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EXHIBIT 10.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement") is entered into as of June
1, 2001 by and between AdvancePCS, a Delaware corporation (the "Company") and
Xxxx-Xxxxxx Xxxxxx, (the "Consultant"), residing at 0000 Xxxx Xxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxx, 00000-0000, Xxxxxx Xxxxxx of America.
1. SERVICES TO BE PERFORMED. Consultant agrees to assist the Company in
developing international business opportunities for the Company by
generating leads for potential transactions, assessing identified
opportunities and assisting in the negotiations with domestic and or non
U.S. third parties with respect to mergers, acquisitions, business
combinations or other strategic or investment relationships (the
"Services"). In addition, prior to the termination of this Agreement,
Consultant agrees to deliver a written analysis detailing opportunities for
the Company to expand its offering of pharmaceutical benefit management
products and services worldwide. Unless subsequently changed by mutual
agreement of the parties, the Consultant's primary contact during the term
of this Agreement will be Xxxxx X. Xxxxxxx the Company's Chairman and Chief
Executive Officer (the "Company Contact"). Consultant agrees that the
Services will be monitored and directed by the Company Contact who will
prescribe the scope of his duties, budgetary limits, completion criteria
and the nature of any required oral or written reports.
2. QUALITY OF SERVICES. Consultant hereby represents and assures that any
Services performed pursuant to this Agreement will be consistent with
standards expected of persons performing professional services of like
nature in the industry.
3. OTHER INTEREST.
(a) The Company may from time to time (i) engage other persons and
entities to act as consultants to the Company and perform
services for the Company, including services that are similar to
the Services, and (ii) enter into agreements similar to this
Agreement with other persons or entities that are not competitive
with the Company, in all cases without the necessity of obtaining
approval from Consultant.
(b) During the period of this Agreement, Consultant shall not enter
into any other consulting activity that would cause him to breach
his confidentiality obligations under this Agreement, nor shall
Consultant at any time during the period of this Agreement or
thereafter disclose or use for the benefit of any third party any
Proprietary Information (as defined in Section 10 hereof) of
Company.
4. PERIOD OF AGREEMENT AND TERMINATION. This Agreement is for the period
beginning June 1, 2001 and ending November 30, 2001 (the "Term"). This
Agreement may be extended beyond the Term with the consent of both parties.
In the event of the termination of this Agreement, Consultant shall be
entitled to payment for Services performed and expenses incurred during the
Term, subject to the procedure for reimbursement of expenses set forth in
Section 5 below. Further, either party may terminate this Agreement upon a
90-day written notice (the "Notice Period") to the other party. In the
event of such early termination, the
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monthly retainer and expense reimbursement provisions of Section 5 below
remain in effect during the Notice Period.
5. COMPENSATION AND EXPENSES. The Company will compensate Consultant at the
rate of $25,000 per month, to be paid on the first day of each calendar
month during the Term. In addition, Consultant shall be entitled to
reimbursement for all reasonable expenses incurred on behalf of the Company
in accordance with the Company's policy relating to senior executive
officers. Consultant shall provide receipts to Company for such expenses on
a monthly basis.
6. SPECIAL COMPENSATION.
(a) The Company and Consultant expect and anticipate that Consultant
will be involved in formulating and negotiating specific
investment proposals. While it is not feasible to specifically
define such arrangements in advance, the Company and Consultant
agree to negotiate in good faith appropriate compensation
arrangements (cash, stock options, stock grants, equity
participation, warrants or other forms of compensation) which
recognize the unique value Consultant can bring as a result of
his expertise. This transactional compensation will be in
addition to the Consulting Fee.
(b) The parties expressly agree that projects introduced to the
Company by the Consultant or worked on behalf of the Company by
Consultant during the Term may not be consummated during the
Term. Accordingly, the parties agree that, with respect to any
project, opportunity, investment, merger, business combination or
other transaction worked on by the Consultant during the Term
that is consummated during the Term or within one year
thereafter, the Company and Consultant shall enter into the good
faith negotiation contemplated by this Section 6 so as to provide
the Consultant with appropriate compensation in light of the
nature of the project and the value created by the Consultant.
7. ACCESS TO COMMUNICATIONS AND INFORMATION SERVICES. The Company agrees to
provide Consultant with access to its administrative support personnel and
communications and information system as necessary to perform the services
contemplated hereunder at Company's cost and to work with such support
staff as is designated by the Company contact.
8. INDEPENDENT CONTRACTOR STATUS. For purposes of this Agreement and all
Services provided hereunder, Consultant shall, in all respects, perform as
an independent contractor and shall not act or represent himself as an
agent or employee of the Company and shall have no authority hereunder,
express or implied, to make or undertake any promise, warranty or
representation, to execute any contract or otherwise to assume or undertake
any obligation on behalf of or in the name of, the Company.
9. NO BENEFITS; TAX RESPONSIBILITY.
(a) Consultant is not an employee of Company and, except as provided
in any other agreement or plan conferring rights upon Consultant,
will not be entitled to
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participate in or receive any benefit or right as a Company
employee under any Company employee benefit and/or welfare plans,
including, without limitation, employee insurance, pension,
savings and security plans as a result of her entering into this
Agreement.
(b) Consultant shall be solely responsible for the payment of all
federal, state and local taxes or contributions imposed upon
employers for performance of consulting services, including
income tax, social security, unemployment insurance and any other
taxes that pertain to any amounts paid to Consultant in
accordance with any provision of this Agreement. Consultant
further agrees to indemnify, hold harmless and defend the Company
against any and all claims or liabilities that may be asserted by
any governmental taxing authority, including payment of attorneys
fees, charges, assessments, interest, penalties or liabilities
arising out of or with respect to any tax liabilities relating to
payments made to Consultant pursuant to this Agreement.
10. CONFIDENTIALITY AND INTELLECTUAL PROPERTY. This Agreement, all terms and
conditions thereof, all work Consultant performs hereunder and all trade
secrets and business confidences of the Company, including, without
limitation technical data, financial information and business plans
("Proprietary Information"), are confidential and shall not be disclosed by
Consultant to any third party or entity or used for the benefit of anyone
other than the Company, during or for two years after Consultant's
engagement, without the Company's prior written approval. Consultant agrees
that all working papers or final work product resulting from or generated
in connection with Services performed pursuant to this Agreement shall be
Company's property with the proviso that such materials will be attributed
to Consultant if publicly used by the Company. Consultant agrees to return
all Proprietary Information to the Company on or before the termination of
this Agreement.
11. LAWS AND REGULATIONS. Consultant agrees to fully comply with all U.S.
Federal, state, local or foreign laws, regulations, rules and other
requirements including, but not limited to, the Anti-Kickback Enforcement
Act of 1986, the Foreign Corrupt Practices Act, the Shermata Antitrust Act
and any rules and regulations prohibiting trading in securities based on
insider information (collectively, "Rules and/or Regulations").
12. RESTRICTIONS ON COMPETITION. During the Term of this Agreement, and, with
regard to territory outside of the United States of America, for a
twelve-month period following termination of this Agreement, and, within
the United States of America, for a six-month period following termination
of this Agreement, Consultant will not become engaged in, render services
to, be employed by, consult with, or become an officer, director, employee,
agent, consultant, or substantial stockholder any business or enterprise
substantially engaged or about to become engaged substantially in the
pharmacy benefit management business.
13. INDEMNIFICATION.
(a) As a material inducement to Consultant's agreement to perform the
Services contemplated hereunder, the Company agrees to indemnify
and hold harmless the Consultant, to the fullest extent permitted
by law, against any and all expenses,
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attorneys fees, costs, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Consultant in
connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (including any action or in the right of the
Company) to which the Consultant is, was at any time, becomes a
party, or is threatened to be made a party, arising from or in
any way related to the Services performed by the Consultant
hereunder. Notwithstanding the foregoing, no indemnification
shall be paid by the Company with respect to any acts or
omissions by the Consultant which is finally adjudged by a court
of competent jurisdiction to constitute willful misconduct or to
have been knowingly fraudulent or deliberately dishonest. All
obligations of the Company hereunder shall continue throughout
the Term and thereafter with respect to my actions, omissions or
conduct occurring during the Term (as it maybe extended from time
to time).
(b) The Consultant shall promptly notify the Company of any matter
which is or may be the subject of an indemnification claim
hereunder. The Company shall not be liable to the Consultant in
the Agreement for any amounts paid in settlement for any action
or claim effective without its written consent.
(c) The expenses (including attorneys fees) incurred by the
Consultant in investigating, defending or appealing any
threatened, pending or completed action, suit or proceeding
covered hereunder, whether civil, criminal, administrative or
investigative, including, with out limitation, any action by or
in the right of the Company shall be paid in advance by the
Company. The Consultant shall reimburse the Company for all
reasonable expenses paid by the Company pursuant to the
indemnification provisions hereof in the event it shall be
finally determined Consultant is not entitled to be indemnified
by the Company for such expenses under the terms of this
Agreement.
14. ASSIGNMENT. This Agreement is not assignable or transferable by either
party.
15. WAIVER. Failure of Company to enforce any of its rights under this
Agreement shall not constitute a waiver of such rights or any other rights
under this Agreement.
16. GOVERNING LAW. This Agreement is deemed to be made under, and shall be
construed according to, the laws of the State of Arizona and arty suit
hereunder shall be brought in said jurisdiction.
17. ENFORCEABILITY. This Agreement and any attached exhibits constitute the
entire Agreement between Consultant and Company, and may be changed or
amended only by a written change, amendment or supplement agreed to and
executed in writing by both patties.
18. SEVERABILITY. If any provision of this Agreement shall be held to any
extent to be invalid or unenforceable, the remainder of this Agreement
other than those provisions as to which it has been held invalid or
unenforceable, shall not be affected thereby, and each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by
law.
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19. SURVIVAL. The provisions of paragraph 10 shall survive the expiration of
the terms of this Agreement.
20. COUNTERPARTS. This Agreement shall become binding when any one or more
counterparts hereof, individually or taken together, shall bear the
signatures of Consultant and the Company. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, but all of which
together shall constitute but one and the same instrument.
21. ATTORNEYS FEES. In the event of any action or other proceeding brought to
determine or enforce the rights or obligations of the parties hereto, the
prevailing party shall be entitled to recover all of its reasonable
attorneys fees and expenses for bringing and pursuing such action and for
collecting on any judgment or award entered therein.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
duly executed this Agreement as of the date first above written.
ADVANCEPCS CONSULTANT
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx-Xxxxxx Xxxxxx
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Xxxx-Xxxxxx Xxxxxx
Name: Xxxxx X. Xxxxxxx
Title: CEO
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