Exhibit 10.15
TERMINATION AND CONSULTING AGREEMENT
AND GENERAL MUTUAL RELEASES
THIS TERMINATION AND CONSULTING AGREEMENT AND GENERAL MUTUAL RELEASES
(this "Agreement") is entered into effective the 6th day of October, 2001 by and
among x-XxxXxxx.xxx, dba Med Diversified, on the one hand (collectively "e-Med"
or "Company"), and Xxxx X. Xxxxxxx, on the other hand (hereafter "Xxxxxxx").
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RECITALS:
WHEREAS, Xxxxxxx is one of the founders of e-Med, and he has been its
Chairman and Chief Executive since early January, 1999.
WHEREAS, the Company has for some time been transitioning its business
from primarily a health care technology business to primarily a health care
service business, such transition having included the merger with Chartwell
Diversified Services, Inc. as well as other announced mergers and expansion
approaches under advisement.
WHEREAS, the parties wish to insure that Xxxxxxx continue on with the
Company during its transition, that he be compensated for a termination of his
current employment agreement and that he be compensated for services to be
provided in the future for the benefit of the Company.
WHEREAS, the parties have various disputes that they elect not to
enumerate herein, but the disputes are acknowledged by each party to constitute
claims that could be asserted between and amongst the parties to this Agreement
and/or the third party beneficiaries to this Agreement.
WHEREAS, Xxxxxxx desires to receive the consideration set out herein
and further desires to stay on with the Company to assist it during this
transition.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth below, the parties hereto agree as follows:
1. TERMINATION OF EMPLOYMENT. All outstanding and existing employment
agreements between the parties hereto, as well as all related claims and rights
by Xxxxxxx related thereto (hereinafter "employment contract"), are hereby
terminated and of no further force and effect. Notwithstanding the foregoing,
all obligations of Xxxxxxx (not the Company) - past, present and future - under
the employment contract that, pursuant to its terms, survive its termination
(directly or indirectly) remains in full force and effect.
2. BENEFIT OF EMPLOYMENT CONTRACT. The Company hereby agrees to provide
Xxxxxxx with warrants to purchase common stock of the Company, exercisable at
$.01 per share, pursuant to a schedule in which Xxxxxxx shall receive the
warrants out of escrow as set
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forth on Schedule "A" hereto. The warrants set forth in Schedule "A" are deemed
to be consideration for all of the covenants herein, including, but not limited
to the services of Xxxxxxx as a consultant and member of the Board of Directors
of the Company. The warrant rights under this Agreement (and any other rights
hereunder for payment to Xxxxxxx) shall replace and supercede all rights of
Xxxxxxx under any prior agreement between and amongst Xxxxxxx and the Company.
3. CONSULTING AGREEMENT. Xxxxxxx agrees to remain on the Company's
Board of Directors from the date of this Agreement through and including April
30, 2003. (While on the Board, Xxxxxxx shall enjoy the same privileges and
protections afforded by the Company to all its Board members. For a period of
eighteen months, Xxxxxxx agrees to consult with the Company as and when the
Company sees fit - but not on an exclusive basis - relative to matters that the
Company may deem important from time to time. In exchange for the covenants and
conditions of this Agreement, Xxxxxxx shall be paid his current salary and all
benefits other than stock or warrant options (as previously set forth under the
employment contract), on a pro rata basis for a period of sixteen months from
and after the date of this Agreement.
The first five months of Xxxxxxx' salary and outstanding expenses/___
shall be paid to him concurrently herewith. The parties understand and agree
that Xxxxxxx may undertake permanent employment with a person other than the
Company. The consulting and Board duties of Xxxxxxx, under this Agreement, shall
be undertaken by him in a manner that does not create a conflict in scheduling
or material obligations with any other employment he elects to undertake;
provided, however, that between the date of this Agreement and November 15,
2001, Xxxxxxx shall work with the Company on "best efforts" basis in assisting
in the transition plans appertaining to the various mergers and expansions the
Company is now undertaking. Xxxxxxx' obligations under the terms of this
consultation provision shall include the obligation to participate in any
discovery, or evidentiary proceeding (which shall include providing
declarations) necessary to protect the Company in any legal action now pending,
or arising from conduct during the period that Xxxxxxx served as an officer or
director of the company. Xxxxxxx' obligations herein, regarding litigation
activities, are a material and crucial element of this agreement.
4. NON-COMPETITION. Xxxxxxx agrees, as a condition to receipt of the
value and the consideration hereunder, that he will refrain from being employed
by any business - public, private or operating through a limited liability
company or other juridic entity - which directly or indirectly competes with
e-Med. A company (e.g., any future employer of Xxxxxxx) shall be deemed a
competitor if its present or future business plan includes any commercial
activity of any kind with any company, entity or person that is reasonably the
subject of Med's current or future business plans as those current or future
business plans are or have been delineated, limited, drafted and announced to
the general public under e-Med's historical public filings and press releases.
This covenant not to compete shall be limited to a period of three years and
shall include any employment within the continental United States. Additionally,
any Internet business will be deemed to be a competitor if it is reasonably
likely that the conduct of that business would be facilitated by the use of
Company trade secrets or Company proprietary knowledge. (This non compete
includes, without limitation, those companies which are in the alternate site
healthcare services sector or those companies who provide or could provide
applications software to alternate site healthcare sector companies.) During the
claim period
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below all warrants will still accrue and be available to Xxxxxxx but in the
event Xxxxxxx does not cure the breach within the 30 day period, Xxxxxxx shall
cease thereafter to have a right to any further stock or warrants under the
terms of this Agreement, including but not limited to, the warrants set forth in
Schedule "A", and Xxxxxxx shall cease to have a right to any money or other
consideration whatsoever. Nothing herein limits or reduces in any way the
obligations of Xxxxxxx that survive his employment contract, including, without
limitation, the obligation to protect from unlawful disclosure the Company's
proprietary technology and trade secrets; and any breach of Xxxxxxx continuing
obligations surviving his employment contract shall also render any
consideration due him hereunder voidable and cancelable at the Company's option.
This non-competition provision set forth above is a material part of this
Agreement, and, accordingly, for any claim of breach by the Company, Xxxxxxx
will have 30 days to cure the claim after having received written action by the
Company.
5. TRADEABILITY OF SHARES. Upon exercising any warrants hereunder,
under no circumstances may Xxxxxxx sell more that 30,000 shares in any 24-hour
period, at any time or for any reason. For purposes of this Agreement, a sale
shall include any transfer, conveyance, margin, option, hedge, pledge, sale, or
transaction of any kind. e-Med shall be entitled to a written accounting of
sales of the shares at the conclusion of every month following the execution of
this Agreement. The failure to provide an accurate accounting and/or the failure
of Xxxxxxx to comply with this subparagraph shall render all unused warrants
voidable and cancelable at the Company's discretion. Said accountings must
include the original statements provided to Xxxxxxx by his designated broker.
Xxxxxxx agree that he will inform any broker handling the shares or warrants
under the terms of this Agreement of the limitations set forth herein and he
shall provide said broker with irrevocable instructions to comply with those
provisions and to provide e-Med with a copy of all documents reflecting any
transaction in e-Med shares on behalf of Xxxxxxx.
6. RELEASES. Exempting the obligations set out in this Agreement, the
parties hereto, for themselves and for their respective officers, directors,
former officers, former directors, legal predecessors, successors, assigns, and
those who at any time purport for any reason to be acting in association with
them or on their behalf, do hereby forever and finally release, relieve, acquit,
remise, absolve and discharge each other and their respective past and present
employees, officers, partners, associates, affiliates, subsidiaries, related
companies, joint venture partners, directors, former directors, agents,
representatives, attorneys, shareholders, parents of shareholders, spouses,
children, fiancees and former spouses from any and all losses, claims, debts,
liabilities, demands, obligations, promises, acts, omissions, agreements, costs
and expenses, damages, injuries, suits, actions and causes of action, of
whatever kind or nature, whether known or unknown, suspected or unsuspected,
contingent or fixed, that they may have against each other (or against their
past and present employees, officers, partners, associates, affiliates,
subsidiaries, related companies, joint venture partners, directors, former
directors, agents, representatives, attorneys, shareholders, spouses, children,
fiancees and former spouses) based upon, related to, or by reason of any matter,
cause, fact, act or omission occurring or arising at any moment from the
beginning of time to the date of execution hereof, including, without limitation
matters existing by reason of any contract (express or implied in fact or
implied in law), lies, liability, cause, tort, statutory violation, fact, thing,
act or omission whatever, occurring or existing at any time up to the execution
of this Agreement. Each person released by operation of this Agreement is an
intended third party beneficiary of this Agreement.
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Notwithstanding the releasing language above, and notwithstanding the releasing
language below, and notwithstanding any provision of this Agreement, Med does
not release Xxxxxxx from any obligation arising from this Agreement, any
obligations arising from his employment contract that survives its termination,
and any liability for any statutory violation or intentional tort perpetrated
during Xxxxxxx' tenure as President of Med.
7. RELATED PARTIES. Other than parties identified in the immediately
preceding paragraph, the term "related companies" as used herein shall mean any
person or company that a person released by operation of this Agreement has an
ownership interest in or a legal affiliation with of any kind, whether that
interest or legal affiliation is held or reflected as a partnership interest (in
the case of a partnership), a membership interest (in the case of a limited
liability company), a stock interest (in the case of a corporation), a joint
venture interest (in the case of other contractual relationships) or any other
interest recognized under the law (including, e.g., a direct beneficial interest
or and indirect beneficial interest such as one sounding in guardianship or
trusteeship on behalf of other direct beneficiaries) - including, without
limitation, Xxxxxxx X. Xxxxxxxxxxxx, Xxxxxx Xxxxxxxxxxxx, National Century
Financial Enterprises, Inc., Cera Investment Trust, Xxxxxxx Investors, LLC,
Xxxxxx X. Xxxxx, Xxxxx Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx
Xxxxxxx, TSI Technologies and Holdings, LLC, Xxxxxxx Xxxxxxx, Xx., Xxxx X.
Xxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx X. Xxxxx, Health Med, Coca Corporation,
Xxxx Aviation, Inc., Xxxxx Xxxxxxx, Xxxxxx Xxxxx (Xxxxxxx), and their respective
past and present employees, officers, partners, associates, affiliates,
subsidiaries, related companies, closely held companies, joint venture partners,
directors, former directors, agents, representatives, attorneys, shareholders,
parents of shareholders, spouses, children, fiancees, former spouses or any
company any of the related companies has an ownership interest or a shareholder
interest in, directly or indirectly - it being the intention of the parties that
all "related companies" of the persons released above shall by this document be
released as well from any liability and shall receive the same protection under
this Agreement as has been provided to the persons actually named herein.
Nothing in this Agreement shall effect or have any applicability whatsoever to
the rights of the parties hereto as against Seuge International, Inc., currently
a Debtor in Possession in Los Angeles Bankruptcy Court.
8. FINALITY AND SCOPE OF RELEASES. The parties hereto acknowledge and
agree that it is their intention, through this Agreement and the releases set
forth above, to fully, finally and forever settle and release each other from
all those matters released herein, and all claims related thereto, which do now
exist, may exist or heretofore have existed or may hereafter exist. It is the
intent of the parties to this Agreement to release each other from claims or
causes of action arising from facts that were willfully, wrongfully, or
tortiously concealed from the aggrieved party.
9. RELEASES OF UNKNOWN OR UNSUSPECTED CLAIMS. THE PARTIES HAVE BEEN
INFORMED BY THEIR RESPECTIVE ATTORNEYS AND ADVISORS ABOUT CALIFORNIA CIVIL CODE
SECTION 1542, AND THE PARTIES ACKNOWLEDGE THAT THEY ARE FAMILIAR WITH AND HEREBY
EXPRESSLY WAIVE THE PROVISIONS OF THIS SECTION, AND ANY SIMILAR STATUTE, CODE,
LAW OR REGULATION OF ANY STATE IN THE UNITED STATES TO THE FULLEST EXTENT THAT
THEY MAY WAIVE SUCH RIGHTS AND BENEFITS. SECTION 1542 OF THE CALIFORNIA CIVIL
CODE PROVIDES:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
10. FINAL ACCORD AND SATISFACTION. This Agreement and the releases
contained herein are intended to be final and binding between the parties hereto
and are further to be effective as a full and final accord and satisfaction
between the parties hereto, and each party to this Agreement expressly relies on
the finality of this Agreement as a substantial, material factor inducing that
party's execution of this Agreement.
11. THE EFFECT OF DISCOVERY OF DIFFERENT OR ADDITIONAL FACTS. The
parties hereto acknowledge that they are aware that they may hereafter discover
claims presently unknown or unsuspected, or facts in addition to or different
from those which they now know or believe to be true, or related or associated
parties in addition to or different from those which are listed herein and which
the parties believe to exist, pertaining to the matters released herein.
Nevertheless, it is the intention of the parties hereto, through this Agreement
and the releases herein, to fully, finally, and forever settle and release all
such matters, and all claims and parties related thereto, which do now exist,
may exist in the future or heretofore have existed. In furtherance of such
intention, the releases herein given shall be and remain in effect as a full and
complete release of such matters and parties, notwithstanding the discovery or
existence of any such additional or different claims or facts or parties related
thereto by the parties hereto. In entering into these releases, the parties
hereto are not relying upon any statement, representation, inducement or promise
of any other parties, except as expressly stated in this Agreement. It is the
intent of the parties to this Agreement to release each other from claims or
causes of action arising from facts that were willfully, wrongfully, or
tortiously concealed from the aggrieved parties.
12. ASSUMPTION OF RISKS. In entering into the releases contained
herein, the parties hereto recognize that no facts or representations are ever
absolutely certain; accordingly, each party hereto assumes the risk of any
misrepresentation, concealment or mistake, and if any party hereto should
subsequently discover that any fact the said party relied upon in entering into
this Agreement was untrue, or that any fact was concealed from that party, or
that any understanding of the facts or the law was incorrect, said party shall
not be entitled to set aside this Agreement by reason thereof, regardless of any
claim of fraud, misrepresentation, promise made without the intention of
performing it, fraud in the inducement, concealment of fact, mistake of fact or
law, or any other circumstances whatsoever. This Agreement and the releases
contained herein are intended to be final and binding upon the parties hereto,
and each of them, and is further intended to be effective as a full and final
accord and satisfaction among the parties hereto, regardless of any claim of
fraud, misrepresentation, promise made without the intention of performing it,
fraud in the inducement, concealment of fact, mistake of fact or law, or any
other circumstances whatsoever. Each party relies upon the finality of this
Agreement and the releases herein as a material factor inducing the party's
execution of the Agreement.
13. GENERALITY AND SPECIFICITY OF RELEASES, COVENANT NOT TO XXX OR MAKE
CLAIMS. The parties hereto intend these releases to be construed in the broadest
possible terms so that the
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effect of this Agreement is that the persons released hereby may not be sued by
the persons releasing them hereby, whether directly or indirectly, and no claims
may be made related to such releases whether by way of offset or otherwise or
indeed in any manner and for any reason, under any theory of fact, under any
theory of law, under any alleged set of facts, under any alleged reading of the
law and under or pursuant to any claim of any kind, including (without
limitation) claims for negligence, breach of contract, fraud, theft, breach of
fiduciary duty, lender liability and indeed for any of the disputes set out in
any of the recitals set forth above.
14. AUTHORITY AND AUTHORIZATION OF AGREEMENT. Each party has all
necessary power and authority to exercise and deliver this Agreement and the
other closing documents to which it is a party, to consummate the transactions
contemplated by this Agreement, and to perform all the terms and conditions of
this Agreement and any closing documents to be performed by him or it. No other
proceedings on the part such party are necessary to authorize this Agreement or
to consummate such transactions. This Agreement, and the other documents,
certificates, and instruments delivered by each party hereafter, have been duly
executed and delivered by such party and constitute the legal, valid, and
binding obligations of such party, enforceable against him or it in accordance
with their terms.
15. C--- AND APPROVALS; NO VIOLATIONS. The execution and delivery by
such party of this Agreement and the other closing documents to which he or it
is a party do not, and the consummation by such party of the transactions
contemplated hereby and compliance by such party with the provisions hereof will
not, conflict with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligations or the loss of a benefit under
or result in the creation of any lies upon or right of first refusal with
respect to any of the properties or nature of such party under, (i) any
provision of the articles of incorporation or bylaws of such party; and (ii) any
loss or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, obligation, instrument, permit, concessions, franchise of __
applicable to such party.
16. COOPERATION AND MUTUAL REFERENCES. The parties hereto agree to
cooperate as is necessary to effectuate the terms of this Agreement and a smooth
transition from an accounting, tax and operational standpoint. The parties will
provide mutual favorable references to each other relative to their future
business activities.
17. GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, without
regard to its conflicts of laws provisions. Any dispute hereunder shall be
arbitrated before the American Arbitration Association in Los Angeles,
California. The arbitration shall be binding. The prevailing party shall NOT
have a right to an award of any attorney fees or costs. Each side must bear
their own attorney fees and costs. Xxxxxxx and the Company waive any argument
that Los Angeles is an improper or inconvenient forum. Should any provision of
this Agreement require interpretation by an arbitrator or court of competent
jurisdiction, it is agreed by the parties that the arbitrator or court
interpreting this Agreement shall not apply a presumption that the terms of this
Agreement shall be more strictly construed against one party by service of the
rule of construction that a document is to be construed more strictly against
the party who by such party or through such party's agent prepared such
document, it being agreed that the agents of all parties have participated in
the preparation of this Agreement.
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18. PARTIES IN SIGNING. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In addition, the
signatures to this Agreement may be made by fax transmission, and the fax
transmittal signature may be attached to this Agreement as if it was an
original.
20. ENTIRE AGREEMENT. The parties warrant and represent that their
entering into this Agreement is free and voluntary and has not been induced or
influenced by any representation, promise or other agreements or understandings
other that those expressed herein. This Agreement, including the other documents
referred to herein and therein which form a part hereof and thereof, contain the
entire understanding of the parties hereto with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties of any kind.
21. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by a written instrument executed by all of the parties. Any
waiver of any term, covenant or condition of this Agreement by any party hereto
shall not be effective unless set forth in writing, signed by the party granting
such waiver, and in no event shall any such waiver be deemed to be a waiver of
any other term, covenant or condition of this Agreement or of any subsequent
waiver of the same term, covenant or condition.
22. SEVERABILITY. In case any provisions in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will no in any way be affected
or impaired thereby.
23. ARBITRATION AND JURISDICTION. Any controversy or claim arising out
of or relating to this Agreement, or the breach thereof, shall be settled by
binding arbitration in accordance with the rules of the American Arbitration
Association in the County of Los Angeles, and judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof. Each
party hereby irrevocably waives, and agrees not to assist, by way of motion, as
a defense, counterclaim or otherwise, in any action or proceeding with respect
to this Agreement, (i) any claim that is not personally subject to the
jurisdiction as provided herein for any reason other than the failure to
lawfully serve process; (ii) that it or its property is not subject to such
jurisdiction; (iii) that the proceeding is brought in an inconvenient forum;
(iv) that the venue of such proceeding is improper; and (v) any right to a trial
by jury.
24. REPRESENTATION BY COUNSEL. Xxxxxxx acknowledges that he has been
advised by his own counsel regarding this Agreement. Neither Xxx Xxxxxx Xxxxxx
nor Xxxxxxxx X. Xxxxx acted as legal counsel to Xxxxxxx regarding any aspect of
this Agreement and in entering into this Agreement, Xxxxxxx is not, and does
not, rely on any representations by Stela or Xxxxxx regarding the applicable
facts or law.
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WHEREFORE, the parties have set their hands and signatures hereto to
signify their full acceptance to the foregoing terms and conditions and their
irrevocable intent to be bound thereby.
MED DIVERSIFIED XXXX X. XXXXXXX
By: By:
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XXXXX XXXXXXXXXXXX XXXX X. XXXXXXX
Authorized Agent Individually
SCHEDULE "A"*
October 15, 2001 150,000 (payable as soon as practicable after execution)
November 1, 2001 175,000
December 1, 2001 225,000
January 1, 2002 250,000
February 1, 2002 275,000
March 1, 2002 300,000
April 1, 2002 300,000
May 1, 2002 300,000
June 1, 2002 300,000
July 1, 2002 300,000
August 1, 2002 300,000
September 1, 2002 300,000
October 1, 2002 300,000
November 1, 2002 300,000
December 1, 2002 300,000
January 1, 2003 300,000
February 1, 2003 625,000
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5,000,000
*A warrant, reflecting the above obligation, shall be delivered to an
escrow officer approved by the parties. Said escrow officer shall have no prior
__ with any of the parties. In the event that Med does not elect an escrow
officer acceptable to Xxxxxxx, Xxxxxxx may elect an alternate officer, in his
own discretion, as long as that officer is a federally insured bank with offices
in California. NOTWITHSTANDING THE ABOVE SCHEDULE, NO STOCK OR WARRANTS SHALL BE
DELIVERABLE AND DUE UNDER THE TERMS OF THE AGREEMENT IF XXXXXXX IS IN BREACH OF
ANY MATERIAL TERM HEREIN. EACH OF WARRANTS, ABOVE, AND/OR THE STOCK, SHALL BE
DELIVERED EACH MONTH. THE APPOINTED ESCROW AGENT SHALL BE WITHOUT POWER TO
DELIVER, SELL OR TRANSFER ANY WARRANTS OR STOCK IN THE EVENT THAT MED OR XXXXXXX
IS IN BREACH OF ANY MATERIAL PROVISION OF THIS AGREEMENT. THE ESCROW OFFICER,
AND THE PARTIES HERETO, SHALL EXECUTE AN ESCROW AGREEMENT WHICH EXACTLY MIRRORS
THE PROVISIONS OF THIS AGREEMENT. IN THE ALTERNATIVE, XXXXXXX HAS THE POWER TO
DELIVER THIS AGREEMENT INTO ESCROW IN LIEU OF SAID ESCROW AGREEMENT.
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