EXHIBIT 10.102
CONSULTING AGREEMENT
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CONSULTING AGREEMENT dated as of February 1, 1997 between RAMSAY HEALTH
CARE, INC., a Delaware corporation (the "Company"), and SUMMA HEALTHCARE GROUP,
INC., a Florida corporation (the "Consultant").
W I T N E S S E T H:
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WHEREAS, the Company desires to engage the Consultant to provide certain
advisory and consulting services with respect to the business of the Company,
and the Consultant is willing to provide such services on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto hereby agree as follows:
1. Agreement. The Company hereby retains the Consultant, and the
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Consultant hereby agrees, to render to the Company the consulting services
described in Section 3 on the terms and conditions set forth herein.
2. Term. The term of this Agreement shall commence as of February 1, 1997
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and shall continue in full force and effect until terminated pursuant to Section
6 of this Agreement.
3. Consulting Services.
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3.1 During the term of this Agreement, the Consultant shall provide the
Company with such advisory and consulting services as shall be requested by the
Chairman of the Company in connection with strategic planning, business
development, investor relations, overall evaluation of the Company's services,
assistance in developing and targeting managed care markets, and assisting with
interaction and liaising with business partners.
3.2 The Consultant shall render its services hereunder through its
principal, Xxxx X. Xxxxxx (the "Principal") and such other individuals as shall
be approved by the Company. The Consultant shall devote such time and attention
as shall be necessary and appropriate to the proper performance of the
Consultant's duties hereunder.
3.3 The Consultant shall report to the Chairman of the Company.
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4. Compensation.
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4.1 In consideration of the services to be provided by the Consultant
hereunder and the other agreements and covenants of the Consultant set forth
herein, the Company shall pay the Consultant a consulting fee of $30,000 per
month, payable in advance on the first day of each month.
4.2 With respect to any significant transactions of the Company as to
which the Consultant shall render substantial consulting or advisory services,
the Consultant shall have a success fee opportunity to be negotiated in good
faith between the Company and the Consultant.
5. Expense Reimbursement. During the term of this Agreement, the Company
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shall reimburse the Consultant for reasonable business expenses, including but
not limited to travel, telephone and telecopying expenses, incurred by the
Consultant in the performance of its duties hereunder. Such reimbursement shall
be made monthly, against invoice of the Consultant accompanied by appropriate
documentation of such expenses.
6. Termination.
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6.1 The term of this Agreement shall terminate on December 31, 1997,
unless extended in accordance with this Section 6.1. As of December 31, 1997,
and as of December 31 of each subsequent year (each, an "Automatic Renewal
Date"), unless either party shall have given a notice of non-extension not less
than three (3) months prior to such Automatic Renewal Date, the term of this
Agreement shall be extended automatically for a period of one year to the
anniversary of the expiration date of the then-current term of this Agreement.
6.2 Either the Company or the Consultant may terminate this Agreement,
with or without reason, by written notice to the other, with an effective date
of not less than three (3) months' following the date such notice is given. The
effective date of any termination pursuant to this Section 6.2 shall not be
prior to January 1, 1998.
6.3 The Consultant may terminate this Agreement, with or without reason,
by written notice to the Company, given at any time within three (3) months of a
change in control of the Company, with an effective date of thirty (30) days
following the date such notice is given. For purposes of this Agreement, a
change in control of the Company shall be deemed to have occurred if:
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(A) a "person" (meaning an individual, a partnership, or other group or
association as defined in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934), other than RHHL (as hereinafter defined) or any affiliate thereof,
acquires fifty percent (50%) or more of the combined voting power of the
outstanding securities of the Company having a right to vote in elections of
directors; or
(B) Continuing Directors (as hereinafter defined) shall for any reason
cease to constitute a majority of the Board of Directors of the Company; or
(C) all or substantially all of the business of the Company is disposed of
by the Company to a party or parties other than a subsidiary or other affiliate
of the Company, in which the Company owns less than a majority of the equity,
pursuant to a partial or complete liquidation of the Company, sale of assets
(including stock of a subsidiary of the Company) or otherwise. For purposes
hereof, a sale or disposition of fifty percent (50%) or more of the assets of
the Company to a party or parties (other than a subsidiary or affiliate of the
Company as above described) shall be deemed a disposition of substantially all
of the business of the Company.
For purposes of this Agreement, the term "Continuing Director" shall mean a
member of the Board of Directors of the Company who either was a member of the
Board of Directors on the date hereof or who subsequently became a Director and
whose election was voted for by Ramsay Holdings HSA Limited ("RHHL") or by a
Continuing Director with the acquiescence of RHHL. A Director shall not be
considered a Continuing Director for purposes of this Agreement if his election
was voted for by RHHL, or by a Continuing Director with the acquiescence of
RHHL, (i) pursuant to an agreement with, or at the direction, request or
suggestion of, any individual, firm or corporation in connection with the
purchase or other acquisition or receipt by such individual, firm or corporation
of all or any shares of capital stock of the Company or (ii) in anticipation of
the sale or other disposition by RHHL of all or any of its shares of capital
stock of the Company.
6.4 Upon termination of this Agreement, the Company shall pay to the
Consultant any portion of the Compensation referred to in Section 4 of this
Agreement earned as of the effective date of such termination and not
theretofore paid, and shall reimburse the Consultant for expenses referred to in
Section 5 of this Agreement incurred through the date of such termination, and
the Company and the Consultant shall have no further rights or obligations under
this Agreement except as provided in Sections 7, 8 and 9 of this Agreement.
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7. Confidential Information.
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7.1 The Consultant and the Principal shall, during the term of this
Agreement and at all times thereafter, treat as confidential and, except as
required in sthe performance of its and his duties under this Agreement, not
disclose, publish or otherwise make available to the public or to any
individual, firm or corporation (other than an employee or professional advisor
of the Company), any confidential material (as hereinafter defined). The
Consultant and the Principal agree that all confidential material is the
exclusive property of the Company, and the Consultant and the Principal agree to
return such material to the Company promptly upon the termination of the
Consultant's services under this Agreement.
7.2 For purposes hereof, the term "confidential material" shall mean all
information in any way concerning the products, projects, activities, business
or affairs of the Company acquired by the Consultant or the Principal in the
course of providing services to the Company; provided, however, that the term
"confidential material" shall not include information which (i) becomes
generally available to the public other than as a result of an unauthorized
disclosure by the Consultant or the Principal, (ii) was available to the
Consultant or the Principal on a non-confidential basis prior to its consultancy
with the Company or (iii) becomes available to the Consultant or the Principal
on a non-confidential basis from a source other than the Company, provided that
such source is not bound by a confidentiality agreement with the Company.
8. Equitable Relief. In the event of a breach or threatened breach by the
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Consultant or the Principal of any of the provisions of Section 7 of this
Agreement, the Consultant hereby consents and agrees that the Company shall be
entitled to pre-judgment injunctive relief or similar equitable relief
restraining the Consultant or the Principal from committing or continuing any
such breach or threatened breach or granting specific performance of any act
required to be performed by the Consultant or the Principal under any of such
provisions, without the necessity of showing any actual damage or that money
damages would not afford an adequate remedy and without the necessity of posting
any bond or other security. Nothing herein shall be construed as prohibiting
the Company from pursuing any other remedies at law or in equity which it may
have.
9. Indemnification. The Company shall defend, indemnify and save harmless
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the Consultant and the Principal against and from any and all loss, liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees and disbursements, which may be imposed upon or
incurred by or asserted against the Consultant
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or the Principal arising out of the performance by the Consultant of its duties
hereunder (unless due to the gross negligence or willful misconduct of the
Consultant or the Principal). In the event that any action or proceeding is
commenced against the Consultant or the Principal with respect to any matter for
which the Consultant or the Principal may be entitled to indemnification
pursuant to this Section 10, the Consultant shall give written notice thereof to
the Company and the Company shall have the right to defend such action or
proceeding with counsel selected by the Company and approved in writing by the
Consultant.
10. Notices. All notices, certificates and other communications hereunder
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shall be in writing and shall be given by personal delivery, overnight courier,
telex, telefax or other electronic means of transmission or by certified or
registered mail, postage prepaid, return receipt requested, to the parties at
the addresses set forth below, or to such other address as a party shall
designate to the other party in writing:
if to the Company:
Ramsay Health Care, Inc.
Columbus Center
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Chairman
Telefax: (000) 000-0000
if to the Consultant:
Summa Healthcare Group, Inc.
X.X. Xxx 000000
Xxxxx Xxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
Telefax: (000) 000-0000
Notices, certificates and other communications shall be deemed given, in the
case of personal delivery, overnight courier, telex, telefax or other electronic
means of transmission, on the date of actual receipt by the party entitled
thereto and, in the case of mailing, on the third day following the date of
deposit in the mails.
11. Entire Agreement. This Agreement constitutes the entire agreement of
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the parties hereto with respect to the subject matter hereof and supersedes the
Consulting Agreement between the parties dated as of January 1, 1996, and no
amendment or modification hereof shall be valid or binding unless made in
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writing and signed by the party against whom enforcement thereof is sought.
12. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto, and their respective successors, heirs,
executors, administrators, legal representatives and assigns.
13. Nonwaiver. No course of dealing nor any delay on the part of the
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Company or the Consultant in exercising any rights hereunder shall operate as a
waiver of any such rights. No waiver of any default or breach of this Agreement
shall be deemed a continuing waiver or a waiver of any other breach or default.
14. Independent Contractor. It is the intention of the parties that the
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Consultant shall be retained by the Company pursuant to this Agreement, and
shall perform its duties hereunder, as an independent contractor. Nothing
herein shall be deemed to create a partnership, joint venture or employment
relationship between the Consultant and the Company.
15. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware.
16. Retention of Records. Until the expiration of four (4) years after
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the furnishing of services pursuant to this Agreement, the Consultant shall upon
written request make available to the Company, the Secretary of the Department
of Health and Human Services, the Comptroller General of the United States, or
any of their duly authorized representatives, this Agreement and any books,
documents, and records that are necessary to verify the nature and extent of the
costs. In addition, the Consultant agrees to promptly notify the Company in the
event any such request is made by the Secretary of Health and Human Services or
the Comptroller General of the United States, or any of their duly authorized
representatives, and to furnish the Company with copies of any documents
furnished to such persons.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
RAMSAY HEALTH CARE, INC.
By_____________________________
SUMMA HEALTHCARE GROUP, INC.
By_____________________________
