AGREEMENT
THIS AGREEMENT, dated as of September 1, 1996, is entered into by and
between LifeRate Systems, Inc., a Minnesota corporation (the "COMPANY"), and
Xxxxxxx X. Xxxxx, M.D., an individual presently residing in the State of
Georgia ("CONSULTANT").
RECITALS
The Company and Consultant desire to (i) enter into a consulting and
advisory arrangement and (ii) resolve in a final and binding way any and all
existing and potential claims between the Company and Consultant relating in
any way to their prior employment relationship and the termination of such
relationship, which termination occurred on the date hereof (the "TERMINATION
DATE").
In consideration of the foregoing and the mutual agreements set forth
below, the parties hereto agree as follows:
1. Subject to the terms and conditions hereof, the Consultant agrees to
the following:
(a) He will execute contemporaneously herewith the Consulting and
Advisory Agreement in the form attached hereto as Exhibit A ("CONSULTING
AGREEMENT"), the terms of which are incorporated herein by reference.
(b) He will execute contemporaneously herewith the Release in the
form attached hereto as Exhibit B, the terms of which are incorporated herein
by reference.
2. Subject to the terms and conditions hereof, the Company agrees to the
following:
(a) The Company will execute the Consulting and Advisory Agreement
in the form attached hereto as Exhibit A, the terms of which are incorporated
herein by reference.
(b) The Company will execute the Non-Statutory Stock Option
Agreement in the form attached hereto as Exhibit C ("OPTION AGREEMENT"), the
terms of which are incorporated herein by reference.
(c) The Company will execute the Release in the form attached hereto
as Exhibit D (together with the Release referred to in Section 1(b), the
"RELEASES"), the terms of which are incorporated herein by reference.
3. Consultant agrees to cooperate with the Company and its counsel in
connection with any litigation matters or disputes involving the Company with
respect to which Consultant has information that would be relevant to such
matters and agrees to make himself available as may reasonably be necessary in
connection
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with such matters, including, without limitation, litigation matters involving
Xxxxx Xxxxxxx and/or Clinical Sales and Services, Inc. ("CSSI"). The Company
will make a good faith effort to ensure that this cooperation and assistance
will not unreasonably interfere with Consultant's employment or other business
activities.
4. Without in any way limiting the scope of the Release referred to in
Section 1(b), Consultant agrees not to assert as an employee, officer,
director, or shareholder of CSSI or in any other capacity, any claims or causes
of action against the Company, or any of its directors, officers or employees,
nor to cooperate or voluntarily assist other parties in the assertion of any
such claims or causes of action, for or in respect of any matters, actions or
relationships between the Company and CSSI, including, without limitation, in
respect of the Sales and Marketing Services Agreement dated as of September 18,
1995. This provision does not preclude Consultant from responding to a
subpoena or other legal process.
5. Consultant agrees and understands that he is entitled to no other
compensation or benefits other than those enumerated in this Agreement and will
not accrue or become entitled to any benefits other than as provided herein.
6. Consultant hereby acknowledges he has had up to 21 days to consider
the terms of this Agreement before signing, that he fully understands and
accepts the terms of this Agreement, that his signature is freely, voluntarily
and knowingly given, and that he has been provided a full opportunity to review
and reflect on the terms of this Agreement and to obtain the advice of legal
counsel of his choice, which advice the Company has encouraged him to obtain.
7. After executing this Agreement, Consultant understands that he may
rescind this Agreement by delivering written notice of such rescission ("NOTICE
OF RESCISSION") within 15 days of the date of such execution by certified mail,
return receipt requested, to LifeRate Systems, Inc., 0000 Xxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxxxx 00000; Attn: Chief Executive Officer. Consultant understands
that in the event he exercises this right of rescission, then this Agreement,
the Consulting Agreement, the Option Agreement and the Releases shall all be
simultaneously deemed to be rescinded and rendered null and void in all
respects upon receipt by the Company of the Notice of Rescission.
8. This Agreement does not constitute an admission that the Company
violated any statute or principle of common law or engaged in any wrongdoing.
9. This Agreement constitutes the entire agreement between the parties
and supersedes all previous negotiations, representations and agreements
heretofore made by the parties with respect to the subject matter hereof. No
amendment, waiver or
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discharge hereof shall be valid unless in writing and executed by both parties
hereto.
10. The laws of the State of Minnesota will govern the validity,
construction and performance of this Agreement, without regard to the conflict
of law provisions of any jurisdictions. Any legal proceeding related to this
Agreement will be brought in an appropriate Minnesota court, and both the
Company and Consultant hereby consent to the exclusive jurisdiction of that
court for this purpose.
11. Whenever possible, each provision of this Agreement will be
interpreted so that it is valid under the applicable law. If any provision of
this Agreement is to any extent invalid under the applicable law, that
provision will still be effective to the extent it remains valid and the
remainder of this Agreement shall continue to be valid; provided that such
resulting construction of this Agreement does not frustrate the main purpose of
this Agreement.
12. Consultant may not assign this Agreement to any third party for
whatever purpose without the express written consent of the Company. The
Company may not assign this Agreement to any third party, except by operation
of law through merger, consolidation, liquidation or recapitalization, or by
sale of all or substantially all of the assets of the Company, without the
express written consent of Consultant.
13. The parties hereto agree that the rights granted by this Agreement
are both unique and special, and the parties contemplate that enforcement of
this Agreement may be had by recourse to the equitable remedies available in
courts of appropriate jurisdiction in addition to any other remedies which may
be or may become available at law.
The parties have duly executed this Agreement as of the date first above
written.
LIFERATE SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Chief Executive Officer
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/s/ Xxxxxxx X. Xxxxx, M.D.
----------------------------------------
Xxxxxxx X. Xxxxx, M.D.
Address: 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
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