SRI/SURGICAL EXPRESS, INC.
CONSULTING AGREEMENT
This is a Consulting Agreement (this "Agreement") between SRI/Surgical
Express, Inc. (the "Company"), a Florida corporation, and Xxxxx X. Xxxxxxxx
("Consultant"), a Florida resident.
Background
The Company furnishes surgical supply products to hospital and surgery
center customers located throughout the United States. Consultant serves as
Executive Vice President & Chief Operating Officer, but desires to assume a new
role as a consultant performing specified services for the Company for a defined
term. This Agreement evidences the terms on which Consultant terminates his
employment with the Company and the Company engages Consultant as a consultant.
Operative Terms
Consultant and the Company agree as follows:
1. Employment Termination and Engagement as Consultant. Consultant resigns
as Executive Vice President & Chief Operating Officer of the Company, effective
as of December 31, 2002. After that date and until the first anniversary of that
date (the "Consulting Term"), the Company engages Consultant as its independent
consultant pursuant to the terms and conditions of this Agreement.
2. Duties. Consultant shall make himself available to consult with the
Board of Directors, officers, and employees of the Company, at reasonable times,
as determined by the Company's Chief Executive Officer, in connection with
matters that are within his expertise.
3. Compensation. As payment for his consulting services rendered pursuant
to this Agreement during the Consulting Term, the Company shall pay to
Consultant annually an amount equal to $200,000 during the Consulting Term, in
arrears, in monthly installments. This obligation terminates at the end of the
Consulting Term. Consultant will not be entitled to other benefits or
compensation for services provided pursuant to this Agreement, regardless of the
time and effort that he expends. These payments will be subject to any
applicable tax withholding and other deductions and will be in lieu of, and not
in addition to, any payments described in the Retention Agreement dated July 23,
1996, between Consultant and the Company. Consultant acknowledges that he would
not be entitled to the separation benefits described in this Agreement in the
absence of this Agreement. All of these separation benefits are conditioned on
Consultant's performance of all of his obligations under this Agreement.
4. Termination of Consulting Engagement.
(a) Permitted Termination. The Company may terminate this Agreement
immediately if one of the following events occurs:
(i) Consultant commits, aids, or abets a felony, a theft,
conversion, or embezzlement from the Company, or any criminal offense
that involves moral turpitude or adversely affects the ability of
Consultant to render and perform the services required of Consultant
by this Agreement; or
(ii) Consultant commits a breach or default under this Agreement
and fails to remedy the breach or default within 10 days following
written notice from the Company.
(b) Effective Date of Termination. Termination by the Company of this
Agreement will be effective on the day that the Company gives Consultant
notice of the termination, specifying the reason for it. Notice will be
deemed automatically to have been given by Company on the date of the death
of Consultant. However death of the Consultant shall not limit the total
payment of fees under this agreement to the Consultant or Consultant's
estate.
(c) Consequences of Termination of Consulting Engagement. If
Consultant's engagement is terminated for one of the reasons specified
under parts (a) above, Consultant will not be entitled to any further
payments under this Agreement.
5. Expenses. The Company shall reimburse Consultant in accordance with
its policies for all reasonable and approved expenses incurred in the good faith
performance of his duties under this Agreement.
6. Relationship Between Parties. Consultant's relationship with the
Company pursuant to this Agreement is that of an independent contractor.
Consultant does not have any right to make any contracts or commitments for, or
on behalf of, the Company without its advance approval. Consultant is not an
employee of the Company. Except as set forth in Xxxxxxx 0, xxxx of the benefits
provided by the Company to its employees, including, without limitation,
xxxxxxx'x compensation insurance and unemployment insurance, will be available
to Consultant. Consultant assumes full responsibility for the payment and
reporting of all state and federal taxes and other contributions imposed or
required under unemployment, social security, or income tax laws with respect to
the rendition of the consulting services by Consultant to the Company.
Consultant shall provide to the Company, on its demand, evidence that the income
reported by Consultant to the Internal Revenue Service as received pursuant to
this Agreement was consistent with the treatment required of an independent
contractor under the Internal Revenue Code of 1986, as amended.
7. Full General Release of Claims Against the Company. Consultant, for
himself and for his heirs, successors, and assigns, irrevocably and
unconditionally releases and forever
discharges the Company, its affiliates, and all of their successors, assigns,
officers, directors, representatives, agents, employees, associates and all
other persons acting for or on behalf of them, from all claims, complaints,
liabilities, agreements, damages, costs, debts, and expenses of any kind,
whether known or unknown, including all claims in connection with Consultant's
employment with the Company, including without limitation, any claim for
continued or future employment or for payment of wages or salary, or any other
payment, pursuant to any agreement, whether written or unwritten, or arising out
of any employment relationship with the Company. Without limitation, Consultant
releases and waives all claims under Title VII of the Civil Rights Act of 1964,
as amended; (42 U.S.C. (S) 2000e, et seq.); the Civil Rights Acts of 1866, 1871
and 1991, all as amended; 42 U.S.C. (S) 1981; the Family and Medical Leave Act
of 1993, as amended (29 U.S.C. (S) 2601, et seq.); the Americans With
Disabilities Act, as amended (42 U.S.C. (S) 12101, et seq.); the Rehabilitation
Act of 1973, as amended (29 U.S.C. (S) 793-94); the Fair Labor Standards Act, as
amended (29 U.S.C. (S) 201, et. seq.); the Equal Pay Act of 1963, as amended (29
U.S.C. (S) 206); the Employee Retirement Income Security Act, as amended (29
U.S.C. (S) 1001, et seq.); the Consolidated Omnibus Budget Reconciliation Act of
1985 (29 U.S.C. (S) 1161, et seq.); the Age Discrimination in Employment Act (29
U.S.C. (S) 621 et seq.); the Older Workers Benefit Protection Act of 1990 (29
U.S.C. (S) 623); Chapter 760 of the Florida Civil Rights Act of 1992, as
amended; the Florida General Labor Regulations, as amended; and any similar
local ordinance; workers' compensation statutes; and any other applicable
federal, state or local statute, rule, regulation or ordinance relating to
discriminatory hiring or employment practices or civil rights laws based on
protected class status; common law claims, including claims of intentional or
negligent infliction of emotional distress, negligent hiring, breach of a
covenant of good faith and fair dealing, promissory estoppel, negligence or
wrongful termination of employment; and all other claims of any kind, including
but not limited to any claims for attorneys' fees. Notwithstanding the
foregoing, Consultant retains and does not release the Company from his rights
under the Indemnification Agreement dated as of May 27,1996, any indemnification
rights to which he is entitled under the Company's bylaws, and all other
indemnification rights to which he is entitled under applicable law.
8. Confidentiality and Other Obligations. Consultant shall not disclose to
any person (other than immediate family members and if necessary, medical or
legal advisors) any information regarding the content of this Agreement, except
as required by court order or governmental authority, and only after giving the
Company at least ten days prior written notice of the proposed disclosure.
Consultant acknowledges that the records, information, files, lists, operations
data, and other materials of the Company belong exclusively to the Company, and
are confidential, and that information regarding the Company's customers or
other organizations with which it does business is the exclusive property of the
Company and is confidential. Consultant shall not use or disclose any such
confidential information for the benefit of himself or another person, and shall
treat all such information as confidential unless he has specific prior written
authorization from the Company to use or disclose. Consultant reconfirms his
obligations and covenants set forth in Sections 4, 5, and 6 of his Employment
Agreement dated May 1, 1996, with the Company, which is attached as Exhibit A.
At the conclusion of the Consulting Term, Consultant shall return to the Company
all property of the Company in his possession or under his control, except that
Consultant may retain his cell telephone and laptop computer.
9. Cooperation. As reasonably requested by the Company, Consultant shall
cooperate and consult with the Company in connection with its pending litigation
and other legal proceedings, as well as any transition of projects. Consultant
shall not make disparaging statements, written or oral, in any forum or media,
regarding the Company, its directors, officers, employees, policies, products,
processes, operations, or facilities, and shall not comment publicly regarding
the Company's legal matters. Neither the Company nor any of its directors or
officers shall make any disparaging statements regarding Consultant, except for
any statements that are required by law. If Company representatives are
contacted seeking information regarding him, the Company shall provide
information substantially consistent with the information in its press release
announcing Consultant's retirement. The Company shall take reasonable measures
to assure that inquiries concerning Consultant are referred to the Company's
Chief Financial Officer and that his statements concerning Consultant (oral or
written) are limited to this language, except as otherwise required by law.
Consultant will refer to the Company (and not personally make any comment in
response to) any press inquiries regarding the circumstances of his retirement.
10. Modifications; Assignment. A waiver, discharge, amendment,
modification, or termination of any covenant, condition, or limitation of this
Agreement (including the provisions of this section 10) will be valid and
effective only if it is in writing and signed by or on behalf of each party to
this Agreement. Neither Consultant nor the Company may assign its benefits or
delegate its obligations under this Agreement (except for appointment of a
beneficiary of any unpaid benefits), and any attempted assignment or delegation
by it will be invalid and ineffective against the other party. This Agreement is
binding on, and inures to the benefit of, each successor of the Company.
11. Consultant's Review of this Agreement; Revocation; Legal Counsel.
Consultant acknowledges that he has read each section of this Agreement and
understands his rights and obligations. Consultant acknowledges that he has been
offered 45 days to consider signing this Agreement. Consultant further
acknowledges that he will have seven days following the signing of this
Agreement to revoke it, and that the Agreement will not become effective until
the expiration of this seven day revocation period. Consultant has had an
opportunity to consult with his attorney before signing this Agreement and
confirms that his signature on this Agreement is knowing and voluntary. Each
party to this Agreement acknowledges that Xxxx, Xxxx and Xxxxxxxxx, P.A. acted
as counsel to the Company in this transaction. Consultant and the Company shall
bear their own costs and expenses expended in connection with this Agreement.
12. Notices. Except for oral requests and notices expressly authorized by
this Agreement, every notice, request, demand, consent, approval, and other
communication required or permitted under this Agreement will be valid only if
it is given in writing (or sent by telecopy and promptly confirmed in writing),
conspicuously marked "FOR IMMEDIATE ATTENTION," and addressed by the sender to
the appropriate party in the manner set forth below:
(a) If to Consultant:
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(b) If to the Company:
SRI/Surgical Express, Inc.
00000 Xxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
Xxxx, Xxxx and Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
or to such other address as a party designates by notice to the other party. A
validly given notice, request, demand, consent, approval, or other communication
will be effective on its receipt. Each party shall promptly notify every other
party of any change in its mailing address.
13. Governing Law; Venue; Litigation. The validity, interpretation,
construction, and enforcement of this Agreement are governed by the laws of the
State of Florida, excluding the laws of that state relating to resolution of
conflicts with laws of other jurisdictions. Each party consents and agrees that
the proper, exclusive, and convenient venue for any legal proceeding relating to
this Agreement is Hillsborough County, Florida, and each party waives any
defense, whether asserted by motion or pleading, that Hillsborough County,
Florida, is an improper or inconvenient venue. EACH PARTY TO THIS AGREEMENT
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT TO A JURY TRIAL IN
ANY LAWSUIT BETWEEN THE PARTY AND ANY OTHER PARTY WITH RESPECT TO THIS
AGREEMENT.
In any mediation or litigation (including appellate proceedings) arising
out of this Agreement, each party shall be responsible for its own costs and
expenses ( including legal fees, costs, and expenses ) that they incur.
Notwithstanding the foregoing, Consultant retains and does not release the
Company from his rights under the Indemnification Agreement dated as of May 27,
1996, any indemnification rights to which he is entitled under the Company's
bylaws, and all other indemnification rights to which he is entitled under
applicable law.
14. Counterparts. The parties may execute this Agreement in counterparts.
Each executed counterpart will constitute an original document, and all of them,
together, will constitute the same agreement. This Agreement will become
effective when each party has
signed a counterpart and delivered it to the other party. This Agreement will
become effective seven days after both parties have signed it.
15. Complete Agreement. This Agreement records the final, complete and
exclusive understanding among the parties with respect to the transactions
described in it and supersedes any prior or contemporaneous agreement,
understanding or representation, oral or written, by any of them.
16. Acknowledgments. CONSULTANT HAS CAREFULLY READ THIS AGREEMENT, HAS HAD
SUFFICIENT OPPORTUNITY TO ASK QUESTIONS AND RECEIVE SATISFACTORY ANSWERS ABOUT
IT AND BE ADVISED BY COUNSEL REGARDING ITS TERMS, AND UNDERSTANDS THE APPLICABLE
RIGHTS AND OBLIGATIONS UNDER IT.
EXECUTED: as of December 31, 2002.
CONSULTANT:
/s/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
COMPANY:
SRI/SURGICAL EXPRESS, INC.
/s/ Xxxxxxx X. Xxxx
---------------------------
Xxxxxxx X. Xxxx
Senior Vice President and Chief
Financial Officer
