Exhibit 10.157
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") made as of this 1st day of
August, 1999, between CareMatrix Corporation (the "Company") and Xxxxxxx Corp.
(the "Consultant").
WHEREAS, the Company desires to retain the Consultant to perform certain
consulting services exclusively for the Company, and the Consultant desires to
be retained by the Company; and
WHEREAS, the Company and the Consultant desire to set forth the terms and
conditions on which the Consultant shall be retained by and provide services to
the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Consulting Services. During the term of this Agreement, the Consultant
shall perform general day to day consulting services pertaining to the operation
and management of the Company.
2. Consulting Fees and Expenses.
A. The Company shall pay to the Consultant a fee in an amount equal to
Forty Thousand ($40,000) Dollars per month (the "Consulting Fee"). Such payment
shall be due on the last day of each calendar month during the term of this
Agreement.
B. The Consultant shall be entitled to reimbursement of all actual,
verifiable and reasonable out-of-pocket expenses.
3. Term. The initial term of this Agreement shall commence effective on
August 1, 1999 (the "Effective Date") and continue for a period of five (5)
months. Notwithstanding the foregoing, either the Company or the Consultant may
terminate this Agreement at any time after the Effective Date for any reason by
providing thirty (30) days prior written notice of such intention to terminate
to the other party.
4. Independent Contractor. The Consultant is and shall be an independent
contractor hereunder and is not and shall not be an employee of the Company.
Neither the Consultant nor the Company shall hold the Consultant out as an
agent, partner, officer, director, or other employee of the Company and the
Consultant
further specifically disclaims any and all rights to an equity interest in or a
partnership interest with the Company. The Consultant specifically acknowledges
and agrees that it shall have no authority to execute any contracts or
agreements on behalf of the Company or its Affiliates and shall have no
authority to bind the Company or its Affiliates to any obligation (contractual
or otherwise). The Consultant shall devote such of his time, energy and skill as
is reasonably necessary to perform the services described in Paragraph 1 above.
5. Indemnity. The Consultant shall indemnify and hold harmless the Company
from and against all claims, losses, costs, damages and expenses including,
without limitation, attorneys' fees and costs, relating to injury to or death of
any Person or damage to real or personal property resulting from or arising in
connection with any negligence or intentional or willful misconduct by the
Consultant in the performance of Consultant's duties under this Agreement.
6. Entire Agreement. This Agreement represents the entire understanding
and agreement between the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and between such parties. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
7. Assignment. The Consultant may not assign or delegate its rights and/or
obligations hereunder. The Company may assign its rights hereunder to any of its
Affiliates but shall remain primarily liable hereunder absent a written release
executed by the Consultant.
8. Severability. If any part of this Agreement or any other agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
9. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be (as
elected by the person giving such notice) hand delivered by messenger or courier
service, sent by a nationally recognized overnight delivery service, or mailed
(airmail if international) by registered or certified mail (postage prepaid),
return receipt requested, addressed to:
If to the Consultant: If to the Company:
Xxxxxxx Corp. CareMatrix Corporation
000 Xxxxxxx Xxxx 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: General Counsel
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or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery, (b) on the date delivered if by
overnight delivery, and (c) on the date upon which the return receipt is signed
or delivery is refused or the notice is designated by the postal authorities as
not deliverable, as the case may be, if mailed.
10. Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right, power or remedy
under this Agreement. No notice to or demand on any party in any case shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
11. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the Commonwealth of Massachusetts without regard to
principles of conflicts of laws.
12. Definitions: For purposes of this Agreement, the following terms shall
have the meanings set forth below:
12.1. "Affiliate" shall mean, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such
first Person. For purposes of this Agreement, the term "control"
shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise.
12.2. "Person" shall mean an individual, partnership, corporation, limited
liability company, trust, joint venture or other entity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
Signed in the CAREMATRIX CORPORATION
Presence of:
By: /s/ Xxxxx X. Xxxxxx
----------------------------- ----------------------------------------
Print Name: Name: Xxxxx X. Xxxxxx
------------------ Title: Senior Vice President
XXXXXXX CORP.
/s/ Xxxxxx Xxxxxxx
----------------------------- ----------------------------------------
Print Name: Name:
------------------ Title:
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