<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934. For the Quarterly period ended December 31, 1999; or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934. For the transition period from ____________________
to ___________________.
Commission File Number: 0-27186
---------
RAYTEL MEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-2787342
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
2755 CAMPUS DRIVE, SUITE 200, SAN MATEO, CALIFORNIA 94403
(Address of principal executive offices) (Zip code)
(650) 349-0800
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
CLASS SHARES OUTSTANDING AS OF JANUARY 28, 2000
----- -----------------------------------------
<S> <C>
COMMON STOCK
($.001 PAR VALUE) 8,746,344
</TABLE>
<PAGE> 2
RAYTEL MEDICAL CORPORATION AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of
December 31, 1999 and September 30, 1999.............................3
Condensed Consolidated Statements of Operations
for the three months ended December 31, 1999 and 1998................4
Condensed Consolidated Statements of Cash Flows
for the three months ended December 31, 1999 and 1998................5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations..................................7
Item 3. Quantitative and Qualitative Disclosures about Market Risks..........12
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K......................................13
SIGNATURE......................................................................14
</TABLE>
2
<PAGE> 3
PART 1. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RAYTEL MEDICAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1999 AND SEPTEMBER 30, 1999
(000'S OMITTED)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1999 1999
------------ ------------
(UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 5,650 $ 6,110
Receivables, net 35,059 34,858
Prepaid expenses and other 3,006 3,143
--------- ---------
Total current assets 43,715 44,111
Property and equipment, less accumulated
depreciation and amortization 20,620 22,239
Intangible assets, less accumulated
amortization 50,581 51,388
Other 48 45
--------- ---------
Total assets $ 114,964 $ 117,783
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt and
capital lease obligations $ 1,464 $ 2,124
Accounts payable 4,499 3,793
Accrued compensation and benefits 2,962 3,391
Accrued liabilities 5,992 6,204
--------- ---------
Total current liabilities 14,917 15,512
Long-term debt and capital lease obligations,
net of current portion 24,934 27,246
Deferred liabilities 28 129
Minority interest in consolidated entities 2,152 2,867
--------- ---------
Total liabilities 42,031 45,754
--------- ---------
Stockholders' equity:
Common stock 9 9
Additional paid-in capital 62,057 62,053
Common stock to be issued 1,045 1,045
Retained earnings 13,444 12,544
--------- ---------
76,555 75,651
Less treasury stock, at cost (3,622) (3,622)
--------- ---------
Total stockholders' equity 72,933 72,029
--------- ---------
Total liabilities and
stockholders' equity $ 114,964 $ 117,783
========= =========
</TABLE>
3
<PAGE> 4
RAYTEL MEDICAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED DECEMBER 31, 1999 AND 1998
(UNAUDITED)
(000'S OMITTED, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1999 1998
-------- --------
<S> <C> <C>
Revenues:
Cardiac information services $ 10,441 $ 11,717
Diagnostic imaging services 5,332 4,780
Heart facilities and other 8,112 9,308
-------- --------
Total revenues 23,885 25,805
-------- --------
Costs and expenses:
Operating costs 10,402 11,844
Selling, general and administrative 9,376 9,115
Depreciation and amortization 2,188 2,069
-------- --------
Total costs and expenses 21,966 23,028
-------- --------
Operating income 1,919 2,777
Interest expense 553 672
Other expense (income) (253) (177)
Minority interest 144 69
-------- --------
Income before income taxes 1,475 2,213
Provision for income taxes 575 863
-------- --------
Net income $ 900 $ 1,350
======== ========
Net income per share:
Basic $ .10 $ .16
======== ========
Diluted $ .10 $ .15
======== ========
Weighted average shares:
Basic 8,745 8,667
======== ========
Diluted 8,939 9,077
======== ========
</TABLE>
4
<PAGE> 5
RAYTEL MEDICAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED DECEMBER 31, 1999 AND 1998
(UNAUDITED)
(000'S OMITTED)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1999 1998
------- -------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 900 $ 1,350
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 2,188 2,069
Minority interest 144 69
Pay out of deferred compensation -- (1,245)
Other, net (20) (2)
Changes in operating accounts:
Receivables, net (547) 2,452
Prepaid expenses and other 90 570
Accounts payable 756 (460)
Accrued liabilities and other 42 993
------- -------
Net cash provided by operating activities 3,553 5,796
------- -------
Cash flows from investing activities:
Capital expenditures (962) (2,080)
Other, net 100 (4)
------- -------
Net cash used in investing activities (862) (2,084)
------- -------
Cash flows from financing activities:
Income distributions to noncontrolling investors (937) (466)
Paydown of line of credit (1,802) (2,648)
Principal repayments of debt (417) (392)
Other, net 5 47
------- -------
Net cash used in financing activities (3,151) (3,459)
------- -------
Net increase (decrease) in cash and cash equivalents (460) 253
Cash and cash equivalents at beginning of period 6,110 7,463
------- -------
Cash and cash equivalents at end of period $ 5,650 $ 7,716
======= =======
</TABLE>
The accompanying unaudited condensed consolidated financial statements of
Raytel Medical Corporation (the "Company") have been prepared in accordance with
the instructions to Form 10-Q and do not include all of the information and
notes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments considered
necessary for a fair presentation have been included. Operating results for the
three months ended December 31, 1999 are not necessarily indicative of results
that may be expected for the year ending September 30, 2000. For further
information, refer to the consolidated financial statements and notes included
in the Company's Annual Report on Form 10-K for the year ended September 30,
1999.
5
<PAGE> 6
For the three months ended December 31, 1999 and 1998, basic and diluted
earnings per share are calculated as follows:
<TABLE>
<CAPTION>
For the three months
ended December 31,
--------------------
(000's omitted, except per share amounts) 1999 1998
------ ------
<S> <C> <C>
BASIC EARNINGS PER SHARE:
Net income $ 900 $1,350
====== ======
Weighted average shares outstanding 8,745 8,667
====== ======
Per share $ .10 $ .16
====== ======
DILUTED EARNINGS PER SHARE:
Net income $ 900 $1,350
====== ======
Weighted average shares outstanding 8,745 8,667
Shares to be issued 144 151
Options 50 259
Warrants -- --
------ ------
8,939 9,077
====== ======
Per share $ .10 $ .15
====== ======
</TABLE>
Certain options and warrants to purchase shares of common stock were
outstanding during the three months ended December 31, 1999 and 1998, but were
not included in the computation of diluted earnings per share because their
exercise prices were greater than the average market price of the common shares
for the period. The options and warrants outstanding and their exercise prices
are as follows:
<TABLE>
<CAPTION>
For the three months
ended December 31,
------------------------
(000's omitted, except per share amounts) 1999 1998
------ ------
<S> <C> <C>
Options and warrants outstanding 995,443 482,814
Range of exercise prices $3.625-$13.50 $4.75 - $13.50
</TABLE>
6
<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
This discussion and analysis includes a number of forward-looking
statements which reflect the Company's current views with respect to future
events and financial performance. These forward-looking statements are subject
to certain risks and uncertainties, including those discussed under "Business
Environment and Future Results" and elsewhere in this Item, that could cause
actual results to differ materially from historical results or those
anticipated. In this Item, the words "anticipates," "believes," "expects,"
"intends," "future" and similar expressions identify forward-looking statements.
Readers are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date hereof.
OVERVIEW
The Company generates its revenues from cardiac information services which
includes telephonic monitoring services for cardiac pacemaker patients
("Pacing"), cardiac event detection services ("CEDS") and Holter, diagnostic
imaging services and from heart facilities.
Following the Company's initial public offering in December 1995, the
Company has entered into a series of transactions which expanded its heart
center and physician practice management businesses. As a result, revenue is
being provided from: Raytel Heart Center at Granada Hills ("RHCGH") beginning on
February 1, 1996; the management of Southeast Texas Cardiology Associates II
P.A. ("SETCA") beginning on September 18, 1996; the management of Comprehensive
Cardiology Consultants, a Medical Group, Inc. ("CCMG") beginning on November 1,
1996; and Cardiovascular Ventures, Inc. ("CVI") beginning on August 15, 1997,
which included the multi-specialty physician clinic, Heart and Family Health
Institute ("HFHI") and seven cardiovascular diagnostic facilities.
Under certain practice management contracts, revenues are recognized
pursuant to long-term arrangements with physician groups under which the Company
provides the physician group with a full range of services, including, but not
limited to, office space, specialized clinical and procedural facilities,
medical equipment, data processing and medical record keeping, billing and
collection procedures and services, non-physician licensed personnel, such as
nurses and technicians, as well as office staff and administrative personnel. In
the case of SETCA and CCMG, the Company's practice management revenues are
derived from the physician groups' revenues, generally as a purchased service,
except for certain physician compensation and employment benefits, which are
paid by the physician group on a priority basis. Under the above management
services arrangements, the Company's practice management revenues represent
approximately 83% and 66% of the revenues of the physician groups for the three
months ended December 31, 1999 and 1998, respectively. For HFHI, the Company
recognizes 100% of all medical revenue as the physicians are employees of the
Company.
On October 9, 1997, the Company announced it had entered into an agreement
with The Baptist Hospital of Southeast Texas ("Baptist") to develop a Raytel
Cardiovascular Center at the hospital. Under the agreement, Raytel was to manage
the cardiovascular center, which will provide the entire continuum of
cardiovascular services, including diagnostic, therapeutic and patient
management programs. Among other duties, Raytel was to be responsible for the
day-to-day operations of the heart center, including administrative support,
information systems management, marketing and public relations activities. The
Company began operations at Baptist during its fourth quarter of fiscal 1998.
Due to the recent merger between Baptist and the Memorial Hermann Hospital
System, a modified agreement became effective March 1, 1999. Therefore, during
the first five months of fiscal 1999, the Company only recognized revenue to the
extent of expenses. Effective March 1, 1999, the Company is recognizing revenue
based on the modified agreement which calls for the Company to manage portions
of the cardiovascular surgery and cardiology programs at Baptist and to develop
and manage specialty clinics to support the cardiovascular program.
7
<PAGE> 8
Effective March 27, 1999, the Company entered into a revised agreement with
RHCGH. The new agreement results in significantly lower revenues and expenses
than revenues and expenses recognized under the previous agreements. However,
under the new agreement, the Company expects to generate income. Under the old
agreements, operating expenses were in excess of revenues.
In November 1999, the Company filed a demand for arbitration against CCMG
with JAMS/Endispute, Inc. The Company provides management services to CCMG
pursuant to a long-term management services agreement entered into between the
parties in November 1996. The demand for arbitration asserts that Raytel is
entitled to rescission, restitution and/or damages as a result of CCMG's
material breaches of the management services agreement. The Company does not
expect that an adverse opinion in the arbitration will have a material adverse
effect on the financial condition of the Company.
RESULTS OF OPERATIONS
Three Months Ended December 31, 1999 Compared to Three Months Ended
December 31, 1998
Revenues. For the three months ended December 31, 1999, total revenues were
$23,885,000 compared to $25,805,000 for the three months ended December 31,
1998, representing a decrease of $1,920,000, or 7.4%.
Cardiac information services revenues were $10,441,000 for the three months
ended December 31, 1999, compared to $11,717,000 for the three months ended
December 31, 1998, a decrease of $1,276,000, or 10.9%. The decrease in revenues
for cardiac information services was due primarily to lower revenues from CEDS
as a result of lower test volumes, and lower revenues from Pacing due to a
decrease in test volumes as well as lower reimbursement rates. Diagnostic
imaging services revenue was $5,332,000 for the three months ended December 31,
1999, compared to $4,780,000 for the three months ended December 31, 1998, an
increase of $552,000, or 11.5%, due primarily to increases in revenue at certain
centers and the imaging network due to an increase in patient volumes. Heart
facilities and other revenues were $8,112,000 for the three months ended
December 31, 1999, compared to $9,308,000 for the three months ended December
31, 1998, a decrease of $1,196,000, or 12.8%, due primarily to lower revenue at
RHCGH due to the amended agreement partially offset by an increase in revenue at
HFHI.
Operating Expenses. Operating costs and selling, general and administrative
expenses decreased by $1,181,000, or 5.6%, from $20,959,000 for the three months
ended December 31, 1998 to $19,778,000 for the three months ended December 31,
1999, due primarily to lower expenses at RHCGH due to the amended agreement,
partially offset by slight increases in costs and expenses in diagnostic imaging
services, HFHI and cardiac information services. Operating costs and selling,
general and administrative expenses as a percentage of total revenues increased
from 81.2% for the three months ended December 31, 1998 to 82.8% for the three
months ended December 31, 1999. At RHCGH operating expenses were slightly in
excess of revenues for the period ended December 31, 1998.
Depreciation and Amortization. Depreciation and amortization expense
increased by $119,000, or 5.8%, from $2,069,000 for the three months ended
December 31, 1998 to $2,188,000 for the three months ended December 31, 1999,
and increased as a percentage of revenues from 8.0% for the three months ended
December 31, 1998 to 9.2% for the three months ended December 31, 1999.
Operating Income. As a result of the foregoing factors, operating income
decreased by $858,000, or 30.9% from $2,777,000 for the three months ended
December 31, 1998 to $1,919,000 for the three months ended December 31, 1999.
Interest Expense. Interest expense decreased by $119,000, or 17.7%, from
$672,000 for the three months ended December 31, 1998 to $553,000 for the three
months ended December 31, 1999 due primarily to a decrease in debt.
8
<PAGE> 9
Other Expense (Income). Other income increased by $76,000 due primarily to
a series of insignificant items.
Minority Interest. Minority interest increased by $75,000, from $69,000 for
the three months ended December 31, 1998 to $144,000 for the three months ended
December 31, 1999 due primarily to increased income in a certain cardiovascular
diagnostic facility.
Income Taxes. The provision for income taxes decreased by $288,000, or
33.4%, from $863,000 for the three months ended December 31, 1998 to $575,000
for the three months ended December 31, 1999 as a result of a lower taxable
income.
Net Income. As a result of the foregoing factors, net income decreased by
$450,000, or 33.3%, from $1,350,000 for the three months ended December 31, 1998
to $900,000 for the three months ended December 31, 1999.
SEGMENT INFORMATION
The Company's reportable segments are strategic business units that offer
different services. The Company has three reportable segments: Cardiac
Information Services ("Information"), Diagnostic Imaging Services ("Imaging")
and Heart Facilities and Other ("Facilities"). The Information segment provides
remote cardiac monitoring and testing services utilizing telephonic and Internet
communication technology. The Imaging segment operates a network of imaging
centers throughout the United States. The Facilities segment provides
diagnostic, therapeutic and patient management services primarily associated
with cardiovascular disease.
The accounting policies of the segments are the same as those described in
the summary of significant accounting policies (see Note 2 of the Company's 1999
Annual Report) except that the Company does not allocate all interest expense,
taxes or corporate overhead to the individual segments. The Company evaluates
performance based on profit or loss from operations before income taxes and
unallocated amounts. The totals per the schedules below will not and should not
agree to the consolidated totals. The difference is due to corporate overhead
and other unallocated amounts which are reflected in the reconciliation to
consolidated earnings before income taxes (in thousands):
<TABLE>
<CAPTION>
Information Imaging Facilities Total
----------- ------- ---------- -----
<S> <C> <C> <C> <C>
For the three months ended December 31,1999:
Net revenue $ 10,441 $ 5,332 $ 8,112 $ 23,885
Total operating expenses 8,716 3,912 6,144 18,772
--------- --------- --------- ---------
Segment contribution 1,725 1,420 1,968 5,113
Depreciation and amortization 736 418 952 2,106
Interest expense -- 72 137 209
Minority interest/other expense (income) (12) (26) (48) (86)
--------- --------- --------- ---------
Segment profit $ 1,001 $ 956 $ 927 $ 2,884
========= ========= ========= =========
Segment assets $ 38,368 $ 14,701 $ 57,272 $ 110,341
========= ========= ========= =========
Capital expenditures $ 655 $ 265 $ 39 $ 959
========= ========= ========= =========
</TABLE>
9
<PAGE> 10
<TABLE>
<CAPTION>
Information Imaging Facilities Total
----------- ------- ---------- -----
<S> <C> <C> <C> <C>
For the three months ended December 31, 1998:
Net revenue $ 11,717 $ 4,780 $ 9,308 $ 25,805
Total operating expenses 8,217 3,629 7,991 19,837
--------- --------- --------- ---------
Segment contribution 3,500 1,151 1,317 5,968
Depreciation and amortization 695 456 881 2,032
Interest expense -- 3 184 187
Minority interest/other expense (income) (79) (38) 29 (88)
--------- --------- --------- ---------
Segment profit $ 2,884 $ 730 $ 223 $ 3,837
========= ========= ========= =========
Segment assets $ 37,716 $ 15,251 $ 62,333 $ 115,300
========= ========= ========= =========
Capital expenditures $ 562 $ 817 $ 671 $ 2,050
========= ========= ========= =========
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED DECEMBER 31,
-------------------------------
1999 1998
------- -------
<S> <C> <C>
Segment profit $ 2,884 $ 3,837
Unallocated amounts:
Corporate general and administrative 1,006 1,122
Corporate depreciation and amortization 82 37
Corporate interest expense 344 485
Corporate other expense (income) (23) (20)
------- -------
Earnings before income taxes $ 1,475 $ 2,213
======= =======
</TABLE>
BUSINESS ENVIRONMENT AND FUTURE RESULTS
The Company's future operating results may be affected by various trends in
the healthcare industry as well as by a variety of other factors, some of which
are beyond the Company's control.
The healthcare industry is undergoing significant change as third-party
payors attempt to control the cost, utilization and delivery of healthcare
services. Substantially all of the Company's revenues are derived from Medicare,
HMOs, commercial insurers and other third-party payors. Both government and
private payment sources have instituted cost containment measures designed to
limit payments made to healthcare providers by reducing reimbursement rates,
limiting services covered, increasing utilization review of services,
negotiating prospective or discounted contract pricing, adopting capitation
strategies and seeking competitive bids. Revenue from the Company's Pacing
operations during certain periods of the last three fiscal years has been
negatively impacted by Medicare reimbursement rate reductions. Reimbursement
rate reductions applicable to the Company's Pacing procedures became effective
on January 1, 1997. These reductions had a negative effect on the Company's
operating results for the last three quarters of fiscal 1997 and for the first
quarter of fiscal 1998. The Company's Pacing operations have been favorably
impacted for the period January 1, 1998 to December 31, 1998 due to an increase
in Medicare reimbursement rates effective January 1, 1998. However, a slight
decrease in these rates became effective on January 1, 1999, thereby having a
negative effect on Pacing revenue for calendar 1999. The Company cannot predict
with any certainty whether or when additional reductions or changes in Medicare
or other third-party reimbursement rates or policies will be implemented. There
can be no assurance that future changes, if any, will not adversely affect the
amounts or types of services that may be reimbursed to the Company, or that
10
<PAGE> 11
future reimbursement of any service offered by the Company will be sufficient to
cover the costs and overhead allocated to such service.
From time to time Congress considers legislation to reduce Medicare and
Medicaid expenditures. Future legislation of this type could have a material
adverse effect on the Company's business, financial condition and operating
results. Governmental agencies promulgate regulations which mandate changes in
the method of delivering services which could have a material adverse effect on
the Company's business.
A key element of the Company's long-range strategy was the development and
operation of integrated heart centers and the acquisition of healthcare
providers specializing in cardiology related services and the assets of
physician practices and other businesses related to its current operations. The
success of the Company's existing heart centers and physician practices depends
upon several factors, including the Company's ability to: obtain and operate in
compliance with appropriate licenses; control costs and realize operating
efficiencies; educate patients, referring physicians and third-party payors
about the benefits of such heart centers; and provide cost-effective services
that meet or exceed existing standards of care.
An element of the Company's strategy is to expand, in part, through
acquisitions and investments in complementary healthcare businesses. The
implementation of this strategy may place significant strain on the Company's
administrative, operational and financial resources and increase demands on its
systems and controls. There can be no assurances that businesses acquired by the
Company, either recently or in the future, will be integrated successfully and
profitably into the Company's operations, that suitable acquisitions or
investment opportunities will be identified, or that any such transactions can
be consummated.
Providers of healthcare services are subject to numerous federal, state and
local laws and regulations that govern various aspects of their business. There
can be no assurance that the Company will be able to obtain regulatory approvals
that may be required to expand its services or that new laws or regulations will
not be enacted or adopted that will have a material adverse effect on the
Company's business, financial condition or operating results.
The healthcare businesses in which the Company is engaged are highly
competitive. The Company expects competition to increase as a result of ongoing
consolidations and cost-containment pressures, among other factors.
The trading price of the Company's Common Stock could be subject to wide
fluctuations in response to quarterly variations in the Company's operating
results, shortfalls in such operating results from levels forecasted by
securities analysts and other events or factors. In addition, the stock market
has, from time to time, experienced extreme price and volume fluctuations that
have particularly affected the market prices of companies in the healthcare
service industries and that have often been unrelated to the operating
performance of the affected companies. Announcements of changes in reimbursement
policies of third-party payors, legislative or regulatory developments, economic
news and other external factors may have a significant impact on the market
price of healthcare stocks.
LIQUIDITY AND CAPITAL RESOURCES
The Company acquired CDS in June 1996 for cash in the amount of
$14,254,000, SETCA in September 1996 for cash in the amount of $4,010,000 and
CCMG in November 1996 for cash in the amount of $427,000 and CVI in August 1997
for cash in the amount of $16,980,000 plus $280,000 paid during fiscal 1998. At
December 31, 1999, the Company had working capital of $28,798,000, compared to
$28,599,000 at September 30, 1999. At December 31, 1999, the Company had cash
and temporary cash investments of $5,650,000. At December 31, 1999, $17,245,000
was outstanding under the Company's line of credit.
The Company batch-bills Medicare insurance carriers for most cardiac
testing services performed during the first few months of each calendar year.
This practice results in a temporary build-up of accounts receivable during the
Company's second and third fiscal quarters and the collection of these
receivables primarily during the subsequent fourth fiscal quarter.
11
<PAGE> 12
The Company has a revolving line of credit with two banks in the amount of
$45,000,000 to fund working capital needs, future acquisitions, equipment
purchases and other business needs. Amounts outstanding under the line of credit
bear interest based on a defined formula and are subject to certain covenants.
The line of credit expires in August 2001 at which time any outstanding balance
will be due and payable.
The Company's long-term capital requirements will depend on numerous
factors, including the rate at which the Company develops and opens new heart
centers or acquires existing heart centers, physician practices or other
businesses, if any. The Company believes that its cash and cash equivalent
balances, together with amounts available from bank borrowings and cash
generated by its operating activities, will be adequate to meet the Company's
anticipated needs for working capital and capital expenditures through fiscal
2000.
YEAR 2000 COMPLIANCE
The Company, to date, has not experienced any significant Year 2000
problems. However, there can be no assurance that the Company will not
experience any significant problems as it moves forward into Year 2000.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
The company is exposed to market risk from interest rate fluctuations
because it uses variable rate debt to finance working capital requirements. The
Company does not believe that there is any material market risk exposure with
respect to other financial instruments that would require further disclosure
under this item.
12
<PAGE> 13
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. EXHIBITS:
The following exhibits are filed as a part of this Report:
<TABLE>
<CAPTION>
Exhibit
Number Title
------- -----
<S> <C>
10.63 Employment Agreement dated as of August 4, 1999, by and
between Allan Zinberg and Raytel Medical Corporation
10.64 Consulting Agreement dated as of January 1, 2000 by and
between Allan Zinberg and Raytel Medical Corporation
27 Financial data schedule
</TABLE>
b. REPORTS ON FORM 8-K:
The Company filed no reports on Form 8-K during the quarter ended
December 31, 1999.
13
<PAGE> 14
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RAYTEL MEDICAL CORPORATION
Dated: February 10, 2000 By: /s/ JOHN F. LAWLER, JR.
-----------------------------
John F. Lawler, Jr.
Vice President and
Chief Financial Officer
(duly authorized officer and
principal financial officer)
14
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Title
------- -----
<S> <C>
10.63 Employment Agreement dated as of August 4, 1999, by and
between Allan Zinberg and Raytel Medical Corporation
10.64 Consulting Agreement dated as of January 1, 2000 by and
between Allan Zinberg and Raytel Medical Corporation
27 Financial data schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.63
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated August 20, 1999 (the "Effective
Date"), is made and entered into by and between RAYTEL MEDICAL CORPORATION,
INC., a Delaware corporation (the "Company"), and Allan Zinberg (the
"Employee").
RECITALS
A. The Company and the Employee desire to terminate the existing
employment agreement between Raytel Medical Corporation and Allan Zinberg dated
September 28, 1995 (the "1995 Agreement"), and to enter into this Agreement for
the continued employment of the Employee as the Company' President and Chief
Operating Officer, and of its subsidiary corporations, joint venture interests
in various cardiovascular labs and imaging centers, and the Employee desires to
accept such continued employment. The employment of the Employee by the Company
pursuant to this Agreement is hereinafter sometimes referred to as the
"Employment."
B. The Company and the Employee hereby enter into this Agreement setting
forth each and all of the terms and conditions of the Employment.
NOW THEREFORE, in consideration of the premises and the agreements,
representations and warranties, contained in this Agreement, the Company and the
Employee hereby agree as follows:
AGREEMENT
1. Duties Term and Exclusive Employment.
1.1 Duties and Responsibilities. Within the limitations established
by this Agreement and the resolutions of the Board of Directors, the Employee
shall have the title of President and Chief Operating Officer, but the
Employee's responsibility and authority will be established by the Company's
Chief Executive Officer, who shall establish specific projects for the Employee.
The initial projects are set forth in Exhibit 1.1, attached hereto and
incorporated herein by reference. It is the intention of the parties that the
duties and responsibilities previously assigned to Employee as set forth in the
Company's Bylaws and in the 1995 Employment Agreement (as defined in Paragraph
1.2, herein below) shall be re-assigned to the Chief Executive Officer or to
other executives or employees within the Company during the term of this
Agreement as defined in Paragraph 1.4 of this Agreement.
1.2 Termination of Existing Employment Agreement. Effective with the
Effective Date of this Agreement, the employment agreement dated September 28,
1995 (the "1995 Employment Agreement") shall be terminated.
-1-
<PAGE> 2
1.3 Termination of Key Management Retention and Severance
Arrangement. Effective with the Effective Date of this Agreement, Employee
hereby waives participation in the Key Management Retention Bonus and Severance
Plan adopted by the Compensation Committee of the Board of Directors at a
meeting held on May 19, 1999.
1.4 Term of Employment. The Employment hereunder shall begin on the
Effective Date and, unless earlier terminated as provided in Paragraphs 3 and 5
hereof, the Employment shall continue until midnight on December 31, 1999 (the
"Term"). The Employment may not be extended except pursuant to the mutual
written agreement of the parties and signed by the parties.
1.5 No Other Employment or Business Activities. During the Term of
the Employment, the Employee shall work a minimum of forty (40) hours per week
and shall diligently and conscientiously devote all of his working time and
attention to discharging his duties to the Company and shall not, without the
express prior written consent of the Board of Directors of the Company, render
to any other person, corporation, partnership, firm, company, joint venture or
other entity any services of any kind for compensation or engage in any other
activity that would in any manner whatsoever interfere with the performance of
the Employee's duties on behalf of the Company. The foregoing notwithstanding,
nothing herein shall prevent the Employee from engaging in charitable activities
or activities of professional associations, from managing any personal
investments on his own personal time, provided that such investments are not
otherwise competitive with the Company, or engaging in the additional activities
listed and described in Exhibit 1.5, attached hereto and incorporated herein by
reference.
1.6 Proprietary Information and Inventions Agreement. The Employee
acknowledges his obligations under the Proprietary Information and Inventions
Agreement of even date herewith, set forth in Exhibit 1.6, attached hereto and
incorporated herein by reference (the "Proprietary Information and Inventions
Agreement"), and agrees to be bound by the provisions thereof.
1.7 Indemnity Agreement. The parties acknowledge their respective
rights and obligations under the Indemnity Agreement of even date herewith, set
forth in Exhibit 1.7, attached hereto and incorporated herein by reference (the
"Indemnity Agreement"), and agree to be bound by the provisions thereof.
2. Compensation. In full and complete consideration for the Employment
and each and all of the services to be rendered to the Company, and any
subsidiary of affiliate of the Company, by the Employee, the Employee shall
receive compensation as follows, except as otherwise provided in Paragraph 3
hereof:
2.1 Base Salary. The Employee shall receive from the Company a base
salary, at the initial annual rate of Two Hundred Ninety-three Thousand Two
Hundred Fifty-two and 96/100 Dollars ($293,252.96), pro rated for any partial
week, payable in
-2-
<PAGE> 3
periodic installments in accordance with the Company's payroll policy as in
effect from time to time. From each salary payment the Company will withhold any
pay to the proper governmental authorities any and all amounts required by law
to be withheld for federal income tax, state income tax, federal social security
tax, state disability insurance premiums, and any and all other amounts required
by law to be withheld from the Employee's salary. The Company will also deduct
from the Employee's salary payments those sums, if any, authorized by the
Employee in writing and approved by the Company. The Company will make payments
and contribution, such as unemployment insurance premiums, workers' compensation
insurance premiums and the employer's portion of federal social security tax,
which are required by law to be made by the Company for the Employee's benefit
without any deduction from the Employee's salary payments.
2.2 Bonus Awards. The Employee will be eligible for consideration for
incentive compensation ("Bonus Awards"), although no Bonus Awards are required
to be paid hereunder. All Bonus Awards shall be determined by the Compensation
Committee with approval from the Board of Directors in their sole discretion for
the current fiscal period ending September 30, 1999, as they shall determine and
based upon such factors as they deem relevant. Any such Bonus award will be
deemed to be earned at the end of the current fiscal period and will be paid to
the Employee within ninety (90) days following the end of the fiscal period for
which such award is made; provided, however, that if, prior to the end of any
such fiscal period, (i) the Employment is terminated as a result of the
Employee's death or disability; (ii) the Company terminated the Employment other
than For Cause pursuant to Paragraph 3.2 hereof; or (iii) the Employee
terminates the Employment for Good Reason pursuant to Paragraph 3.4 hereof, in
each case, the Employee shall be entitled to receive a prorated Bonus Award
determined by multiplying the amount of the Bonus Award, if any, that the
Employee would have received had the Employee been employed for the full fiscal
period by a fraction, the numerator of which is the number of full months of
Employment completed during the fiscal period and the denominator of which is
the number of months in the fiscal period. Any such prorated bonus award will be
paid to the Employee within ninety (90) days following the end of the fiscal
period for which such award in made.
2.3 Stock Options. The Employee is presently the holder of stock
options granted under the Company's 1990 Stock Option Plan, which options are
subject to separate written Option Agreements. No such Option Agreement
constitutes an agreement of employment, and no provision of any such Option
Agreement shall operate to extend the term of the Employment hereunder. During
the Employment, the Employee will not be eligible for the grant of additional
options. Upon termination of employment, any unvested stock options shall be
controlled by the provisions set forth in Paragraph 5, herein below.
2.4 Vacation. The Employee shall be entitled to paid vacation in
accordance with the Company's vacation policy for senior executives, as in
effect from time to time.
-3-
<PAGE> 4
2.5 Automobile Allowance. The Employee shall be entitled to the
payment of a monthly allowance for automobile expenses throughout the Term of
the Employment, in the same amount and in accordance with the arrangements
currently in effect, or to such alternate automobile allowance of comparable
economic value as may be in effect from time to time.
2.6 Insurance and Other Benefits. The Employee shall be entitled to
participate in any life, medical, dental and/or disability insurance plans,
together with nay supplemental insurance plans, as my be offered by the Company
to its executive employees from time to time during the Employment. The Employee
shall be eligible to participate in any other fringe benefits as may be provided
by the Company to its executives, generally, during the Employment.
3. Termination of Employment. The Employment may be terminated prior to
the end of the Term specified in Paragraph 1.4 hereof upon the occurrence of any
of the following:
3.1 Death and Disability. The Employment shall automatically
terminate upon the death of the Employee. The Company shall have the right, but
not the obligation, to terminate the Employment at any time following
determination of the Employee's total disability (as defined pursuant to the
Company's long-term disability insurance plan covering the Employee if any such
plan is then in effect, or otherwise as determined by the Company's Board of
Directors). In the event of the Employee's total disability, the Employee's base
salary pursuant to Paragraph 2.1 hereof, shall be continued for the lesser of:
(i) the duration of the Employee's total disability, or (ii) the waiting period
determined in the Company's long-term disability policy then in effect or (iii)
one (1) year if no such policy is then in effect. In the event of the Employee's
death or total disability, the Employee or his estate shall be entitled to
receive (A) the Employee's base salary through the date of termination of the
Employment (as extended, in the case of total disability), plus (B) any Bonus
Award earned by the Employee as of the date of termination of the Employment
pursuant to Paragraph 2.2 hereof but not yet paid, plus (C) any other benefits
to which the Employee is entitled pursuant to the plans described in Paragraph
2.6, hereof. In the event of a partial disability that prevents the Employee
from effectively performing his duties and responsibilities hereunder, the
parties will attempt, in good faith, to negotiate a basis upon which the
Employee may continue as an employee of the Company in a reduced capacity and at
appropriately reduced compensation. If no such arrangement is agreed upon, the
Company may elect to treat the Employee's disability as a total disability for
purposes of this Paragraph 3.1.
3.2 Termination of Employment by the Company "For Cause". The Company
shall have the unrestricted right, but not the obligation, to terminate the
Employment at any time "For Cause" in the event of the Employee's (i) willful
and repeated neglect of his duties hereunder (other than as a result of a
physical disability not related to substance abuse), (ii) conviction of a crime
involving moral turpitude, (iii) commission of any act of fraud or dishonesty
against the Company, or (iv) breach of the
-4-
<PAGE> 5
Employee's obligations hereunder or under the Proprietary Information and
Inventions Agreement which, if curable, is not cured within ten (10) days
following notice thereof by the Company. The decisions to terminate the
Employment For Cause, to take other action or to take no action in response to
such occurrence shall be in the sole and exclusive discretion of the Company.
Upon any termination of the Employment by the Company For Cause, the Employee
shall be entitled to receive (A) the Employee's base salary through the date of
such termination, plus (B) any bonus Award earned by the Employee as of the date
of termination of the Employment pursuant to Paragraph 2.2 hereof but not yet
paid, plus any other benefits to which the Employee is entitled pursuant to the
plans described in Paragraph 2.6, hereof.
3.3 Other Termination of Employment by the Company. The Company may
terminate the Employment hereunder at any time for any reason. However, if the
Employment is terminated by the Company for any reason other than pursuant to
Paragraphs 3.1 or 3.2 hereof, the Employee shall be entitled to receive his base
salary through the date of termination of the Employment pursuant to this
Agreement. In addition, Employee shall be entitled to receive a severance
payment and other benefits as set forth in Paragraph 5, herein below.
3.4 Termination of Employment by the Employee for "Good Reason". The
Employee shall have the right to terminate the Employment at any time for "Good
Reason" in the event that, other than pursuant to Paragraphs 3.1 or 3.2 hereof,
the Company, without the Employee's prior written consent, (i) materially
breaches the terms of this Agreement in respect to the payment of compensation
or benefits or in any other material respect and such breach is not cured within
ten (10) days after notice thereof; (ii) requires the Employee , as a condition
to the Employment, to be based more than one hundred (100) miles form the
location where he is based as of the Effective Date; or (iii) requires the
Employee, as a condition to the Employment, to perform illegal or fraudulent
acts or omissions. If the Employee voluntarily terminates the Employment for
Good Reason pursuant to this Paragraph 3.4, the Employee shall be entitled to
receive the payments and other benefits specified in paragraph 3.3 hereof with
respect to a termination be the Company other than For Cause.
3.5 Termination of Employment by the Employee Without "Good Reason".
Upon any voluntary termination of the Employment by the Employee, other than for
Good Reason pursuant to Paragraph 3.4 hereof, the Employee shall be entitled to
receive (i) the Employee's base salary through the date of such termination,
plus (ii) any Bonus award earned by the Employee as of the date of termination
of the Employment pursuant to Paragraph 2.2 hereof but not yet paid, plus (iii)
any other benefits to which the Employee is entitled pursuant to the plans
described in Paragraphs 2.6, hereof.
4. Expenses. The Company will reimburse the Employee for those customary,
ordinary and necessary business expenses incurred by him in the performance of
his duties and activities on behalf of the Company. Such expenses will be
reimbursed upon presentation by the Employee of appropriate documentation to
substantiate such expenses
-5-
<PAGE> 6
pursuant to the policies and procedures of the Company governing reimbursement
of business expenses to its executives.
5. Compensation upon Expiration of Agreement. The Company agrees to
provide Employee with the severance benefits set forth in this Paragraph 5 upon
the occurrence of the following events, whichever occurs first: (i) when this
Agreement terminates, either as a result of the expiration of the Term set forth
in Paragraph 1.4 hereof, or pursuant to Paragraph 3.3 or 3.4 hereof, or (ii) in
the event there is a Change of Control (as defined herein) that occurs prior to
the expiration of the Term set forth in Paragraph 1.4. Both such events are
referred to herein as the "Termination Event."
5.1 Severance Payment. In the event there is a Termination Event (as
defined herein) Employee shall be entitled to receive severance payments (the
"Severance Payment") equal to his then current base salary for a period of
twenty-four (24) months (the "Severance Period") following the date of the
Termination Event.
5.2 Method and Manner of Payment. The Severance Payment shall be paid
in periodic installments during the Severance Period, in accordance with the
Company's payroll policy as in effect from time to time, and shall be in lieu of
any other severance payment or other benefit to which the Employee might
otherwise be entitled. Notwithstanding the foregoing, in the event there is a
Change of Control, then the Company agrees immediately to make a lump sum
payment of the balance of the Severance Payments remaining unpaid under
Paragraph 5.1, hereof. The Company will secure the payment of the Severance
Payment with an irrevocable letter of credit from a commercial bank that is
acceptable to both the Company and the Employee in the form of Exhibit 5.3 to
this Agreement (the "Letter of Credit") as of the effective date of a Change of
Control as defined in Paragraph 5.8 herein below.
5.3 Services Following Change of Control. Employee agrees that if an
acquiring entity desires Employee's services for a transition period, the
Employee will provide those services for up to three (3) months on the same
basis at the same salary rate in effect during the Term of this Agreement;
provided however, that in no event will Employee's commitment to provide
services extend past July 31, 2000.
5.4 Other Benefits. In addition, in the event of such a Termination
Event, the Company will, to the extent its plans permit, continue to provide to
the Employee coverage under the Company's life, medical and dental plans as
presently in place at the Effective Date of this Agreement or as changed from
time to time by the Company prior to the expiration of the Severance Period set
forth in Paragraph 5.1, above, but not any disability plan. In the event that
the Company may not continue to provide the benefit of any such plans, the
Severance Payment shall be increased by an amount equal to the Employee's cost
of providing such discontinued
-6-
<PAGE> 7
medical and dental coverages for himself and his dependents during the Severance
Period, assuming, where applicable, the timely compliance by the Employee with
any notification procedure required in order to obtain continuation coverage at
group rates. Following the expiration of the Term specified in Paragraph 1.4,
above, or if terminated earlier in accordance with Paragraph 3, above, Employee
will no longer be eligible for vacation or any other benefits except as set
forth in this Paragraph 5.4.
5.5 Automobile Allowance. Following the expiration of the Term
specified in Paragraph 1.4, above, or if terminated earlier in accordance with
Paragraph 3, above, the Employee shall be entitled to assume, and the Company
agrees to assign, the lease of any automobile provided to the Employee during
the Employment and the Company agrees to waive any ownership interest in the
lease agreement or in the automobile.
5.6 Bonus and Stock Options. The Employee shall not be entitled to
receive any bonus or incentive compensation award during the Severance Period.
Any unvested stock options previously granted to Employee pursuant to the 1990
Stock Option Plan shall become fully vested upon any Termination Event
occurring. All such stock option shall remain subject to the 1990 Stock Option
Plan and any written agreement evidencing such grant of stock options to the
Employee.
5.7 Unused Vacation. Employee shall be entitled to receive any
unused, accrued vacation time, paid as a lump sum payment, less applicable
taxes, to be paid on December 31, 1999.
5.8 Change of Control Defined. For purposes of this Agreement, and at
any time during the Term hereof, the term Change of Control shall mean any of
the following occurrences:
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of sixty-seven percent (67%) or more of the
combined voting power of the Company's then outstanding Voting Securities; or
(ii) Approval by shareholders of the Company, or the
consummation, of: (1) a merger, consolidation or reorganization involving the
Company; (2) a complete liquidation or dissolution of the Company; or (3) an
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person. For purposes of this Agreement the term
"substantially all" shall include but not be limited to any disposition or
series of dispositions of business units or other assets that collectively
generated at least 50% of the Company's revenues or operating
-7-
<PAGE> 8
income (defined as earnings before interest and taxes ("EBIT")) (as measured by
the Company's June 30, 1999 financial statements, a copy of which is attached
hereto as Exhibit 5.8); or
(iii) Richard F. Bader for any reason ceasing to be the Company's
Chairman and/or Chief Executive Officer.
5.9 Covenant Not to Compete. Except as provided below, Employee may
not during the two (2) year period following the date a Termination Event (the
"Restricted Period"), engage, directly or indirectly, as owner, partner,
stockholder, joint venturer consultant, or in any other capacity whatsoever
become financially interested, in any business providing the same or similar
cardiac testing or diagnostic imaging services as now being performed either by
Raytel Cardiac Services, Inc., Raytel Imaging Holdings, Inc., or Raytel Imaging
Network, Inc. (the "Restricted Services") anywhere within the continental United
States for services performed by Raytel Cardiac Services, Inc. (the "Cardiac
Testing Restricted Territory"), or within a ten (10) mile radius of any of the
existing facilities which are owned, operated or managed either by Raytel
Imaging Holdings, Inc. or Raytel Imaging Network, Inc. (the "Diagnostic Imaging
Restricted Territory").
(i) The provisions of this Paragraph 5.9 shall not pertain to or
restrict Employee from:
(a) owning up to 5 % of the capital stock of any
corporation whose stock is publicly traded; or
(b) performing the duties and responsibilities of a
full-time member of the teaching faculty at an accredited business school.
(c) providing management consulting or similar services
with respect to heart centers, cardiac catheterization laboratories and
physician practice groups.
(ii) If Employee elects not to exercise any unvested stock
options available to him under Paragraph 5.6 of this Agreement, the Restricted
Period set forth in this Paragraph 5.9 above shall end at the time Employee's
right to exercise said options expire.
(iii) Employee agrees that the time period provided for, and the
geographical area encompassed by, the covenant contained in Paragraph 5.9 are
necessary and reasonable in order to protect the Company in the conduct of the
business and the utilization of its assets.
(iv) If any court having jurisdiction at any time hereafter
shall hold any provision or clause of this Paragraph 5.9 to be unreasonable as
to its
-8-
<PAGE> 9
scope, territory or term, and if such court in its judgment or decree shall
declare or determine a lesser scope, territory or term which such court deems to
be reasonable, then such scope, territory or term, as the case may be, shall be
deemed automatically to have been reduced or modified to conform to that
declared or determined by such court to be reasonable.
(v) It is expressly agreed that monetary damages would be
inadequate to compensate the Company for any breach by Employee of the covenants
set forth in this Paragraph 5.9 and, accordingly, that in the event of any
breach or threatened breach by Employee of any such covenant, the Company will
be entitled to seek and obtain preliminary and permanent injunctive relief in
any court of competent jurisdiction, in addition to any other remedies at law or
in equity to which the Company may be entitled.
6. Release of Claims. Employee and his successors and assigns release the
Company and its shareholders, investors, directors, officers, employees, agents,
attorneys, legal successors and assigns from any and all claims, actions and
causes of action, whether now known or unknown, which Employee now has, or at
any time had, or shall or may have against any of the released parties based
upon or arising out of any matter, cause, fact, things, act or omission
whatsoever occurring or existing at any time to and including the effective date
of this Agreement, including, but not limited to, any claims of wrongful
termination, breach of contract, fraud, negligent misrepresentation, intentional
or negligent infliction of emotional distress, defamation or national origin,
race, age, sex, disability or other discrimination or harassment under the Civil
Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the
Americans With Disabilities Act, or other applicable state or federal law. The
foregoing release of claims shall not apply to any obligations arising under
this Agreement.
7. Conflicts of Interest. The Employee covenants, warrants and represents
to the Company that he has the full right and authority to enter into the
Employment and this Agreement, that he has no agreement, duty, commitment or
responsibility of any kind or nature whatsoever with or to any other person,
corporation, partnership, firm, company, joint venture or other entity which
would conflict in any manner whatsoever with any of his duties, obligations or
responsibilities to the Company pursuant to the Employment and/or this
Agreement. As a condition of the Employment and of the Company's entering into
this Agreement, the Company requires that the Employee not, and the Employee
hereby specifically agrees, covenants, warrants and represents that during the
Employment he will not, without the Company's express prior written consent,
accept any employment, contractual or other relationship of any kind or nature
whatsoever or engage in any association or dealing of any kind or nature
whatsoever with any person, corporation, partnership, firm, company, joint
venture, or other entity in violation of the Covenant Not to Compete set forth
in Paragraph 5.9 above; provided that nothing herein shall prohibit Employee
from owning up to five percent (5%) of the outstanding shares of any class of
equity securities of a corporation engaged in any such prohibited activity whose
securities
-9-
<PAGE> 10
are listed on a national securities exchange or quoted daily in the
over-the-counter listings of The Wall Street Journal.
8. Duties of the Employee After Any Notice of Termination of the
Employment. Following any notice of termination of the Employment, the Employee
shall fully cooperate with the Company in all matters relating to the winding up
of the Employee's work on behalf of the Company and the orderly transfer of all
pending work and of the Employee's duties and responsibilities to such other
person or persons as may be designated by the Company in its sole discretion.
Upon any termination of the Employment, the Employee will immediately deliver to
the Company any and all of the Company's property of any kind or nature
whatsoever in the Employee's possession, custody or control, including, without
limitation any and all Confidential Information as that term is defined in the
Proprietary Information and Inventions Agreement.
9. No Solicitation. During the Employment and for two (2) years following
any termination of the Employment, the Employee will not, without having
received prior written permission of the Company's Chief Executive Officer to do
so, directly or indirectly, on his own behalf or in the service of others, hire,
interfere with or raid the officers, employees, and/or agents of the Company or
in any manner attempt to persuade any such person to discontinue any
relationship with the Company. The Employee and the Company confirm that this
Paragraph 9 is reasonable and necessary for the protection of the trade secrets
and proprietary information of the Company.
10. Arbitration. Except as otherwise expressly provided in this Agreement,
any and all controversies, disputes and/or claims in any manner arising out of
or relating to this Agreement or the Employment shall be settled solely be
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Such arbitration proceeding shall take place in the
state and county of the Company's office where the Employee is based. Judgment
on any decision rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Each party shall bear its own attorney's fees and expenses
and other costs in any arbitration proceeding. All administrative fees and the
fee of the arbitrator shall be borne by the parties equally. Except as otherwise
expressly provided in this Agreement, the arbitration provisions set forth above
in this Paragraph 10 are intended by the Employee and by the Company to be
absolutely exclusive for all purposes whatsoever, and applicable to each and
every controversy, dispute and/or claim in any manner arising out of or relating
to this Agreement, and the Employment, the meaning, application and/or
interpretation of this Agreement, any breach or claimed breach thereof and/or
any voluntary or involuntary termination of this Agreement with or without
cause, including, without limitation, any such controversy, dispute and/or claim
which, if pursued through any state or federal court or administrative agency,
would arise at law, in equity and/or pursuant to statutory, regulatory and/or
common law rules, regardless of whether such dispute, controversy and/or claim
would arise in and/or from contract, tort or any other legal and/or equitable
theory or basis. Notwithstanding anything to the contrary contained in this
Paragraph 10, the Company shall at all times have and retain the full,
-10-
<PAGE> 11
complete and unrestricted right to immediate and permanent injunctive and other
relief as provided in Paragraph 11 below.
11. The Company's Right to Immediate Injunctive Relief. The Employee
recognizes, acknowledges and agrees that any breach or any threatened breach of
any Paragraph, term, provision or covenant of any of Paragraphs 1, 5.9, 6, 7, 8,
or 9 of this Agreement or of the Proprietary Information and Inventions
Agreement would cause irreparable injury to the Company which could not be
adequately compensable in monetary damages and that the remedy at law for any
such breach will be entirely insufficient and inadequate to protect the
Company's legitimate interests. Therefore, the Employee specifically recognizes,
acknowledges and agrees that the Company shall at any and all times be and
remain fully entitled to seek and obtain immediate temporary, preliminary and
permanent injunctive relief for any such breach or threatened breach from any
court of competent jurisdiction. The prevailing party in any action instituted
pursuant to this paragraph 11 shall be entitled to recover form the other party
its reasonable attorneys' fees and other expenses incurred in such litigation.
12. Survival of Certain Provisions of this Agreement. Except as may
otherwise be provided herein, each and all of the terms provisions and covenants
of each of paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 of this Agreement shall,
for any and all purposes whatsoever, survive any termination of the Employment,
regardless of whether such termination is by the Employee, the Company, by
expiration or otherwise.
13. General.
13.1 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of and be binding upon the Company, the Employee and each
and all of their respective heirs, legal representatives, successors and
assigns. The duties, responsibilities and obligations of the Employee under this
Agreement shall be personal and not assignable or delegable by the Employee in
any manner whatsoever to any person, corporation, partnerships, firm, company,
joint venture or other entity. The Employee may not assign, transfer, convey,
mortgage, pledge or in any other manner encumber the compensation or other
benefits to be received by him or nay rights which he may have pursuant to the
terms and provisions of this Agreement. Notwithstanding the foregoing, the
Company covenants and agrees to require that any successor to the Company and
any person acquiring the Company, the Company's shares, or assets of Company
through a Change of Control shall agree to honor the obligation of the Company
under this Agreement.
13.2 Waiver. No waiver of any breach of any warranty, representation,
agreement, promise, covenant, paragraph, term or provision of this Agreement
shall be deemed to be a waiver of any proceeding or succeeding breach of the
same or any other warranty, representation, agreement, promise, covenant,
paragraph, term and/or provision of this Agreement. No extension of the time for
the performance of any obligation or other act required or permitted by this
Agreement shall be deemed to be an extension of the time
-11-
<PAGE> 12
of the performance of any other obligation or any other act required or
permitted by this Agreement.
13.3 Sole and Entire Agreement. This Agreement, and the other
agreements referred to herein, including the Company's benefit plans, are the
sole, complete and entire contract, agreement and understanding between the
Company and the Employee concerning the Employment, the terms and conditions of
the Employment, the duration of the Employment, the termination of the
Employment and the compensation and benefits to be paid and provided by the
Company to the Employee pursuant to the Employment. Except as otherwise provided
herein, the Agreement supersedes any and all prior contracts, agreements, plans,
agreements in principle, correspondence, letters of intent, understandings, and
negotiations, whether oral or written, concerning the Employment, the terms and
conditions of the Employment, the duration of the Employment, the termination of
the Employment and the compensation and benefits to be paid by the Company to
the Employee pursuant to the Employment.
13.4 Amendments. No amendment, modification, waiver, or consent
relating to this Agreement will be effective unless and until it is embodied in
a written document signed by the Company and by the Employee.
13.5 Originals. The Agreement may be executed by the Company and by
the Employee in counterparts, each of which shall be deemed an original and
which together shall constitute one instrument.
13.6 Headings. Each and all of the headings contained in this
Agreement are for reference purposes only and shall not in any manner whatsoever
affect the construction or interpretation of this Agreement or be deemed a part
of this Agreement for any purpose whatsoever.
13.7 Savings Provision. To the extent that any provisions of this
Agreement or any Paragraph, term, provision, sentence, phrase, clause or word of
this Agreement shall be found to be illegal or unenforceable for any reason,
such Paragraph, term, provision, sentence, phrase, clause or word shall be
modified or deleted in such a manner as to make this Agreement, as so modified,
legal and enforceable under applicable laws. The remainder of this Agreement
shall continue in full force and effect.
13.8 Applicable Law. This Agreement and each and every provision of
this Agreement shall be interpreted solely pursuant to the internal laws of the
State of California without regard to any conflicts of law principles thereof.
13.9 Construction. The language of this Agreement and of each and
every paragraph, term and provisions of this Agreement shall, in all cases, for
any and all purposes, and in any and all circumstances whatsoever be construed
as a whole, according to its fair meaning, not strictly for or against the
Employee or the Company, and with no
-12-
<PAGE> 13
regard whatsoever to the identity or status of any person or persons who drafted
all or any portion of this Agreement.
13.10 Notices. Any notices to be given pursuant to this Agreement by
either party to the other party may be effected by personal delivery or by
registered or certified mail, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses stated below,
but each party may change its or his address by written notice to the other in
accordance with this Paragraph 13.10. Notices delivered personally shall be
deemed received on the date of delivery. Notices delivered by mail shall be
deemed received on the third business day after the mailing thereof.
Mailed notices to the Employee shall be addressed as follows:
Allan Zinberg
Simsbury, Connecticut
Mailed notices to the Company shall be addressed as follows:
Raytel Medical Corporation
2755 Campus Drive, Suite 200
San Mateo, California 94403-2515
Attention: Chief Executive Officer
13.10 Expenses. The Company shall pay, or reimburse the Employee for,
all reasonable attorney's fees incurred by Employee in connection with the
negotiation and preparation of this Agreement.
IN WITNESS THEREOF, the Company and the Employee have each duly executed
this Agreement as of the date first set forth above.
RAYTEL MEDICAL CORPORATION EMPLOYEE
By: /s/ Richard F. Bader By: /s/ Allan Zinberg
------------------------------------ ----------------------------------
Richard F. Bader Allan Zinberg
Chief Executive Officer
-13-
<PAGE> 1
EXHIBIT 10.64
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of January 1, 2000, by and
between RAYTEL MEDICAL CORPORATION, a Delaware Corporation (the "Company"), and
Allan Zinberg ("Consultant").
RECITALS
A. The Company is engaged in the business of providing a variety of
health care services, focusing on the needs of patients with cardiovascular
disease; and
B. The Company desires to retain the services of Consultant to perform
certain consulting services and Consultant is willing to perform such services.
NOW, THEREFORE, it is agreed as follows:
AGREEMENT
1. Engagement and Performance of Services.
(a) Engagement. The Company hereby engages Consultant to perform
consulting services in accordance with the terms and conditions of this
Agreement.
(b) Description of Services. Consultant shall provide consulting
services to senior management of the Company. Consultant shall report to the
Chief Executive Officer of the Company or his designee and shall provide
consulting services, as requested in such areas as: operational issues for
cardiac monitoring services provided by Raytel Cardiac Services, re-structuring
of certain cardiac catheterization operations, and strategic issues relating to
the sale of specific operating assets or the acquisition of specific operating
assets.
(c) Term. The term of this Agreement shall commence on January 1,
2000, and, unless earlier terminated as provided in subsection 1(e) below, shall
continue on a month to month basis until terminated as provided in paragraph (g)
herein below.
(d) Service Commitment. Consultant will hold himself available to
provide consulting services, on a part-time basis, during the term of this
Agreement. The Company shall use reasonable efforts to schedule the performance
of Consultant's services so as not to interfere with Consultant's other business
commitments. To the extent practicable, the parties will establish a schedule
for the performance of the consulting services. Once established, changes in
such schedule will be subject to reasonable notice and Consultant's other
business
-1-
<PAGE> 2
commitments. Consultant will also hold himself available, for telephone
consultation for reasonable periods of time.
(e) Termination. The Company shall have the right to terminate this
Agreement (i) upon Consultant's failure to perform any duties reasonably
assigned to him hereunder, which failure is not cured within 10 days following
written notice thereof or (ii) at any time upon written notice delivered to
Consultant. Consultant may terminate this Agreement at any time upon thirty (30)
days written notice delivered to the Company.
(f) Facilities, Equipment and Supplies. Except as specifically agreed
by the parties, Consultant will provide his consulting services hereunder at his
own facility. If the parties agree that certain specified services shall be
performed by Consultant at the Company's facility, the Company will provide to
Consultant an office, access to telephone, facsimile and e-mail equipment,
reasonable clerical support and general office supplies for his use in the
performance of any such consulting services.
(g) Other Activities. The Company acknowledges and agrees that,
subject to his obligations hereunder and his obligations as set forth in the
Employment Agreement between Consultant and the Company dated August 20, 1999
(the "Employment Agreement"), Consultant shall have the right to engage in other
business activities and consulting activities for other entities during the term
of this Agreement; provided, however, that during the term of this Agreement,
Consultant will not, without the Company's prior written consent, directly or
indirectly engage in any employment, consulting or other business activity other
than for the Company relating to any line of business in which the Company is at
such time engaged, or which would otherwise conflict with Consultant's
obligations to the Company under this Agreement. The foregoing notwithstanding,
nothing herein shall prevent the Employee from engaging in charitable activities
or activities of professional associations, from managing any personal
investments on his own personal time, provided that such investments are not
otherwise competitive with the Company, or engaging in the additional activities
listed and described in Exhibit 1.5, attached hereto and incorporated herein by
reference. This Section 1(g) of this Consulting Agreement is subordinate to
Section 5.9, Covenant Not to Compete, of the Employment Agreement between
Consultant and the Company, and any conflict between this Consulting Agreement
and the Employment Agreement shall be resolved in favor of the Employment
Agreement.
(h) Compensation. As compensation for the consulting services to be
performed under this Agreement, and for holding himself available to perform
such services, the Company shall pay Consultant a consulting fee of One Hundred
Forty Dollars ($140.00) per hour, payable every two weeks on the 1st and 15th of
each month for invoices received from Consultant during the term of this
Agreement. In the event that this Agreement is terminated prior to the end of a
normal pay period, Consultant shall be entitled to receive such consulting fee
prorated through the date of termination. Consultant shall submit an invoice for
services at least one week prior to the scheduled pay period to allow time for
check processing and other administrative activities. Consultant shall be
required to keep detailed time records of the
-2-
<PAGE> 3
actual hours or portions or hours spent performing the duties set forth in
Paragraph 1(b). Travel and administrative time are not billable to the Company
except as provided herein. However, in the event that Consultant is requested to
travel to a location that requires more than four hours travel time, then
consultant shall be compensated on a daily basis of One Thousand One Hundred
Twenty Dollars ($1,120.00) per day for each day that consulting services were
actually performed, and shall be compensated on a daily basis of Five Hundred
Dollars ($500.00) per day for each day that no consulting services were actually
performed. In addition, weekend days or an extra day taken at the Consultant's
discretion for Consultant's travel convenience shall not be counted as a paid
travel day.
(i) Expenses. In addition to the compensation specified in Section
1(h) above, the Company will reimburse Consultant for reasonable out-of-pocket
expenses incurred by Consultant and approved in advance by the Company in
connection with the performance of his consulting services hereunder. Consultant
shall also submit appropriate back-up documentation to support each request for
reimbursement.
(k) No Violation of Others' Rights. Consultant represents and
warrants that in the course of performing his services hereunder, Consultant
will not (i) use, disclose to the Company or induce the Company to use any
confidential or proprietary documents or information belonging to any other
person or entity, or (ii) infringe or wrongfully appropriate any patents,
copyrights, trade secret rights, or other intellectual property rights of any
other person or entity.
2. Protection of Confidential Information.
(a) Definition of Confidential Information. For purposes of this
Agreement, the term "Confidential Information" shall mean all information
developed by or disclosed or made available to Consultant, his employees or
representatives, in connection with the performance by Consultant of the
consulting services hereunder (including information known to Consultant in his
capacity as a director of the Company) which the Company protects against
unrestricted disclosure to others and which: (i) if in written or other tangible
form, is clearly designated as "Confidential;" and (ii) if disclosed orally, is
reduced to or described in a writing designating such information as
"Confidential" which is delivered to Consultant promptly following such oral
disclosure. By way of illustration, but not limitation, Confidential Information
may include inventions, concepts, designs, techniques, processes, market data,
customer lists, referral sources, suppliers, financial information and plans and
strategies.
(b) Confidentiality. Consultant agrees, with respect to any
Confidential Information developed by or disclosed to him:
(i) To use such Confidential Information only for the purposes
of performing the consulting services hereunder;
-3-
<PAGE> 4
(ii) To use the same methods and degree of care to prevent
disclosure of such Confidential Information as he uses to prevent disclosure of
his own proprietary and confidential information;
(iii) To disclose the Confidential Information to his employees
only on a need-to-know basis and not to disclose any Confidential Information to
any third party without the prior written consent of the Company; and
(iv) To return any Confidential Information in any tangible form
to the Company at the request of the Company and to retain no copies or
reproductions thereof.
(c) Limitations. Consultant shall not be obligated to treat
information as Confidential Information if such information:
(i) Was rightfully in Consultant's possession or was rightfully
known to Consultant prior to receipt from the Company;
(ii) Is or becomes public knowledge without the fault of
Consultant;
(iii) Is or becomes rightfully available to Consultant without
confidential restriction from a source not under the Company's control; or
(iv) Is independently developed by Consultant without use of the
Confidential Information disclosed hereunder; provided, however, that the burden
of proof of such independent development shall be upon Consultant.
(d) Survival of Obligations. The obligations of Consultant under this
Section 2 shall survive the termination of this Agreement.
3. Miscellaneous.
(a) Relationship of Parties. Consultant shall at all times during the
performance of his services hereunder be an independent contractor, maintaining
sole and exclusive control over his business and operations.
(i) At no time will either party hold itself out to be the
agent, employee, lessee, subleases, partner or joint venturer of the other
party.
(ii) Neither party hereto shall have the express or implied
right or authority to assume or create any obligation on behalf of or in the
name of the other party, or to bind the other party in regard to any contract,
agreement or undertaking with any third party.
-4-
<PAGE> 5
(iii) Since Consultant is not an employee of the Company, neither
Consultant nor any of its employees shall be entitled, by virtue of their
services hereunder, to any of the benefits which the Company may make available
to its employees, including but not limited to workers' compensation insurance
and coverage.
(iv) Consultant will be solely responsible for all tax returns
and payments required to be filed with or made to any federal, state or local
tax authority with respect to Consultant's performance of services and receipt
of fees under this Agreement.
(v) Consultant will be solely responsible for and must maintain
adequate records of expenses incurred in the course of performing services under
this Agreement.
(vi) No part of Consultant's compensation will be subject to
withholding by the Company for the payment of any social security, federal,
state or any other employee payroll taxes.
(vii) Should the Internal Revenue Service or the California
Department of Employment Development make a determination that Consultant was
not an independent contractor but was an employee and that the consulting
compensation was ordinary salary subject to customary payroll tax withholding,
then Consultant agrees that Consultant shall be responsible for the employee's
portion of the customary payroll taxes, such as FICA, FUTA, Medicare and SDI.
(b) Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior, written or oral negotiations, representations or agreement. No
modification of this Agreement shall be binding on either party unless it is in
writing and signed by both parties.
(c) Severability. The provisions of this Agreement are severable, and
if one or more provisions are judicially determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions or portions of this
Agreement shall nevertheless be binding on and enforceable by and between the
parties hereto.
(d) Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto. Consultant shall
not transfer or assign this Agreement without the prior written consent of the
Company.
(e) Governing Law. The rights and obligations of the parties to this
Agreement shall be governed by and construed in accordance with the laws of the
State of California.
-5-
<PAGE> 6
(f) Headings. Section headings are for convenience of reference only
and shall not be considered in the interpretation of this Agreement.
(g) Unavoidable Delays. Either party shall be excused for any delays
or defaults in the performance of this Agreement (except the payment of amounts
due and payable hereunder) unavoidably caused by the act of the other, the act
of any agent of the other, the act of any governmental authority, acts of God,
the elements, war, litigation, strikes, walkouts, or any other cause beyond its
reasonable control. Each party shall use all reasonable diligence to avoid any
such delay or default and to resume performance under this Agreement as soon as
practicable after such delay or default.
(h) Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or on the day sent by facsimile transmission if a true
and correct copy is sent the same day by first class mail, postage prepaid, or
by dispatch by an internationally recognized express courier service, and in
each case addressed as follows:
If to Consultant: ALLAN ZINBERG
--------------------------------
Simsbury, Connecticut
If to the Company: RAYTEL MEDICAL CORPORATION
2755 Campus Drive, Suite 200
San Mateo, California 94403-2515
ATTN: Richard F. Bader
Chief Executive Officer
(i) Attorneys' Fees and Costs. Should litigation arise concerning the
enforcement or interpretation of this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs as determined by
the court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
RAYTEL MEDICAL CORPORATION CONSULTANT
By: /s/ Richard F. Bader By: /s/ Allan Zinberg
------------------------------------ -----------------------------------
Richard F. Bader Allan Zinberg
Chief Executive Officer
-6-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM RAYTEL
MEDICAL CORPORATION AND SUBSIDIARIES FINANCIAL STATEMENTS AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-2000
<PERIOD-START> OCT-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 5,650
<SECURITIES> 0
<RECEIVABLES> 35,059<F1>
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 43,715
<PP&E> 46,700
<DEPRECIATION> 26,080
<TOTAL-ASSETS> 114,964
<CURRENT-LIABILITIES> 14,917
<BONDS> 0
0
0
<COMMON> 9
<OTHER-SE> 72,924
<TOTAL-LIABILITY-AND-EQUITY> 114,964
<SALES> 0
<TOTAL-REVENUES> 23,885
<CGS> 0
<TOTAL-COSTS> 21,966
<OTHER-EXPENSES> (109)
<LOSS-PROVISION> 0<F2>
<INTEREST-EXPENSE> 553
<INCOME-PRETAX> 1,475
<INCOME-TAX> 575
<INCOME-CONTINUING> 900
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 900
<EPS-BASIC> 0.10
<EPS-DILUTED> 0.10
<FN>
<F1>Represents net receivables.
<F2>Included in TOTAL-COSTS.
</FN>
</TABLE>
