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EXHIBIT 10
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated March 17, 1997 (this "Agreement"), by and
between CAREADVANTAGE, INC., a Delaware corporation having offices at 000-X
Xxxxx 0 Xxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000 (the "Company"), and XXXXXXX X.
XXXXXXX, an individual having a residence at 0 Xxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxx
Xxxxxx 00000 ("Xxxxxxx").
WHEREAS, each of the Company and Xxxxxxx have entered into an
employment agreement dated as of August 7, 1996 (the "Employment Agreement")
pursuant to which the Company has employed Xxxxxxx as a Vice President,
Treasurer, Secretary and Chief Financial Officer of the Company;
WHEREAS, Xxxxxxx, contemporaneous with the execution of this
Agreement and as a condition precedent to the effectiveness of this Agreement,
is tendering his written resignation as a Vice President, Treasurer, Secretary
and Chief Financial Officer of the Company and as a senior officer of all
Affiliates (as such term is defined in Section 6(a) hereof), which resignation
has the effect of terminating the Employment Agreement pursuant to Section 6(d)
of such Employment Agreement; and
WHEREAS, the Company desires, upon the effectiveness of such
resignations, to secure certain consultancy services of Xxxxxxx, and Xxxxxxx
desires to provide such services to the Company, all in accordance with the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and undertakings of the parties hereto, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
1. Resignation from Positions as an Officer.
(a) Contemporaneous with the execution hereof, and as a
condition precedent to the effectiveness hereof, Xxxxxxx shall have tendered his
written resignations from any offices of the Company and from any offices of any
Affiliate, all in accordance with the bylaws of the Company or such Affiliates,
as applicable.
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(b) Each of the Company and Xxxxxxx agrees that the three (3)
month prior written notice required to be given by Xxxxxxx to the Company
pursuant to Section 6(d) of the Employment Agreement shall be waived by the
Company and each of the Company and Xxxxxxx agrees that Xxxxxxx'x resignation as
required in Section 1(a) hereof shall be effective as of the date hereof.
2. Retention as Consultant.
(a) The Company hereby agrees to retain Xxxxxxx as a
consultant on the terms and conditions set forth herein, and Xxxxxxx hereby
accepts such retention, for a period commencing from the date hereof (the
"Effective Date") and terminating on October 31, 1997, subject to earlier
termination of such retention hereunder as provided for in this Agreement (the
"Term").
(b) Nothing under this Agreement shall be construed as
creating any partnership, joint venture, agency or employer-employee
relationship between Xxxxxxx and the Company or any Affiliate. Xxxxxxx shall act
solely as an independent contractor and, as such, is not authorized to bind the
Company (or any Affiliate) to third parties. During his retention by the Company
hereunder, Xxxxxxx shall, to the best of his abilities, complete the following
tasks on behalf of the Company: (i) preparation and filing with the Securities
and Exchange Commission (the "SEC") of the Company's 1997 first quarter report
on Form 10-Q; (ii) preparation and filing with the SEC of a Registration
Statement on Form S-3 for shares of the Company's common stock; (iii) the
mailing and solicitation of proxies in connection with the Company's annual
meeting; (iv) preparation and filing with the SEC of the Registration Statement
on Form S-8 for shares of the Company's stock reserved for, and issued pursuant
to, its Incentive and Non-Qualified Stock Option Plans; and (iv) preparation of
1997 budgets and financial statements for the Company (collectively, the
"Services"). In addition to the rendering of the Services, during the Term,
Xxxxxxx shall do any and all reasonable actions and make himself available
during normal business hours, as requested from time to time by the President
and Chief Executive Officer of the Company, so long as such requests do not
require Xxxxxxx to render more than ten (10) full working hours of services in
excess of those hours of work which Xxxxxxx will undertake in order to complete
the Services (the "Required Hours"). In the event that such services, separate
and apart from Xxxxxxx'x requirement to render the Services, require Xxxxxxx to
work in excess of the Required Hours, the Company and Xxxxxxx agree to negotiate
and come to agreement as to an hourly rate to compensate Xxxxxxx for such
services in excess of the Services and the Required Hours.
(c) In connection with Xxxxxxx'x provision of Services
hereunder, Xxxxxxx shall be allowed access to any office of the Company only
with the prior consent of the President and Chief Executive Officer of the
Company.
(d) Xxxxxxx shall perform the Services in accordance with all
applicable Federal, state, local and other laws, rules and regulations.
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3. Payments to Xxxxxxx.
(a) In consideration of the covenants and agreements made by
Xxxxxxx hereunder, including, without limitation, Section 6 hereof, and of the
Services to be rendered by Xxxxxxx pursuant to Section 2 hereof, subject to the
terms and conditions set forth herein, the Company shall make the following
payments to Xxxxxxx:
(i) From the Effective Date to April 30, 1997, Xxxxxxx
shall receive his Base Salary (as such term is defined in the Employment
Agreement) (subject to withholding of federal and state income taxes, FICA and
other applicable deductions as required by law).
(ii) On April 30, 1997, in addition to his last payment
of Base Salary, the Company shall pay to Xxxxxxx a payment equal to Twenty-Nine
Thousand One Hundred Sixty-Eight Dollars ($29,168.00) (subject to withholding of
federal and state income taxes, FICA and other applicable deductions as required
by law).
(iii) For the next two (2) consecutive months, on May
30th, 1997 and June 30th, 1997, the Company shall pay to Xxxxxxx a payment equal
to Twenty-Nine Thousand One Hundred Sixty-Six Dollars ($29,166.00) (subject to
withholding of federal and state income taxes, FICA and other applicable
deductions as required by law).
4. Expenditures.
(a) Subject to Section 4(b) hereof, the Company shall
reimburse Xxxxxxx for all reasonable, ordinary and necessary expenses directly
related to his performance under the Employment Agreement ("Expenses"), which
Expenses were incurred by Xxxxxxx prior to the Effective Date.
(b) In order to receive reimbursement with respect to any
Expenses in accordance with Section 4(a) hereof, Xxxxxxx must submit an itemized
account and appropriate documentation of such Expenses sufficient, inter alia,
to preserve any deductions for Federal income taxation purposes to which the
Company may be entitled, and which documentation must be acceptable in form and
substance satisfactory to the Company. Such account and documentation shall be
provided prior to any disbursement of funds by the Company to Xxxxxxx.
(c) In connection with the rendering of Services by Xxxxxxx
pursuant to Section 2 hereof, Xxxxxxx shall retain a computer previously
provided to him by the Company for his use at the residence identified in the
first paragraph of this Agreement.
(d) In consideration of the covenants and agreements made by
Xxxxxxx hereunder, including, without limitation, Section 6 hereof, and of the
Services to be rendered by Xxxxxxx pursuant to Section 2 hereof, subject to (i)
the terms and conditions set forth herein and (ii) Xxxxxxx'x election, within
sixty (60) days of the Effective Date, the Company agrees to
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continue Xxxxxxx'x medical and dental insurance benefits, at the Company's
expense, previously provided to him pursuant to the Employment Agreement, in
accordance with the Federal Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA"), for that period commencing upon the Effective Date
and terminating upon the earlier to occur of: (i) the expiration of the Term; or
(ii) that date upon which Xxxxxxx becomes covered by another group health
insurance plan. Xxxxxxx agrees promptly to notify the Company of his coverage by
such other group health insurance plan. After such date, Xxxxxxx shall have the
right to continue such medical and dental insurance benefits, at Xxxxxxx'x
expense, in accordance with COBRA.
5. Termination of Retention.
The following provisions set forth the terms and conditions
pursuant to which the retention of Xxxxxxx as a consultant hereunder may be
terminated:
(a) The retention of Xxxxxxx hereunder shall be terminated
upon his death.
(b) The retention of Xxxxxxx hereunder may be terminated by
the Company in the event of the occurrence of any of the following conditions or
events on or after the Effective Date, which right of termination shall be
exercised by the Company in its reasonable discretion:
(i) commission by Xxxxxxx of any act that is materially
damaging or detrimental to, or that could be expected to be materially damaging
or detrimental to, the Company, an Affiliate or the reputation or business of
the Company or any Affiliate (whether such action is in performance of Services
hereunder or otherwise);
(ii) conviction of Xxxxxxx for the commission of a
felony;
(iii) material dishonesty or conflict of interest in
matters relating to the Company or an Affiliate;
(iv) commission by Xxxxxxx of any act of Moral Turpitude
(as hereinafter defined in this Section 5(b)) that materially adversely affects,
or that could reasonably be expected to materially adversely affect, the
Company, an Affiliate or the reputation or business of the Company or any
Affiliate; or
(v) any material breach of this Agreement by Xxxxxxx.
Upon or after the date of occurrence of any of the events or conditions
described in this Section 5(b), the Company may deliver written notice to
Xxxxxxx of its election to terminate his retention hereunder and such retention
shall be terminated effective as of the date of such notice. For purposes
hereof, "Moral Turpitude" means (A) a breach or violation of any applicable law,
(B)
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civil fraud or deceit, (C) a material misstatement or omission of fact or (D)
intentional misconduct.
In the event that the retention of Xxxxxxx hereunder is terminated, the Company
shall be under no further obligation to pay Xxxxxxx for his Services except to
pay Xxxxxxx the payments to be made in accordance with the terms of Section 3
hereof, up to and including the date on which his retention is terminated.
6. Release and Discharge.
(a) For purposes of this Agreement, an "Affiliate" shall mean
any person, corporation, partnership, firm, association, trust or other entity,
directly or indirectly through one or more intermediaries, controlling,
controlled by or under common control with the Company or any such person.
(b) For and in consideration of, as a condition to, the
Company entering into this Agreement and the retention of Xxxxxxx by the Company
as a consultant hereunder, Xxxxxxx, for himself and each of his heirs,
executors, administrators, successors and assigns, hereby waives, releases,
discharges and holds harmless the Company and each of the Affiliates and the
officers, directors, shareholders, partners, employees, agents, attorneys and
representatives of each of the Company and each Affiliate, past, present and
future, and the heirs, executors, administrators, legal representatives,
successors and assigns of each of the foregoing, of and from any and all claims,
actions, causes of actions, suits, debts, demands, damages, judgments,
executions, costs, expenses and liabilities of any kind whatsoever, whether
known or unknown, whether in law or equity, that he may have now or in the
future, by reason of any matter or cause whatsoever, against the
above-referenced entities and individuals, which Xxxxxxx may have had against
the Company and/or any Affiliate, from the date Xxxxxxx commenced employment at,
or entered into any other association, relationship or dealing with, the Company
or any Affiliate, to the Effective Date, arising out of, or in any way connected
with, Xxxxxxx'x employment and/or any other association, relationship or dealing
with the Company and/or any Affiliate, including, without limitation, any
claims, actions, causes of actions, or suits against the Company or any
Affiliate for violation of any federal, state or local fair employment practices
law, including, without limitation, Title VII of the Federal Civil Rights Act of
1964, as amended, the Federal Americans with Disabilities Act, as amended, the
Federal Rehabilitation Act, as amended, the Federal Family and Medical Leave
Act, as amended, the Federal Employee Retirement Income Security Act, as
amended, the Federal Age Discrimination in Employment Act of 1967, as amended,
the Federal Older Workers Benefit Protection Act of 1991, as amended, and/or the
New Jersey Law Against Discrimination, N.J.S.A. ss. 10:5-12 et seq., or any
other employee relations statute, rule, executive order, law or ordinance, tort,
express or implied contract, public policy or claim for emotional distress or
other obligations. Without limiting the generality of the foregoing, Xxxxxxx,
for himself and each of his heirs, executors, administrators, successors and
assigns, hereby specifically releases, discharges and holds harmless the
above-referenced entities and individuals from and against any and all duties,
obligations, matters, causes or things relating to this Agreement or the
respective
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communications and dealings between Xxxxxxx and any of the above-referenced
entities and individuals relating to this Agreement.
(c) The parties understand and agree that any payments or
other consideration provided by the Company to Xxxxxxx under the terms of this
Agreement do not constitute an admission by the Company that it had or has
violated any law or legal obligation. Xxxxxxx further understands and agrees
that he is not otherwise entitled to the payments set forth in Section 3 of this
Agreement except pursuant to the terms hereof.
(d) Xxxxxxx further acknowledges that he has had up to
twenty-one (21) days prior to the Effective Date to consider the terms of this
Agreement. During such period, Xxxxxxx acknowledges that he has been informed by
the Company to consult with an attorney and other professional persons unrelated
to the Company regarding the terms of this Agreement and that by Xxxxxxx'x
execution of this Agreement, he is freely, knowingly and voluntarily entering
into this Agreement with the Company with a full understanding of the terms
hereof. The parties further understand and agree that the terms of this
Agreement cannot become effective or enforceable until seven (7) days following
the Effective Date, during which time Xxxxxxx may revoke this Agreement by
notifying the Company in accordance with Section 12 hereof.
7. Noncompetition.
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, during the
Term, Xxxxxxx agrees not to, directly or indirectly: (a) work for, consult with,
or provide any services to an entity or individual which provides utilization
review/utilization management and/or disease management services that are
similar to those services rendered by the Company or any Affiliate controlled by
the Company and/or the other services that may be provided by the Company or any
Affiliate controlled by the Company from time to time, in any geographic area
the Company or any Affiliate is providing or is contracted to provide such
services; (b) induce or attempt to induce any officers, employees,
representatives or agents of the Company or any Affiliate to terminate or modify
their relationship with the Company or any Affiliate or to violate any of the
provisions of their agreements with the Company or any Affiliate; or (c)
solicit, entice away, or otherwise interfere with the relationship of the
Company or any Affiliate with any customers, vendors, licensors, distributors or
suppliers of the Company or any Affiliate.
8. Confidential Information.
Xxxxxxx hereby agrees that he will not willfully, for the
period commencing as of the Effective Date and terminating one (1) year from the
Effective Date, unless specifically authorized in writing by the Company or
unless specifically compelled by a court of competent jurisdiction after first
giving notice to the Company and allowing the Company sufficient time to
challenge such court order to compel Xxxxxxx or to expressly waive such right to
challenge: (a) divulge, make available to others or use for his own or another's
benefit, any Confidential Information (as such term is hereinafter defined), or
(b) remove any Confidential Information
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from the premises of the Company or any of its Affiliates; provided, however,
that the foregoing shall not apply to any information (as distinct from
documents, lists and other tangible items) that has become known by and
generally available to the public or the industry (other than as a result of the
violation of this Section 8 by Xxxxxxx). Xxxxxxx further agrees that any
Confidential Information that is now or may hereafter be in his possession, and
all copies thereof, shall be promptly destroyed or returned to the Company upon
its request. The provisions of this Section 8 shall survive the termination or
expiration of this Agreement, irrespective of the reason therefor. For purposes
hereof, "Confidential Information" means (i) any and all (A) methods, processes,
manuals, trade secrets, know-how, inventions and other proprietary information
used by the Company or any Affiliate in rendering its services (or any other
services similar or ancillary to any of such services) regardless of where
provided, (B) software owned or used by the Company or any Affiliate and (C)
improvements, enhancements, modifications, updates and corrections with respect
to any of the foregoing, as and when same are released, (ii) any and all
information, data, forms, policies, procedures, manuals, customer lists,
documents, files, surveys and materials of any kind created, owned or provided
by the Company or any Affiliate in connection with, or with respect to, its
operations, (iii) any and all information or data relating to the business or
financial affairs of, or other information relating to, any customer or client
of the Company or any Affiliate (including, without limitation, any health care
information pertaining to subscribers of such customer or client), and (iv) any
derivative works based on the foregoing information, data or materials described
in subclauses (i) through (iii) above.
9. Equitable Relief.
Xxxxxxx acknowledges that a material violation of the
covenants made by Xxxxxxx in Section 7 and Section 8 hereof would cause
irreparable and continuing damage to the Company and the Affiliates for which
money damages alone would not adequately compensate. Accordingly, Xxxxxxx
consents and agrees that if he violates any of the material provisions of
Section 7 or Section 8 hereof the Company shall, in addition to any other rights
or remedies of the Company available at law, be entitled to equitable relief in
any court of competent jurisdiction, including, without limitation, temporary
injunction and permanent injunction (without the posting of any bond or
security) restraining any further violation of the material provisions of
Section 7 or Section 8 hereof. The provisions of this Section 9 shall survive
the termination or expiration of this Agreement, irrespective of the reason
therefor.
10. Enforceability.
It is the intention of the parties that the provisions of this
Agreement shall be enforced to the fullest extent permissible under the laws and
public policies of each state and jurisdiction in which such enforcement is
sought, but that the invalidity, illegality or unenforceability (or the
modification to conform with such laws or public policies) of any provisions
hereof, shall not render invalid, illegal, or unenforceable or impair the
remainder of this Agreement. Accordingly, if any provision of this Agreement
shall be determined to be invalid, illegal or unenforceable, either in whole or
in part, this Agreement shall be deemed
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amended to delete or modify, as necessary, the offending provisions and to alter
the balance of this Agreement in order to render the same valid, legal and
enforceable to the fullest extent permissible.
11. Indemnity.
Xxxxxxx shall indemnify, defend and hold harmless the Company,
its Affiliates and the respective shareholders, directors, partners, officers,
employees and agents of the Company and its Affiliates, from and against any and
all claims, actions, losses (whether joint or several), liabilities, damages,
costs and expenses (including, without limitation, attorneys' fees and expenses)
arising out of or relating to any breach, failure or violation by him of any of
his covenants and undertakings set forth in this Agreement.
12. Notices.
Any notice or other communication under or relating to this
Agreement shall be in writing and shall either be personally delivered
(including delivery by express couriers such as Federal Express) or be sent by
prepaid registered or certified mail, return receipt requested, addressed to the
respective parties at the address first set forth above. Any such notice or
other communication shall be deemed given upon receipt at the address provided
for above. Either of the above addresses may be changed at any time by notice
given as above provided.
13. Further Assurances.
Xxxxxxx agrees to execute and deliver such further instruments
and documents and to take such further action as may be requested by the Company
from time to time in order to more fully discharge, perform and carry out his
obligations hereunder and to more fully effectuate the intent and purposes of
this Agreement.
14. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey applicable to contracts made
and to be performed therein.
15. Jurisdiction.
Except as otherwise set forth herein, the courts of the State
of New Jersey in Essex County and the United States District Court for the
District of New Jersey shall have jurisdiction over the parties with respect to
any dispute or controversy among them arising under or in connection with this
Agreement and, by execution and delivery of this Agreement, each of the parties
to this Agreement submits to the jurisdiction of those courts.
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16. Assignment.
This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder; provided, however, that the
Company may freely assign this Agreement to any party who shall acquire (whether
by sale, merger, consolidation, or otherwise) all or substantially all of its
assets. This Agreement and all of the provisions hereof shall be binding upon,
and inure to the benefit of, the parties hereto, and their successors (including
by merger, consolidation or transfer of all or substantially all of the assets
of the Company), permitted assigns, executors, administrators, personal
representatives, heirs and distributees.
17. Entire Agreement; Amendment; Waiver.
This Agreement sets forth the entire understanding of the
parties hereto and all other previous or contemporaneous understandings or
agreements, including, without limitation, the Employment Agreement, whether
written or oral, are hereby superseded. None of the terms or provisions hereof
shall be modified or waived, and this Agreement may not be amended, except by a
written instrument signed by the party against which modification, waiver or
amendment is to be enforced. No waiver of any one provision shall be construed
as a waiver of any other provision and the fact that an obligation is waived for
a period of time shall not be considered to be a continuous waiver.
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18. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Xxxxxxx has signed this Agreement, and the
Company has caused this Agreement to be signed by a duly authorized officer, as
of the day and year first above written.
CAREADVANTAGE, INC.
By:/s/Xxxxxx X. Xxxxx
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Print Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
/s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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