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EXHIBIT 10.23
CONSULTING AGREEMENT
CONSULTING AGREEMENT between Community Care Services, Inc., a New York
corporation (the "Corporation"), and Xxxxxx Xxxxxxxx ("Xxxxxxxx"), dated May 9,
1998.
W I T N E S S E T H:
WHEREAS, Xxxxxxxx has been continuously employed by the Corporation
pursuant to an Employment Agreement between Xxxxxxxx and the Corporation dated
May 10, 1997, as amended March 1, 1998 (the "Employment Agreement");
WHEREAS, Xxxxxxxx wishes to retire from full time employment with the
Corporation; and
WHEREAS, the Corporation desires to retain Xxxxxxxx'x services as a
Consultant and Xxxxxxxx agrees to accept such engagement on the terms and
condition set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Termination of Employment. The Employment Agreement is hereby
terminated effective the date hereof.
2. Engagement. The Corporation agrees to and does hereby engage
Xxxxxxxx effective as of the date first above written, and Xxxxxxxx agrees to
and does hereby accept
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engagement by the Corporation effective as of the date first above written, as a
consultant to the Corporation, for the period commencing on the date hereof and
ending at midnight on May 9, 2000 (the "Term"), subject to prior termination in
accordance with the provisions of Article 7 hereof. The term that Xxxxxxxx is
actually engaged by Corporation shall be referred to in this Agreement as the
"Engagement Period."
3. Scope of Duties. As a consultant, Xxxxxxxx will carry out all
reasonable business and financial oriented tasks which are assigned to him by
the Board of Directors, the President and Chief Executive Officer, and/or the
Chief Operating Officer. Xxxxxxxx agrees that he will devote such time and
effort during the Engagement Period to the performance of the duties of his
office as may be reasonably required to perform such tasks, provided that he
will not be required to provide more than forty (40) hours per month of services
hereunder, and will not be required to undertake any travel. Subject to the
foregoing, Xxxxxxxx will be available during the Corporations normal business
hours.
4. Compensation.
(a) Consulting Fee. For the services and duties to be rendered
and performed by Xxxxxxxx during the Engagement Period, the Corporation agrees
to pay Xxxxxxxx compensation at the rate of Fifty Five Thousand ($55,000)
Dollars per annum (this amount to be referred to as the ("Consulting Fee"). The
Consulting Fee shall be in equal bi-weekly installments. The Corporation shall
reimburse Xxxxxxxx for all expenses reasonably and necessarily incurred in
connection with his engagement by the Corporation, including business related
travel and entertainment expenses while absent on the Corporation's
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business from its business headquarters, subject to the limitations and
guidelines generally imposed by the Corporation on its consultants.
(b) Car Allowance. Xxxxxxxx shall be entitled to a car
allowance of Six Hundred Dollars ($600.00) per month.
5. Nondisclosure. Xxxxxxxx acknowledges that as an officer, director
and employee of the Corporation, and as an officer, director and stockholder of
Metropolitan Respirator Service, Inc. ("Metropolitan") or any Affiliate (as
defined below) thereof he has been, and as a consultant of the Corporation
throughout the Engagement Period he will be, privy to trade secrets and other
proprietary and/or confidential information (whether in written, verbal or any
other form) relating to the existing or contemplated business and/or field of
interest of the Corporation and its Affiliates, or of any corporation or other
legal entity in which the Corporation or any of its Affiliates has an ownership
interest of more than five percent (5%), and any proprietary information
(whether in written, verbal or any other form) of any of the Corporation's
customers, suppliers, licensors or licensees, including, but not limited to,
information relating to inventions, disclosures, processes, systems, methods,
formulae, patents, patent applications, machinery, materials, notes, drawings,
research activities and plans, costs of production, contract forms, prices,
volume of sales, promotional methods, list of names or classes or customers,
which he has heretofore acquired or which he may hereafter acquire during his
engagement with the Corporation or any of its Affiliates, in both cases whether
during or outside business hours, whether or not on Metropolitan's or the
Corporation's premises, as the result of any disclosures to him, or in any other
way, shall be regarded as held by him in a fiduciary
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capacity solely for the benefit of the Corporation, its successors or assigns,
and shall not at any time, either during the Engagement Period or thereafter, be
disclosed, divulged, furnished, or made accessible by him to anyone, or be
otherwise used by him, except in the regular course of business of the
Corporation or its Affiliates. Upon termination of his engagement, Xxxxxxxx
shall promptly return or deliver to the Corporation all tangible forms of such
information in his possession or control, and shall retain no copies thereof.
Information shall, for purposes of this Agreement, be considered to be
confidential if not known by the trade generally, even though such information
may have been disclosed on a confidential basis to one or more third parties
pursuant to any business discussion or agreement, including distribution
agreements, joint research agreements or other agreements entered into by
Metropolitan or the Corporation or any of their Affiliates. For the purposes of
this Agreement, "Affiliates" shall mean any corporation, partnership, joint
venture, other entity of any type or individual that directly or indirectly,
through one or more intermediaries, controls or is controlled, or is under
common control with, Metropolitan or the Corporation, as the case may be.
6. Patents. Xxxxxxxx agrees to and does hereby sell, assign, transfer
and set over to the Corporation, its successors, assigns, or Affiliates, as the
case may be, all his right, title, and interest in and to any inventions,
improvements, processes, patents or applications for patents which he develops
or conceives individually or in conjunction with others during his engagement by
the Corporation, or, having possibly conceived same prior to his engagement, may
complete while in the engagement of the Corporation or any of its Affiliates, in
both cases whether during or outside business hours, whether or not on the
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Corporation's premises, which inventions, improvements, processes, patents or
applications for patents are (i) in connection with any matters within the scope
of the existing or contemplated business of the Corporation or any of its
Affiliates or (ii) aided by the use of time, materials, facilities or
information paid for or provided by the Corporation, all of the foregoing to be
held and enjoyed by the Corporation, its successors, assigns or Affiliates, as
the case may be, to the full extent of the term for which any Letters Patent may
be granted and as fully as the same would have been held by Xxxxxxxx, had this
Agreement not been made. Xxxxxxxx will make, execute and deliver any and all
instruments and documents necessary to obtain patents for such inventions,
improvements and processes in any and all countries. Xxxxxxxx hereby irrevocably
appoints the Corporation to be his attorney in fact in the name of and on behalf
of Xxxxxxxx to execute all such instruments and do all such things and generally
to use Xxxxxxxx'x name for the purposes of assuring to the Corporation (or its
nominee) the full benefit of its rights under the provisions of this Article 6,
such power to be exercised only if Xxxxxxxx improperly refuses to fulfill his
obligations under this Article 6.
7. Earlier Termination.
(a) Death or Disability. In the event of Xxxxxxxx'x death or
disability during the Engagement Period, the Corporation shall, for the
remaining balance of the Term, continue to make the payments provided for herein
to Xxxxxxxx'x estate, in the event of his death, or, if Xxxxxxxx becomes
disabled, to Xxxxxxxx or his personal representative, as the case may be.
(b) Termination for Cause. The Corporation may discharge
Xxxxxxxx for "Cause" upon notice and thereby immediately terminate his
engagement under this
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Agreement. For purposes of this Agreement, the Corporation shall have "Cause" to
terminate Xxxxxxxx'x engagement if Xxxxxxxx, in the reasonable judgment of the
Corporation, (i) materially breaches any of his agreements, obligations or
duties under this Agreement and does not cure such breach or commence in good
faith to correct such breach within thirty (30) days after notice, (ii) fails to
carry out any reasonable lawful directive of the Board of Directors of the
Corporation which Xxxxxxxx is required to do pursuant to this Agreement and does
not cure such breach or commence in good faith to correct such breach within ten
(10) days after notice, (iii) embezzles or converts to his own use any funds of
the Corporation or any client or customer of the Corporation, (iv) willfully
converts to his own use any property of the Corporation without the
Corporation's consent, (v) is convicted of a felony (other than a vehicular
infraction which does not involve injuries to persons or property), (vi) is
adjudicated an incompetent, (vii) is habitually intoxicated or diagnosed by an
independent doctor to be addicted to a controlled substance (any disagreement
shall be resolved by the reasonable opinion of an independent medical doctor
selected by the parties; provided that if the parties are unable to agree, each
shall designate one medical doctor, and the two so designated shall jointly
select a third independent medical doctor, whose decision shall be binding) or
(viii) habitually behaves in a manner which, with intent to do so, materially
impairs the Corporation's relationships with others in its industry.
8. Health Insurance. During the Engagement Period, to the extent he is
eligible to do so, Xxxxxxxx may participate in the medical and dental insurance
plans generally made available now or in the future by the Corporation to its
executives and key management employees, at the Corporation's expense. If
Xxxxxxxx is not eligible to
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participate in any of the Corporation's medical or dental plans, the Corporation
shall, at its expense, provide to him medical and/or dental insurance coverage
substantially similar to the insurance coverage available to its senior level
executives.
9. Assignment. This Agreement may be assigned by the Corporation as
part of the sale of substantially all of its business; provided, however, that
the purchaser shall expressly assume all obligations of the Corporation under
this Agreement, and provided, further, that Xxxxxxxx may resign upon any such
assignment by the Corporation. Further, this Agreement may be assigned by the
Corporation to an Affiliate, provided that any such Affiliate shall expressly
assume all obligations of the Corporation under this Agreement, and provided
further that the Corporation shall then fully guarantee the performance of the
Agreement by such Affiliate. Xxxxxxxx agrees that if this Agreement is so
assigned, all the terms and conditions of this Agreement shall remain between
such assignee and himself with the same force and effect as if said Agreement
had been made with such assignee in the first instance.
10. Survival. The provisions of Articles 5, 6, and 12 shall survive the
termination of this Agreement.
11. Notices. All notices required or permitted to be given hereunder
shall be mailed by certified mail, delivered by recognized overnight courier
service for which a written receipt is given, or delivered by hand to the party
to whom such notice is required or permitted to be given hereunder. If mailed,
any such notice shall be deemed to have been
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given when mailed as evidenced by the postmark at point of mailing. If delivered
by hand, any such notice shall be deemed to have been given when received by the
party to whom notice is given, as evidenced by written and dated receipt of the
receiving party.
Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
Community Care Services, Inc.
00 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx, Chief Financial Officer
with a copy to:
Nordlicht & Hand
000 Xxxxx Xxxxxx
00 Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Hand, Esq.
Any notice to Xxxxxxxx shall be addressed to the Xxxxxxxx'x address
appearing on the records of the Corporation at the time such notice is given.
Xxxxxxxx at any time may by written notice designate an attorney who is to
receive copies of all notices.
Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
12. Applicable Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of New York governing contracts made in
and to be performed solely in such State.
13. Effective Date. This Agreement shall become effective as of the
date first written above.
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14. Waiver of Breach. The waiver by either party of a breach of this
Agreement shall not be effective unless in writing signed by the party to be
charged therewith and will not operate or be construed as a waiver of any other
subsequent breach.
15. Equitable Relief. With respect to the covenants contained in
Articles 5 and 6 of this Agreement, Xxxxxxxx agrees that any remedy at law for
any breach of said covenants may be inadequate and that the Corporation shall be
entitled to specific performance or any other mode of injunctive and/or other
equitable relief a court might award, including, but not limited to, an
injunction restraining such breach or threatened breach, in addition to any
other remedies which might be available to it.
16. Acknowledgement. Xxxxxxxx acknowledges that he has been advised to
and has had the opportunity to provide a copy of this Agreement to an attorney
of his own choosing and to discuss this Agreement with his attorney prior to
executing it.
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IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
COMMUNITY CARE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chief Operating Officer
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
