Exhibit 10.4 CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into the 23rd day of August, 1990, by
and between AMSERV, INC., (the "Company") and XXXXXX X. XXXX ("Xxxx").
W I T N E S S E T H:
In consideration of the covenants and agreements herein set forth and of the
mutual benefits accruing to Company and to Xxxx from the consulting relationship
to be established between the parties by the terms of this Agreement, Company
and Xxxx agree as follows:
1. Consulting Relationship. As of the first day of the first month
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following Xxxx'x termination of employment with the Company, whether voluntary
or involuntary (except in the event of death), Company will retain Xxxx and Xxxx
will be retained by Company, as an independent consultant and not as an
employee, on the terms and conditions described herein. The consulting
arrangement shall continue for a period of one year.
2. Consulting Services. During the term of this Agreement Xxxx will:
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(a) Perform such duties and execute the policies of Company as
reasonably requested by its Board of Directors; provided, that said duties and
policies will not be inconsistent with the nature of the duties performed by
Xxxx during his active service with Company as an officer, director and employee
thereof; and provided further that such duties shall not be such as would
interfere with the performance of other full or part-time employment or self
employment by Xxxx, whether or not Xxxx is engaged in such employment or self
employment.
(b) Exercise a reasonable degree of skill and care in performing the
services referred to in paragraph (a) above.
3. Compensation. The Company will pay Xxxx for his services performed
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under this Agreement annual compensation of $102,500 for two years, payable in
equal installments not less frequently than monthly.
4. Funding of Payments. In order to assure the performance by Company
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or its successor of its obligations under this Agreement, the Company may
deposit in trust an amount equal to the maximum payment that will be due Xxxx
under the terms hereof. Under a written trust instrument, the Trustee shall be
instructed to pay to Xxxx the amount to which Xxxx shall be entitled under the
terms hereof, and the balance, if any, of the trust not so paid or reserved for
payment shall be repaid to the Company. If and to the extent there are not
amounts in trust sufficient to pay Xxxx under this Agreement, the Company shall
remain liable for any and all payments due to Xxxx. In accordance with the terms
of such trust, at all times during the term of this Agreement Xxxx shall have no
rights, other than as unsecured general creditors of the Company, to any amounts
held in trust and all trust assets shall be general assets of the Company and
subject to the claims of creditors of the Company.
5. Construction. This agreement represents the complete Agreement
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between Company and Xxxx concerning the subject matter hereof and supersedes all
prior agreements or understandings, written or oral. No attempted modification
or waiver of any of the provisions
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hereof shall be binding on either party unless in writing and signed by both
Xxxx and Company.
6. Notices. Any notice required or permitted to be given hereunder shall
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be sufficient if in writing and if sent by registered mail to Xxxx'x principal
residence or to the Company's principal office, as the case may be.
7. Assignment. Neither this Agreement nor any of the rights, duties or
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obligations of either party may be assigned or delegated by either party without
the prior written consent of the other party.
8. Other Agreements. This Agreement is supplemental and in addition to
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other agreements and arrangements between Company and Xxxx, including without
limitation an Employment Agreement and various benefit programs, and is not
intended to modify or replace any such agreements, arrangements, or benefits now
existing or hereafter arising.
9. Applicable Law. It is the intention of the parties hereto that all
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questions with respect to the construction and performance of this Agreement and
the rights and liabilities of the parties hereto shall be determined in
accordance with the laws of the State of Delaware.
AMSERV, INC.
By: /s/Xxxxxx X. Xxxxxx
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Its Director
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/s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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AMENDMENT TO CONSULTING AGREEMENT
This is an Amendment to a Consulting Agreement entered into the 23rd day of
August, 1990, ("Consulting Agreement") by and between AMSERV, INC., a Delaware
corporation known since August 4, 1992, as AMSERV HEALTHCARE INC. (the
"Company") and XXXXXX X. XXXX ("Xxxx").
The parties hereto agree as follows:
1. Section 1 of the Consulting Agreement is amended to read as follows:
"1. Consulting Relationship. As of the first day of the first month
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following Xxxx'x termination of employment with the Company, whether
voluntary or involuntary (except in the event of death), Company will retain
Xxxx and Xxxx will be retained by Company, as an independent consultant and
not as an employee, on the terms and conditions described herein. The
consulting arrangement shall continue for a period of two years."
2. Section 3 of the Consulting Agreement is amended to read as follows:
"3. Compensation. The Company will pay Xxxx for his services performed
under this Consulting Agreement annual compensation of $129,200 per year for
two years, payable in equal installments not less frequently than monthly."
IN WITNESS WHEREOF, the parties have executed this Amendment as of August
15, 1991.
AMSERV HEALTHCARE INC.
By: /s/Xxxxxx X. Xxxxxx
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Its Director
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/s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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