EXHIBIT 10.12
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT dated as of December 12, 2000 (the
"Agreement") is made by and between XXXXXXXXXX.XXX CORPORATION (formerly known
as Healthdyne Information Enterprises and HIE, Inc.), a Georgia corporation (the
"Company"), and XXXXXX X. XXXXXX, an individual resident of the State of Georgia
("Xx. Xxxxxx") doing business as J Xxxxxx, LLC.
W I T N E S S E T H:
WHEREAS, Xx. Xxxxxx currently provides consulting and advisory services
to the Company pursuant to an agreement between Xx. Xxxxxx and the Company dated
May 12, 1998 (the "1998 Agreement"); and
WHEREAS, the Company desires to extend the Term of the 1998 Agreement
as provided therein to continue to engage Xx. Xxxxxx to render consultative and
advisory services to it concerning the Company so that it may have the benefit
of Xx. Xxxxxx'x experience and abilities, and Xx. Xxxxxx is willing to accept
such engagement, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. CONSULTING SERVICES.
(a) During the Term of this Agreement (as hereinafter
defined), the Company hereby retains Xx. Xxxxxx as a consultant for
approximately eighty (80) hours per month, to perform, when and as requested by
the Company, general duties as an advisor and consultant in respect of the
operations and activities of the Company.
(b) Such services shall be rendered by Xx. Xxxxxx upon the
request of the Company, at such specific times and locations as shall be
mutually determined from time to time by the Company and Xx. Xxxxxx.
(c) It is understood that the inability of Xx. Xxxxxx to
render the services contemplated herein to the Company by reason of temporary or
permanent illness, disability, incapacity or death will not be considered a
failure to perform his services hereunder or constitute a breach or default of
Xx. Xxxxxx'x agreement as set out herein.
2. TERM. Unless sooner terminated pursuant to Section 7 hereof or
by six months notice given by either party, the term of this Agreement shall
commence on July 1, 2001 and shall continue until June 30, 2004 (the "Term").
3. COMPENSATION.
(a) As compensation for Xx. Xxxxxx'x advisory and consulting
services during the Term of this Agreement, the Company shall pay to Xx. Xxxxxx
a monthly fee of $8,333.33 beginning July 1, 2001 and continuing on the first
day of each consecutive month thereafter during the Term of this Agreement
(unless such day is not a business day for the Company, in which case, on the
next such business day). In addition to such monthly fee payable to Xx. Xxxxxx
hereunder, the Company will reimburse Xx. Xxxxxx for all reasonable expenses
incurred by him in rendering his services hereunder so long as such expenses
shall have been approved in advance by the Company. Xx. Xxxxxx will be provided
a Company-owned personal computer and related support services free of charge
during the Term of this Agreement.
(b) The parties acknowledge that Xx. Xxxxxx'x options to
purchase a total of two hundred and forty-one thousand, six hundred and
twenty-four (241,624) shares of the Company's common stock outstanding at the
inception of the 1998 Agreement will continue to be outstanding and exercisable
during the Term of the 1998 Agreement and this Agreement and for a period of
sixty (60) days thereafter, but only in accordance with the over-riding terms
and conditions of the underlying stock option agreements between the Company and
Xx. Xxxxxx dated March 23, 1995 and February 3, 1998.
(c) If Xx. Xxxxxx dies during the Term of this Agreement, the
Company shall cease to pay the monthly fee as provided in Section 3(a)
hereinabove, but the options to purchase the shares of the Company's common
stock as provided in Section 3(b) hereinabove may still be exercised, but only
to the extent exercisable at the time of Xx. Xxxxxx'x death, in accordance with
the applicable provisions of the underlying stock option agreements between the
Company and Xx. Xxxxxx dated March 23, 1995 and February 3, 1998.
(d) Xx. Xxxxxx is not an employee of the Company for any
purpose whatsoever, but is an independent contractor. The Company is interested
only in the results obtained by Xx. Xxxxxx, who shall have sole control of the
manner and means of performing under this Agreement. The Company shall not have
the right to require Xx. Xxxxxx to do anything which would jeopardize the
relationship of independent contractor between the Company and Xx. Xxxxxx. Xx.
Xxxxxx does not have, nor shall he hold himself out as having, any right, power
or authority to create any contract or obligation, either expressed or implied,
on behalf of, in the name of, or binding upon the Company, unless the Company
shall consent thereto in writing. Xx. Xxxxxx shall be responsible for filing all
proper returns and other forms for his tax liabilities and withholding
obligations.
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(e) Since Xx. Xxxxxx is not an employee of the Company, Xx.
Xxxxxx will be compensated as a non-employee member of the Company's Board of
Directors for as long as Xx. Xxxxxx is a member of the Company's Board of
Directors in a non-employee status.
4. ACKNOWLEDGMENTS AND AGREEMENTS. Xx. Xxxxxx hereby acknowledges
and agrees that:
(a) in performance of his duties as a consultant pursuant to
the 1998 Agreement and hereunder, Xx. Xxxxxx has been and will be in possession
of confidential information important to the business of the Company;
(b) any use by Xx. Xxxxxx of any "Trade Secrets" (as
hereinafter defined) or "Confidential Information" (as hereinafter defined) is
intended to inure to the exclusive benefit of the Company, and any goodwill
established thereby or associated therewith is intended to inure to the
exclusive benefit of the Company;
(c) any disclosure or use of any Trade Secrets or Confidential
Information except as otherwise authorized by the Company in writing, or any
other violation of Sections 5 or 6 hereof would be wrongful and cause immediate,
significant, continuing and irreparable injury and damage to the Company that is
not fully compensable by monetary damages;
(d) should Xx. Xxxxxx breach any provision of Sections 5 or 6
hereof, the Company shall be entitled to obtain immediate relief and remedies in
a court of competent jurisdiction (including, without limitation, damages,
specific performance, preliminary or permanent injunctive relief and an
accounting for all profits and benefits arising out of Xx. Xxxxxx'x breach),
cumulative of and in addition to any other rights or remedies to which the
Company may be entitled, at law or in equity; and
(e) the restrictions contained in Sections 5 and 6 hereof are
reasonable in scope, duration and geographic territory given the competitive
nature of the Company's business and the potential injury and damage that may
result to the Company from a breach thereof.
5. CONFIDENTIALITY AND OWNERSHIP OF WORK PRODUCT.
(a) For purposes of this Agreement, "Confidential Information"
means any confidential, proprietary, business information or data belonging to
or pertaining to the Company that does not constitute a "Trade Secret" (as
defined under applicable law) and that is not generally known by or available
through legal means to the public or the Company's competitors, including,
without limitation, information regarding the Company's shareholders, clients,
referral sources and suppliers. Confidential Information does not include
generic, non-proprietary knowledge held by Xx. Xxxxxx about the Company's
business or clients, where such information can be derived from non-confidential
sources or where such information is generally known by persons with experience
in the Company's industry comparable to that of Xx. Xxxxxx.
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(b) In recognition of the Company's need to protect its
legitimate business interests, Xx. Xxxxxx hereby covenants and agrees that with
regard to any: (i) Confidential Information, at all times during his engagement
by the Company pursuant to the 1998 Agreement and hereunder and following the
termination thereof for any reason for a period of two (2) years following the
termination of Xx. Xxxxxx'x engagement by the Company for any reason; and (ii)
Trade Secrets, at all times such information remains a "trade secret" under
applicable law, Xx. Xxxxxx shall regard and treat all such information as
strictly confidential and wholly owned by the Company and shall not, for any
reason or in any fashion, either directly or indirectly use, disclose, transfer,
assign, disseminate, reproduce, copy, or otherwise communicate any such
Confidential Information or Trade Secrets to any individual or entity for any
purpose other than in accordance with the terms of Xx. Xxxxxx'x engagement by
the Company hereunder.
(c) Xx. Xxxxxx shall exercise reasonable best efforts to
ensure the continued confidentiality of all Trade Secrets and Confidential
Information of the Company known by, disclosed to or made available to him,
whether in connection with the 1998 Agreement, this Agreement or any other past
or present relationship with the Company. Xx. Xxxxxx shall immediately notify
the Company of any unauthorized disclosure or use of any Trade Secrets or
Confidential Information of which he becomes aware. Xx. Xxxxxx shall assist the
Company, to the extent reasonably necessary, in the procurement of or any
protection of the Company's rights to or in any of the Trade Secrets or
Confidential Information.
(d) Any work product, property, data, documentation or
information or materials conceived, discovered, developed or created by Xx.
Xxxxxx pursuant to his previous, current and ongoing relationship with, or
engagement by, the Company which constitute or are protected by patents,
copyrights, trademarks, service marks and trade secrets of the Company existing
on the date hereof (collectively, the "Work Product") shall be owned exclusively
by the Company. To the greatest extent possible, all Work Product shall be
deemed to be a "work made for hire" (as defined in the Copyright Act, 17
U.S.C.A. Sections 101 et seq., as amended) and owned exclusively by the Company.
Xx. Xxxxxx hereby unconditionally and irrevocably transfers and assigns to the
Company all right, title and interest in or to any Work Product, including,
without limitation, all patents, copyrights, trademarks, service marks, trade
secrets and other intellectual property rights therein. Xx. Xxxxxx agrees to
execute and deliver to the Company any transfers, assignments, documents or
other instruments which the Company may deem necessary or appropriate, from time
to time, to vest complete title and ownership of all Work Product, and all
associated intellectual property and other rights, exclusively in the Company.
(e) Upon the request of the Company, (i) Xx. Xxxxxx shall take
such steps as the Company may reasonably request in order to transfer, disclose,
and give the Company the full benefit of any Work Product remaining in his
possession; and (ii) Xx. Xxxxxx shall deliver to the Company all memoranda,
notes, records, drawings, manuals, disks and other documents and media,
regardless of form, that contain Work Product, Confidential Information or Trade
Secrets.
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6. PROTECTIVE COVENANTS.
(a) DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings and shall be applicable only during the
Term of this Agreement:
(i) "BUSINESS" shall mean providing integration software
tools, clinical workstation tools, enterprise management tools and related
services to include implementation, maintenance, support, education, consulting,
project management, information management, technology-driven re-design,
expert-sourcing and other similar services, which the Company now offers to
healthcare providers, including but not limited to integrated healthcare
delivery networks, and other industries, such as banking, financial services and
government.
(ii) "COMPETITIVE POSITION" shall mean: (A) Xx. Xxxxxx'x
direct or indirect equity ownership (excluding equity ownership of less than
five percent (5%) of any public company) or control of any portion of any entity
(other than the Company or a corporate affiliate of the Company) engaged, wholly
or partly, in the Business; (B) any employment, consulting, partnership,
advisory, directorship, agency, promotional or independent contractor
arrangement between Xx. Xxxxxx and any entity (other than the Company) engaged,
wholly or partly, in the Business whereby Xx. Xxxxxx is required to or does
perform services substantially similar to the services provided to the Company
as an employee or pursuant hereto and related to the Business on behalf of or
for the benefit of such an entity; or (C) Xx. Xxxxxx'x performance of services
substantially similar to the Business for his own account and benefit (and not
at the direction of or for the benefit of the Company).
(iii) "CLIENT" shall mean an actual client or actively
sought prospective client of the Company during the term of Xx. Xxxxxx'x
engagement by the Company.
(b) NONCOMPETITION. Xx. Xxxxxx covenants and agrees that he
will not, during the Term of the 1998 Agreement and this Agreement hereunder,
directly or indirectly, alone or in conjunction with any other party, accept,
enter into or take any action in conjunction with or in furtherance of a
Competitive Position.
(c) NONSOLICITATION OF CLIENTS. Xx. Xxxxxx covenants and
agrees that he will not, during the Term of the 1998 Agreement and this
Agreement, directly or indirectly, alone or in conjunction with any other party,
solicit, divert or appropriate (or attempt to do so) any Client for the purpose
of providing the Client with services or products competitive with those offered
by the Company during the Term of the 1998 Agreement and this Agreement.
(d) NONSOLICITATION OF PERSONNEL. Xx. Xxxxxx covenants and
agrees that he will not, during the Term of the 1998 Agreement and this
Agreement (except as directed to do so by the Company), directly or indirectly,
alone or in conjunction with any other party, encourage or solicit (or attempt
to do so) any employee, consultant, contractor or other personnel of the Company
to terminate, alter or lessen such party's affiliation with the Company or to
violate the terms of any agreement or understanding between such party and the
Company.
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7. TERMINATION.
(a) DEATH. Subject to the provisions of Section 3(c) hereof,
this Agreement shall automatically and immediately terminate upon the death of
Xx. Xxxxxx.
(b) CAUSE. In addition to any other rights or remedies
available to the Company at law, in equity or hereunder, the Company may, at any
time, by delivering a written termination notice to Xx. Xxxxxx, immediately
terminate his engagement for "Cause" (as hereinafter defined). For purposes of
this Agreement, "Cause" shall mean any of: (i) Xx. Xxxxxx has been convicted of
a felony or a crime involving moral turpitude; (ii) Xx. Xxxxxx has committed an
act constituting fraud, theft, deceit or material misrepresentation with respect
to the Company or any customer or client of the Company; (iii) Xx. Xxxxxx has
embezzled funds or assets from the Company or any customer or client of the
Company; or (iv) the Board of Directors has concluded, in its sole discretion,
that Xx. Xxxxxx has breached or defaulted in the performance of any provision of
this Agreement and Xx. Xxxxxx has failed to remedy any such breach or default
that is capable of being remedied within five (5) days after written notice from
the Company that Xx. Xxxxxx is in breach or default. Upon such termination, the
Company shall pay to Xx. Xxxxxx all unpaid fees earned through the date of such
termination.
8. WAIVER AND RELEASE. In consideration of his engagement
hereunder, Xx. Xxxxxx hereby waives and releases the Company from liability for
all rights and claims, whether or not they are presently known to exist, that
Xx. Xxxxxx has against the Company relating in any way to Xx. Xxxxxx'x previous
employment or separation from employment with the Company. This release shall
not be deemed a release of any claim that Xx. Xxxxxx may have against the
Company arising out the Company's breach of this Agreement. The rights and
claims which Xx. Xxxxxx waives and releases in this Agreement include, to every
extent allowed by law, those arising under the Employee Retirement Income
Security Act of 1974, the Civil Rights Acts of 1866, 1871, 1964 and 1991, the
Fair Labor Standards Act, Rehabilitation Act of 1973, the Occupational Safety
and Health Act, the Veterans' Reemployment Rights Act, the Uniformed Services
Employment and Reemployment Rights Act of 1994 ("USERRA") and the Americans With
Disabilities Act. This is not a complete list, and Xx. Xxxxxx waives and
releases all similar rights and claims under all other federal, state and local
discrimination provisions and all other statutory and common law causes of
action relating in any way to his previous employment or separation from
employment with the Company, except for rights expressly set forth or reserved
in this Agreement. This release does not in any way impair Xx. Xxxxxx'x right to
be indemnified to the fullest extent allowed by law or the Bylaws of the Company
for any acts or omissions relating to or arising out of his previous employment
with the Company.
9. SURVIVAL. Notwithstanding any termination of this Agreement,
the provisions of Sections 4, 5, 6, 7, 8, 9, 11(d) and 11(g) hereof shall
survive and remain in full force and effect, as shall any other provision hereof
that, by its terms or reasonable interpretation thereof, sets forth obligations
that extend beyond the termination of this Agreement.
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10. NOTICES.
(a) All notices provided for or required by this Agreement
shall be in writing and shall be delivered personally to the other designated
party, or mailed by certified or registered mail, return receipt requested, or
delivered by a recognized national overnight courier service, as follows:
If to the Company: Xxxxxxxxxx.xxx Corporation
0000 Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
If to Xx. Xxxxxx: Xx. Xxxxxx X. Xxxxxx
J Xxxxxx, LLC
P. O. Xxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Notices delivered pursuant to Section 10(a) hereof shall
be deemed given: at the time delivered, if personally delivered; three (3)
business days after being deposited in the mail, if mailed; and one (1) business
day after timely delivery to the courier, if by overnight courier service.
(c) Either party hereto may change the address to which notice
is to be sent by written notice to the other party in accordance with the
provisions of this Section 9.
11. MISCELLANEOUS.
(a) This Agreement contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto.
No waiver, termination or discharge of this Agreement, or any of the terms or
provisions hereof, shall be binding upon either party hereto unless confirmed in
writing. This Agreement may not be modified or amended, except by a writing
executed by both parties hereto. No waiver by either party hereto of any term or
provision of this Agreement or of any default hereunder shall affect such
party's rights thereafter to enforce such term or provision or to exercise any
right or remedy in the event of any other default, whether or not similar.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
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(c) Xx. Xxxxxx may not assign this Agreement, in whole or in
part, without the prior written consent of the Company, and any attempted
assignment not in accordance herewith shall be null and void and of no force or
effect.
(d) This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(e) The headings contained herein are for the convenience of
the parties only and shall not be interpreted to limit or affect in any way the
meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute the same Agreement. Any signature page of any such
counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this
Agreement, and any telecopy or other facsimile transmission of any signature
shall be deemed an original and shall bind such party.
(g) The unenforceability or invalidity of any provision of
this Agreement shall not affect the validity or enforceability of the remaining
provisions hereof, but such remaining provisions shall be construed and
interpreted in such a manner as to carry out fully the intent of the parties
hereto; provided, however, that should any judicial body interpreting this
Agreement deem any provision hereof to be unreasonably broad in time, territory,
scope or otherwise, it is the intent and desire of the parties hereto that such
judicial body, to the greatest extent possible, reduce the breadth of such
provision to the maximum legally allowable parameters rather than deeming such
provision totally unenforceable or invalid.
(h) This Agreement shall not be construed more strongly
against either party hereto regardless of which party is responsible for its
preparation.
(i) Upon the reasonable request of the other party, each party
hereto agrees to take any and all actions, including, without limitation, the
execution of certificates, documents or instruments, necessary or appropriate to
give effect to the terms and conditions set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused their
duly authorized representatives to execute, this Agreement as of the day and
year first above written.
XXXXXXXXXX.XXX CORPORATION
By: /S/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
"Xx. Xxxxxx"
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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