1
Exhibit 99.4
INTERIM MANAGEMENT SERVICES AGREEMENT
THIS INTERIM MANAGEMENT SERVICES AGREEMENT is entered into
effective as of January 18, 1996 (the "Effective Date") by and between Work
Recovery, Inc., a Colorado corporation (the "Company"), and The Team for New
Management, L.L.C., a Delaware limited liability company (the "Team").
R E C I T A L S
A. The Company is engaged in the business of providing proprietary
advanced rehabilitation technology and operating related testing clinics.
B. The Company desires to engage the Team to provide it with certain
executive management and consulting services, as provided in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Executive Management Services. During the term hereof, the Company
hereby retains the Team to provide the executive management services that are
generally performed by a corporation's President, Chief Executive Officer,
Chief Operating Officer and Chief Financial Officer (or Comptroller), as the
responsibilities of such officers are more fully described in the Company's
Bylaws, as defined by the reasonable instructions of the Company's Board of
Directors (the "Board") and as subject to the oversight and reasonable
direction of the Board. In particular, the Team will employ Xx. Xxxxxx Xxxxx,
and make her services available to the Company as the Acting President and
Chief Executive Officer of the Company.
2. Consulting Services. During the term hereof, the Company hereby
retains the Team to provide, either directly or through persons or entities
engaged by the Team (including, in particular, persons or entities who are
members of the Team, or affiliated with members of the Team), such consulting
services as may be agreed from time to time by the Team and the Company (acting
through its Board of Directors, or such authority as the Board of Directors may
delegate to one or more officers of the Company).
3. Company Duties. In addition to providing the Team with the
compensation set forth in paragraph 4, below, the Company will have the
following obligations to the Team:
(a) The Company will invest the Team with all rights, authorities
and powers of whatsoever nature as the Team may require to enable it to
properly and efficiently perform the services described in paragraph 1 above.
1
2
(b) The Company will, if called on to do so, ratify and confirm
any act or thing lawfully done or caused to be done by the Team in the proper
performance of its duties hereunder.
(c) The Company will enter into an Indemnification Agreement with
the Team substantially in the form executed with directors and
senior officers of the Company.
(d) The Company will name the Team as an additional insured under
any and all insurance policies covering any officer or
director.
(e) The Company will provide representatives of the Team with all
necessary secretarial facilities and office accommodations, and
other equipment to enable the Team to carry out its services
hereunder while working at the Company's offices.
4. Compensation. The Company will compensate the Team for its services
in the following manner:
(a) The Company will pay to the Team $25,000 per week, with payment
in advance, for its services referred to in paragraph 1.
(b) The Company will pay in advance (as requested by the Team), or
reimburse the Team for, all of the Team's out-of-pocket
expenses (including, without limitation, travel and lodging
expenses) associated with the services provided hereunder.
Amounts will be invoiced monthly, with payment due within 15
days.
(c) Any amounts unpaid when due hereunder will bear interest until
paid at a rate equal to the lesser of (i) three percent (3%)
above the reference rate announced from time to time by Bank of
America, NT&SA, San Francisco, California, or (ii) the maximum
interest rate permissible under applicable law.
5. Certain Reimbursements. Within seven days of the date hereof, the
Company will reimburse the Team for its out-of-pocket expenses, incurred from
and after January 3, 1996 (including from and after the date of this
Agreement), in connection with or otherwise related to the negotiation and
execution of this Agreement and the Team's attempts to obtain a change in
control of the Company, including, without limitation, performing due diligence
on the Company and its affiliates.
6. Term. This Agreement will have a term (the "Term") that will commence
with the Effective Date and will terminate on the earliest to occur of:
(a) ninety days from the Effective Date;
(b) termination noticed in writing by the Team upon not less than two
weeks notice;
2
3
(c) termination seven days after written notice by one party to
the other party upon breach hereof by such other party, which breach is
not cured by the end of such seven day period.
Upon termination hereof, the following provisions will survive: paragraph 4
(as to amounts owed and expenses incurred prior to termination), 5 and 7.
7. Warranties. The Team agrees to provide its services hereunder in a
professional manner. Except as otherwise expressly provided herein, the Team
makes no representations or warranties concerning the services to be provided
hereunder and no warranties or guarantees concerning the future performance of
the Company. In no event will the liability of the Team to the Company exceed
the cumulative amount of cash compensation actually paid hereunder to the Team.
Further, in no event will the Team be liable to the Company for lost profits or
special or consequential damages.
8. Disclosures of Interest. It is understood by the Company that:
(a) directors, officers, agents and shareholders of the Company are or
may be interested in the Team as members, managers or otherwise; and
(b) members, equity owners and agents of the Team are or may be
interested in the Company as directors, officers, shareholders or otherwise.
9. General.
(a) Not a Partnership. Nothing in this Agreement will be deemed to
constitute a partnership between the Company and the Team.
(b) Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties concerning the subject matter hereof. It
supersedes any prior agreement or understanding between them concerning the
subject matter hereof, and it may not be modified or amended in any manner
other than by a writing signed by duly authorized representatives of the
parties.
(c) Governing Law. This Agreement and the rights of the parties
hereunder will be governed by and interpreted in accordance with the laws of
the State of Arizona.
(d) Notices. Any notice required to be given by either party to the
other will be deemed given (i) immediately upon delivery by the party giving
notice or by a messenger directly to the notified party at the address set
forth for the notified party on the signature page below, (ii) five (5)
business days after being deposited in the postal system in certified form with
return receipt requested, postage paid, addressed to the notified party at the
address for the notified party set forth on the signature page below, but
3
4
only if the party giving notice receives a return receipt within ten (10)
business days after the notice is mailed, (iii) on the next business day if
dispatched to the notified party at the address set forth for the notified
party on the signature page below via a courier service that guarantees next
business day delivery, but only if the records of such courier service confirm
that such delivery was in fact made the next business day, or (iv) immediately
upon dispatch if dispatched by facsimile transmission to the notified party at
the facsimile telephone number for the notified party set forth on the
signature page below, but only if the dispatching party receives an electronic
confirmation of receipt, and the dispatching party also promptly gives notice
as provided in clause (ii) or (iii) of this paragraph. Either party may change
the address and facsimile telephone number to which notice should be sent by
written notice to the other party.
(e) Binding Effect. Except as herein otherwise specifically
provided, this Agreement will be binding upon and inure to the benefit of the
parties and their successors and assigns.
(f) Waivers. The failure of any party to seek redress for violation
of or to insist on the strict performance of any covenant or condition of this
Agreement will not prevent a subsequent act, which could have originally
constituted a violation, from having the effect of an original violation.
(g) Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
party will not preclude or waive the right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
(h) Captions. Captions contained in this Agreement are inserted only
as matter of convenience and in no way define, limit, or extend the scope or
intent of this Agreement or any provision hereof.
(i) Severability. In the event of the invalidity of any provision of
this Agreement, such provision will be deemed deleted and the Agreement as so
amended will remain in full force and effect, unless the result would be unjust
to either party.
(j) Assignment. This Agreement may not be assigned by either party
without the express written consent of the other party.
4
5
(k) Counterparts. This Agreement may be executed in several
counterparts and all so executed will constitute one agreement which will be
binding on all the parties hereto, notwithstanding that all of the parties are
not signatory to the original or the same counterpart.
IN WITNESS WHEREOF, the undersigned have executed this Agreement,
effective as of the date first hereinabove written.
The TEAM for New Management, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Its: Member
Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Fax Phone Number:
------------------
Work Recovery, Inc.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Its: Senior Vice President
Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Fax Phone Number:
------------------
5
