Exhibit 10.91
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), is entered
into this 16 day of April, 1999 (the "Execution Date"), by and between
Xxxxxx X. Xxxxxxx, Xx. ("Consultant") located at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000-0000 and Maxicare Health Plans, Inc., a
Delaware corporation, located at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxx, XX 00000 (the "Company").
WHEREAS, Xxxxx X. Xxxxxxx ("Xxxxxxx") has been employed
as Chairman of the Board ("Chairman"), President and Chief Executive
Officer ("CEO") of the Company pursuant to the terms of that certain
Amended and Restated Employment and Indemnification Agreement by and
between the Company and Xxxxxxx dated as of April 1, 1996, as amended
by Amendment No. 1 thereto, dated February 11, 1997, Amendment No. 2
thereto, dated March 28, 1998 and Amendment No. 3 thereto, dated May
8, 1998 (the "Existing Employment Agreement");
WHEREAS, Xxxxxxx has agreed to terminate the Xxxxxxx
Employment Agreement effective June 30, 1999 (the "Termination Date")
and enter into a Settlement and Release Agreement with the Company
(the "Xxxxxxx Settlement Agreement"), Amendment No. 4 thereto of even
date herewith (Amendment No. 4 along with the Existing Employment
Agreement, collectively, the "Xxxxxxx Employment Agreement"), along
with certain other arrangements (all such agreements, collectively,
the "Xxxxxxx Related Agreements");
WHEREAS, Xxxxxxx has agreed to perform limited duties
from the Effective Date, as defined in the Xxxxxxx Settlement
Agreement (hereinafter referred to as the "Effective Date"), until the
Termination Date;
WHEREAS, Consultant has served on the Board of Directors
since May of 1998 and has over twenty years of experience in the
managed health care industry;
WHEREAS, Consultant has been in the business of
rendering health care consulting services for over four years;
WHEREAS, the Company requires immediate additional
senior executive expertise and experience; accordingly, in recognition
that Consultant's skills and experience are essential to the on-going
business, operations and prospects of the Company, the Company and
Consultant have agreed to enter into this Agreement for a term
commencing on the Effective Date through and beyond the term of the
Xxxxxxx Employment Agreement;
WHEREAS, subject to the effectiveness of the Xxxxxxx
Settlement Agreement and the Xxxxxxx Related Agreements, the Company
and the Consultant have agreed that Consultant shall render consulting
services on behalf of the Company pursuant to the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the terms and
conditions hereinafter set forth, the Company and Consultant agree as
follows:
1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings, unless
otherwise expressly provided or unless the context otherwise requires.
"Board of Directors" means the Board of Directors of the
Company or the Executive Committee of the Board of Directors which the
Executive Committee shall, during the term hereof, initially consist
of Consultant, Xxxxxx Xxxxxxxx, Xxxxxx X. Field and Xxxx X. Xxxxx, Xx.
"Cause" means, except as otherwise contemplated by
Sections 6(a) or 6(b) below, the involuntary termination of the
Agreement by the Company by reason of:
(i) the willful or habitual failure by
Consultant to perform requested duties commensurate with his duties
pursuant to the terms of this Agreement without good cause (the
"Breach"), after a demand for substantial performance is delivered to
Consultant by the Board of Directors, which notice specifically
identifies the manner in which Consultant has not performed his duties
(other than as a result of the death or Incapacity of Consultant) and
Consultant is given the opportunity to cure the Breach;
(ii) the willful engaging by Consultant in
misconduct materially injurious to the Company, provided, however,
that an act shall be considered "willful," only if done or omitted in
bad faith and without reasonable belief on Consultant's part that his
action was in the best interest of the Company; or
(iii) the conviction by final judgment of
Consultant for a felony or of a crime involving moral turpitude,
dishonesty, fraud or theft with respect to the performance of
Consultant's services to the Company.
Notwithstanding the foregoing, for purposes of Sections
(i) and (ii), above, such events shall be deemed to have occurred only
upon (a) the due adoption by the Board of Directors at a meeting
called and held for such purpose (after reasonable notice to
Consultant and his counsel and after affording Consultant and his
counsel an opportunity to be heard before the Board of Directors), of
a resolution finding that, in the good faith opinion of the Board of
Directors, Consultant was guilty of the conduct set forth in such
Sections, and (b) in the event that such resolution is duly adopted by
the Board of Directors, the receipt by Consultant of five (5) days
written notice prior to the effectiveness thereof.
"Incapacity" means the absence of the Consultant from
his consulting duties or the inability of Consultant to perform his
duties pursuant to this Agreement by reason of mental or physical
illness, disability or incapacity for a period of thirty (30)
consecutive days or more during the term hereof, and either the
Company or Consultant elects to declare such illness, disability or
incapacity to be of a permanent nature.
2. Consulting Services. Subject to the restrictions
and limitations set forth below, during the "Term" as hereinafter
defined, of this Agreement, Consultant and the Company hereby agree:
(a) for the purposes hereof, Consultant shall serve as the Chief
Operating Officer ("COO") of the Company with such duties and
responsibilities as normally associated with such position, including,
but not limited to, supervision over the Company's corporate offices
and functions and its California, Indiana and Louisiana health
maintenance organization ("HMO") plans and operations. All employees
of the Company and all employees of the Company's subsidiaries shall
report to Consultant either directly or indirectly;
(b) Consultant shall also render such other
consulting services as may from time to time be reasonably requested
by the Board of Directors;
(c) any consulting services rendered by the
Consultant pursuant to this Agreement shall be substantially rendered
in the Company's offices in Los Angeles, Indiana, or Louisiana; and
(d) subject to Section 3(a) below, Consultant
shall render his consulting services to the Company on a substantially
full-time basis.
The consulting services rendered by the Consultant
during the Term of this Agreement as set forth in Sections 2(a)
through 2(d) above shall hereinafter be defined as the "Consulting
Services".
3. Non-Exclusive Services. Notwithstanding anything to
the contrary contained elsewhere herein:
(a) the Consulting Services to the Company during the
Term of this Agreement shall be non-exclusive. While Consultant may
continue and/or finish any of his existing consulting arrangements
("Other Business Agreements"), as set forth in Schedule 1 attached
hereto and made a part hereof, during the term of this Agreement,
Consultant may not enter into new consulting or employment agreements
without the prior approval of the Board of Directors. In addition,
Consultant's performance of Other Business Agreements during the Term
of this Agreement shall not materially interfere with Consultant's
performance of his Consulting Services to the Company during the Term
hereof. During the Term of this Agreement, Consultant shall not serve
as an employee, officer, director, advisor, consultant or purchase an
amount in excess of five percent (5%) of any corporation, partnership,
joint venture, limited liability company or other enterprise which
competes directly or indirectly with the Company in the States of
California, Indiana or Louisiana, including but not limited to any
health care provider, HMO, preferred provider organization ("PPO"),
life, health or disability insurance company, or any other business
which arranges for, provides or finances health care in such states
(hereinafter, collectively "Competitors"); and
(b) Subject to the requirements of Section 3(a)
above, Consultant shall be entitled to earn and receive from entities
other than the Company any compensation, salary, profit
participations, bonuses, wages, consulting fees or other earnings for
services rendered by Consultant during the Term hereof without offset
or deduction with respect to any Consulting Fee due hereunder
whatsoever.
4. Compensation and Stock Options.
(a) In addition to director fees which the Company
is already obligated to pay Consultant as of the date of this
Agreement, as compensation for Consultant's agreement to be available
to render the Consulting Services during the Term of this consulting
Agreement, the Company agrees to compensate the Consultant at a rate
of Forty Thousand Dollars ($40,000) per month (the "Consulting Fee").
Said Consulting Fee shall be payable in equal monthly installments or
in such other installments as may be agreed upon between the parties.
(b) The Company shall grant to Consultant options
pursuant to the Company's 1995 Stock Option Plan (the "Plan") to
purchase Fifty Thousand (50,000) shares of Common Stock on the
Effective Date (the "Stock Options"). The Stock Options shall have an
exercise price equal to the Closing Price of the Common Stock on the
last trading date immediately preceding the Grant Date. For purposes
of this Section 4(b), the "Closing Price" for each trading day shall
mean the closing bid price (or average of bid prices) of the Common
Stock as reported by the National Association of Securities Dealers
Automated Quotation System - National Market System ("NASDAQ-NMS") or
if the Common Stock is not traded on NASDAQ on such national or
regional securities exchange or quotation system where the Common
Stock is traded. Each Stock Option granted pursuant to the terms
hereof shall vest at the rate of 6,000 shares per month for the first
four months and 4,000 shares per month thereafter, have a ten (10)
year term and such other terms and conditions as set forth in the Plan
and/or the Stock Option Agreement (the "Option Agreement") which shall
be in substantially the form of Exhibit A attached hereto. Consultant
acknowledges that he is entitled to the grant of only the Stock
Options and no other stock options pursuant to this Agreement.
(c) Except as expressly set forth in this Section
4 or elsewhere in this Agreement, Consultant shall not be entitled to
receive any other compensation or benefits from the Company as a
result of the performance of Consultant's consulting services
hereunder, including but not limited to participation in the Company's
life, health and disability insurance plans, profit sharing, pension
or 401(k) bonus plans or any other plans or programs currently or
which in the future may become available to the Company's officers or
employees, in such capacities.
5. Expenses. The Company shall promptly reimburse
Consultant for all out of pocket expenses incurred by Consultant in
the discharge of Consultant's duties hereunder, including, but not
limited to, first class hotel expenses, meals, air fare and automobile
expenses in connection with the performance of Consultant's Consulting
Services at the Company's offices in California, Indiana and Louisiana
during the Term hereof. In connection with the foregoing at
Consultant's request, the Company shall provide first class air fare
to enable Consultant to fly home to Wisconsin weekly during the
weekends during the Term of this Agreement. The Company shall
reimburse Consultant upon receipt from Consultant of vouchers,
receipts or other reasonable substantiation of such expenses. Upon
the prior request of the Company and at the election of the
Consultant, in the event the Consultant travels on the Company's
behalf to perform any Consulting Services, Consultant shall be
entitled to travel first class, to stay at luxury hotels, similar
restaurant expenses and other expenses of the type described above.
6. Term of Agreement. The term of this Agreement shall
commence as of the Effective Date and shall continue for a period of
no less than four (4) months from such date (the "Four-Month Period"),
unless earlier terminated as herein provided. The term of this
Agreement shall continue on a month-to-month basis after the Four-
Month Period (the "Extended Term") until terminated by either the
Company or Consultant provided notice is given in accordance with
Section 15(g) thirty (30) days prior to such termination ("Thirty Day
Termination Notice"). This Agreement shall be terminated prior to
the expiration of the periods set forth above only in the event of the
occurrence of any one of the following circumstances:
(a) The death of Consultant;
(b) The Incapacity of Consultant;
(c) The Company terminates this Agreement for
Cause; and
(d) The Company terminates this Agreement for any
reason other than as set forth in Sections 6(a), 6(b) or 6(c). For the
purposes of this Agreement, the "Term" hereof shall be the period from
the Effective Date through thirty (30) days after a Thirty Day
Termination Notice is provided or such other shorter period in the
event the Agreement is terminated sooner pursuant to Sections 6(a)
through 6(d) above.
7. Compensation Upon Termination. Subject to
Section 7(d) below, in the event this Agreement is terminated pursuant
to Sections 6(a) through 6(d) hereof, the Company shall be obligated
to pay or provide to Consultant (or his legal representatives, as the
case may be) under this Agreement the following and only the
following:
(a) In the event of a termination pursuant to
Section 6(a) or 6(b): (y) any unpaid Consulting Fee through the date
of the Consultant's death or Incapacity, as the case may be, plus
thirty (30) days thereafter, when such Consulting Fee would have
otherwise been due and (z) payment for any unreimbursed expenses
through the end of the Term;
(b) In the event of a termination pursuant to
Section 6(c): (y) any unpaid Consulting Fee through the date of
termination, when such Consulting Fee would have otherwise been paid
and (z) payment for any unreimbursed expenses through the end of the
Term; and
(c) In the event of a termination pursuant to
Section 6(d): (y) either (i) payment of any unpaid Consulting Fee
through the end of the Four-Month Period if the termination occurs
during the Four-Month Period or (ii) payment of any unpaid Consulting
Fee through the date of termination, plus an additional thirty (30)
days, if the termination occurs during the Extended Term, when such
Consulting Fee would have been otherwise paid; and (z) payment for any
unreimbursed expenses through the end of the Term.
8. Indemnification.
(a) The Company shall indemnify Consultant, during
and after the Term of this Agreement, to the fullest extent provided
for in the Company's Articles of Incorporation or Bylaws, as in
effect, or as may thereafter be amended, modified or revised from time
to time (collectively, "Company's Articles"), or permitted under the
law of Delaware or such other state in which the Company may hereafter
be domiciled, against any and all costs, claims, judgments, fines,
settlements, liabilities, and fees or expenses (including, without
limitation, reasonable attorneys' fees) incurred in connection with
any proceedings (including, without limitation, threatened actions,
suits or investigations) brought by party or parties other than
Consultant or Consultant's heirs, successors or assignees arising out
of, or relating to, Consultant's actions or inactions as Consultant or
the Consultant Services performed by Consultant or any counterclaims
brought in defense of an otherwise indemnifiable action at any time
during the Term of this Agreement. The indemnification contemplated
under this Section 8(a) shall be provided to Consultant unless, at the
time indemnification is sought, such indemnification would be
prohibited under the law of Delaware or of the state in which the
Company may then be domiciled; the Company may rely on the advice of
its counsel in determining whether indemnification is so prohibited.
(b) In the event of any actual or threatened
investigation, administrative proceeding or litigation by any federal,
state or local governmental authority (including agencies thereof)
against the Company or any other director officer or employee of the
Company arising from actions taken or events occurring at any point
during the Term hereof, in which proceedings Consultant is not a party
or threatened to be made a party but which require Consultant's
attendance and if, under applicable law, or the rules or regulations
of the particular governmental authority, counsel for the Company
cannot additionally represent Consultant upon the provision of proper
substantiation, or such simultaneous representation would not be
permitted under the applicable canons of ethics governing attorneys-
at-law, then: (i) Consultant shall have the right to retain such
personal legal counsel, accounting advisors and experts as may be
reasonably necessary in connection with such attendance, and (ii) the
Company shall promptly reimburse Consultant, whether or not then in
office, for all reasonable expenses incurred by him in retaining the
above counselors, advisors and experts.
If Consultant's attendance is required at proceeding
contemplated by this Section 8(b) after the Term hereof, then, in all
events, and in addition to the reimbursement described in (ii) above,
the Company shall pay to Consultant a stipend in the amount of One
Thousand Dollars ($1,000) per day for each day or any portion thereof
during which Consultant is in attendance and shall reimburse
Consultant for all reasonable travel, hotel and living expenses
incurred by him in connection with such attendance.
(c) Any reimbursement or indemnification required
under this Section 8 shall be made no later than ten (10) business
days after receipt by the Company of the written request of
Consultant, together with, with respect to expenses incurred,
vouchers, receipts or other reasonable substantiation.
(d) If Consultant is entitled under any provision
of this Section 8 to indemnification by the Company for some or a
portion of the expenses, judgments, fines, or penalties actually and
reasonably incurred by him in the investigation, defense, appeal or
settlement of any action, suit or other proceeding, but not, however,
for the total amount thereof, the Company shall nevertheless indemnify
Consultant for the portion of such expenses, judgments, fines or
penalties to which Consultant is entitled.
(e) The indemnification provided under this
Section 8 shall not be deemed exclusive of any other rights to which
Consultant may be entitled under the Company's Articles, any
resolution of the Board of Directors, any agreement, any vote of
shareholders or disinterested directors, insurance contracts, the law
of Delaware or any other state in which the Company may hereafter be
domiciled, or otherwise, both as to actions or inactions by Consultant
in connection with his performing Consulting Services during the Term
hereof, even though complaint may have been asserted after the Term
hereof. Amounts payable as indemnification under this Section 8 shall
be reduced by the amount of any other sums received by Consultant for
the same purpose pursuant to any of such other provisions.
(f) In the event of any change, after the date of
this Agreement, in any applicable law, statute, or rule which expands
the right of a corporation domiciled in Delaware or the state in which
the Company may hereafter be domiciled to indemnify a consultant, such
change (to the extent permitted by applicable law) shall be
automatically incorporated herein, without further action of the
parties, to the extent that such change affects Consultant's rights
and the Company's obligations under this Section 8.
(g) In the event of any change, after the date of
this Agreement, in any applicable law, statute, or rule which narrows
or restricts the right of a corporation domiciled in Delaware or the
state in which the Company may hereafter be domiciled to indemnify a
consultant such change (to the extent permitted by applicable law)
shall have no effect on the provisions of, or the parties' respective
rights and obligations under this Section 8.
(h) In the event of an amendment or other
revision, after the date of this Agreement, to the Company's Articles
which expands the right of the Company to indemnify Consultant for the
consulting services rendered by Consultant during the Term hereof,
such change shall be automatically incorporated into this Agreement,
without further action of the parties, to the extent that such change
relates to Consultant's rights and the Company's obligations under
this Section 8.
(i) In the event of an amendment or other
revision, after the date of this Agreement, to the Company's Articles
which narrows or restricts the right of the Company to indemnify
Consultant for the consulting services rendered by Consultant during
the Term hereof, such change shall have no effect on the provisions
of, or the parties' respective rights and obligations under, this
Section 8.
(j) The Company agrees to give Consultant prompt
notice of any amendment to or modification of the Company's Articles
which relate to its ability to provide the indemnification
contemplated under this Section 8.
(k) Notwithstanding any other provision herein,
the Company shall not be obligated pursuant to the terms of this
Section 8:
(i) to indemnify or advance expenses to
Consultant with respect to proceedings or claims (except counterclaims
or cross claims) initiated or brought voluntarily by Consultant and
not by way of defense, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board
of Directors finds it to be appropriate; or
(ii) to indemnify Consultant for any
expenses incurred by him with respect to any claim, issue or matter,
raised in connection with a proceeding instituted by Consultant to
enforce or interpret the provisions of this Section 8, if a court of
competent jurisdiction renders a final judgment ruling against the
Consultant with respect to the material assertions made by Consultant
with respect to such claim, issue or matter; or
(iii) to indemnify Consultant for expenses
or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to Consultant by an
insurance carrier under a policy of directors' and officers' liability
insurance maintained by the Company; or
(iv) to indemnify Consultant for expenses
or liabilities arising from the purchase and sale by Consultant of
securities of the Company in violation of federal or state securities
laws; or
(v) to indemnify Consultant for
liabilities or with respect to proceedings or claims relating to
actions not taken in his capacity as a Consultant rendering Consulting
services on behalf of the Company, including, without limitation,
actions taken in his individual capacity as a shareholder.
9. Confidentiality. Consultant covenants and agrees
that he will not at any time during or after the Term of this
Agreement reveal, divulge or make known to any person, firm or
corporation any information, knowledge or data of a proprietary nature
relating to the business of the Company or any of its affiliates
which is not or has not become generally known or public. Consultant
shall hold, in a fiduciary capacity, for the benefit of the Company,
all information, knowledge or data of a proprietary nature, relating
to or concerned with, the operations, customers, developments, sales,
business and affairs of the Company and its affiliates which is not
generally known to the public and which is or was obtained by the
Consultant during the Term of this Agreement. Consultant recognizes
and acknowledges that all such information, knowledge or data is a
valuable and unique asset of the Company and accordingly he will not
discuss or divulge any such information, knowledge or data to any
person, firm, partnership, corporation or organization other than to
the Company, its affiliates, designees, assignees or successors or
except as may otherwise be required by the law, as ordered by a court
or other governmental body of competent jurisdiction, or in connection
with the business and affairs of the Company.
10. Equitable Remedies. In the event of a breach or
threatened breach by Consultant of any of his obligations under
Section 9 hereof, Consultant acknowledges that the Company may not
have an adequate remedy at law and therefore it is mutually agreed
between Consultant and the Company that in addition to any other
remedies at law or in equity which the Company may have, the Company
shall be entitled to seek in a court of law and/or equity a temporary
and/or permanent injunction restraining Consultant from any continuing
violation or breach of this Agreement.
11. Advance of Fees and Expenses. The Company shall
promptly advance to Consultant:
(a) to the maximum extent provided for in the
Company's Articles or permitted by the law of Delaware or such other
state in which the Company may hereafter be domiciled, any fees or
expenses which are included as indemnifiable fees or expenses pursuant
to Section 8 hereof (including, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals,
amounts paid in settlement by or on behalf of Consultant, and legal,
accounting or other professional fees and disbursements) which may be
incurred by Consultant (collectively, "Reimbursed Expenses");
(b) Reimbursed Expenses shall be made by the
Company upon the written request of Consultant, which request shall be
accompanied by an undertaking executed by Consultant acceptable in
form and substance to counsel for the Company, by which Consultant
undertakes to repay any amounts advanced plus Interest on the advanced
amount to the extent that it is ultimately determined, by compromise,
settlement, arbitration or final non-appealable court ruling, that
Consultant is not entitled to indemnification or payment, as
appropriate, for all or any portion of such fees and expenses. For
purposes of this Section 11(b), the term "Interest" shall accrue and
be payable from the date the amount was advanced at the rate of eight
percent (8.0%) per annum computed and applied on the basis of a 365
day year, actual days elapsed. At no time, however, shall Consultant
be obligated, or required, to pay Interest at a rate which could
subject Consultant to either civil or criminal liability as a result
of such rate being in excess of the maximum rate which Consultant is
permitted to charge. If, by the terms of this Agreement, Consultant
is, at any time, required or obligated to pay Interest on the
principal balance at a rate in excess of such maximum rate, then the
rate of Interest under this Agreement shall be deemed to be
immediately reduced to such maximum rate, and Interest payable
hereunder shall be computed at such maximum rate, and any portion of
all prior Interest payments in excess of such maximum rate shall be
applied, and/or shall retroactively be deemed to have been payments
made, in reduction of the balance due;
(c) No later than ten (10) business days after
receipt by the Company of the written request and undertaking of
Consultant, together with receipts, invoices or other written
documentation evidencing the Reimbursed Expenses to be covered by the
advance, the Company shall make the advance requested, in one or more
payments, to Consultant or according to his written instructions; and
(d) Any advances contemplated under Section 11(a) above, shall be
made to Consultant unless, at the time the advance is requested, such
advance would be prohibited under the law of Delaware or the state in
which the Company may then be domiciled; the Company may rely on the
written advice of its counsel in determining whether an advance is so
prohibited.
12. Effective Date. The Effective Date of this
Agreement shall be deemed to be the "Effective Date" as such term is
defined in the Settlement Agreement.
13. Representation by Counsel. Consultant acknowledges
that the Company has advised Consultant to seek the advice of counsel
in connection with Consultant's rights with respect to this Agreement,
the Settlement Agreement and the Related Agreements. In connection
therewith, Consultant has been represented by and has consulted with
counsel of his own choice, Xxxxxxx X. Xxxxxxxx of Reinhardt, Boerner,
XxxXxxxxx, Xxxxxx & Rieselach, throughout the negotiation, drafting
and execution of this Agreement. In connection with the foregoing,
Consultant and the Company acknowledge that the Company has been
represented by its general outside counsel, the firm of Jeffer,
Mangels, Xxxxxx & Xxxxxxx LLP ("JMBM") in connection with the
negotiation, documentation and execution of this Agreement.
14. Consultant's Employment Status. Consultant is not
an employee of or employed by the Company with respect to his
performance of Consulting Services to the Company during the Term of
this Agreement; accordingly, Consultant shall indemnify the Company
against any and all withholding and/or employment taxes charged
against the Company with respect to Consultant's performance of
Consulting Services during the Term of this Agreement.
15. Miscellaneous.
(a) This Agreement shall be binding upon and inure
to the benefit of the Company and any successor of the Company. This
Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company or by any merger, reorganization or other
transaction in which the Company is not the surviving or resulting
corporation or upon any transfer of all or substantially all of the
assets of Company in the event of any such merger, or transfer of
assets. The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the surviving business entity or the
business entity to which such assets shall be transferred in the same
manner and to the same extent that the Company would be required to
perform it if no such transaction had taken place. This Agreement
shall inure to the benefit of and be enforceable by Consultant's
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(b) Except as otherwise provided by law or
elsewhere herein, Consultant shall be entitled to all benefits as set
forth herein and the Term of this Agreement shall continue to run
through the occurrence of the following events:
(i) any act of force majeure which
materially and adversely affects the Company's business and
operations, including but not limited to, the Company having sustained
a material loss, whether or not insured, by reason of fire,
earthquake, flood, epidemic, explosion, accident, calamity or other
act of God; or
(ii) any strike or labor dispute or court
or government action, order or decree; or
(iii) a banking moratorium having been
declared by federal or state authorities; or
(iv) an outbreak of major armed conflict,
blockade, embargo, or other international hostilities or restraints or
orders of civic, civil defense, or military authorities, or other
national or international calamity having occurred; or
(v) any act of public enemy, riot or civil
disturbance or threat thereof; or
(vi) a pending or threatened legal or
governmental proceeding or action relating generally to the Company's
business, or a notification having been received by the Company of
the threat of any such proceeding or action, which could materially
adversely affect the Company.
(c) This Agreement may not be modified, altered or
amended except by an instrument in writing signed by the parties
hereto.
(d) This Agreement shall be construed in
accordance with the laws of the State of California except to the
extent that any provision of Sections 8 or 11 hereof may relate to an
interpretation of the corporation laws of Delaware, the state in which
the Company is domiciled, in which case such provision shall be
construed in accordance with the corporation laws of that state.
(e) Nothing in the Agreement is intended to
require or shall be construed as requiring the Company to do or fail
to do any act in violation of applicable law. The Company's inability
pursuant to court order to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. If any
provision of this Agreement is invalid or enforceable, the remainder
of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall, nevertheless, remain in full force
and effect in all other circumstances.
(f) The parties hereto agree that any and all
disputes hereunder shall be submitted to a court located in Los
Angeles, California and in this regard, the parties agree that they
shall consent to personal jurisdiction in any state and/or the United
States District Court for the Central District of California sitting
in Los Angeles, California and agree to venue in the State of
California. All costs and expenses (including attorneys' fees)
incurred by the parties in connection with any dispute arising under
this Agreement, shall be apportioned between the parties by a court
based upon such court's determination of the merits of their
respective positions. The burden of proving that indemnification or
any advance under Sections 8 or 11 is not appropriate shall be on the
Company.
(g) Any notice to the Company required or
permitted hereunder shall be given in writing to the Company, either
by personal service, facsimile or, if by mail, by registered or
certified mail return receipt requested, postage prepaid, duly
addressed to the Secretary of the Company at its then principal place
of business with a copy to Xxxxx X. Xxxxxx, Esq., Jeffer, Mangels,
Xxxxxx & Marmaro LLP, 0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000. Any such notice to Consultant shall be
given in a like manner, and if mailed shall be addressed to Consultant
at Consultant's home address then shown in the files of the Company
with a copy to Xxxxxxx X. Xxxxxxxx, Reinhardt, Boerner, XxxXxxxxx,
Xxxxxx & Rieselach, 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000-0000. For the purpose of determining compliance with any time
limit herein, a notice shall be deemed given on the fifth business day
following the postmarked date, if mailed, or the date of delivery if
personally delivered or delivered by facsimile.
(h) A waiver by either party of any term or
condition of this Agreement or any breach thereof, in any one
instance, shall not be deemed or construed to be a waiver of such term
or condition or of any subsequent breach thereof.
(i) The section and subsection headings contained
in this Agreement are solely for convenience and shall not be
considered in its interpretation.
(j) This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
(k) Consultant represents and agrees that
Consultant has carefully read and fully understands all of the
provisions of this Agreement and is voluntarily entering into this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Consulting Agreement as of the day and year first written above.
COMPANY:
MAXICARE HEALTH PLANS, INC.
a Delaware corporation
By: /s/ Xxxx Xxxxx
Its: Secretary
CONSULTANT:
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
