1
EXHIBIT 10.64
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of January 1, 2000, by and
between RAYTEL MEDICAL CORPORATION, a Delaware Corporation (the "Company"), and
Xxxxx Xxxxxxx ("Consultant").
RECITALS
A. The Company is engaged in the business of providing a variety of
health care services, focusing on the needs of patients with cardiovascular
disease; and
B. The Company desires to retain the services of Consultant to perform
certain consulting services and Consultant is willing to perform such services.
NOW, THEREFORE, it is agreed as follows:
AGREEMENT
1. Engagement and Performance of Services.
(a) Engagement. The Company hereby engages Consultant to perform
consulting services in accordance with the terms and conditions of this
Agreement.
(b) Description of Services. Consultant shall provide consulting
services to senior management of the Company. Consultant shall report to the
Chief Executive Officer of the Company or his designee and shall provide
consulting services, as requested in such areas as: operational issues for
cardiac monitoring services provided by Raytel Cardiac Services, re-structuring
of certain cardiac catheterization operations, and strategic issues relating to
the sale of specific operating assets or the acquisition of specific operating
assets.
(c) Term. The term of this Agreement shall commence on January 1,
2000, and, unless earlier terminated as provided in subsection 1(e) below, shall
continue on a month to month basis until terminated as provided in paragraph (g)
herein below.
(d) Service Commitment. Consultant will hold himself available to
provide consulting services, on a part-time basis, during the term of this
Agreement. The Company shall use reasonable efforts to schedule the performance
of Consultant's services so as not to interfere with Consultant's other business
commitments. To the extent practicable, the parties will establish a schedule
for the performance of the consulting services. Once established, changes in
such schedule will be subject to reasonable notice and Consultant's other
business
-1-
2
commitments. Consultant will also hold himself available, for telephone
consultation for reasonable periods of time.
(e) Termination. The Company shall have the right to terminate this
Agreement (i) upon Consultant's failure to perform any duties reasonably
assigned to him hereunder, which failure is not cured within 10 days following
written notice thereof or (ii) at any time upon written notice delivered to
Consultant. Consultant may terminate this Agreement at any time upon thirty (30)
days written notice delivered to the Company.
(f) Facilities, Equipment and Supplies. Except as specifically agreed
by the parties, Consultant will provide his consulting services hereunder at his
own facility. If the parties agree that certain specified services shall be
performed by Consultant at the Company's facility, the Company will provide to
Consultant an office, access to telephone, facsimile and e-mail equipment,
reasonable clerical support and general office supplies for his use in the
performance of any such consulting services.
(g) Other Activities. The Company acknowledges and agrees that,
subject to his obligations hereunder and his obligations as set forth in the
Employment Agreement between Consultant and the Company dated August 20, 1999
(the "Employment Agreement"), Consultant shall have the right to engage in other
business activities and consulting activities for other entities during the term
of this Agreement; provided, however, that during the term of this Agreement,
Consultant will not, without the Company's prior written consent, directly or
indirectly engage in any employment, consulting or other business activity other
than for the Company relating to any line of business in which the Company is at
such time engaged, or which would otherwise conflict with Consultant's
obligations to the Company under this Agreement. The foregoing notwithstanding,
nothing herein shall prevent the Employee from engaging in charitable activities
or activities of professional associations, from managing any personal
investments on his own personal time, provided that such investments are not
otherwise competitive with the Company, or engaging in the additional activities
listed and described in Exhibit 1.5, attached hereto and incorporated herein by
reference. This Section 1(g) of this Consulting Agreement is subordinate to
Section 5.9, Covenant Not to Compete, of the Employment Agreement between
Consultant and the Company, and any conflict between this Consulting Agreement
and the Employment Agreement shall be resolved in favor of the Employment
Agreement.
(h) Compensation. As compensation for the consulting services to be
performed under this Agreement, and for holding himself available to perform
such services, the Company shall pay Consultant a consulting fee of One Hundred
Forty Dollars ($140.00) per hour, payable every two weeks on the 1st and 15th of
each month for invoices received from Consultant during the term of this
Agreement. In the event that this Agreement is terminated prior to the end of a
normal pay period, Consultant shall be entitled to receive such consulting fee
prorated through the date of termination. Consultant shall submit an invoice for
services at least one week prior to the scheduled pay period to allow time for
check processing and other administrative activities. Consultant shall be
required to keep detailed time records of the
-2-
3
actual hours or portions or hours spent performing the duties set forth in
Paragraph 1(b). Travel and administrative time are not billable to the Company
except as provided herein. However, in the event that Consultant is requested to
travel to a location that requires more than four hours travel time, then
consultant shall be compensated on a daily basis of One Thousand One Hundred
Twenty Dollars ($1,120.00) per day for each day that consulting services were
actually performed, and shall be compensated on a daily basis of Five Hundred
Dollars ($500.00) per day for each day that no consulting services were actually
performed. In addition, weekend days or an extra day taken at the Consultant's
discretion for Consultant's travel convenience shall not be counted as a paid
travel day.
(i) Expenses. In addition to the compensation specified in Section
1(h) above, the Company will reimburse Consultant for reasonable out-of-pocket
expenses incurred by Consultant and approved in advance by the Company in
connection with the performance of his consulting services hereunder. Consultant
shall also submit appropriate back-up documentation to support each request for
reimbursement.
(k) No Violation of Others' Rights. Consultant represents and
warrants that in the course of performing his services hereunder, Consultant
will not (i) use, disclose to the Company or induce the Company to use any
confidential or proprietary documents or information belonging to any other
person or entity, or (ii) infringe or wrongfully appropriate any patents,
copyrights, trade secret rights, or other intellectual property rights of any
other person or entity.
2. Protection of Confidential Information.
(a) Definition of Confidential Information. For purposes of this
Agreement, the term "Confidential Information" shall mean all information
developed by or disclosed or made available to Consultant, his employees or
representatives, in connection with the performance by Consultant of the
consulting services hereunder (including information known to Consultant in his
capacity as a director of the Company) which the Company protects against
unrestricted disclosure to others and which: (i) if in written or other tangible
form, is clearly designated as "Confidential;" and (ii) if disclosed orally, is
reduced to or described in a writing designating such information as
"Confidential" which is delivered to Consultant promptly following such oral
disclosure. By way of illustration, but not limitation, Confidential Information
may include inventions, concepts, designs, techniques, processes, market data,
customer lists, referral sources, suppliers, financial information and plans and
strategies.
(b) Confidentiality. Consultant agrees, with respect to any
Confidential Information developed by or disclosed to him:
(i) To use such Confidential Information only for the purposes
of performing the consulting services hereunder;
-3-
4
(ii) To use the same methods and degree of care to prevent
disclosure of such Confidential Information as he uses to prevent disclosure of
his own proprietary and confidential information;
(iii) To disclose the Confidential Information to his employees
only on a need-to-know basis and not to disclose any Confidential Information to
any third party without the prior written consent of the Company; and
(iv) To return any Confidential Information in any tangible form
to the Company at the request of the Company and to retain no copies or
reproductions thereof.
(c) Limitations. Consultant shall not be obligated to treat
information as Confidential Information if such information:
(i) Was rightfully in Consultant's possession or was rightfully
known to Consultant prior to receipt from the Company;
(ii) Is or becomes public knowledge without the fault of
Consultant;
(iii) Is or becomes rightfully available to Consultant without
confidential restriction from a source not under the Company's control; or
(iv) Is independently developed by Consultant without use of the
Confidential Information disclosed hereunder; provided, however, that the burden
of proof of such independent development shall be upon Consultant.
(d) Survival of Obligations. The obligations of Consultant under this
Section 2 shall survive the termination of this Agreement.
3. Miscellaneous.
(a) Relationship of Parties. Consultant shall at all times during the
performance of his services hereunder be an independent contractor, maintaining
sole and exclusive control over his business and operations.
(i) At no time will either party hold itself out to be the
agent, employee, lessee, subleases, partner or joint venturer of the other
party.
(ii) Neither party hereto shall have the express or implied
right or authority to assume or create any obligation on behalf of or in the
name of the other party, or to bind the other party in regard to any contract,
agreement or undertaking with any third party.
-4-
5
(iii) Since Consultant is not an employee of the Company, neither
Consultant nor any of its employees shall be entitled, by virtue of their
services hereunder, to any of the benefits which the Company may make available
to its employees, including but not limited to workers' compensation insurance
and coverage.
(iv) Consultant will be solely responsible for all tax returns
and payments required to be filed with or made to any federal, state or local
tax authority with respect to Consultant's performance of services and receipt
of fees under this Agreement.
(v) Consultant will be solely responsible for and must maintain
adequate records of expenses incurred in the course of performing services under
this Agreement.
(vi) No part of Consultant's compensation will be subject to
withholding by the Company for the payment of any social security, federal,
state or any other employee payroll taxes.
(vii) Should the Internal Revenue Service or the California
Department of Employment Development make a determination that Consultant was
not an independent contractor but was an employee and that the consulting
compensation was ordinary salary subject to customary payroll tax withholding,
then Consultant agrees that Consultant shall be responsible for the employee's
portion of the customary payroll taxes, such as FICA, FUTA, Medicare and SDI.
(b) Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior, written or oral negotiations, representations or agreement. No
modification of this Agreement shall be binding on either party unless it is in
writing and signed by both parties.
(c) Severability. The provisions of this Agreement are severable, and
if one or more provisions are judicially determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions or portions of this
Agreement shall nevertheless be binding on and enforceable by and between the
parties hereto.
(d) Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto. Consultant shall
not transfer or assign this Agreement without the prior written consent of the
Company.
(e) Governing Law. The rights and obligations of the parties to this
Agreement shall be governed by and construed in accordance with the laws of the
State of California.
-5-
6
(f) Headings. Section headings are for convenience of reference only
and shall not be considered in the interpretation of this Agreement.
(g) Unavoidable Delays. Either party shall be excused for any delays
or defaults in the performance of this Agreement (except the payment of amounts
due and payable hereunder) unavoidably caused by the act of the other, the act
of any agent of the other, the act of any governmental authority, acts of God,
the elements, war, litigation, strikes, walkouts, or any other cause beyond its
reasonable control. Each party shall use all reasonable diligence to avoid any
such delay or default and to resume performance under this Agreement as soon as
practicable after such delay or default.
(h) Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or on the day sent by facsimile transmission if a true
and correct copy is sent the same day by first class mail, postage prepaid, or
by dispatch by an internationally recognized express courier service, and in
each case addressed as follows:
If to Consultant: XXXXX XXXXXXX
--------------------------------
Simsbury, Connecticut
If to the Company: RAYTEL MEDICAL CORPORATION
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
ATTN: Xxxxxxx X. Xxxxx
Chief Executive Officer
(i) Attorneys' Fees and Costs. Should litigation arise concerning the
enforcement or interpretation of this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs as determined by
the court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
RAYTEL MEDICAL CORPORATION CONSULTANT
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------------ -----------------------------------
Xxxxxxx X. Xxxxx Xxxxx Xxxxxxx
Chief Executive Officer
-6-
