ENGAGEMENT. The Company hereby engages Consultant and
Consultant accepts such engagement upon the terms and conditions hereinafter
set forth.
Section 2. TERM OF ENGAGEMENT. Subject to earlier termination pursuant to
the provisions of SECTION 5, the initial term of Consultant's engagement
pursuant to this Agreement shall be four (4) years (such period, the "INITIAL
ENGAGEMENT PERIOD") commencing on and as of the date hereof. Unless otherwise
terminated in accordance with SECTION 5 hereof, after the expiration of the
Initial Engagement Period this Agreement shall automatically renew on the
anniversary date of each subsequent year thereafter for a one (1) year term
(each such subsequent one (1) year term, if any, a "SUBSEQUENT ENGAGEMENT
PERIOD"). The Initial Engagement Period and any Subsequent Engagement Period
shall be collectively referred to herein as the "ENGAGEMENT PERIOD."
Section 3. Duties; Extent of Service.
(a) During the Engagement Period, Consultant (i) shall serve as
general legal counsel to the Company reporting to the Chief Executive Officer,
the President and the Board of Directors of the Company (the "BOARD OF
DIRECTORS"), (ii) shall have supervisory responsibility in such capacity over
such matters as may be specified from time to time by the Chief Executive
Officer, the President, and the Board of Directors, consistent with Consultant's
position and general area of experience and skills, PROVIDED that, in all cases
Consultant shall be subject to the oversight and supervision of the Board of
Directors in the performance of his duties, and (iii) shall render all services
reasonably incident to the foregoing.
(b) Consultant will be present and available to perform the services
hereunder at the Company's office in Alpharetta, Georgia ("COMPANY'S OFFICE") an
average of four (4) full working days per week. In addition, Consultant shall
devote such time as is necessary to perform the services hereunder by telephone
or other suitable communication when he is not present at the Company's Office
during the four (4) working days per week. Consultant shall (i) use his best
efforts to deal effectively with all subjects submitted to him hereunder and
(ii) endeavor to further, by performance of the services hereunder, the policies
and objectives of the Company.
(c) Consultant shall perform all services as contemplated hereunder
as an independent contractor to the Company. Consultant is not an employee,
agent or other representative of the Company and has no authority to act for or
to bind the Company and its subsidiaries or their respective affiliates without
the Company's prior written consent.
(d) Consultant shall not during the Engagement Period be engaged in
any other business activity which, in the reasonable judgement of the Board of
Directors, involves non-cardiac diagnostic imaging services (whether single or
multi-modality, fixed site or mobile, outpatient or otherwise) within the United
States, whether or not such activity is pursued for gain, profit or other
pecuniary advantage. The foregoing, however, shall not be construed as
preventing Consultant from engaging in religious, charitable or other community
or non-profit or passive investment (including the investment in real estate or
businesses other than non-cardiac diagnostic imaging) activities that do not
substantially impair Consultant's ability to fulfill Consultant's duties and
responsibilities under this Agreement during four work days per week.
Section 4. FEE.
(a) During the Engagement Period, the Company shall pay Consultant
the sum of thirty thousand dollars ($30,000.00) per month (the "FEE"), payable
on the last day of each calendar month for services rendered during the
preceding month.
(b) In addition to the Fee, the Company agrees to reimburse all
reasonable expenses properly incurred by Consultant in the course of this
representation. Such expenses may include, but shall not be limited to, items
such as filing fees, travel, lodging, meals, telephone calls, photocopying,
facsimiles and courier services.
(c) Upon the adoption by the Company of a stock option and incentive
plan (the "OPTION PLAN"), Consultant shall be eligible to participate in such
Option Plan as determined from time to time by the Board of Directors in its
sole discretion.
(d) Consultant shall be eligible for receipt of bonus compensation
as determined from time to time by the Board of Directors in its sole
discretion.
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Section 5. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the
provisions of SECTION 2, Consultant's engagement under this Agreement shall
terminate on the last day of the Engagement Period as determined pursuant to
SECTION 2, unless earlier terminated under the following circumstances set forth
in this SECTION 5 (such date of termination, as applicable, the "TERMINATION
DATE").
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Engagement Period may
be terminated by the Company for Cause without further liability on the part of
the Company effective immediately upon a vote of the Board of Directors and
written notice to Consultant. "CAUSE" shall mean a finding by the Board of
Directors that Consultant has (a) acted with gross negligence or willful
misconduct in connection with the performance of his duties hereunder, (b)
committed an act of common law fraud against the Company, its subsidiaries or
their respective affiliates and executive officers; (c) been convicted of a
felony; (d) embezzled assets of the Company or any of its subsidiaries; or (e)
engaged in an activity constituting moral turpitude, which in the discretion of
the Board of Directors has had a material adverse impact on the performance of
Consultant's duties hereunder.
(b) TERMINATION BY CONSULTANT. The Engagement Period may be
terminated by Consultant by written notice to the Board of Directors at least
ninety (90) days prior to such termination, such termination to be effective on
the date specified in such notice.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Engagement Period
may be terminated by the Company upon a vote of the Board of Directors without
Cause upon written notice to Consultant, such termination to be effective twelve
(12) months after the giving of such notice (such twelve-month period, the
"TERMINATION PERIOD"); PROVIDED, HOWEVER, that Consultant's engagement during
the Termination Period shall remain subject to earlier termination pursuant to
the provisions of SECTIONS 5(a), (b), (e), and (f).
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically
provided in this Agreement, all of the Company's obligations under this
Agreement shall terminate on Termination Date. Notwithstanding the foregoing, in
the event of termination of Consultant's engagement with the Company pursuant to
SECTION 5(c) above, the Company shall, until the expiration of the Termination
Period, continue to pay Consultant the Fee (the "TERMINATION BENEFITS").
Immediately upon the expiration of the Termination Period, all of the Company's
obligations under this Agreement shall terminate. Any payments made pursuant to
this SECTION 4(d) shall be made in accordance with SECTION 4(a), and Consultant
shall not be entitled to receive any lump-sum payment.
(e) DISABILITY. If Consultant shall be disabled so as to be unable
to perform the essential functions of Consultant's then existing position or
positions under this Agreement for a continuous four (4) month period with or
without reasonable accommodation, the Board of Directors may remove Consultant
from any responsibilities and/or reassign Consultant to another position with
the Company for the remainder of the applicable Engagement Period or during the
period of such disability. Notwithstanding any such removal or reassignment,
Consultant shall continue to receive Consultant's Fee (less any disability pay
or sick pay benefits to which Consultant may be entitled under the Company's
policies) and benefits under SECTION 4 of this Agreement (except to the extent
that Consultant may be ineligible for one or more such benefits
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under applicable plan terms) for a period of time equal to six (6) months
following the Termination Date. If any question shall arise as to whether during
any period Consultant is disabled so as to be unable to perform the essential
functions of Consultant's then existing position or positions with or without
reasonable accommodation, Consultant may, and at the request of the Company
shall, submit to the Company a certification in reasonable detail by a physician
selected by the Company to whom Consultant or Consultant's guardian has no
reasonable objection as to whether Consultant is so disabled or how long such
disability is expected to continue, and such certification shall for the
purposes of this Agreement be conclusive of the issue. Consultant shall
cooperate with any reasonable request of the physician in connection with such
certification. If such question shall arise and Consultant shall fail to submit
such certification, the Company's determination of such issue shall be binding
on Consultant. Nothing in this SECTION 5(e) shall be construed to waive
Consultant's rights, if any, under existing law including, without limitation,
the Family and Medical Leave Act of 1993, 29 U.S.C. Section 2601 et seq. and the
Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq.
(f) DEATH. Consultant's engagement and all obligations of the
Company hereunder shall terminate upon the death of Consultant, other than the
obligation to pay the earned but unpaid Fee.
(g) Continuing Obligations; Payment of Termination Benefits.
(i) Notwithstanding termination of this Agreement as provided
in this SECTION 5 or any other termination of Consultant's engagement with
the Company, Consultant's obligations under SECTION 6 hereof shall survive
any termination of Consultant's engagement with the Company at any time
and for any reason.
(ii) For the avoidance of doubt, termination of the Engagement
Period in accordance with SECTIONS 5(a), (b), and (f) shall be without
further liability on the part of the Company to provide any Termination
Benefits hereunder and any Termination Benefits payable pursuant to
SECTION 5(d) or other amounts payable pursuant to SECTION 5(e) shall be
payable on the last day of each calendar month.
Section 6. Confidentiality; Proprietary Rights.
(a) In the course of performing services hereunder on behalf of the
Company (for purposes of this SECTION 6 including all predecessors and
successors of the Company) and its affiliates, Consultant has had and from time
to time will have access to Confidential Information (as defined below).
Consultant agrees (a) to hold the Confidential Information in strict confidence,
(b) not to disclose the Confidential Information to any person (other than in
the ordinary course of the regular business of the Company or its affiliates),
and (c) not to use, directly or indirectly, any of the Confidential Information
for any purpose other than on behalf of the Company and its affiliates. All
documents, records, data, apparatus, equipment and other physical property,
whether or not pertaining to Confidential Information, that are furnished to
Consultant by the Company or are produced by Consultant in connection with
Consultant's engagement will be and remain the sole property of the Company. On
or prior to the Termination Date or as and when otherwise requested by the
Company, all Confidential Information (including, without limitation, all data,
memoranda, customer lists, notes, programs
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and other papers and items, and reproductions thereof relating to the foregoing
matters) in Consultant's possession or control, shall be immediately returned to
the Company.
(b) Consultant hereby confirms that Consultant is not bound by the
terms of any agreement with any previous employer or other party that restricts
in any way Consultant's use or disclosure of information or Consultant's
engagement in any business. Consultant represents to the Company that
Consultant's execution of this Agreement, Consultant's engagement with the
Company and the performance of Consultant's proposed duties for the Company will
not violate any obligations Consultant may have to any such previous employer or
other party. In Consultant's work for the Company, Consultant will not disclose
nor make use of any information in violation of any agreements with or rights of
any such previous employer or other party, and Consultant will not bring to the
premises of the Company any copies or other tangible embodiments of non-public
information belonging to or obtained from any such previous engagement or other
party without the permission of the appropriate party.
(c) During and after the Engagement Period, Consultant shall
reasonably cooperate with the Company in the defense or prosecution of any
claims or actions now in existence or which may be brought in the future against
or on behalf of the Company or any of its affiliates that relate to events or
occurrences that transpired while Consultant was engaged by the Company.
Consultant's reasonable cooperation in connection with such claims or actions
shall include, but not be limited to, being available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the Company
or any of its affiliates at mutually convenient times. During and after the
Engagement Period, Consultant also shall reasonably cooperate with the Company
in connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while Consultant was engaged by the Company. The
Company shall reimburse Consultant for any reasonable out-of-pocket expenses
incurred in connection with Consultant's performance of obligations pursuant to
this SECTION 6(c). In connection with the foregoing, at any time during the
Engagement Period and during the Termination Period, Consultant shall provide
such cooperation at the reasonable request of the Company, and Consultant shall
not be entitled to any additional compensation or Fee other than as specifically
set forth herein. In the event that, at any time following the Termination
Period, the Company requires the aforementioned cooperation of Consultant, the
Company and Consultant shall determine a mutually agreeable hourly rate (the
"Hourly Rate") and the Company shall pay Consultant the Hourly Rate as
consideration for such cooperation reasonably requested by the Company and
provided by Consultant.
(d) Consultant recognizes that the Company and its affiliates
possess a proprietary interest in all of the information described in SECTION
6(a) and have the exclusive right and privilege to use, protect by copyright,
patent or trademark, or otherwise exploit the processes, ideas and concepts
described therein to the exclusion of Consultant, except as otherwise agreed
between the Company and Consultant in writing. Consultant expressly agrees that
any products, inventions, discoveries or improvements made by Consultant or
Consultant's agents or affiliates in the course of Consultant's engagement which
is based on or arises out of the information described in SECTION 6(a), shall be
the property of and inure to the exclusive benefit of the Company. Consultant
further agrees that any and all products, inventions, discoveries or
improvements developed by Consultant (whether or not able to be protected by
copyright, patent
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or trademark) during the course of his engagement, and involving the use of the
time, materials or other resources of the Company or any of its affiliates,
shall be promptly disclosed to the Company and shall become the exclusive
property of the Company, and Consultant shall execute and deliver any and all
documents necessary or appropriate to implement the foregoing.
(e) During the Engagement Period, Consultant will offer or otherwise
make known or available to it, as directed by the Board of Directors and without
additional compensation or consideration, any business opportunities that
Consultant may discover, find, develop or otherwise have available to Consultant
in the Company's general industry and further agrees that any such prospects,
contacts or other business opportunities shall be the property of the Company.
(f) Consultant acknowledges that the provisions of this SECTION 6
are an integral part of Consultant's engagement by the Company.
(g) For purposes of this Agreement, the term "CONFIDENTIAL
INFORMATION" shall mean: information belonging to the Company or any of its
subsidiaries which is of value to the Company or any of its subsidiaries or with
respect to which Company or any of its subsidiaries has right in the course of
conducting its business and the disclosure of which could result in a
competitive or other disadvantage to the Company or any of its subsidiaries.
Confidential Information includes information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including, by way of example and without
limitation, trade secrets, ideas, concepts, designs, configurations,
specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts processes, techniques, formulas, software, improvements, inventions,
data, know-how, discoveries, copyrightable materials, marketing plans and
strategies, sales and financial reports and forecasts, studies, reports,
records, books, contracts, instruments, surveys, computer disks, diskettes,
tapes, computer programs and business plans, prospects and opportunities (such
as possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Company or any of its
subsidiaries. Confidential Information includes information developed by
Consultant in the course of Consultant's engagement by the Company, as well as
other information to which Consultant may have access in connection with
Consultant's engagement. Confidential Information also includes the confidential
information of others with which the Company or any of its subsidiaries has a
business relationship. Notwithstanding the foregoing, Confidential Information
does not include information in the public domain, unless due to breach of
Consultant's duties under SECTION 6(a).
Section 7. PARTIES IN INTEREST; CERTAIN REMEDIES. It is specifically
understood and agreed that this Agreement is intended to confer a benefit,
directly or indirectly, on the Company and its direct and indirect subsidiaries
and affiliates, and that any breach of the provisions of this Agreement by
Consultant or any of Consultant's affiliates will result in irreparable injury
to the Company and its subsidiaries and affiliates, that the remedy at law alone
will be an inadequate remedy for such breach and that, in addition to any other
remedy it may have, the Company or its subsidiaries and affiliates shall be
entitled to enforce the specific performance of this Agreement by Consultant
through both temporary and permanent injunctive relief without the necessity of
posting a bond or proving actual damages, but without limitation of their right
to damages and
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any and all other remedies available to them, it being understood that
injunctive relief is in addition to, and not in lieu of, such other remedies.
Section 8. Dispute Resolution.
Each of the Company and Consultant (a) hereby unconditionally and
irrevocably submits to the non-exclusive jurisdiction of the United States
District Court for the District of New York, for the purpose of enforcing the
award or decision in any such proceeding and (b) hereby waives, and agrees not
to assert in any civil action to enforce the award, any claim that it is not
subject personally to the jurisdiction of the above-named court, that its
property is exempt or immune from attachment or execution, that the civil action
is brought in an inconvenient forum, that the venue of the civil action is
improper or that this Agreement or the subject matter hereof may not be enforced
in or by such court, and (c) hereby waives and agrees not to seek any review by
any court of any other jurisdiction which may be called upon to grant an
enforcement of the judgment of any such court and (d) hereby unconditionally and
irrevocably waives all rights to trial by jury in any suit, action, proceeding
or counterclaim arising out of or relating to this Agreement. Each of the
Company and Consultant hereby consents to service of process by registered mail
at the address to which notices are to be given. Each of the Company and
Consultant agrees that its submission to jurisdiction and its consent to service
of process by mail is made for the express benefit of the other parties hereto.
Final judgment against the Company or Consultant in any such action, suit, or
proceeding may be enforced in other jurisdictions by suit, action, or proceeding
on the judgment, or in any other manner provided by or pursuant to the laws of
such other jurisdiction; PROVIDED, HOWEVER, that any party may at its option
bring suit, or institute other judicial proceedings, in any state or federal
court of the United States or of any country or place where the other parties or
their assets, may be found.
Section 9. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if faxed (with transmission acknowledgment received), delivered
personally or by nationally-recognized overnight courier (providing proof of
delivery) or mailed by certified or registered mail (return receipt requested)
as follows:
To the Company:
MQ Associates, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: The Members of the Board of Directors
with a copy to:
X'Xxxxxxxx LLP
00 Xxxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
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Attention: Xxxxxxxxxxx X. Xxxxxxxx, Esq.
To Consultant:
c/o MQ Associates, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
Section 10. HIPAA COMPLIANCE. To the extent required by and upon the
compliance date of the Privacy Regulations promulgated by the United States
Department of Health and Human Services and contained in 45 C.F.R. Parts 160 and
164 pursuant to the Health Insurance Portability and Accountability Act of 1996,
42 U.S.C. Sections 1320d-1329d-8 (the "REGULATIONS"), the parties shall enter
into a mutually acceptable Business Associate (as that term is defined in the
Regulations) Agreement whereby Consultant shall agree to only use and/or
disclose protected health information in accordance with Business Associate
provisions of the Regulations.
Section 11. ACCESS TO BOOKS AND RECORDS. Upon written request of the
Secretary of Health and Human Services or the Comptroller General or any of
their duly authorized representatives to either party, the other party will make
available those contracts, books, documents, and records necessary to verify the
nature and extent of the costs of providing services under this Agreement. Such
inspection shall be available up to four (4) years after the rendering of such
services. If either party carries out any of the duties of this Agreement
through a subcontract with a value of $10,000 or more over a twelve (12) month
period with a related individual or organization, that party agrees to include
this requirement in any such subcontract. This section is included pursuant to
and is governed by the requirements of Public Law 96-499, Sec. 952 (Sec.
1861(v)(1) of the Social Security Act) and the regulations promulgated
thereunder. No attorney-client or other legal privilege will be deemed to have
been waived by the Company or by Consultant by virtue of this provision.
Section 12. SCOPE OF AGREEMENT. Consultant has independently consulted
with counsel and has been advised in all respects concerning the reasonableness
and propriety of the covenants and other provisions contained herein, with
specific regard to the business to be conducted by Company and its subsidiaries
and affiliates, and represents that this Agreement is intended to be, and shall
be, fully enforceable and effective in accordance with its terms.
Section 13. SEVERABILITY. In the event that any covenant contained in this
Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or by
reason of its being too extensive in any other respect, it shall be interpreted
to extend only over the maximum period of time for which it may be enforceable
and/or to the maximum extent in all other respects as to which it may be
enforceable, all as determined by such court in such action. The existence of
any claim or cause of action which Consultant may have against the Company or
any of its subsidiaries or affiliates
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shall not constitute a defense or bar to the enforcement of any of the
provisions of this Agreement.
Section 14. MISCELLANEOUS. This Agreement shall be governed by and
construed under the laws of the State of New York, without consideration of its
choice of law provisions, and shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by both of the parties
hereto. The failure of either of the parties to require the performance of a
term or obligation or to exercise any right under this Agreement or the waiver
of any breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement shall inure to the
benefit of, and be binding upon and assignable to, successors of the Company by
way of merger, consolidation or sale and may not be assigned by Consultant. This
Agreement supersedes and terminates all prior understandings and agreements in
their entirety between the parties (or their predecessors) relating to the
subject matter hereof, including the Original Agreement. For purposes of this
Agreement, the term "PERSON" means an individual, corporation, partnership,
association, trust or any unincorporated organization; a "SUBSIDIARY" of a
person means any corporation more than 50 percent of whose outstanding voting
securities, or any partnership, joint venture or other entity more than 50
percent of whose total equity interest, is directly or indirectly owned by such
person; and an "AFFILIATE" of a person shall mean, with respect to a person or
entity, any person or entity which directly or indirectly controls, is
controlled by, or is under common control with such person or entity.
* * *
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IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement under seal as of the date first set forth above.
MQ ASSOCIATES, INC.
By: /s/ XXXX XXXXXXX
----------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
CONSULTANT:
XXXXXXX X. XXXXXXX, XX.
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Xxxxxxx X. Xxxxxxx, Xx.
