EXHIBIT 10.5
CONSULTING AGREEMENT
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This Consulting Agreement ("Agreement") dated effective April 1, 2001, by
and between ROCKPORT HEALTHCARE GROUP, INC., a Delaware corporation ("Company"),
and XXXX X. XXXXXXX, a California resident ("Consultant"), evidences that, in
consideration of the mutual covenants and agreements contained herein, the
Company hereby engages Consultant and Consultant hereby accepts such engagement
and agrees to perform the services specified herein upon the terms and
conditions set forth in this Agreement.
1. Duties and Responsibilities. Consultant will act as a consultant to
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the management of the Company and in such capacity will perform various
management services, as requested by the Company, including, without limitation,
consultation concerning strategic planning, client relations, and marketing as
well as operations audits. Consultant shall make himself reasonably available
for the performance of any such services, with the understanding that he is
engaged in other part-time businesses and investment activities. These services
may be routinely performed at Consultant's residence or elsewhere in Southern
California and from time to time at Company's Houston office, or elsewhere as
directed by Company.
2. Terms of Agreement. The term of the Agreement ("Term") shall be from
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the effective date hereof through March 31, 2002. It shall be automatically
renewed thereafter for one year periods unless either party shall provide at
least thirty (30) days advance written notice to the other of the intention to
terminate at the end of any annual period.
3. Compensation. In consideration for these services Consultant shall
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receive a consulting fee equal in amount to a two percent (2%) overwrite on the
gross sales of Company and its subsidiaries during the Term.
4. Early Termination. This Agreement shall terminate prior to the
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expiration of the Term hereof upon the occurrence of any of the following:
(a) Upon written notice to the Company from the Consultant.
(b) The death of the Consultant.
(c) With cause, upon written notice to the Consultant from the
Company; provided that, for purposes of this Agreement, the
following shall constitute "cause" (i) the failure of the
Consultant to observe or satisfactorily perform his duties and
responsibilities hereunder or other violations of the terms and
provisions of this Agreement; (ii) dishonesty, fraud or
disloyalty of the Consultant in matters affecting the consulting
relationship; (iii) negligence or misconduct by Consultant in the
performance of his services hereunder; or (vi) Consultant's
breach of any other written agreement between Company and
Consultant.
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In the event of termination of the Term for cause, the Company shall no
longer be obligated to make any payment of any kind whatsoever to the Consultant
except for consulting fees and reimbursable out-of-pocket expenses accrued to
the date of termination but not yet paid, which fees and reimbursable expenses
shall be paid, subject to the right of the offset described below, upon such
termination or as soon thereafter as is practicable. In the event of
termination of the Term for any reason except for cause, the Company shall be
obligated to pay to Consultant the balance of consulting fees for the remainder
of the term of this Agreement. Upon any such termination the Consultant shall
pay the Company, any amount or amounts owed by the Consultant to the Company,
and the Company shall be entitled to offset against any amounts owed to the
Consultant to the Company without prejudice to any other rights or remedies of
the Company available at law or in equity.
5. Confidentiality of Information. The Consultant recognizes and
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acknowledges that he will have access to certain confidential information of the
Company ("Information") and that such Information constitutes valuable, special
and unique assets of the Company. Consultant will cause the Information
obtained by him to be treated as strictly confidential. Consultant agrees that
he will not use or knowingly permit others to use any such Information in a
manner detrimental to the Company, and will not disclose any such Information to
any person, firm, corporation, association or other entity for any reason or
purpose whatsoever, except to authorized representatives of the Company or upon
the written consent of the president of the Company or to a governmental agency
pursuant to a valid subpoena or other order or pursuant to applicable
governmental regulations, rules or statutes. For purposes hereof, authorized
representatives of the Company shall be directors and officers of the Company to
which such Information is furnished in the normal course of business under
established policies approved by the Company. The Consultant further agrees
that, upon termination of this Agreement, he will not take with him or retain,
or disclose to others without written authorization from the president of the
Company, any papers, specifications, processes, techniques, files or other
documents or copies thereof, data or other confidential information of any kind
belonging to the Company.
6. Enforcement. The Consultant acknowledges that the rights reserved
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to the Company under Section 5 hereof are necessarily of a special, unique and
extraordinary nature and that the loss arising from a breach or threatened
breach thereof cannot reasonably and adequately be compensated by money damages
and will cause the Company to suffer irreparable harm and that a remedy at law
for any breach thereof will be inadequate. Accordingly, the Consultant hereby
agrees that the Company shall be entitled to injunctive or other extraordinary
relief in case of any such breach or threatened breach, which shall, however, in
no way limit any other rights, including the recovery of damages, which the
Company may have under the terms of this Agreement.
7. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and if sent by registered or
certified mail to the parties at the addresses indicated below their signatures
on the signature page of this Agreement or to such other address as either party
shall hereafter designate by written notice to the other.
8. Assignment. The Consultant may not assign his rights or oblations
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hereunder.
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9. Binding Effect. This Agreement shall inure to the benefit of and
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shall be binding upon the Company and its successors and assigns (by merger,
consolidation and otherwise) and upon the Consultant and his personal
representatives and heirs. The provisions of Sections 5 and 6 shall survive any
termination of this Agreement.
10. Prior Agreements Superseded. This Agreement constitutes the sole
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and only agreement of the parties hereto concerning the within subject matter
and supersedes any prior understandings or written or oral agreements between
the parties respecting the within subject matter.
11. Waiver. No failure to insist upon strict compliance with any
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provision hereof shall be deemed a waiver of such provision or any other
provision hereof. No failure to exercise and no delay in exercising, on the part
of the Company, any right, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law or in any other agreement.
12. Captions. The captions used in the Agreement are for convenience
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only and are not to be construed in interpreting this Agreement.
13. Counterparts. This Agreement may be signed and delivered in two or
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more counterparts, each of which shall be deemed an original and all of which
together will constitute one and the same instrument.
14. Amendment. This Agreement may be amended only by a written
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instrument signed by each party hereto.
15. Gender and Number. Whenever required by the context, as used in
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this Agreement the singular number includes the plural and the masculine
includes the feminine or the neuter.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. EACH PARTY HERETO HEREBY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND THE FEDERAL
COURTS IN AND FOR THE SOUTHERN DISTRICT OF TEXAS IN CONNECTION WITH ANY MATTER
RELATING TO THIS AGREEMENT AND ANY OTHER DOCUMENT EXECUTED IN CONNECTION
HEREWITH.
17. Severability. If any provision of this Agreement, or the
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application thereof to any person or circumstance, is for any reason or to any
extent, invalid or unenforceable, the remainder of the Agreement and the
application of such provision to the other persons or circumstances shall not be
affected thereby, but rather is to be enforced to the greatest extent permitted
by law.
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18. Dispute Resolution. ALL DISPUTES BETWEEN CONSULTANT AND WITH
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RESPECT TO ANY PROVISON OF THIS AGREEMENT OR THE RIGHTS AND OBLIGATIONS OF THE
COMPANY AND HEREUNDER (OTHER THAN DISPUTES INVOLVING ALLEGATIONS OF INTENTIONAL
FRAUD), WHICH CANNOT BE RESOLVED BY MUTUAL AGREEMENT, WILL BE RESOLVED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION IN XXXXXX COUNTY, TEXAS OR BY ANY OTHER MEANS OF ALTERNATIVE DISPUTE
RESOLUTION MUTUALLY AGREED UPON BY THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COMPANY: ROCKPORT HEALTHCARE GROUP, INC.
By: __________________________
Its:
ADDRESS:
00 Xxxxx Xxxxxx Xxxx, #000X
Xxxxxxx, Xxxxx 00000
CONSULTANT: XXXX X. XXXXXXX
_________________________________
ADDRESS:
000 Xxxxxxxx Xxx.
Xxx Xxx, Xxxxxxxxxx 00000
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