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Exhibit 10.113
SERVICES AGREEMENT
This Services Agreement (this "Agreement") is made by and
between Unison HealthCare Corporation, a Delaware corporation (the "Company"),
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") as of March 31, 1997.
RECITALS
▇▇▇▇▇▇▇ currently is a director of the Company and, as such,
serves as Chairman of the Executive Committee of the Company's Board of
Directors (the "Board"). The Company wishes to engage ▇▇▇▇▇▇▇ to perform
services in his capacity as Chairman of the Executive Committee that are more
extensive than those currently performed by him and ▇▇▇▇▇▇▇ desires to be so
engaged, all upon the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the mutual covenants set forth in this
Agreement, the parties agree as follows:
1. Engagement.
1. Scope of Engagement. The Company hereby engages
▇▇▇▇▇▇▇, acting in his capacity as Chairman of the Executive Committee of the
Board, to provide consulting and similar services to the Company as the Company
may reasonably request, and ▇▇▇▇▇▇▇ hereby accepts such engagement, all subject
to the terms and conditions set forth in this Agreement.
2. Compensation.
1. Weekly Compensation. The Company will pay to
▇▇▇▇▇▇▇ $7,500 per week beginning on the date of this Agreement and continuing
until the end of the Engagement Term.
2. Options. Upon execution of this Agreement, the
Company will issue to ▇▇▇▇▇▇▇ options to acquire 50,000 shares of common stock
of the Company, par value $0.001 per share (the "Options"). The Options will be
issued pursuant to the Company's 1995 Stock Option Plan (the "Option Plan") and
will be exercisable at any time and from time to time for a period of 5 years
after the date of issuance at an exercise price of $2.875 per share. The Options
will be evidenced by an option grant letter in the form of Exhibit A. The number
of shares issuable upon exercise of the Options and the exercise price of the
Options will be subject to adjustment in accordance with the Option Plan. The
shares issued upon exercise of the Options will be deemed to be "Registrable
Securities" within the meaning of the Registration Rights Agreement dated as of
October 31, 1996, among the Company, ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the
"Registration Rights Agreement"). In addition, the parties will
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amend the Registration Rights Agreement to change the reference to "July 1,
1997" in Section 2.2 of that agreement to "April 16, 1997."
3. Expenses.
1. Business Expenses. The Company will
reimburse ▇▇▇▇▇▇▇ (upon the submission of a reasonably itemized statement of
such expenses in accordance with the Company's normal practice) for all such
expenses as ▇▇▇▇▇▇▇ may reasonably incur (including, among other things,
business travel and business entertainment expenses) in connection with the
performance of his duties in accordance with the Company's policies as in effect
from time to time. After the end of the Engagement Term, ▇▇▇▇▇▇▇ will be
entitled to receive reimbursement for the unreimbursed expenses described in
this Section that were incurred during the Engagement Term so long as ▇▇▇▇▇▇▇
submits an itemized statement of such expenses to the Company within 30 days
after the end of the Engagement Term.
2. Attorney Fees. The Company will reimburse
▇▇▇▇▇▇▇ for reasonable fees and expenses of attorneys incurred by ▇▇▇▇▇▇▇ in
connection with the engagement of ▇▇▇▇▇▇▇ contemplated by this Agreement,
including those incurred in the preparation and negotiation of this Agreement,
the Tolling Agreement and the other documents necessary to effect ▇▇▇▇▇▇▇'▇
engagement, the issuance of the Options and the other transactions contemplated
by this Agreement.
3. Term of Engagement. The engagement by the Company of
▇▇▇▇▇▇▇ pursuant to this Agreement will commence on the date of this Agreement
and will continue until this Agreement is terminated by either party by
providing the other party with two weeks' advance written notice of such
termination. The period of such engagement is referred to as the "Engagement
Term." In addition to the preceding right to terminate the Engagement Term,
▇▇▇▇▇▇▇ may terminate the Engagement Term immediately if (i) he ceases to be a
director of the Company or (ii) the Company fails to maintain insurance coverage
or provide evidence of such coverage as set forth in Section 5.2.
4. Tolling Agreement. Concurrently with the execution of this
Agreement, the Company and ▇▇▇▇▇▇▇ will enter into the Tolling Agreement
attached as Exhibit B. The termination of this Agreement or of the engagement of
▇▇▇▇▇▇▇ will not in any way affect the validity or enforceability of such
Tolling Agreement.
5. Indemnification; Insurance.
1. Indemnification Agreement. Concurrently with the
execution of this Agreement, the Company and ▇▇▇▇▇▇▇ will enter into the
Indemnification Agreement attached as Exhibit C. The termination of this
Agreement or the engagement of ▇▇▇▇▇▇▇ will not in any way affect the validity
or enforceability of such Indemnification Agreement.
2. Insurance. During the Engagement Term and, if such
coverage is on a "claims made" rather than an "occurrence" basis, for a period
of three years thereafter, the Company will use its best efforts to procure and
maintain directors' and officers' liability
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insurance under which ▇▇▇▇▇▇▇ is an insured person in such amounts and on such
terms as are the same in all material respects as those that exist under
insurance policies in effect (including those in effect pursuant to binders) as
of the date of this Agreement. The Company will provide ▇▇▇▇▇▇▇ with evidence
reasonably satisfactory to him that such insurance is in effect and that he is
an insured person. The provisions of this Section will survive the Engagement
Term and any termination of this Agreement.
6. Miscellaneous Provisions.
1. Execution in Counterparts. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original,
and all of which taken together will constitute one and the same agreement.
2. Notices. All notices and other communications
under this Agreement will be in writing and will be deemed to have been duly
given when: (a) personally delivered (including delivery by Federal Express or
other nationally recognized overnight courier) or (b) sent by telecopy, receipt
confirmed, as follows:
If to the Company, to:
Unison HealthCare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to ▇▇▇▇▇▇▇, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other addresses and numbers as may be provided by the parties from
time to time by notice.
3. Amendment. No provision of this Agreement may be
modified, amended, waived or discharged in any manner except by a written
instrument executed by each of the parties.
4. Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter of this
Agreement, and supersedes all prior agreements and understandings of the
parties, oral or written, with respect to the subject matter of this Agreement.
5. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of Delaware without
reference to conflicts of law provisions.
6. Headings. The headings contained in this Agreement
are for convenience of reference only and will not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
7. Binding Effect; Successors. This Agreement will
inure to the benefit of, and be binding upon, the parties and their respective
heirs, legal representatives, successors and permitted assigns.
8. Waiver. The failure or delay of either party at
any time to enforce any provision of this Agreement will not be deemed to be a
waiver of any such provision or in any way to affect the validity of any
provision of this Agreement or the right of either party thereafter to enforce
any provision of this Agreement. No waiver of any breach of any provision of
this Agreement will be effective unless in writing executed by the party against
whom or which enforcement of such waiver is sought and no waiver of any such
breach will be construed or deemed to be a waiver of any other or subsequent
breach.
9. Severability. If any provision of this Agreement,
or the application of such provision to any person or circumstance, is found by
a court of competent jurisdiction to be unenforceable for any reason, such
provision may be modified or severed from this Agreement to the extent necessary
to make such provision enforceable against such person or in such circumstance.
Neither the unenforceability of such provision nor the modification or severance
of such provision will affect (i) the enforceability of any other provision of
this Agreement or (ii) the enforceability of such provision against any person
or in any circumstance other than those against or in which such provision is
found to be unenforceable.
10. Authority. ▇▇▇▇▇▇▇ hereby represents and warrants
to the Company that: (i) he has full power, authority and capacity to execute
and deliver this Agreement, and to perform his obligations hereunder; and (ii)
this Agreement is a valid and binding obligation of ▇▇▇▇▇▇▇ enforceable against
▇▇▇▇▇▇▇ in accordance with its terms. The
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Company hereby represents and warrants to ▇▇▇▇▇▇▇ that: (i) it has full power,
authority and capacity to execute and deliver this Agreement, and to perform its
obligations hereunder; (ii) the Board has approved the terms and conditions of
and has consented to the execution of this Agreement; and (iii) this Agreement
is a valid and binding obligation of the Company enforceable against the Company
in accordance with its terms.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto as of the date first above written.
UNISON HEALTHCARE CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:EVP/COO
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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