Exhibit 10.18
CONSULTING AGREEMENT
This CONSULTING AGREEMENT is made and entered into this 9th day of
November, 1999, by and between Medical Resources, Inc., a Delaware corporation
with its principal place of business at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxx Xxxxxx, xx behalf of itself and each of its subsidiaries (hereinafter,
individually and collectively, the "Company") and Xxxxx X. Xxxxxxxxx, an
individual residing at 000 Xxxxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx
(hereinafter, "Consultant").
WHEREAS, the Company and Consultant have entered into an Employment
Agreement dated as of January 30, 1998 and as amended (as amended, the
"Employment Agreement"); and
WHEREAS, pursuant to Section 10 (b) of the Employment Agreement, the
Employment Agreement may be amended or modified only by a written agreement
executed by the parties thereto; and
WHEREAS, the Company and Consultant have mutually agreed that, as of the
Effective Date (as defined below), the Consultant's services as an employee
under the Employment Agreement shall terminate and Consultant shall be retained
by the Company as a consultant, as set forth herein; and
WHEREAS, the Company now desires that Consultant provide advisory and
consulting services to the Company including, in particular, services related to
the Company's pursuit of strategic alternatives; and
WHEREAS, the Company and Consultant have mutually agreed that, as of the
Effective Date and except as expressly set forth herein, this Consulting
Agreement shall supersede and render null and void the Employment Agreement in
its entirety and all other agreements, plans or policies pursuant to which
Consultant may have any compensatory or other claims against the Company, in
their entirety; and
WHEREAS, the Company and Consultant have mutually agreed that they shall
be bound by this Consulting Agreement.
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties do hereby agree as follows:
1. EFFECTIVE DATE, TERMINATION DATE AND TERM. This Consulting Agreement is
effective as of November 10, 1999 (the "Effective Date"). The term of this
Consulting Agreement shall commence on the Effective Date and shall end on the
"Termination Date" which shall be February 9, 2001. For purposes of this
Consulting Agreement, the period commencing on the Effective Date and ending on
the Termination Date shall be referred to as the "Term."
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2. CONSULTING SERVICES AND RELATIONSHIP.
2.1 SERVICES. During the Term, Consultant shall provide consulting and
advisory services to the Company as may be mutually agreed upon by Consultant
and the Company from time to time; PROVIDED THAT, any failure of the parties to
agree to the specific consulting and advisory services to be performed by
Consultant hereunder shall not constitute a breach of this Consulting Agreement
by either party.
2.2 RELATIONSHIP. Consultant shall be an independent contractor, and not
an employee of the Company, within the meaning of all federal, state and local
laws and regulations governing employment insurance, workers' compensation,
industrial accidents, labor and taxes. From and after the Effective Date, except
as provided in Section 3.3 hereof, Consultant shall not, by reason of this
Consulting Agreement, acquire any additional benefits, privileges or rights
under any benefit plan operated by the Company or its subsidiaries or affiliates
for the benefit of their employees, including, without limitation, (a) any
pension or profit-sharing plans or (b) any "employee welfare plans" (as defined
in Section 3 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")).
3. COMPENSATION AND BENEFITS.
3.1 BASE COMPENSATION. During the Term of this Consulting Agreement, the
Company shall pay to Consultant the sum of $23,500 per month (or a pro-rata
portion of such amount for the months during which the Term commences or
expires), on or before the fifteenth day of each month, PROVIDED THAT,
Consultant must immediately advise the Company of any and all of his gross
earnings from personal services during the Term, whether earned as consultant,
proprietor, employee or agent (hereinafter, "Interim Earnings"), and such
Interim Earnings, when and as earned, shall be offset against and deducted from,
on a dollar-for-dollar basis, the amounts otherwise prospectively due and
payable to Consultant solely pursuant to this Section 3.1. Notwithstanding the
foregoing, Interim Earnings shall not include directors fees, stock-based gains
and compensation and employer-provided fringe benefits conveyed to Consultant in
any form other than cash and whether taxable or not. The first payment to
Consultant under this Section 3.1, if such amount shall become due and payable
hereunder, shall be due on December 15, 1999.
3.2 PARTIAL BONUS. If, and only if, the Company pays cash bonuses to one
or more of its corporate officers with respect to, in whole or in part, the 1999
calendar year, the Company shall pay to Consultant an amount of cash bonus
determined by the Company's Board of Director's, acting in good faith, to have
been earned by Consultant, in his capacity as an executive and senior officer of
the Company, for the portion of the 1999 calendar year that Consultant was
employed by the Company.
3.3 HEALTH INSURANCE. During the Term, the Company shall continue to
provide benefits to Consultant under the Company's health and dental insurance
plans at the same levels as such benefits shall have been provided to Consultant
in his capacity as an employee of the
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Company immediately prior to the Effective Date and, in connection therewith,
Consultant shall periodically pay to the Company amounts equivalent to that
which he paid as required employee contributions immediately prior to the
Effective Date; PROVIDED THAT, the Company shall not be required to provide any
such benefit if the effect thereof would be to violate the terms of any law,
plan or insurance policy or jeopardize the tax benefit associated with such
benefit to which the Company otherwise would be entitled, but in such event, the
Company shall pay to Consultant, in cash, an amount equal to the Company's
contribution to the cost of providing such benefit for Consultant as of the
Effective Date; AND PROVIDED FURTHER THAT, if Consultant becomes eligible to
receive health and/or dental insurance benefits under another group insurance
plan, the corresponding benefits described herein shall be terminated. Any such
benefits provided under another group insurance plan shall be promptly reported
by Consultant to the Company as Consultant becomes eligible therefor.
3.4 EXPENSE REIMBURSEMENT. Consultant shall be reimbursed in accordance
with the Company's current Travel And Entertainment Policy (the "T&E Policy")
for all reasonable "out-of-pocket" business expenses which are incurred both,
(a) during the Term, and (b) in connection with the performance of his duties
under this Consulting Agreement (hereinafter, "Reimbursable Expenses").
Reimbursable Expenses shall include, but shall not be limited to, expenses
incurred by Consultant traveling to and from the Hackensack, New Jersey area in
connection with the performance of his duties under this Consulting Agreement;
in this regard, round trip automobile mileage will be reimbursed at the rate of
$.31 per mile and round trip air travel will be reimbursed at coach class air
fare rates. Reimbursable Expenses shall also include temporary lodging expenses
incurred in the Hackensack, New Jersey area in connection with the performance
of his duties under this Consulting Agreement during any period that temporary
housing is not available to Consultant pursuant to Section 3.5 of this
Consulting Agreement. The reimbursement of Consultant's business expenses
pursuant to this Section 3.4 shall be upon presentation to and approval by the
Company of valid receipts and other appropriate documentation for such expenses.
3.5 TEMPORARY HOUSING. During the Term of this Consulting Agreement, the
Company shall reimburse Consultant for his actual cost of renting and
maintaining an apartment in the Hackensack, New Jersey area (including charges
for the telephone therein), up to a maximum of $3,500 per month, PROVIDED THAT,
the Company may terminate this benefit, at any time and at its discretion, upon
its giving Consultant at least one calendar month's advance notice.
3.6 CONTINUED USE OF COMPANY EQUIPMENT. During the Term of this
Consulting Agreement, Consultant may retain in his possession, for his business
and personal use and at no charge, that Company-owned portable computer,
dictation and cell phone equipment which he had the use of while an employee of
the Company immediately prior to the Effective Date. In connection therewith,
during the Term, Consultant shall be provided with Company-paid internet access
(i.e., an ISP account) and Company-paid cell phone usage services, PROVIDED
THAT, the Company-paid cost of such cell phone usage services shall be limited
to $100. per month. Cell phone service charges exceeding $100. per month shall
be reimbursable to the Company by Consultant when and as incurred and reasonably
after the presentation of an invoice by the Company to Consultant. As of the
Termination Date, all of the equipment described in this Section 3.6 shall be
returned by Consultant to the Company.
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4. TERMINATION.
4.1 BREACH. In the event that either party materially breaches any
obligation under this Consulting Agreement, and such breach is not remedied by
the breaching party within five (5) business days of receipt of written notice
from the other party hereto, such non-breaching party shall have no further
obligations hereunder.
4.2 DEATH. In the event of Consultant's death during the Term,
Consultant's services hereunder shall immediately terminate and the Company
shall, until the expiration of the Term, (a) pay to Consultant's estate, the
amounts described in Section 3.1 hereof, and (b) provide to or for Consultant's
family members those benefits specified in Section 3.3 hereof, PROVIDED THAT,
any cash payments that otherwise would be made to Consultant in accordance with
the first proviso in Section 3.3 hereof, shall instead be paid to Consultant's
estate, heirs or devisees, as appropriate under the circumstances. Except as
expressly set forth in this Section 4.2, in the event of Consultant's death, the
Company shall have no further obligations to Consultant under this Consulting
Agreement.
5. CONFIDENTIALITY OF TRADE SECRETS AND OTHER MATERIALS.
5.1 TRADE SECRETS. Other than in the performance of his duties
hereunder, Consultant agrees not to disclose, either during the Term or at any
time thereafter, to any person, firm or corporation any information concerning
the business affairs, the trade secrets or the customer lists and similar
confidential information of the Company including, but not limited to, trade
secrets, lists of past or present clients or customers, (which for purposes of
this Consulting Agreement shall include referring physicians and referring
medical entities such as managed care organizations), client or consultant
contracts, product or service development plans, marketing plans, pricing
policies, business acquisition plans (including acquisition targets) or any
portion or phase of any technical information, technique, method, process,
procedure, or technology used by the Company or any portion or phase of any
technical information, ideas, discoveries, designs, computer programs (including
source or object codes), processes, procedures, formulae or improvements of the
Company that is or are valuable (whether or not in written or tangible form) and
including all memoranda, notes, plans, reports, records, documents and other
evidence thereof and any other information of whatever nature gives the Company
an opportunity to obtain an advantage over its competitors who do not have
access or know-how to use such information shall be considered a "trade secret"
for the purposes of this Consulting Agreement.
5.2 OWNERSHIP OF TRADE SECRETS; ASSIGNMENT OF RIGHTS. Consultant hereby
agrees that all know-how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files and materials made by him or by the
Company are the property of the Company and shall not be used by him in any way
adverse to the Company's interests. Consultant shall not deliver, reproduce or
in any way allow such documents or things to be delivered or used by any third
party without specific direction or consent of the Board of Directors of the
Company. Consultant hereby assigns to the Company any rights which he may have
in any such trade secrets or proprietary information.
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6. AGREEMENT NOT TO COMPETE; AGREEMENT NOT TO BENEFIT.
6.1 AGREEMENT NOT TO COMPETE. In consideration of the compensation (and
other benefits) provided and to be provided to Consultant as set forth
hereunder, Consultant hereby covenants and agrees that during the Term and for a
period of six (6) months after the Termination Date (such period not to include
any period(s) of violation of this Section 6 or period(s) of time required for
litigation to enforce its provisions), Consultant will not, directly or
indirectly, engage in, enter into or participate in, at any place within the
United States of America, any business or commercial activity that competes with
or is reasonably likely to compete with or adversely affect the businesses or
services of the Company, either as an individual for his own account, or as a
partner or a joint venturer, or as an officer, director, independent contractor
or holder of more than a five percent equity interest in any other person, firm,
partnership or corporation, or as an employee, agent or salesperson for any
person.
6.2 AGREEMENT NOT TO BENEFIT. In consideration of the compensation (and
other benefits) provided and to be provided to Consultant as set forth
hereunder, Consultant covenants and agrees that during the Term and for a period
of six (6) months after the Termination Date (such period not to include any
period(s) of violation of this Section 6 or period(s) of time required for
litigation to enforce its provisions), Consultant will not, directly or
indirectly: (i) solicit, induce or influence, or otherwise have business contact
with, any person or entity who has, within the two-year period immediately prior
to the Effective Date, been a client, customer, supplier or service provider
(including, without limitation, a provider of radiology and/or consulting
services) of or to the Company, and with whom Consultant had any business
relationship or about whom Consultant acquired any significant knowledge during
the course of Consultant's employment by the Company, if such contact could
directly or indirectly divert business from or adversely affect the business of
the Company; (ii) interfere with the contractual relations between the Company
and any of its employees; or (iii) employ or cause to be employed in any
capacity, or retain or cause to be retained as a consultant, any person who was
employed by the Company at any time during the six (6) month period ended on the
Effective Date.
7. EMPLOYMENT AGREEMENT PROVISIONS INCORPORATED HEREIN BY REFERENCE. The
provisions of Section 9 (a) through (i), inclusive, of Consultant's Employment
Agreement, which covers INDEMNIFICATION, and the provisions of Section 4 (d) (A)
through (C), inclusive, of Consultant's Employment Agreement, which covers
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY, are incorporated herein by reference
and made an integral part hereof in their entirety, PROVIDED THAT, for purposes
of this Consulting Agreement, the term "Executive" in each place where it
appears therein shall be replaced by and substituted with the term "Consultant"
herein and, PROVIDED FURTHER THAT, the scope of the provisions covering
INDEMNIFICATION herein shall be extended to cover Consultant's services to the
Company as a consultant under the terms of this Consulting Agreement.
8. INJUNCTIVE RELIEF. Consultant acknowledges and agrees that, in the event
of any breach or likely breach of any of the covenants of Sections 5 or 6
herein, the Company and any relevant affiliate(s) would incur damages in an
amount difficult to ascertain and/or be irreparably harmed and could not be made
whole solely by monetary damages. It is accordingly agreed that such persons, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to injunctive relief in respect of such breach or likely
breach as may be ordered by any court of competent jurisdiction including, but
not limited to, an injunction restraining any violation of Sections 5 or 6
herein and without the proof of actual damages. It is intended to grant full
third party rights under this provision.
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9. INDEPENDENCE AND SEVERABILITY OF COVENANTS. Consultant acknowledges and
agrees that the covenants and other provisions set forth in Sections 5 and 6
herein are reasonable, including with respect to duration and subject matter,
and that he is receiving valuable and adequate consideration for such covenants
under this Consulting Agreement. The parties acknowledge that it is their
intention that all such covenants and provisions be enforceable to the fullest
extent possible under applicable law. If any of the provisions set forth in
Sections 5 or 6 are found to be unenforceable in any instance, such finding
shall not preclude any other enforcement of such provisions and reference is
made to Section 11. If any of the provisions set forth in Sections 5 or 6 are
found to be invalid, such finding or invalidity shall not effect the validity of
the remaining provisions and the provisions of Section 11 will apply.
10. ASSIGNMENT. This Consulting Agreement shall not be assigned or transferred
by either party hereto without the prior written consent of the other party.
This Consulting Agreement shall be binding upon and inure to the benefit of all
of the parties hereto and their respective permitted heirs, personal
representatives, successors and assigns.
11. SEVERABILITY/CONSTRUCTION. Nothing contained herein shall be construed to
require the commission of any act contrary to law. If any provision of this
Consulting Agreement, including all the covenants and agreements set forth
herein, or the application thereof to any person or circumstance, shall for any
reason and to any extent be unenforceable, including without limitation by
reason of such provision extending for too great a period of time or by reason
of its being too extensive in any other respect, such provision, to the specific
extent that it is unenforceable, shall be interpreted to extend only over the
maximum period of time and to the maximum extent as to which it is enforceable,
in order to effectuate the parties' intention, as represented hereby, to the
greatest extent possible. Any such interpretation shall have no effect on the
validity or enforceability of any remaining provision. If any material provision
or material portion of a material provision of this Consulting Agreement is
found to be void or invalid, the parties will use best efforts to maintain its
continuing effect, validity and enforceability in every other instance or, if
deemed necessary or appropriate by the party for whose benefit the provision was
intended, will endeavor to substitute a replacement having as far as possible
the same legal and economic effect.
12. GOVERNING LAW. This Consulting Agreement is made under and shall be
construed pursuant to the laws of the State of New Jersey, without regard to its
conflict-of-laws rules.
13. DISPUTE RESOLUTION.
(a) Without limiting the Company's rights and remedies set forth in
Section 8 herein, disputes relating to this Consulting Agreement shall be
settled by arbitration conducted in accordance with the CPR Non-Administered
Arbitration Rules, as more particularly described in
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this Section 10.4 (the "Arbitration Rules"). The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. ss.ss.1-16, and (notwithstanding
anything herein to the contrary) judgment upon the award rendered by the
Arbitrator(s) may be entered by any court having competent jurisdiction. The
place of the arbitration shall be New York, New York.
(b) There will be three neutral arbitrators ("Arbitrators") who will be
practicing attorneys and will be selected as follows: one (1) by the Consultant,
one (1) by the Company, and one (1) by mutual agreement of the parties to the
arbitration and, in the absence of such agreement, will be chosen from the
professional staff of J.A.M.S./Endispute or, if it is not then in existence,
from the professional staff of another reputable dispute resolution firm agreed
to by the parties.
(c) The parties intend that the Arbitrators shall resolve any dispute
arising hereunder based upon the language of this Consulting Agreement and the
usual rules of contract interpretation. All awards and orders of the Arbitrators
may be enforced by any court of competent jurisdiction.
(d) The parties intend that the arbitration proceeding be conducted as
expeditiously as possible and that appropriate rights of discovery be granted to
each party to such arbitration (as determined by the Arbitrators). In that
regard, the parties to such arbitration agree to work together in good faith to
arrive upon mutually acceptable procedures regarding the time limits for, and
type and degree of, such rights of discovery and the periods of time within
which the matters submitted to arbitration must be heard and determined by the
Arbitrators. If the parties to such arbitration are unable to so agree, such
issues will be submitted to the Arbitrators for their determination. If proper
notice of any hearing has been given, the Arbitrators will have full power to
proceed to take evidence or to perform any other acts necessary to arbitrate the
matter in the absence of any party who fails to appear. The Arbitrators,
attorneys, parties to the arbitration, witnesses, experts, court reporters, or
other persons present at the arbitration shall agree in writing to maintain the
strict confidentiality of the arbitration proceedings.
(e) The parties to any arbitration, by written stipulation, may expand
or contract the rights, duties or obligations provided above, or otherwise
modify the arbitration procedures as suit their convenience, consistent with
what is otherwise permitted and feasible within the framework of the Arbitration
Rules.
(f) Any decision or award of the Arbitrators shall be final and binding
upon the parties to the arbitration proceeding, except to the extent otherwise
expressly provided by New Jersey law. The parties hereto hereby waive to the
extent permitted by law any rights to appeal or to a review of such award by any
court or tribunal. The parties agree that the award of the Arbitrators may be
enforced against the parties to the proceeding or their assets wherever they may
be found.
14. COUNTERPARTS. This Consulting Agreement may be executed in several
counterparts and all documents so executed shall constitute one agreement,
binding on all of the parties hereto, notwithstanding that all of the parties
did not sign the original or the same counterparts.
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15. ENTIRE AGREEMENT. This Consulting Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
16. MODIFICATION. This Consulting Agreement may be modified, amended,
superseded, or canceled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written instrument
executed by the party or parties to be bound by any such modification,
amendment, supersession, cancellation, or waiver.
17. WAIVER. The waiver by either of the parties, express or implied, of any
right under this Consulting Agreement or any failure to perform under this
Consulting Agreement by the other party, shall not constitute or be deemed as
a waiver of any other right under this Consulting Agreement or any other
failure to perform under this Consulting Agreement by the other party,
whether of a similar or dissimilar nature.
18. CUMULATIVE REMEDIES. Each and all of the several rights and remedies
provided in this Consulting Agreement, or by law or in equity, shall be
cumulative, and no one of them shall be exclusive of any other right or remedy,
and the exercise of any one or such rights or remedies shall not be deemed a
waiver of, or an election to exercise, any other such right or remedy.
19. HEADINGS. The section and other headings contained in this Consulting
Agreement are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Consulting Agreement.
20. NOTICES. Any notice under this Consulting Agreement must be in writing,
may be telecopied, sent by express 24 hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the United States
mail, addressed to the party to be notified, postage-prepaid and registered or
certified with a return receipt requested. The addresses of the parties for the
receipt of notice shall be as follows:
If to the Company: If to Consultant:
Medical Resources, Inc. Xxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxx Xxxxxxx, XX 00000
Attn: CEO
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
21. SURVIVAL. Any provision of this Consulting Agreement which imposes an
obligation after termination or expiration of this Consulting Agreement shall
survive the termination or expiration of this Consulting Agreement and be
binding on Consultant and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be executed as of the date first set forth above.
Medical Resources, Inc. Consultant
By: /s/ D. Xxxxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
------------------------ --------------------------
Name: D. Xxxxxx Xxxxxxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Chairman
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