EXHIBIT 10.43
CONSULTING AGREEMENT
Agreement made this 1st day of October, 1996, by and between US
Diagnostic Inc., a Delaware corporation ("USDL") and Xxxxxx Xxxxx, M.D.
("Xxxxx").
NOW, THEREFORE, in consideration of the premises and the obligations
undertaken by the parties pursuant hereto, the parties agree:
I. RECITALS
1.1. USDL is engaged in the ownership and operation of diagnostic imaging
centers.
1.2. Xxxxx is a practicing radiologist with extensive experience in the
ownership and operation of diagnostic imaging facilities.
1.3. PURPOSE. USDL desires to engage Xxxxx, under the terms of this
agreement, to provide his skills as supervision to assist in the management of
USDL and the evaluation of potential acquisitions.
II. ENGAGEMENT, SERVICES AND DUTIES
2.1. ENGAGEMENT. USDL hereby engages Xxxxx, and Xxxxx hereby accepts
engagement as a part-time consultant to the Company, subject to all provisions
hereof.
2.2. DUTIES. Xxxxx shall consult with respect to the operations of USDL's
diagnostic imaging centers and the acquisition of additional imaging centers in
order to assist in the efficient operations of USDL. Xxxxx shall consult with
USDL on all matters requested by USDL. Xxxxx shall be available to report to,
consult with and advise USDL on all matters pertaining to the operation of the
Company at such times as USDL may reasonably request. Xxxxx shall devote a
minimum of 15 and a maximum of 30 hours per month in such capacity. Xxxxx shall,
at the reasonable request of USDL, deliver to USDL narrative reports, which
shall be in writing, discussing the operations of USDL.
2.3. BEST EFFORTS AND REASONABLE CARE. Xxxxx will exert his best efforts
to assist the management of USDL in accordance with the terms and provisions of
this agreement, and will use reasonable care in providing such services.
2.4. CONFIDENTIALITY. Xxxxx will not disclose or otherwise use in an
unauthorized manner confidential business and patient records and documents of
USDL without the express written consent of USDL while this agreement is in
effect or after this agreement is terminated.
COMPENSATION
3.1. FEES. Xxxxx will be entitled to receive a consulting fee of $100,000
per annum, payable monthly commencing October 1, 1996.
3.2. EXPENSES. Xxxxx shall be reimbursed for all reasonable out-of-pocket
expenses incurred in connection with this agreement.
IV. TERM OF AGREEMENT
4.1. TERM. This agreement will terminate on September 30, 1999 unless
terminated by either party as hereinafter provided.
4.2. TERMINATION BY USDL. (a) The Company may terminate this Agreement at
any time for cause by giving written notice of termination. Such termination
will become effective upon the giving of such notice, except that termination
based upon clause (iii) below shall not become effective unless Xxxxx shall fail
to correct such breach within three months of receipt of written notice. At the
conclusion of such three month period, this alleged breach shall be deemed to
have been cured unless written notice to the contrary is given. Upon any such
termination for cause, Xxxxx shall have no right to compensation or
reimbursement under Section 3 for any period subsequent to the effective date of
termination. "Cause" shall mean: (i) Xxxxx is convicted of a felony which is
related to Xxxxx'x employment or the business of the Company; (ii) Xxxxx, in
carrying out his duties hereunder, has been found in a civil action to have
committed gross negligence, willful gross misconduct, misappropriated Company
funds or otherwise defrauded the Company, resulting in any case in material harm
to the Company; and (iii) Xxxxx materially breaches any provision of Sections 5
or 6.
(b) This Agreement and the obligations of the Company hereunder will
terminate upon the death or disability of Xxxxx. For purposes of this Section
4.2(b), "disability" shall mean that for a period of six months in any 12-month
period Xxxxx is incapable of substantially fulfilling the duties hereunder
because of physical, mental or emotional incapacity resulting from injury,
sickness or disease.
4.3. TERMINATION BY XXXXX. Xxxxx shall have the right upon sixty (60) days
prior written notice to terminate this agreement.
4.4. TERMINATION BY EITHER PARTY. In addition, and without prejudice to any
other rights it may have to terminate this agreement or to seek other available
remedies, including but not limited to remedies for breach of contract, either
party shall have the right at any time, by giving written notice to the other
party, to terminate this agreement upon a date specified therein, which shall
not be less than sixty (60) days from the date notice is given, upon the
occurrence of any of the following events of default:
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4.4.1. If the other party shall fail to make any payment which it is
obligated to make pursuant to the terms of this agreement and such failure shall
continue for a period of thirty (30) days after notice thereof to the defaulting
party.
4.4.2. If the other party shall fail to keep, observe or perform any
material covenant, agreement, term of provision of this agreement, other than an
obligation to pay money, to be kept, observed or performed by such party, and
such failure shall continue for a period of thirty (30) days after notice
thereof to the defaulting party.
4.5 AUTOMATIC TERMINATION. This agreement shall terminate automatically if
Xxxxx becomes (i) an executive officer of a publicly traded company or (ii) a
director, officer or consultant (other than as a consultant solely providing
radiology services and not business services) of a company, other than Midtown
Imaging, P.A, whose primary business is radiology or diagnostic imaging.
4.6 PAYMENT UPON TERMINATION. If this agreement is terminated by either
party, the current and accrued consulting fee due Xxxxx pursuant to Section 3.1.
above and all reimbursable expenses due thereunder, shall be paid to Xxxxx by
USDL within the ten (10) days of such termination.
V. NON-COMPETITION AGREEMENT
5.1. COMPETITION WITH THE COMPANY. Until termination of his engagement and
for a period of 12 months commencing on the date of termination, Xxxxx directly
or indirectly, in association with or as a stockholder, director, officer,
consultant, employee, partner, joint venturer, member or otherwise of or through
any person, firm, corporation, partnership, association or other entity, will
not compete with USDL or any of its affiliates in the offer, sale or marketing
of radiology products or services, including radiology practice management
services, that are competitive with the products or services offered by USDL
within five miles of any facility owned or operated by USDL outside of the State
of Florida which is then engaged in the offer and sale of competitive products
or services. The foregoing shall not prohibit Xxxxx from (i) continuing his
existing medical practice at Midtown Imaging, P.A., (ii) engaging in the offer,
sale or marketing of radiology products or services, including radiology
practice management services within the State of Florida, (iii) providing
radiology "reading "services on an independent contractor basis anywhere in the
United States, and (iv) owning up to 5% of the securities of any publicly-traded
enterprise provided Xxxxx is not an employee, director, officer, consultant to
such enterprise or otherwise reimbursed for services rendered to such
enterprise.
5.2. NO PAYMENT. Xxxxx acknowledges and agrees that no separate or
additional payment will be required to be made to him in consideration of his
undertakings in this Section 5.
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5.3. RELEASE. The provisions of this Section 5 shall not apply if this
Agreement is terminated by USDL without cause or by Xxxxx upon a material breach
by USDL.
VI. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
6.1. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Xxxxx acknowledges that
during his engagement he will learn and will have access to confidential
information regarding USDL and its affiliates, including without limitation (i)
confidential or secret plans, programs, documents, agreements or other material
relating to the business, services or activities of USDL and its affiliates and
(ii) trade secrets, market reports, customer investigations, customer lists and
other similar information that is proprietary information of USDL or its
affiliates (collectively referred to as "Confidential Information"). All
records, files, materials and Confidential Information excluding personal items,
obtained by Xxxxx in the course of his employment with USDL are confidential and
proprietary and shall remain the exclusive property of USDL or its affiliates,
as the case may be. Xxxxx will not, except in connection with and as required by
his performance of his duties under this Agreement, for any reason use for his
own benefit or the benefit of any person or entity with which he may be
associated or disclose any such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
without the prior written consent of the board of directors of USDL, unless such
Confidential Information previously shall have become public knowledge through
no action by or omission of Xxxxx.
VII. MISCELLANEOUS
7.1. ACCESS TO THE CENTER, CONFIDENTIALITY OF RECORDS. Xxxxx shall, during
the term hereof, be given such access as is reasonably necessary to USDL's
facilities and its records, in order that he may carry out his obligations
hereunder, subject to confidentiality requirements of patient medical records as
established by USDL in consultation with Xxxxx. Xxxxx shall use his best efforts
to maintain the confidentiality of all files and records, including patient
records, of USDL, disclosing the same only as directed by law or by USDL in any
particular instance.
7.2. SUCCESSORS. All the provisions herein contained shall be binding upon
and inure to the benefit of the successors (including resulting corporations in
a merger, consolidation or other reorganization) and assigns of Xxxxx and USDL
to the same extent as if each such successor and assign were in each case named
as a party to this agreement.
7.3. RESTRICTION ON ASSIGNMENT. Neither party hereto may assign its
interest in or delegate the performance of its obligations under this agreement
to any person without obtaining the prior written consent of the other party.
7.4. RIGHTS CUMULATIVE; NO WAIVER. No right or remedy herein conferred upon
or reserved to either of the parties hereto is intended to be exclusive of any
other right or remedy, and each and every right and remedy shall be cumulative
and in addition to any
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other right or remedy given hereunder, or now or hereafter legally existing upon
the occurrence of an event of default hereunder. The failure to either party to
insist at any time upon the strict failure to either party to insist at any time
upon the strict observance or performance of any of the provisions of this
agreement, shall not impair any such right or remedy or be construed as a waiver
or relinquishment thereof with respect to subsequent defaults. Every right and
remedy given by this agreement to the parties hereto may be exercised from time
to time and as other as may be deemed expedient by the parties, as the case may
be.
7.5. HEADINGS. The headings to the various sections of the agreement have
been inserted for convenience of reference only and shall not modify, define,
limit or expand the express provisions of this agreement.
7.6. COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which shall be an original, and each counterpart shall
together constitute but one and the same agreement.
7.7. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deeded to have been duly give, if any
hand delivered, upon receipt thereof, or if mailed by certified or registered
mail, postage prepared, three (3) days following deposit in the U.S. mail and,
in any event, to be addressed as follows:
If to Xxxxx:
Xxxxxx Xxxxx, M.D.
00 Xxxxxxxxx Xxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
If to USDL:
US Diagnostic Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Chairman
or to such other person and address as the parties may designate in writing.
7.8 EFFECT OF INVALIDITY. Should any part of this agreement, for any
reason, be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in full force and effect
as if this agreement had been executed with the invalid portion thereof
eliminated.
7.9 AUTHORIZATION FOR AGREEMENT. The execution and performance of this
agreement by USDL and Xxxxx have duly authorized by all necessary corporate
action, and this
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agreement constitutes a valid and binding obligation of USDL and Xxxxx,
enforceable against each of them in accordance with its time.
7.10. NOTICE OF CLAIMS. Any party shall immediately give notice of any
claim against it to any party from whom it intends to seek indemnity pursuant to
section 5.1 or 5.2 hereof.
7.11. ARBITRATION. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in West Palm Beach, Florida (unless the
parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding the parties agree to provide all
discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof.
7.12. ATTORNEY'S FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding including that in
arbitration as provided for in Section 7.11 of this Agreement, is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to an award by the court or arbitrator, as appropriate, of reasonable attorney's
fee, costs and expenses.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed as of the 1st day of October, 1996.
XXXXXX XXXXX, M.D. US DIAGNOSTIC INC.
________________________ By:___________________________
Xxxxxxx X. Xxxxxxx, Chairman
