EXHIBIT 10.12
LENSCRAFTERS LITIGATION MANAGEMENT CONSULTING
AGREEMENT
This Agreement reflects agreements the parties have made, and is made
effective as of January 1, 2000, by and between Medical Technology &
Innovations, Inc., a Florida corporation with its principal place of business in
Riviera Beach, FL ("MTEN"), and International Investment Partners, Ltd., a
Delaware corporation with its principal place of business in Lancaster, PA
("Consultant").
Consultant has a background in litigation management and is willing
to provide services to MTEN based on this background. MTEN desires to obtain
those services from Consultant.
Therefore, the parties agree as follows:
1. DESCRIPTION OF SERVICES. Effective January 1, 2000, Consultant has provided
and will continue to provide litigation management services to MTEN with respect
to the case known as Medical Technology & Innovations, Inc. v. LensCrafters,
Inc., et al., filed on February 14, 2000.
2. PERFORMANCE OF SERVICES. Consultant shall determine the manner in which the
services are to be performed and the specific hours to be worked by Consultant.
MTEN will rely on Consultant to work as many hours as may reasonably be
necessary to fulfill Consultant's obligations under this Agreement.
3. PAYMENT. Pursuant to a separate agreement between the parties hereto,
Consultant is advancing the attorneys' fees and litigation costs in this case,
and its consulting fees and expenses related to the services, which advances do
not bear interest, are not secured, and are not reimbursable unless judgment or
award or settlement occurs in favor of MTEN. As a result, the parties agree that
the consulting fees shall be 10% of the gross judgment(s) or award(s) or
settlement(s) payable to MTEN in this litigation, which shall be paid by MTEN in
full at the time of its receipt of payment(s) from defendant(s). If payment is
made to MTEN other than in one lump sum, payment shall be made to Consultant of
its percentage of all payments to MTEN.
4. EXPENSE, FEES AND COST REIMBURSEMENT. In addition to payment of the
consulting fees, if judgment or award or settlement occurs in favor of MTEN,
MTEN shall reimburse the attorneys' fees and litigation costs, and the expenses
related to the services, at the time of receipt of payment from defendant(s)
and, if other than in one lump sum, at the time of the first payment.
5. SUPPORT SERVICES. MTEN will provide the following support services for the
benefit of Consultant: Access to counsel, witnesses, office, staff and pertinent
business and legal records
6. NO RELATIONSHIP TO FINANCIAL AND BUSINESS MANAGEMENT CONSULTING AGREEMENT.
Consultant's services under this Agreement are separate from and do not overlap
with the services that Consultant provides under the separate Financial and
Business Management consulting Agreement.
7. TERM/TERMINATION. Services are to be provided until the end of the
litigation, which is when final disposition of the case occurs by settlement or
award or judgment from which no further appeal may be taken.
8. RELATIONSHIP OF PARTIES. It is understood by the parties that Consultant is
an independent contractor with respect to MTEN, and is not an employee of MTEN,
and MTEN will not provide fringe benefits, including health insurance benefits,
paid vacation, or any other employee benefit, for the benefit of Consultant.
9. DISCLOSURE. MTEN and Consultant recognize that they are related parties, and
that conflicts can arise from such status. Consultant agrees to disclose any
conflict that would impair its ability to provide the services.
10. EMPLOYEES. The provisions of this Agreement shall bind consultant's
employees who perform services under this Agreement. If requested, Consultant
shall provide evidence that such persons are Consultant's employees.
11. INJURIES. Consultant acknowledges its obligation to provide insurance
coverage for itself and its employees, and that MTEN does not provide workers'
compensation coverage for Consultant or its employees.
12. LIABILITY. Consultant, its employees and agents, shall not be liable to MTEN
or to any person or entity who claims any right due to any relationship with
MTEN, for any acts or omissions in the provision of services on the part of
Consultant or its employees or agents, unless such acts or omissions are
determined by the fact-finder in the arbitration set forth in Paragraph 20
hereof to have resulted from gross negligence or willful misconduct. MTEN agrees
to indemnify and hold harmless Consultant, its employees and agents from all
claims, losses, expenses, fees including attorney fees, costs, and judgments
that may be asserted that arise from any other acts or omissions. Damages shall
be limited to actual economic loss and shall not exceed the amount of consulting
fees actually paid pursuant to this Agreement.
13. ASSIGNMENT. Consultant's obligations under this Agreement may not be
assigned to any other person, firm, or corporation without the prior written
consent of MTEN.
14. CONFIDENTIALITY. Consultant agrees that any information it receives during
the provision of services under this Agreement, concerning the legal, business
and financial affairs of MTEN, that is not otherwise public, will be treated by
Consultant in full confidence and will not be revealed to any other person. Upon
request, Consultant will return all documents in its possession that contain
such information.
15. NOTICES. All notices under this Agreement shall be in writing and shall be
deemed delivered when delivered in person or deposited in the United States
mail, postage prepaid, addressed as follows:
Xxxxxx XxxXxxxxx, Executive Vice President and Chief Operating Officer
Medical Technology & Innovations, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxx, Vice President
International Investment Partners, Ltd.
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Addresses may be changed by providing written notice to the other party in the
manner set forth above.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement, and
supersedes any prior agreements, of the parties as to LensCrafters litigation
management consulting.
17. AMENDMENT. This Agreement may be amended only if in writing and signed by
both parties.
18. SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions shall continue to be valid and
enforceable. If a provision is found invalid or unenforceable, but can be
limited so as to become valid and enforceable, then it shall be deemed to be
rewritten as so limited.
19. NO WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation of
that party's right subsequently to enforce that or any other provision of this
Agreement.
20. APPLICABLE LAW AND ARBITRATION. Pennsylvania law shall govern this
Agreement. The parties to any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall first negotiate the matter in a
good faith attempt to reach settlement. If settlement cannot be reached through
negotiation, the matter shall be settled by binding (final and nonappealable)
arbitration in Lancaster, PA, by the American Arbitration Association under its
Commercial Arbitration Rules. Judgment upon an arbitration award may be entered
in any court having jurisdiction thereof. The party submitting a controversy or
claim to arbitration shall advance the fees of the arbitrator(s). The
arbitrator(s) shall award fees and costs to the prevailing party, and shall
charge them to the losing party. Submissions
to arbitration must occur within one year of the act or omission that gave rise
to the controversy, or the matter shall be barred.
IN WITNESS WHEREOF, the parties have executed this Agreement on April 7, 2000.
Medical Technology & Innovations, Inc.:
By: /s/ Xxxxxx XxxXxxxxxx
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Xxxxxx XxxXxxxxxx
Executive Vice President and Chief Operation Officer
International Investment Partners, Ltd.:
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Vice President
