Consulting Agreement
Exhibit
10.8
This
CONSULTING AGREEMENT ("Agreement") is made and entered into as of the 1st day of
January, 2009 (the “Effective Date”) by and between Merge Healthcare
Incorporated, a Delaware corporation ("Merge Healthcare"), and Xxxxxxx RIS LLC
("Xxxxxxx RIS"). Hereinafter, either party may be referred to
individually as a “Party” or, collectively, as the “Parties.”
WHEREAS, Xxxxxxx RIS has a
significant investment in Merge Healthcare and is interested in providing
certain management consulting, advice and technical services to Merge Healthcare
in regards to Merge Healthcare’s business; and
WHEREAS, Merge Healthcare
desires to procure certain management consulting, expertise and technical
services from Xxxxxxx RIS pursuant to the terms and conditions set forth
herein.
NOW
THEREFORE, in consideration of the mutual benefits and promises contained
herein, the sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows.
1.
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Engagement. Merge
Healthcare hereby engages Xxxxxxx RIS as an independent consultant to
provide management expertise and technical services and Xxxxxxx RIS hereby
accepts such engagement. Xxxxxxx RIS shall provide services
that include but are not limited to investment relations, strategic
planning, turn around management and various business relationship
introductions. The services provided hereunder are provided on
a non-exclusive basis and shall be undertaken by Xxxxxxx RIS at the
direction of the Chief Executive Officer of Merge
Healthcare.
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2.
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Services. All
services offered hereunder are provided on a non-exclusive basis and as
needed. In consideration for the services and in order to
reserve the availability of such services, Merge Healthcare shall pay a
quarterly fee to Xxxxxxx RIS as set forth
herein.
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3.
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Term and
Termination.
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a.
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Term. The
term of this Agreement shall be twelve consecutive months running from the
Effective Date hereof and shall terminate, unless otherwise terminated as
provided hereunder, at the close of business on December 31,
2009. Upon expiration of the initial term of this Agreement,
the Parties may extend the Agreement upon such written terms as the
Parties may mutually agree.
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b.
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Voluntary
Termination. Either Party may voluntarily terminate this
Agreement upon ninety (90) days advance notice to the other
Party.
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c.
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Involuntary
Termination. This Agreement shall terminate immediately
in the event of one Party giving written notice to the other Party
of breach of this Agreement and provided that the breaching
Party in breach has had thirty (30) days following the date of such notice
to cure and has failed to cure such breach as the Party giving notice
reasonably determines.
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4.
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Fees. Merge
Healthcare shall pay a flat rate fee to Xxxxxxx RIS for the services
provided hereunder. Such fee shall be in the amount of USD
$100,000 for each ninety (90) day period of services. During
the term of this Agreement, such fee is due and payable in advance on the
Effective Date, April 1st, July 1st and October 1st of
2009. Merge Healthcare agrees to reimburse Xxxxxxx RIS for the
actual and reasonable business expenses incurred by Xxxxxxx RIS in
connection with the performance of services on behalf of Merge Healthcare
as required hereunder. Such expenses shall be invoiced to Merge
Healthcare on a monthly basis and shall be payable no later than the 15th
day after receipt of such invoice. Xxxxxxx RIS acknowledges and
agrees that the reimbursement of any third party legal, financial or other
professional fees and any material expenses incurred shall be subject to
prior authorization of an appropriate officer of Merge
Healthcare. Merge Healthcare acknowledges and agrees that it
has an obligation to ensure that its resources will be available to
provide assistance to Xxxxxxx RIS with respect to the services provided
hereunder. The Parties further agree that Merge Healthcare may
consider a discretionary performance fee which amount shall be at the sole
option, control and discretion of Merge Healthcare management and with the
approval of the Merge Healthcare Board of
Directors.
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5.
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Confidential
Information. Due to the nature of the work performed
hereunder, any information belonging to Merge Healthcare with which
Xxxxxxx RIS may or has become familiar will be treated as confidential and
may not be disclosed to third parties without the written consent
of Merge Healthcare, whether or not this Agreement is in
effect. Xxxxxxx RIS agrees that it and all of it’s associates,
representatives, employees, assignees or successors in interest, shall
keep in strictest confidence all information relating to the products,
methods of manufacture, marketing and sales plans, financial information,
customer and supplier information, pricing information, trade secrets or
secret processes (except information in the public domain) or the business
or affairs of Merge Healthcare which may be acquired in connection with or
as a result of this Agreement (the “Confidential
Information”). Without limiting the foregoing, any information,
ideas, plans, designs, processes, material compositions, specifications,
production techniques, procedures, equipment, marketing plans, proposals,
financial information and customer information relating to the Company’s
business or products which may be acquired by Xxxxxxx RIS in connection
with or as a result of this Agreement shall be deemed “Confidential
Information.” During the term of this Agreement and at any time
thereafter, without the prior written consent of Merge Healthcare, Xxxxxxx
RIS will not publish, communicate, divulge, disclose or use any of such
Confidential Information or any other information which has been
designated as secret, confidential, proprietary and/or a trade secret, or
which from the surrounding circumstances in good conscience ought to be
treated as secret or confidential. Upon termination of this
Agreement, Xxxxxxx RIS will return to the Merge Healthcare all documents,
graphic materials, designs, plans or other information furnished to
Xxxxxxx RIS by Merge Healthcare prior to or during the term of this
Agreement. Xxxxxxx RIS’s obligations under this Section 5 shall
survive termination of this
Agreement.
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6.
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Third Party
Information. Xxxxxxx RIS agrees and understands that the
Merge Healthcare does not desire to receive the proprietary rights or
trade secrets of third parties if not so authorized, and Xxxxxxx RIS
agrees not to disclose any such proprietary rights or trade secrets to
Merge Healthcare during the term of this Agreement. In
addition, Xxxxxxx RIS acknowledges that the Merge Healthcare has received
and will in the future receive from third parties confidential or
proprietary information (“Third Party Information”) subject to a duty on
Merge Healthcare’s part to maintain the confidentiality of such
information and use it only for certain limited
purposes. Xxxxxxx RIS agrees to hold Third Party Information in
confidence and not to disclose to anyone (other than Xxxxxxx RIS personnel
who need to know such information in connection with their work performed
hereunder) or to use, except in connection with Xxxxxxx RIS’s work for
Merge Healthcare, Third Party Information unless expressly authorized in
writing by an officer of the
Company.
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7.
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No Conflicting
Obligations. Xxxxxxx RIS represents and warrants that it
is not bound by or subject to any contractual or other obligation that
would be violated its execution or performance of this
Agreement.
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8.
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Non-Interference With
Business. The Parties agree that neither Party shall
solicit or induce any employee, independent contractor or customer of the
other Party to terminate or breach an employment, contractual or other
relationship during the term of this Agreement and for a period of one (1)
year immediately following termination of this
Agreement.
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9.
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Indemnification. Each
Party shall indemnify, defend and hold harmless the other Party from and
against all claims and actions, and all expenses incidental to such claims
or actions, based upon or arising out of damage to property or injuries to
persons or other tortuous acts caused or contributed to by the
indemnifying Party or anyone acting under such Party’s direction or
control or in such Party’s behalf in the course of its performance under
this Agreement, provided such indemnification and hold harmless agreement
shall not be applicable to any liability based on the sole negligence of
the indemnified Party.
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10.
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Independent
Contractor. It is expressly understood and agreed that
the relationship of Xxxxxxx RIS to Merge Healthcare, as relates to the
performance duties under this Agreement, shall be that of an independent
contractor and not of a partner, agent or employee. During the
term of this Agreement and while performing its obligations hereunder,
Xxxxxxx RIS shall not be, in any way, a legal representative or agent of
Merge Healthcare, and shall not have the right or authority to assume or
create any obligation or make any representations of any kind, express or
implied, on behalf of Merge Healthcare or to bind Merge Healthcare in any
respect whatsoever.
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11.
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Entire
Agreement. Any notices required or permitted under this
Agreement shall be in writing and signed by or on behalf of the party
giving the notice, and may be delivered personally or by certified
mail. If mailed, such notice shall be addressed to the
principal office or residence of the addressee as stated herein or as
otherwise designated in writing by the addressee. Such notice
shall be effective when delivered personally or, if mailed, upon
receipt.
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12.
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Notice. Any
notices required or permitted under this Agreement shall be in writing and
signed by or on behalf of the Party giving the notice, and may be
delivered personally or by certified mail. If mailed, such
notice shall be addressed to the principal office as set forth
below. Such notice shall be effective when delivered personally
or, if mailed, upon receipt.
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Notice to
Merge Healthcare: Chief Executive
Officer
Merge Healthcare
Incorporated
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
With a copy to: General
Counsel, at the same address
Notice to
Xxxxxxx RIS
LLC: Chairman
Xxxxxxx RIS LLC
000 Xxxxx Xxxxxxxx, Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
13.
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Non-Assign
ability. This Agreement shall not be assignable by
either Party, in whole or in part, without the prior written consent of
the other Party.
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14.
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Governing
Law. This Agreement shall be construed and interpreted
in accordance with the laws of the United States and the State of
Wisconsin, exclusive of its conflicts of laws
provisions.
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15.
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Severability;
Survival; Waiver. The provisions of this Agreement are
several, and in the event that any provision or portion of this Agreement
is declared illegal or unenforceable, the remainder of the Agreement shall
be effective and binding on the parties. The rights and
obligations pursuant to Section 5 shall survive and continue after any
expiration or termination of this Agreement. No waiver of any
breach of any of the covenants, agreements or provisions herein contained
shall be construed as a waiver of any subsequent breach of the same or any
other covenant or provision.
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16.
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Entire Agreement;
Modification in Writing. This Agreement contains the
entire and only agreement between the Parties hereto, and supersedes any
and all prior agreements, arrangements, communications or representations
whether oral or written. This Agreement may not be amended,
altered, modified or changed except by written instrument signed by duly
authorized representatives of each
Party.
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date and year first above written.
MERGE
HEALTHCARE INCORPORATED
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XXXXXXX
RIS LLC
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By:
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/s/ Xxxxxx
X. Xxxxxxxx
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By:
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/s/ Xxxxxxx
Xxxxxxx
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Its:
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Chief
Executive Officer
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Its:
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Managing
Director
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Date:
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December
30, 2008
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Date:
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December
30, 2008
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