Exhibit 10.21
CONSULTATION AGREEMENT
AGREEMENT dated as of the 1st day of October, 1997 by and between Care
Advantage, Inc., a Delaware corporation (the "Company"), and Xxxxx XxXxxxxxx,
000 Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 ("Consultant");
WHEREAS, the Company is engaged in the healthcare management business; and
WHEREAS, Consultant is a person with experience in one or more aspects of
this business; and
WHEREAS, the Company desires to retain Consultant and Consultant is
desirous of and wishes to enter into such a consultation arrangement, on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, it is agreed as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below:
1.1 "Basic Fee" shall have the meaning assigned to it in Section 5 of this
Agreement.
1.2 "Board" shall mean the Board of Directors of the Company as duly
constituted from time to time.
1.3 "the Business" shall mean the business to be conducted by the Company
or any Subsidiary, directly or indirectly, including, but not limited to,
healthcare management.
1.4 "Cause" shall mean:
(a) The conviction of Consultant for a felony based upon actions committed
after the date hereof or the willful commission after the date hereof by
Consultant of a criminal or other act in the course of carrying out his duties
under this Agreement that in either case in the judgment of the Board causes or
is likely to cause substantial economic damage to the Company or a Subsidiary on
a consolidated bases or substantial injury to the business reputation of the
Company or a Subsidiary;
(b) The commission by Consultant of an act of fraud in the performance of
such Consultant's duties on behalf of the Company or a Subsidiary;
(c) The continuing willful failure of Consultant to perform the duties of
such Consultant to the Company or a Subsidiary (other than any such failure
resulting from
Consultant's incapacity due to physical or mental illness) after written notice
thereof (specifying the particulars thereof in reasonable detail) and a
reasonable opportunity to be heard and cure such failure are given to Consultant
by the Board; or
(d) The order of a federal or state regulatory agency or a court of
competent jurisdiction requiring the termination of this Agreement.
For purposes of this subparagraph, no act, or failure to act, on
Consultant's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company or a Subsidiary.
1.5 "Date of Termination" shall have the meaning assigned to it in Section
6.5.
1.6 "Disability" shall mean the inability of Consultant to perform
Consultant's duties of consultation for the Company, if retained by the Company
or a Subsidiary, pursuant to the terms of this Agreement and by-laws of the
Company as hereinafter provided, because of physical or mental disability, where
such disability shall have existed for a period of more than 20 consecutive
days. The fact of whether or not a Disability exists hereunder shall be
determined by appropriate medical experts selected by the Board. The existence
of a Disability means that, Consultant's mental and/or physical condition
substantially interferes with Consultant's performance of his duties for the
Company, and/or its Subsidiaries as specified in this Agreement.
1.7 "Dispute" shall mean in the case of termination of retention of
Consultant by the Company or a Subsidiary by the Company or a Subsidiary for
Disability or Cause, that Consultant challenges the existence of Disability or
Cause.
1.8 "Notice of Termination" shall have the meaning assigned to that term in
Section 6.4.
1.9 "Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
Wherever from the context it appears appropriate, each word or phrase
stated in either the singular or the plural shall include the singular and the
plural, and each pronoun stated in the masculine, feminine or neuter gender
shall include the masculine, feminine and neuter.
2. CONSULTATION DUTIES OF CONSULTANT
2.1 Consultation Duties. The Company hereby retains Consultant, and
Consultant hereby accepts appointment as Consultant to the Company. The
principal duty of Consultant
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shall be to perform those services identified to him by the Board and to render
services as are necessary and desirable to protect and advance the best
interests of the Company and its Subsidiaries, acting, in all instances, under
the supervision of and in accordance with the policies set by the Board.
2.2 Performance of Duties. Consultant shall be available to provide
consultation services hereunder during the Term; provided, however, the Company
recognizes Consultant has other duties for other Persons, and the Company will
not demand services hereunder which interfere with Consultant's responsibilities
to such other Persons.
3. TERM OF RETENTION
The retention of Consultant pursuant to this Agreement shall commence as of
the Commencement Date and end December 31, 1997, unless sooner terminated
pursuant to Section 6 of this Agreement.
4. COMPENSATION AND BENEFITS
The Company and/or its Subsidiaries shall pay Consultant as compensation
for all of the services to be rendered by him hereunder during the Term, and in
consideration of the various restrictions imposed upon Consultant during the
Term, and otherwise under this Agreement, the Basic Fee and other benefits as
provided for and determined pursuant to Section 5 of this Agreement.
5. BASIC FEE/EXPENSES
5.1 Basic Fee. The Company agrees to pay Consultant a fee of $25,000 per
month (the "Basic Fee") during the Term ($75,000 in the aggregate) in addition
to fees payable to him as a director of the Company of $1,000 per meeting of the
Board attended by Consultant and $1,000 per meeting of any committee of the
Board attended by Consultant. The Basic Fee will be payable on the last day of
each month during the Term.
5.2 Reimbursement for Expenses. The Company shall pay or reimburse
Consultant for all reasonable expenses actually incurred or paid by him during
the Term in the performance of his services under this Agreement, upon
presentation of such bills, expense statements, vouchers or such other
supporting information as the Board may reasonably require. In the event the
Company requires Consultant to travel on business during the Term, Consultant
shall be reimbursed for any travel expenses in accordance with this Section 5.2.
6. TERMINATION OF CONSULTATION RETENTION
6.1 Death. If Consultant dies during the Term, on the date of his death
this Agreement shall terminate.
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6.2 Disability. If, during the Term, Consultant has a Disability, the
Company may, at any time after Consultant has a Disability, terminate
Consultant's retention hereunder by written notice to him.
6.3 Termination Without Cause. If the Company shall terminate this
Agreement without Cause, it shall pay Consultant a one time fee equal to the
difference between $75,000 and amounts paid under Section 5.1 hereof in lieu of
any further payments. If Consultant terminates this Agreement, all payments
hereunder to him shall cease except pursuant to Section 5.2.
6.4 Notice of Termination. Any purported termination of retention of
Consultant by the Company or a Subsidiary by reason of Consultant's Disability
or for Cause, shall be communicated by written Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice given by Consultant or the Company, as the case may be,
which shall indicate the specific basis for termination and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination.
6.5 Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean the date of termination of retention of Consultant
specified in the Notice of Termination, which shall not be more than ten (10)
days after such Notice of Termination is given
6.6 Termination by Death or Disability. In the event of the termination of
Consultant's retention by Death or Disability, Consultant or his estate or
beneficiary, as the case may be, shall receive his Basic Fee through the Date of
Termination to the extent then unpaid. Consultant shall also be reimbursed for
expenses in accordance with Section 5.2 properly incurred prior to the Date of
Termination and then remaining unpaid by the Company.
7. REPRESENTATION AND WARRANTY BY CONSULTANT
Consultant hereby represents and warrants to the Company, the same being
part of the essence of this Agreement that, as of the Commencement Date, he is
not a party to any agreement, contract or understanding, and that no facts or
circumstances exist which would in any way restrict or prohibit him in any
material way from undertaking or performing any of his obligations under this
Agreement. The foregoing representation and warranty shall remain in effect
throughout the Term.
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8. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement shall
in no way affect the validity or enforceability of any other provisions hereof.
9. NOTICES
All notices, demands and requests required or permitted to be given under
the provisions of this Agreement shall be deemed duly given if made in writing
and delivered personally or by courier or mailed by postage prepaid certified or
registered mail, return receipt requested, accompanied by a second copy sent by
ordinary mail, which notices shall be addressed as follows:
If to the Company:
CareAdvantage, Inc.
000-X Xxxxx 0 Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
with copies to:
Crummy, Del Deo, Dolan, Griffinger & Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx.
If to Consultant:
Xxxxx XxXxxxxxx
000 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
By notifying the other parties in writing, given as aforesaid, any party
may from time-to-time change its address or the name of any person to whose
attention notice is to be given, or may add another person, to whose attention
notice is to be given, in connection with notice to any party.
10. ASSIGNMENT AND SUCCESSORS
Neither this Agreement nor any of his rights or duties hereunder may be
assigned or delegated by Consultant. This Agreement is not assignable by the
Company except to any successor in interest which takes over all or
substantially all of the business of the
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Company, as it is conducted at the time of such assignment. Any corporation into
or with which the Company is merged or consolidated or which takes over all or
substantially all of the business of the Company shall be deemed to be a
successor of the Company for purposes hereof. This Agreement shall be binding
upon and, except as aforesaid, shall inure to the benefit of the parties and
their respective successors and permitted assigns. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Consultant,
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no such
succession had taken place.
11. ENTIRE AGREEMENT, WAIVER AND OTHER
11.1 Integration. This Agreement contains the entire agreement of the
parties hereto on its subject matter and supersedes all previous agreements
between the parties hereto, written or oral, express or implied, covering the
subject matter hereof. No representations, inducements, promises or agreements,
oral or otherwise, not embodied herein, shall be of any force or effect.
11.2 No Waiver. No waiver or modification of any of the provisions of this
Agreement shall be valid unless in writing and signed by or on behalf of the
party granting such waiver or modification. No waiver by any party of any breach
or default hereunder shall be deemed a waiver of any repetition of such breach
or default or shall be deemed a waiver of any other breach or default, nor shall
it in any way affect any of the other terms or conditions of this Agreement or
the enforceability thereof. No failure of the Company to exercise any power
given it hereunder or to insist upon strict compliance by Consultant with any
obligation hereunder, and no custom or practice at variance with the terms
hereof, shall constitute a waiver of the right of the Company to demand strict
compliance with the terms hereof.
Consultant shall not have the right to sign any waiver or modification of
any provisions of this Agreement on behalf of the Company, nor shall any action
taken by Consultant reduce his obligations under this Agreement.
This Agreement may not be supplemented or rescinded except by instrument in
writing signed by all of the parties hereto after the Commencement Date. Neither
this Agreement nor any of the rights of any of the parties hereunder may be
terminated except as provided herein.
11.3 Obligations of Company. The Company's obligation to pay Consultant the
compensation and to make the arrangements provided herein shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, any setoff, counterclaim, recoupment, defense or other right which
the Company may have against Consultant or anyone else. All amounts payable by
the Company hereunder shall be paid without notice or demand. Except as
expressly provided herein, the Company waives all rights which it may now have
or may hereafter have conferred upon it, by statute or otherwise, to terminate,
cancel or rescind this Agreement in whole or in part. Each and every payment
made hereunder by the Company shall be final and the Company will not seek to
recover for any reason all or any part of such payment from Consultant or any
person entitled thereto. Consultant shall not be
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required to mitigate the amount of any payment or other benefit provided for in
this Agreement by seeking other employment or otherwise.
12. GOVERNING LAW
This Agreement shall be governed by and construed, and the rights and
obligations of the parties hereto enforced, in accordance with the laws of the
State of New Jersey.
13. HEADINGS
The Section and Subsection headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
14. INDEPENDENT CONTRACTOR STATUS
Consultant shall for all purposes hereunder be an independent contractor
with respect to the Company. This Agreement shall not constitute Consultant as a
joint venturer, employee, officer or partner of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, which shall be deemed to be the Commencement Date.
CAREADVANTAGE, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxx X. XxXxxxxxx
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Xxxxx X. XxXxxxxxx
Consultant
