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EXHIBIT 10.1
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made in ______________
as of this____ day of _____________, 1999 by and between Healthbridge, Inc., a
Delaware corporation ("Company"), and Xxxxxxx X. Xxxxxxx ("Consultant"). Company
and Consultant are each sometimes hereinafter referred to as a "Party" and
collectively, the "Parties".
RECITALS
WHEREAS, Company desires to employ a Consultant to perform certain
services for the Company and the Consultant desires to perform such services on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions herein contained, the parties, intending to be legally
bound, agree as follows:
SECTION 1. TERM AND DUTIES.
1.1 Retention of Consultant. Company hereby retains the Consultant to
perform the duties described herein in accordance with the terms and conditions
set forth in this Agreement. Consultant agrees to perform such duties faithfully
and to the best of his ability and to devote such time and attention to his
duties hereunder as is reasonably necessary to perform Consultant's duties
hereunder.
1.2 Term. The term of this Agreement shall begin on the date hereof
and end on the first anniversary thereof, unless earlier terminated as provided
herein
1.3 Duties. The Consultant shall perform all the reasonable duties
assigned to him by the Chief Executive Officer of the Company from time-to-time;
provided, however, that Consultant shall not be required to travel from his
residence in Germany to the United States on less than seven days advance
written notice and without reimbursement of reasonable travel expenses, nor
shall Consultant be required to provide services averaging more than 40 hours
per month on an annualized basis (excluding attendance at meetings of the
Company's Board of Directors, if required). Consultant shall use his best
efforts to fulfill his duties and shall cooperate fully with Company in the
advancement of Company's best interests.
SECTION 2. COMPENSATION, EXPENSES.
2.1 Base Fee. Company shall pay Consultant a base fee of $5,000 per
month (the "Consulting Fee") payable in advance, inclusive of all costs except
for expenses reimbursable, if any, as provided in Section 2.2 below. Payments
under this Section shall be made to Consultant
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on the first business day of each calendar month during the term of this
Agreement, prorated for any period of less than a month.
2.2 Expenses. All expenses incurred by Consultant in the performance
of his duties shall be borne by Consultant, except that the Company shall
reimburse the Consultant for reasonable expenses not exceeding $50 for any one
expenditure and other expenditures approved by Company (in its sole discretion)
in advance and in writing. All travel expenses must be approved by Company in
advance and in writing and shall be paid in advance at the request of
Consultant. If the services to be performed by Consultant require travel by the
Consultant and Company shall decline to reimburse such expenses, Consultant may
decline to perform such services. The Consultant shall submit to Company a
statement itemizing any such expenses and stating the amount due from Company;
such statement shall have attached any receipts and invoices evidencing such
expenses. Within thirty (30) days after the closing of the Company's fiscal
quarter, Company shall pay to the Consultant the full amount of reasonable and
all preapproved expenses submitted by Consultant, excepting only those expenses,
which are either insufficiently substantiated or unreasonable. Within thirty
(30) days of any travel or other expenses paid in advance by Company, Consultant
shall submit to the Company a statement itemizing the use of the advance payment
made by the Company together with reimbursement for any portion of such advance
not expended in such travel.
SECTION 3. FACILITIES. The Consultant shall provide all of his own office space,
equipment, supplies, and other facilities as the Consultant deems necessary or
appropriate for the performance of his duties under this Agreement. If
Consultant is required to perform services at an office of the Company, Company
shall at its expense provide office space, equipment, supplies, and other
facilities as is required to perform such services. Company may furnish the
Consultant (in its sole discretion) with other resources as Company deems
necessary or appropriate for the Consultant's performance of his duties under
this Agreement.
SECTION 4. TERMINATION.
4.1 Termination for cause. The Company may terminate the Consultant's
employment hereunder "for cause" but such termination will be limited to the
following events: (a) the Consultant's conviction of any crime involving theft
or willful destruction of property of the Company or his conviction of any
felony involving moral turpitude or fraud; (b) Consultant's continued and
repeated violations of specific reasonable written directions of the Chief
Executive Officer of the Company (other than Consultant's declination of
services for failure of the Company to pay in advance for any travel costs
required) and (c) the Consultant's breach of any material representation and
warranty or covenant made herein.
4.2 Termination other than for cause. The Company may terminate this
Agreement at any time by giving Consultant thirty (30) days advance notice.
4.3 Obligations of the Company Upon Termination. Upon termination of
this Agreement by the Company "for cause" the Company shall not be obligated to
pay Consultant
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the Consulting Fee for the remainder of the term of this Agreement. Upon
termination of this Agreement other than "for cause", the Company shall pay the
Consultant the Consulting Fee when due until the end of the term, as if this
Agreement had not been terminated
SECTION 5. OTHER ENGAGEMENTS. During the term of this Agreement, Consultant may
undertake to perform any service on behalf of any other entity. Upon request by
Company, Consultant shall promptly provide Company with a written notice,
updated from time to time, as requested by Company, containing: (i) the names of
any other entities for which Consultant is performing services, and (ii) the
type of services being performed for such other entities.
SECTION 6. NON-SOLICITATION; DISPARAGMENT.
6.1 Covenants. During the term of this Agreement and for six (6)
months thereafter, the Consultant shall not, directly or indirectly: (a) whether
for the Consultant's own account or the account of any other person, interfere
with Company's relationship with any person, including any person who at any
time during the term hereof was an employee, contractor, supplier, or customer
of Company; or (b) disparage Company or any of its shareholders, directors,
officers, employees, or agents.
6.2 Construction. If any covenant in Section 6.1 is held to be
unreasonable, arbitrary, or against public policy, such covenant shall be
considered to be divisible with respect to scope and time, and such lesser scope
or time, or both of them, as a court of competent jurisdiction may determine to
be reasonable, not arbitrary, and not against public policy, shall be effective,
binding, and enforceable against the Consultant.
6.3 Publicity and Announcements. No announcement shall be made by
Consultant in connection with the signing of this Agreement or the subject
matter hereof without the prior agreement of Company.
SECTION 7. CONFIDENTIALITY.
7.1 Confidentiality Provisions.
(a) From time to time Company and its affiliates may provide the
Consultant with Confidential Information (as defined below) in connection with
work to be performed by the Consultant pursuant to this Agreement. With regard
to this Confidential Information, the parties agree that throughout and
following the term of this Agreement for a period of 3 years, the Consultant
shall hold in confidence the Confidential Information and shall not disclose it
to any person except (1) with the specific prior written consent of Company, (2)
as otherwise expressly permitted by the terms of this Agreement, and (3) to
persons to whom the Consultant reasonably believes that disclosure must be made
to facilitate the Consultant's obligations under this Agreement so long as such
persons enter into an agreement with Company pursuant to which such persons
agree to hold all Confidential Information provided to them in strictest
confidence and to use it for no purpose other than the purpose for which it is
disclosed.
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(b) All trade secrets of Company shall be entitled to all of the
protections and benefits under all applicable state and federal laws. The
Consultant hereby waives any requirement that Company submit proof of the
economic value of any trade secret or post a bond or other security.
(c) None of the foregoing obligations and restrictions applies to any
part of the Confidential Information that the Consultant demonstrates was or
became generally available to the public other than as a result of a disclosure
by the Consultant after the date of this Agreement or by another party known by
Consultant to be bound by a duty of confidentiality to Company.
(d) Confidential Information means:
(1)' all information to which Company, and its representatives have
given Consultant access both prior to and during his performance of this
Agreement, including, without limitation, all product specifications, data,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing methods or distribution plans and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software, programs and
technologies (including object code and source code), programs and technologies,
databases and database technologies, systems, structures, and architectures (and
related formulae, compositions, processes, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and information, and
any other information, however documented, that is a trade secret of the Company
within the meaning of any applicable state or Federal trade secret law; and
(2) information concerning the affairs of the Company (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials, however documented) which has not been made public by the Company;
and
(3) notes, analysis, compilations, studies, summaries, and other
material prepared by or for Company containing or based, as a whole or in part,
on any information included in the foregoing.
7.2 Return of Confidential Information. Upon termination of this
Agreement, or upon the request of Company during the term of this Agreement, the
Consultant shall return to Company all of the Confidential Information in his
possession or subject to his control, and the Consultant shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Confidential Information.
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SECTION 8. CONSULTANT REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1 Performance. Consultant represents and warrants that it will
perform all of his obligations under this Agreement in a good and workmanlike
manner, consistent with or exceeding generally accepted industry practices and
procedures. In addition, Consultant represents and warrants that: (a) services
performed under this Agreement shall meet any reasonable instructions and
specifications provided to Consultant; and (b) the work delivered resulting from
Consultant's obligations hereunder shall at all times during the term of this
Agreement be up-to-date and current.
SECTION 9 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES. Each Party
represents, warrants and covenants to the other Party as follows:
9.1 Corporate Organization and Good Standing. The Company is a company
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its principal place of business, with all requisite
corporate/company power and authority to own, operate and lease its properties
and to carry on its business as it is now being conducted. The Company is
qualified and in good standing to do business in all jurisdictions where its
business or ownership or leasing of property or assets requires such
qualification.
9.2 Authority. The Party has all requisite corporate/personal power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated hereby. To
the extent required by law, the execution and delivery of this Agreement by the
Party and the consummation by the Party of the transactions contemplated hereby
have been duly authorized by its board of directors or similar governing body,
if applicable, and no other corporate, shareholder or member proceedings on the
part of the Party are necessary to authorize the Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Party and this Agreement is a valid and binding obligation of
the Party enforceable against such Party.
9.3 Actions and Proceedings. There is no claim, charge, arbitration,
grievance, action, suit, investigation, bankruptcy, insolvency, rearrangement or
similar actions or proceedings, whether voluntary or involuntary, by or before
any court, arbiter, administrative agency or other governmental authority now
pending or, to the best of the Party's knowledge, threatened against the Party
or any of its affiliates, or which involves any of the business, properties or
assets of the Party or its affiliates that, if adversely resolved or determined,
would have a material adverse effect on the Party or its affiliates. Neither the
Party nor any of its affiliates has any intention of filing or commencing any
such actions or proceedings.
9.4 Conflicts. Neither the execution and delivery by the Party nor the
performance by the Party of the terms hereof conflicts with, results in a breach
or violation of any of the terms or provisions of, or constitutes a default
under (a) the organizing documents of the Party, (b) any statute, law or
regulation applicable to the Party, or (c) any judgment, decree, order or ruling
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applicable to the Party of any court or regulatory, administrative or
governmental agency, body or authority, or arbitrator having or asserting
jurisdiction over the Party or its properties, except as to (b) and (c) above,
for possible breaches, violations or defaults which, individually or in the
aggregate, would not have a material adverse effect on the ability of the Party
to perform its obligations hereunder.
9.5 Third Party Consents. No consent, approval, authorization, order,
declaration, or filing with any government, governmental instrumentality,
regulatory authority, court, or other person is required for the execution and
delivery of this Agreement, except such as have been duly made and obtained or
such others as have not been made and obtained and which, individually and in
the aggregate, would not have a material adverse effect on the ability of the
Party to perform its obligations hereunder.
SECTION 10. INTENTIONALLY OMITTED.
SECTION 11. GENERAL PROVISIONS.
11.1 Commitment of Company. Unless specifically authorized in writing,
the Consultant is not authorized to bind or commit Company or its affiliates to
any third party by any representation, promise, contract, or agreement for any
purpose whatsoever.
11.2 Relationship, Reimbursement Obligation. The Consultant shall
operate as an independent contractor and not as an agent of Company or its
affiliates during the performance of this Agreement. No personnel of Consultant
shall be deemed under any circumstances to be an agent or employee of Company or
its affiliates. Nothing in this Agreement shall be construed as creating any
other relationship between Company or any of its affiliates and the Consultant.
It shall be the responsibility of the Consultant to pay any taxes or other
assessments incurred by it pursuant to this Agreement. Consultant agrees to
reimburse Company harmless for any tax liability that Company incurs as a result
of any payments made under the terms of this Agreement.
11.3 Offset. Company shall be entitled to offset against any and all
amounts owing to the Consultant under this Agreement against the amount of any
and all claims that Company may have against the Consultant hereunder.
11.4 Waiver. The rights and remedies of the Parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement shall
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege shall preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law:
(a) no claim or right arising out of this Agreement may be discharged by one
Party, as a whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other Party; (b) no waiver that may be given by
a Party shall be applicable except in the specific instance for which it is
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given; and (c) no notice to or demand on one Party shall be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement.
11.5 Binding Effect, Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the Parties hereto and
their respective successors, assigns, heirs, and legal representatives,
including any entity with which Parties may merge or consolidate or to which all
or substantially all of its assets may be transferred. The duties and covenants
of the Consultant under this Agreement, being personal, may not be delegated,
except as permitted in writing by Parties prior to such delegation.
11.6 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and shall be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
Party may designate by notice to the other Party) with copies for information
only as follows:
If to Company:
Healthbridge, Inc.
c/o Aurum Investment Management LLC
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxx
with a copy to: Powell, Goldstein, Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Consultant:
Xxxxxxx X. Xxxxxxx
c/o RIG Real Invest
Xxxxxxxxxxxxxxxx. 000
X-00000 Xxxxxx, Xxxxxxx
Fax: 00-00-000-00000
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with a copy to:
Xxxxx, Xxxxxxx and Xxxxx
00000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: X.X. Xxxxx, III, Esq.
Fax: (000)000-0000
11.7 Entire Agreement. This Agreement contains the entire agreement
between the Parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, between the Parties hereto
with respect to the subject matter hereof. This Agreement may not be amended
orally, but only by an agreement in writing signed by the Parties hereto.
11.8 Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and shall not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding Section or Sections of this Agreement unless otherwise
specified. All words used in this Agreement shall be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
11.9 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement shall remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree shall remain in
full force and effect to the extent not held invalid or unenforceable. If any
provision of this Agreement, or portion thereof, is held invalid or
unenforceable, the Parties agree to negotiate in good faith to replace such
provision or portion thereof with a provision of similar economic impact.
11.10 Survival. Sections 2.2, 4.3, 6, 7, 8, 9 and 11.6 shall survive
the termination of this Agreement.
11.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original copy of this
Agreement and all of which, when taken together, shall be deemed to constitute
one and the same agreement.
11.12 Governing Law. This Agreement shall be governed by the laws of
the Texas without regard to conflicts of law principles.
11.13 Fax Execution. This Agreement may be executed by delivery of a
signed signature page by fax and such fax execution and delivery will be valid
in all respects.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
HEALTHBRIDGE, INC. CONSULTANT
By: /s/ Xxxxxxx Xxxxx /s/ Wihelm X. Xxxxxxx
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Name: Wihelm X. Xxxxxxx
Title:
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