EXHIBIT 10.1
PROGRAM MANAGEMENT CONSULTING AGREEMENT
This Program Management and Consulting Agreement (the "Agreement") is made
and entered into this 31st day of August, 2001, by and between GETGO Inc., a
British Virgin Islands international business company ("GTGO"), and Xxxxxx X.
XXXXX (the "Consultant").
RECITALS
Whereas, Consultant is willing and capable of providing on a "best efforts"
basis various consulting and program management services for and on behalf of
GTGO in connection with GTGO's joint project with Analytic Xxxxxxxxx.xxx, Inc.
and Preface Systems, Inc. regarding health care Payor Software module
production; and
Whereas, GTGO desires to retain the Consultant as an independent Consultant
to provide program management consulting on the Payor Software Statement of Work
("SOW"), and software specification for Software Module A ("HIPAA
Infrastructure/Security") and software specification for Software Module B
("Data Acquisition"); and the Consultant desires to be retained in that capacity
upon the terms and conditions hereinafter set forth.
Now therefore, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consulting Services. GTGO hereby retains the Consultant as an
independent Consultant to GTGO and the Consultant hereby accepts and agrees to
such retention. The Consultant shall render to GTGO such services of an advisory
or consultative nature in order to assist GTGO in creating the following
deliverables: Payor Software Statement of Work ("SOW"), and software
specification for Software Module A ("HIPAA Infrastructure/Security") and
software specification for Software Module B ("Data Acquisition").
2. Time, Place and Manner of Performance. The Consultant shall be available
for advice and counsel to the officers and directors of GTGO at such reasonable
and convenient times and places as may be mutually agreed upon. Except as
aforesaid, the time, place and manner of performance of the services hereunder,
including the amount of time to be allocated by the Consultant to any specific
service, shall be determined in the sole discretion of the Consultant.
3. Term of Agreement. The term of this Agreement shall be four months,
commencing September 17, 2001 and terminating on December 30, 2001 unless
terminated pursuant to Section 7 of this Agreement.
4. Compensation. In consideration of the services to be provided for GTGO
by the Consultant, GTGO hereby agrees to the following three-deliverable
schedules for compensation:
A. Compensation: Statement of Work. As soon as practicable after the
execution of this Agreement, GTGO shall file a Form S-8 registration statement
with the Securities Exchange commission to register 200,000 shares of it common
stock (the "Shares") for resale under the Securities Act of 1933, as amended. As
soon as the Shares are registered, GTGO shall issue 200,000 shares to Consultant
as compensation for beginning work on the project and preparation of the
statement of work.
B. Compensation: Software Specification for Module A "HIPPA
Infrastructure-Security". Upon successful completion of the SOW, GTGO shall
grant to the Consultant a non-qualified stock option (the "Option") to purchase
up to the number of shares (the "Option Shares") of GTGO's common stock (the
"Common Stock") as set forth below which shall fully vest immediately upon
initiation of this second phase of the Agreement, at an exercise price as set
forth below:
Number of Shares: 200,000 common shares exercisable immediately
Exercise Price or Percentage per Share (in US$): 50% of the average closing
share price of GTGO common stock during the 30-trading day period immediately
prior to exercise of the Option.
The terms of this Option shall otherwise be set forth in a Non-Qualified
Stock Option Agreement between GTGO and the Consultant, substantially in the
form attached as Exhibit A to this Agreement and pursuant to the terms of such
registration set forth in the Non-Qualified Stock Option Agreement. Upon
exercise of the Option, GTGO agrees as soon as reasonable practicable to
register the Shares for resale under the Securities Act of 1933, as amended,
pursuant to a registration statement filed with the Securities and Exchange
Commission of Form S-8 (or if Form S-8 is not available, such other form of
registration statement the available).
C. Compensation: Software Specification for Module B "Data Acquisition".
Upon successful completion of the software specification for Module A, GTGO
shall grant to the Consultant a non-qualified stock option (the "Option") to
purchase up to the number of shares (the "Shares") of GTGO's common stock (the
"Common Stock") as set forth below which shall fully vest immediately upon
initiation of this third phase of the Agreement, at an exercise price as set
forth below:
Number of Shares: 200,000 common shares exercisable immediately
Exercise Price or Percentage per Share (in US$): 70% of the average closing
share price of GTGO common stock during the 30-trading day period immediately
prior to exercise of the Option.
The terms of this Option shall otherwise be set forth in a Non-Qualified
Stock Option Agreement between GTGO and the Consultant, substantially in the
form attached as Exhibit A to this Agreement and pursuant to the terms of such
registration set forth in the Non-Qualified Stock Option Agreement. Upon
exercise of the Option, GTGO agrees as soon a reasonably practicable to register
the Shares for resale under the Securities and Exchange Act of 1933, as amended,
pursuant to a registration statement filed with the Securities and Exchange
Commission of Form S-8 (or if Form S-8 is not available, such other form of
registration statement the available).
5. Confidentiality. The Consultant covenants that all information
concerning GTGO, including proprietary information, which it obtains as a result
of the services rendered pursuant to this Agreement shall be kept confidential
and shall not be used by the Consultant except for the direct benefit of GTGO,
nor shall the confidential information be disclosed by the Consultant to any
third party without prior written consent of GTGO, provided, however, that the
Consultant shall not be obligated to treat as confidential, or return to GTGO
copies of confidential information that (i) was publicly known at the time of
disclosure to the Consultant; (ii) becomes publicly known or available
thereafter other than by any means in violation of this Agreement or any other
duty owed to GTGO by the Consultant, or; (iii) is lawfully disclosed to the
Consultant by a third party or is required by any entity or court of competent
jurisdiction or lawful request of any regulatory body or agency.
6. Independent Contractor. The Consultant and GTGO hereby acknowledge that
the Consultant is an independent contractor. The Consultant agrees not to hold
itself out as, nor shall take any action from which others might reasonably
infer that the Consultant is a partner or agent or a joint venturer with GTGO.
In addition, the Consultant shall take no action which, to the knowledge of the
Consultant binds, or purports to bind, GTGO to any contract or agreement.
7. Expenses. Typical expenses expected to be incurred by the Consultant are
covered under the retainer portion of this Agreement. For other extraordinary
expenses beyond minor daily operating expenses to perform services under this
Agreement, GTGO shall reimburse the Consultant on demand for all expenses and
other disbursements, provided these expenses and disbursements shall have GTGO's
prior written approval and be verifiable with receipts and documentation as may
be required under GAAP for accounting purposes of GTGO.
8. Termination. Notwithstanding any provision contained in this Agreement
on the contrary, this Agreement may only be terminated for cause. For purposes
of this Agreement the term "cause" means a termination of this Agreement during
the term which is a result of (i) the Consultant's felony conviction or plea of
"no contest" to a felony; (ii) the Consultant's willful disclosure of material
trade secrets or other material confidential information related to Consultant's
business; or (iii) the Consultant's willful and continued failure to
substantially perform its duties for GTGO after a written demand for substantial
performance is delivered by GTGO to the Consultant, which demand specifically
identifies the manner in which GTGO believes that the Consultant has not
substantially performed its duties, and which performance is not substantially
corrected by the Consultant within 10 days of delivery of such demand. For
purposes of the previous sentence, no act or failure to act on the Consultant's
part shall be deemed "willful" unless done, or omitted to be done, by the
Consultant not in good faith and without reasonable belief that the Consultant's
action or omission was in the best interest of GTGO.
9. Work Product. It is agreed that the Consultant retains all intellectual
property rights with respect to the Payor Software SOW and Modules A and B (the
"Work Product") and all materials specifically created or developed by the
Consultant for GTGO in connection with services performed for GTGO (the
"Materials") until payment in full for all work product is received by the
Consultant from GTGO and GTGO has given final quality assurance approval to the
work product. Upon receipt of the stock to be issued to Consultant pursuant to
paragraph 4A. above, and upon receipt of the stock options pursuant to
paragraphs 4 B. and 4 C. above, title to the Work Product shall be transferred
to GTGO and Consultant agrees to take the steps necessary to accomplish such
transfer of ownership.
10. Conflict of Interest. The Consultant shall be free to perform services
for other persons. The Consultant will notify GTGO of its performance of
consulting services for any other person which could conflict with its
obligations under this Agreement. Upon receiving such notice, GTGO may terminate
this Agreement or consent to the Consultant's outside consulting activities;
failure to terminate this Agreement shall constitute GTGO's ongoing consent to
the Consultant's outside consulting activities.
11. Indemnification for Securities Law Violations. GTGO and the Consultant
agree to mutually indemnify and hold each other and each officer, director and
controlling person of GTGO or the Consultant harmless against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Consultant or GTGO or such officer, director,
or controlling person may become subject under the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, because of
inappropriate actions of the Consultant or GTGO or their agent(s). GTGO and the
Consultant will comply with all of the applicable laws of the Securities Act of
1933.
12. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by registered
or certified mail to the principal office of each party.
13. Waiver of Breach. Any waiver by GTGO of a breach of any provision of
this Agreement by the Consultant shall not operate or be construed as a waiver
of any subsequent breach by the Consultant.
14. Assignment. This Agreement and the rights and obligations of the
parties hereunder shall not be assignable unless written authorization to is
obtained from the other non-assigning Party.
15. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any
competent court, the Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
16. Entire Agreement. This Agreement contains the entire agreement between
the Parties, and may not be waived, amended, modified or supplemented except by
agreement in writing signed by the Party against whom enforcement of any waiver,
amendment, modification or supplement is sought. Waiver of or failure to
exercise any rights provided by this Agreement in any respect shall not be
deemed a waiver of any further or future rights.
17. Waiver and Modification. Any waiver, alteration or modification of any
of the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto, from time to time, may waive
any of its rights hereunder without effecting a waiver with respect to any
subsequent occurrences or transactions hereof.
18. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which taken together shall
constitute but one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
CONSULTANT
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Xxxxxx X. XXXXX
GETGO INC.
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Xxxxxx Xxxxx, Chairman/CEO