EXHIBIT 10.15
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT ("AGREEMENT") is made as of January 29, 1999,
by Mobile PET Systems, Inc., a Delaware corporation, 0000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("COMPANY") and Xxxxxxx Xxxxxx and
Company, Inc., a California corporation, 0000 Xxxxx Xxxx Xxxx., Xxxxx 000, Xx
Xxxxxx, Xxxxxxxxxx 00000 ("CONSULTANT").
RECITALS
A. Consultant conducts the business of providing national media
consulting services and financial community investor relations consulting
services for emerging companies.
B. Company desires to retain Consultant's consulting services on
a fixed term basis, and Consultant has agreed to serve Company as an
independent contractor on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, the parties agree as follows:
TERMS
1. CONSULTANT'S SERVICES. Consultant shall provide major media
consulting services to Company, such duties to include establishment of a
national News Bureau, major news feature development, relations with
newsletter writers and with trade media interested in Company and its mobile
technology Consultant shall also provide an investor relations program of
communications to the U.S. institutional, brokerage and retail investor
publics. This work is SUBJECT ALWAYS to the control and direction of
Company's CEO and Board of Directors. Consultant shall also consult and
advise the CEO and Company on a variety of corporate matters on an on-going
basis, as these may relate to the above programs. Consultant shall well and
faithfully serve Company or any subsidiary as aforesaid during the
continuance of its employment hereunder and use its best efforts to promote
the Company's interests. Consultant shall submit a written report to Company
by the tenth (10th) day of each month regarding Consultant's activities on
Company's behalf during the prior calendar month.
2. COMPANY LITERATURE. Company shall provide to Consultant
copies of all proposed Company literature before the dissemination of such
literature to any third parties. Consultant shall not disseminate any such
materials or documents without Company's prior approval.
3. TERM. The term of this Agreement shall be for fifteen (15)
months from the date of this Agreement. Company may elect to terminate this
Agreement at any time after the first 90 days on 30 (thirty) days' written
notice. This Agreement can be renewed at Company's option for a further
twelve (12) months on written notice to Consultant at least thirty (30) days
before the end of the initial term.
4. FEE. Consultant's remuneration for its services hereunder
shall issue to Consultant a corporate stock option for an aggregate maximum
150,000 shares set at market price ($2.50 per share) as of the date of this
Agreement.
This option shall be exercisable on or before January 29, 2004 for the
150,000 shares. If Consultant wishes to exercise this option, it shall do so
by tendering the purchase price (i.e., $375,000.00) to Company in cash or
wired funds on or before the exercise date. If this option is not exercised
by its deadline, it shall lapse. Consultant shall not be entitled to any
other fee under this Agreement.
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5. TAXES. Consultant shall be responsible for payment of its
income taxes as required by any governmental entity with respect to any
compensation paid by Company to Consultant.
6. SERVICE PROVIDERS. During the term of this Agreement,
Consultant shall provide its services to Company primarily through Xxxxxxx
Xxxxxx and Xxxxxx Xxxxxx, and Consultant shall ensure that Xxxxxxx Xxxxxx
and/or Xxxxxx Xxxxxx will be available to provide such services to Company in
a timely manner subject to their availability at the time of the request;
provided that they shall provide Company not less than fifty (50) hours each
month in the aggregate.
7. CONSULTANT'S EXPENSES. Consultant shall bear all its expenses
under this Agreement. The only form of payment to be made by Company to
Consultant under this Agreement is the option set forth Section 4.
8. CONFIDENTIALITY. Company has in its possession certain
confidential and proprietary devices, ideas, programs, know-how, business
plans and other information in written, oral, electronic and physical/sample
form, including all information, documentation, photographs, services and
demonstrations of any nature whatsoever regarding Company's affairs,
products, and/or services (collectively "CONFIDENTIAL DATA").
8.1 TREATMENT OF CONFIDENTIAL DATA. Consultant shall keep
and maintain all Confidential Data in the strictest confidence and undertake
the following additional obligations: (a) use the Confidential Data for the
sole purpose of furthering Company's interests; (b) not disclose Confidential
Data to persons not affiliated with Company; (c) limit discrimination of
Confidential Data to only those employees of Consultant who have a need to
know and then only if those employees sign a counterpart of this
Agreement; (d) not copy, duplicate, transmit, communicate, disclose and/or
publish Confidential Data or any portion thereof; (e) return the Confidential
Data and all documents, notes or physical evidence thereof to Company on the
termination of this Agreement; (f) maintain the Confidential Data secret at all
times; (g) protect the Confidential Data with the same degree of care as
Consultant uses to protect its own such data, but in all events use at least a
reasonable degree of care; (h) not in any way otherwise transfer the
Confidential Data to any other person; and (i) not incorporate or in any way
use any part of the Confidential Data (disclosed separately or embodied in any
of Company's products or equipment) in its or any other party's products or
businesses. Consultant's employees who have access to the Confidential Data
will be bound by all the terms of this Agreement.
8.2 TRADE SECRETS. Consultant acknowledges that all
Confidential Data is proprietary and confidential and constitutes Company's
trade secrets. Consultant shall not disclose any such trade secrets,
directly or indirectly, voluntarily or involuntarily, to any other person or
use it in any way, at any time hereafter, except as expressly authorized by
Company in writing. All files, records, documents, equipment and similar
items relating to Company's business, whether prepared by Consultant or
others, are and shall remain exclusively Company's property.
8.3 PROPERTY RIGHTS. Company shall solely own and have
exclusive rights to all the Confidential Data, and all modifications and
derivative works thereof, and to all United States and foreign patents,
trademarks, copyrights, mask works, trade secrets, and other intellectual
property rights related thereto. Consultant is not granted any license or
other interest in the Confidential Data.
8.4 SCOPE; TERM. The Confidential Data disclosed to
Consultant is to be reviewed only for the limited purpose set forth above and
for no other purpose. Company is not obligated to enter into
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any further agreement or business relationship with Consultant. The restrictions
in this Agreement will survive and continue in force until five (5) years after
the date of this Agreement.
8.5. EXCEPTIONS. These obligations and restrictions shall not apply
to Confidential Data that falls within any of the following exceptions, provided
Consultant proves and produces credible written evidence to establish one of the
exceptions: (a) is or becomes part of the public domain without breach of this
Agreement by Consultant; (b) is lawfully in Consultant's possession before a
disclosure and not subject to an existing agreement between the parties; (c) is
independently developed by or for Consultant completely apart from the
disclosures hereunder; (d) is received from a third party who lawfully acquired
such information without restriction, and without a breach of this Agreement by
Consultant; and/or (e) is released pursuant to a binding court order or
government regulation, provided that Consultant delivers a copy of such order
or action to Company and cooperates with Company if it elects to contest such
disclosure.
8.6. REMEDIES. The remedy at law for breach of this Agreement being
inadequate, Company shall be entitled, in addition to such other remedies as it
may have, to temporary or injunctive relief for any breach or threatened breach
of any provision of this Agreement without proof of actual damages that have
been or may have been caused to it by such breach. All provisions hereof shall
survive the end of the term of this Agreement.
8.7. NON-COMPETE. Consultant shall not, either directly or
indirectly, carry on, participate, or engage in, either as employee, employer,
principal, agent, consultant, owner, part-owner, co-venturer, officer, director,
shareholder, partner, manager, operator, financier, employee, salesman, or in
any other individual, representative or participating capacity, any business
which is in any way competitive with or similar to Company's business for so
long, not exceeding five (5) years from the date hereof, as Company, or any
person deriving title to its goodwill, carries on a like business. The area in
which Consultant shall be so restrained shall be throughout the United States,
and this Agreement shall be deemed to be a separate non-compete covenant for
each and every county therein. IF ANY PORTION OR PROVISION OF THIS NON-COMPETE
IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE OVERLY BROAD, IT IS THE
PARTIES' EXPRESS INTENT THAT THE PROVISIONS SHALL NEVERTHELESS BE ENFORCED TO
THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL GOVERN AND APPLY TO AS MUCH
GEOGRAPHICAL AREA AND/OR TIME DURATION, NOT TO EXCEED THAT WHICH IS SET FORTH
ABOVE, AS POSSIBLE.
8.8. SURVIVAL OF OBLIGATIONS. The restrictions and obligation of
this Agreement shall survive any expiration, termination or cancellation of this
Agreement or any business relationship or opportunity entered into or negotiated
by the parties hereto.
9. INDEMNITY.
9.1. Company shall indemnify and hold Consultant harmless from any
loss, costs or expenses incurred as a result of or arising out of Consultant's
dissemination or publication of any documents or literature issued or approved
in writing by Company in accordance with Section 2, above, if it is established
by a Court of competent jurisdiction that such documents contain material
misrepresentations or false or misleading information, or omit to state a
material fact necessary to prevent a statement that is made from being false or
misleading. Company shall be solely responsible for all required
registrations/exemptions for its securities at the federal and state levels.
9.2. Consultant shall indemnify, defend and hold Company harmless
from all losses, liabilities, damages, fees (including attorneys' fees), costs
and suits arising from or relating to any negligent or other wrongful act of
Consultant or any breach of this Agreement.
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10. TERMINATION. This Agreement may be terminated forthwith by
Company without prior notice if at any time: (a) Consultant shall commit any
breach of any of provision of this Agreement; (b) Consultant shall be guilty of
any misconduct or neglect in the discharge of its duties hereunder;
(c) Consultant shall become bankrupt or make any arrangements or composition
with its creditors; or (d) Xxxxxxx Xxxxxx shall become of unsound mind or be
declared incompetent to handle his own personal affairs.
11. CONFLICTING ACTIVITIES. Company is aware that Consultant has
now and will continue to have business interests in other companies. Company
recognizes that these companies will require a certain portion of Consultant's
time. Consultant may continue to devote time to such outside interests, provided
that such interests do not conflict with, in any way, the time required for
Consultant to perform its duties under this Agreement.
12. PERSONAL SERVICES. The services to be performed by Consultant
pursuant hereto are personal in character, and neither this Agreement nor any
rights or benefits arising thereunder are assignable by Consultant without
Company's prior written consent.
13. GENERAL TERMS.
13.1. NOTICES. Unless otherwise provided in this Agreement or by
law, all notices required or permitted by this Agreement or by law to be served
on or delivered to a party shall be in writing and deemed duly served,
delivered, and received when personally delivered to the party to whom directed,
or instead, three (3) business days after deposit in the U.S. mail, certified or
registered, return receipt requested, first-class postage prepaid, addressed to
the address indicated in this Agreement. A party may change this address by
giving written notice of the change to the other party. Fax transmission to a
fax machine specified in such a notice shall constitute personal delivery.
13.2. CONSTRUCTION OF AGREEMENT. Whenever the context requires, any
gender includes all others, the singular number includes the plural, and
vice-versa. Captions are inserted for convenience of reference and do not
describe or limit the scope or intent of this Agreement. Any recitals above, and
any exhibits or schedules referred to and/or attached hereto, are incorporated
by reference into this Agreement. "PERSON" includes a corporation, limited
liability company, partnership, trust, or any other legal entity. "INCLUDING"
means including without limitation.
13.3. INTERPRETATION OF AGREEMENT. This Agreement contains the
entire agreement between the parties regarding its subject matter. Any prior
oral or written representations, agreements and/or understandings shall be of no
effect. No waiver, amendment or discharge of this Agreement shall be valid
unless it is in writing and signed by the party to be obligated. This Agreement
shall be governed by California law. Subject to any provision of this Agreement
that may prohibit or curtail assignment of rights, this Agreement shall bind and
inure to the benefit of the parties and their heirs, assigns, representatives
and successors. If any term, covenant or condition of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall remain in full effect. No inference, assumption or
presumption shall be drawn if a party or a party's attorney prepared and/or
drafted this Agreement; it shall be conclusively presumed that the parties
participated equally in its preparation and/or drafting.
13.4. JURISDICTION; VENUE; ATTORNEYS' FEES. In any proceeding
(including arbitration) involving this Agreement, (a) the proper place of trial
or hearing shall be San Diego County, California, and the parties irrevocably
submit to the jurisdiction of the federal and California courts within San Diego
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County, and (b) the prevailing party shall be entitled to recover actual
attorney's fees and all litigation-related costs (including expert witnesses'
fees) incurred in addition to all other items of recovery permitted by law.
13.5. EXECUTION OF THIS AND OTHER INSTRUMENTS. The parties have
signed below voluntarily after having been advised by their respective counsel
of all provisions hereof, and, in signing below, they are not relying on any
inducements, promises, and representations made by or on behalf of the other
party except as set forth herein. This Agreement may be executed in
counterparts, each of which shall be deemed an original. Each party shall take
all reasonable steps, and execute, acknowledge, and deliver all further
instruments necessary or expedient to implement this Agreement.
13.6. ARBITRATION. If a dispute arises involving this Agreement, the
parties shall submit the matter to JAMS/Endispute for binding arbitration under
its rules for commercial matters. The parties shall equally split fees and costs
of the arbitration. The arbitrator may award the prevailing party its costs and
reasonable attorney's fees. The parties shall have all discovery rights as
provided in the California Code of Civil Procedure.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Agreement
as of the date first written above.
"COMPANY"
Mobile PET Systems, Inc., A Delaware Corporation
By: /s/ Xxxx Xxxxx
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President
"CONSULTANT"
Xxxxxxx Xxxxxx and Company, Inc., A California Corporation
By: /s/ Xxxxxxx Xxxxxx
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President
By: /s/ Xxxxxxx Xxxxxx
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Secretary
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