Exhibit 10.23
CONSULTING AGREEMENT
EXHIBIT 10.23
This Agreement is made as of the 16th day of June 1993 by and between
National Medical Care, Inc., a Delaware corporation with offices located at 1601
Trapelo Road, Waltham, Massachusetts 02154 (the "Company"), The Humphrey Group,
Inc., with offices located at 26 South Main Street, Concord, New Hampshire 03301
(the "Consultant"), and Gordon J. Humphrey ("Humphrey").
WHEREAS, the Company desires to establish two model hemodialysis treatment
centers (the "Model Clinics") in The Republic of the Russian Federation
("Russia"); and
WHEREAS, Consultant desires to provide consulting services to assist the
Company in establishing the Model Clinics under the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties to this Agreement agree as follows:
1. ENGAGEMENT. The Company engages Consultant to provide the services
described in Section 2 below (which shall be provided by Humphrey) for a period
of three (3) months following the execution of this Agreement, and Consultant
agrees to provide such services for the compensation set forth in Section 3
below.
If the parties agree that the services provided by Consultant during the
three months following the execution of this Agreement have been satisfactory
and if the Company continues to be interested in proceeding with the
establishment of the Model Clinics, the parties will discuss the extension of
Consultant's engagement in order to provide continuing consulting services
relating to the establishment of Model Clinics.
If the parties agree to extend the engagement of Consultant beyond the
initial three (3) month period, it is contemplated that the parties will enter
into an agreement with a term of two (2) years pursuant to which for a period of
five (5) years after the establishment of each hemodialysis treatment center
established by the Company in Russia during the term of such agreement or within
six (6) months after its termination, Consultant shall be entitled to
compensation in an amount equal to seven (7%) percent of the net pre-tax
earnings of such hemodialysis treatment center(s).
If Consultant is engaged to provide consulting services to assist with the
development of the Model Clinics for an additional period of two (2) years
beyond the three month term of this Agreement, and if the parties agree that the
services provided by Consultant continue to be satisfactory and support the
Company's goals in Russia, the parties will discuss the extension of the
consulting arrangements for an additional term of three (3) years.
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Consultant is being engaged as an independent contractor. Consultant is
not a partner, employee, agent, or joint venturer with the Company or any of its
affiliates. Nothing in this Agreement shall be construed to grant any party the
authority to enter into a contract in the name of any other party or any of its
affiliates, or to bind any other party or any of its affiliates in any manner.
2. THE SERVICES. Consultant shall make available to the Company the
services of Humphrey for purposes of investigating conditions in Russia relating
to the provision of dialysis services and the establishment by the company or
one of its affiliates of the Model Clinics in Moscow or such other location or
locations as the Company determines.
The services to be provided by Consultant will include the activities and
the development of information regarding the matters listed below, and/or such
other activities as the Company and Consultant agree:
a. development of relationships with appropriate parties in Russia
relating to the establishment and operation of the Model Clinics, and the
discussion and negotiation of arrangements relating to the Model Clinics with
appropriate parties;
b. potential management structures for the entity which will establish
and operate the Model Clinics; and
c. payment mechanisms for the services and products provided at the Model
Clinics.
3. COMPENSATION. The Company shall pay to Consultant, as compensation
for services rendered pursuant to this Agreement, Twenty Thousand ($20,000)
Dollars per month for a period of three (3) months.
The Company shall pay to Consultant the initial monthly payment of Twenty
Thousand ($20,000) Dollars upon the execution of this Agreement. The payments
of Twenty Thousand ($20,000) Dollars for services rendered during the second and
third months shall be paid on the thirty-first (31st) and the sixty-first (61st)
days after the execution of this Agreement.
In addition to the compensation referred to in the preceding paragraph, the
Company shall pay to Consultant reasonable business expenses incurred by
Consultant and/or Humphrey in connection with the consulting services provided
by Consultant pursuant to this Agreement and for which Consultant provides
documentation to the company within thirty days after incurring such expenses.
Consultant is responsible for the payment of all local, state and federal
income, self-employment, payroll or other applicable taxes on the compensation
paid to Consultant pursuant to this Agreement.
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4. RESTRICTIONS. Consultant and Humphrey shall use their best efforts in
the performance of Consultant's duties hereunder; however, they shall be
permitted to engage in any business and perform services for their own account
provided that such business and services do not interfere with their duties
hereunder, and are not in competition with, or for a person or company that is
in competition with the Company or its affiliates.
Consultant and Humphrey acknowledge that in the course of performing the
Consultant's duties pursuant to this Agreement, they will become privy to
various confidential information and trade secrets of the Company and/or its
affiliates. Neither Consultant nor Humphrey shall use or disclose to any
person, firm or corporation any confidential information or trade secret of the
Company or any affiliate of the Company.
Upon the termination of this Agreement, Consultant and Humphrey shall
return to the Company and/or to its affiliates, as appropriate, all documents
and all copies or reproductions of such documents which the Company or such
affiliates have informed Consultant or Humphrey contain confidential information
or trade secrets.
For a period of two (2) years after the delivery of the final Report,
neither Consultant nor Humphrey shall enter into any consulting agreement or
provide consulting services to any entity that provides dialysis services or
dialysis related medical products or proposes to provide dialysis services or
dialysis related medical products in the United States or Russia.
Consultant and Humphrey acknowledge that the restrictions contained in this
Agreement are necessary for the protection of the Company and its affiliates,
and that any breach thereof may cause the Company or its affiliates irreparable
damage. The Company and its affiliates shall be entitled to injunctive relief
to enjoin the breach or threatened breach of such restrictions. The foregoing
shall not be treated as a waiver of any other remedies the Company or its
affiliates may have in law or in equity.
5. SEVERABILITY. If any provision of this Agreement or its application
to any person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement or its application to other persons or
circumstances shall not be affected. Each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
6. NOTICES. Any notice given pursuant to this Agreement shall be in
writing and delivered by hand or mailed by certified or registered mail/return
receipt requested to the parties at the following address:
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TO THE COMPANY:
National Medical Care, Inc.
1601 Trapelo Road
Waltham, MA 02154
Attn: Christopher T. Ford
TO CONSULTANT OR HUMPHREY:
The Humphrey Group, Inc.
26 South Main Street
Concord, NH 03301 2100
Attn: Gordon J. Humphrey
7. COMPLETE AGREEMENT. This Agreement contains the entire agreement of
the parties as to its subject matter, and supersedes all previous and
contemporaneous agreements and understandings, inducements or conditions,
expressed or implied, oral or written, between the parties as to the subject
matter of this Agreement
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8. WAIVERS. No waiver, modification or change of any of the provisions
of this Agreement shall be valid unless in writing and signed by the parties
against whom such claimed waiver, modification or change is to be enforced.
9. ASSIGNMENT. Consultant shall not have the right without the Company's
prior written consent, to assign its rights or obligations under this Agreement
to any other party.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties or their authorized representatives have
signed this Agreement as of the date first written above.
NATIONAL MEDICAL CARE, INC.
By:/s/C.L.HAMPERS
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Its Chief Executive Officer
THE HUMPHREY GROUP, INC.
By:/s/ GORDON J. HUMPHREY
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Its President
/s/ GORDON J. HUMPHREY
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Gordon J. Humphrey, individually