Exhibit 10.15
CONSULTING AGREEMENT
AGREEMENT, dated as of September 17, 1997, between Unilab Corporation, a
Delaware corporation with its executive offices located at 00000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter "Unilab" or the "Company") and Xxxxxxx X.
Xxxxxxxxxx, residing at 00-00 Xxxxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxxxx 00000
(hereinafter the "Consultant"):
WHEREAS, Consultant has served in senior management positions of Unilab
since October 1992, including most recently as Senior Vice President-Finance,
Treasurer and Chief Financial Officer;
WHEREAS, Consultant has been a leading executive in the clinical
laboratory industry for more than a decade;
WHEREAS, Unilab desires to continue to have the benefit of Consultant's
experience and knowledge of the clinical laboratory industry following his
voluntary resignation from his positions as Senior Vice President-Finance,
Treasurer and chief Financial Officer of Unilab, and Consultant desires to be
retained by Unilab as a Consultant;
NOW, THEREFORE, in consideration of the material covenants and agreements
set forth herein, the parties hereto covenant and agree as follows:
Engagement of Consultant. Effective as of January 1, 1998, Unilab hereby
engages the Consultant to advise and consult with Unilab's management and Board
of Directors with respect to (i) guidance and oversight of investor relations,
(ii) assistance with continued development of the Internet web site, (iii) an
advisory role for the new Billing System project and (iv) support for strategic
financing and M&A activity (collectively, the "Consulting Services"). The
Consultant represents and warrants to Unilab that he has no commitments,
arrangements or other agreements with any other clinical laboratory companies,
and there are no restrictions under applicable law or licensing regulations,
which might preclude the carrying out of his obligations under this Agreement.
1. Term. The initial term of this Agreement shall be for one (1) year from
and after January 1, 1998, and thereafter shall automatically renew for
successive one-year periods until one of the parties gives notice of termination
to the other party at least six months before the end of the then-current term,
unless otherwise sooner terminated as provided herein. However, neither party
can give a notice of termination prior to June 30, 1998.
2. Compensation.
(a) Unilab shall pay the Consultant a base payment of $5,000 per month
for the Consulting Services. Consultant shall make himself available
to provide up to 30 hours per month of Consulting Services, at
Unilab's request, or such other availability as mutually agreed.
(b) Consultant shall be reimbursed for his normal and approved business
expenses incurred in providing Consulting Services.
(c) In the event that Consultant is requested to provide Consulting
Services that require Consultant to spend significant amounts of
time on such services, beyond that which is contemplated by this
Agreement, Consultant and Unilab shall each negotiate in good faith
to agree upon additional consideration to Consultant consistent with
his additional efforts expended.
3. Indemnification.
(a) Consultant agrees to defend, indemnify, and hold Unilab, its
subsidiaries, directors, officers, employees and agents, wholly
harmless from and against any and all costs (including reasonable
attorney's fees) liabilities, claims, losses, lawsuits, settlements,
demands, causes, judgments and expenses (collectively,
"liabilities") arising from performance of this Agreement to the
extent that such costs and liabilities result directly from the
willful misconduct of Consultant constituting fraud against Unilab
as determined in a final finding of a court of competent
jurisdiction.
(b) Unilab agrees to defend, indemnify, and hold Consultant wholly
harmless, to the fullest extent permitted by law, from and against
any and all costs (including reasonable attorney's fees),
liabilities, claims, losses, lawsuits, settlements, demands, causes,
judgments and expenses (collectively, "liabilities") arising from
the performance of this Agreement, except to the extent that such
costs and liabilities result directly from the willful misconduct of
Consultant constituting fraud against Unilab as determined in a
final finding of a court of competent jurisdiction.
4. Termination. This Agreement shall terminate on the earliest occurrence
of any of the following conditions:
(a) Six months after the date a proper Notice of Termination (as set
forth in Section 1) is received by the other party.
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(b) In the event of a Default (as defined below) of this Agreement by
either party hereto, the other party shall have the right to
immediately begin cancellation proceedings of this agreement by
giving written notice of cancellation to the defaulting party (the
"Default Notice"). The non-defaulting party will have a 30-day cure
period during which the defaulting party may have the opportunity to
cure the breach to the satisfaction of the non-defaulting party.
Nothing herein shall eliminate the non-defaulting party's right to
damages for the Default, in addition to the remedies described
herein.
(i) For the purposes of this Agreement, Consultant shall be deemed
to be in Default hereunder upon (1) Consultant having been
convicted by a court of competent jurisdiction of any felony
involving moral turpitude; (2) the willful malfeasance or
gross negligence by Consultant in the performance of his
duties hereunder; (3) the material violation by Consultant of
Sections 3 or 5 of this Agreement; or (4) Consultant having
been finally found by a court of competent jurisdiction to
have engaged in willful misconduct constituting fraud against
Unilab.
(ii) For the purposes of this Agreement, Unilab shall be deemed to
be in Default hereunder upon (1) Unilab or any of its officers
or directors having been convicted by a court of competent
jurisdiction of any felony involving moral turpitude; (2) the
willful malfeasance or gross negligence by Unilab in the
performance of its duties hereunder; (3) the material
violation by Unilab of any material provision of this
Agreement; or (4) Unilab or any of its officers or directors
having been found to have engaged in conduct constituting
fraud against Consultant.
5. Confidential Information.
(a) The Consultant shall not directly or indirectly disclose to anyone
who is not authorized by the Company to receive such information, or
use or appropriate for his own benefit or the benefit of anyone
other than the Company, any documents or materials relating to the
Company's clinical laboratory business (the "Business") or its
customers which Consultant obtained during his employment or which
the Consultant obtains during the term of this Agreement, including
files, Business descriptions, Business relationships and accounts,
pricing policies, customer lists, computer software and hardware, or
any other materials relating to the Business or its customers or any
trade secrets or confidential information including, without
limitation, any Business methods, know-how, processes, financial or
other performance data, plans, policies and/or personnel of the
Company, whether generated by the Consultant or by any employee, or
agent, of the Company; provided, however, that confidential
information shall not include any information generally known to the
public (other than as a direct or indirect
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result of unauthorized disclosure by the Consultant), or any
information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that
conducted by the Company.
(b) At no time during or after the term of this Agreement shall the
Consultant remove or cause to be removed from the premises of the
Company any record, file, memorandum, document, equipment or any
like item relating to the business of the Company except in
furtherance of his duties hereunder or with the permission of the
Company.
6. Severability. Each provision of this Agreement shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein. If
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be unenforceable, such provision or provisions shall be construed by
an appropriate judicial body by limiting and reducing it or them, so that this
Agreement shall be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
7. Injunctive Relief. Both parties recognize that a breach of Section 5 of
this Agreement may cause irreparable damage, the exact amount of which would or
may be difficult or impossible to ascertain, and that remedies at law for any
such breach would be inadequate. Accordingly, either party shall be entitled, in
addition to any other rights or remedies existing in its favor, to obtain
specific performance or injunctive relief in order to enforce Section 5 of this
Agreement or prevent a breach or further breach of any provision hereof.
8. No Waiver. No waiver of any breach or failure by any party to enforce
any of the terms or conditions of this Agreement at any time shall, in any
manner, limit or waive such party's right thereafter to enforce and to compel
strict compliance with every term and condition thereof.
9. Independent Contractor. It is understood that Consultant's services
hereunder are to be rendered in the capacity of an independent contractor, and
that from and after January 1, 1998 and throughout the term of this Agreement
Consultant is not in any respect or under any circumstances an employee of
Unilab. Neither party has authority to enter into contracts or assume any
obligations for or on behalf of the other party or to make any warranties or
representations for or on behalf of the other party. Consultant shall be solely
responsible for any taxes imposed on the performance of services or the payment
for such services, including withholding of state and federal income, sales or
ad valorem, unemployment compensation, worker's compensation, Federal Insurance
Contributions Act, Federal Unemployment Tax Act or other taxes, costs or
expenses incurred in the performance of any engagement hereunder. Consultant
expressly indemnifies and holds Unilab harmless from any such liabilities.
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10. Assignment. This Agreement is not assignable in whole or in part by
either party without the prior written consent of the other party. This
Agreement shall be binding upon and shall inure to the benefit of any successors
or permitted assigns of Unilab, whether by merger, consolidation, sale of all or
substantially all of the assets or otherwise.
11. Entire Agreement; Captions. This instrument contains the entire
agreement of the parties with respect to the subject matter contained herein,
and may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought. The captions of the sections of this Agreement are inserted
as a matter of convenience only, and in no way define, limit or describe the
scope of this Agreement or any provision thereof.
12. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand, by nationally recognized overnight delivery service, or
mailed by certified or registered mail, postage prepaid, addressed as follows:
If to the Consultant: Xxxxxxx X. Xxxxxxxxxx
00-00 Xxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
If to Unilab: Unilab Corporation
00000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
With a copy to: Unilab Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Legal Department
The above addresses for the purpose of receiving notices hereunder may be
changed by giving written notice of such change in the manner provided herein
for giving notices.
13. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first hereinabove written.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
UNILAB CORPORATION
By:
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Name: Xxxxx X. Xxxxxx
Title: Chairman, President and CEO
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