EXHIBIT 4.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT entered into as of this 15th day of October,
2004 between EYE CARE INTERNATIONAL INC., a Delaware corporation (the "Company")
and Xxxx X. Xxxxxxx ("Consultant").
WHEREAS, the Company desires to engage Consultant to provide certain
services for the Company, and Consultant desires to provide the same to Company.
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties agree as follows:
1. For a said period of six (6) months beginning on October 15, 2004 and
ending April 14, 2005 (the "Consulting Period") Consultant shall serve
as a consultant to the Company on legal matters, contract strategy,
financial planning and corporate strategy. Consultant's services shall
include consultation with and advice to directors and officers of the
Company.
2. During the Consulting Period, the Company shall be entitled to
Consultant's services for reasonable times when and to the extent
requested by, and subject to the direction of, the Chairman and Chief
Executive Officer of the Company.
3. Consultant's services shall be rendered from his unless by mutual
agreement from time to time arrangements are made for those services to
be rendered elsewhere. Reasonable travel and living expenses
necessarily incurred by Consultant to render services at locations
other than his/her office shall be reimbursed by the Company promptly
upon receipt of proper statements with regard to the nature and amount
of those expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month of the Consulting Period
during which any of those expenses are incurred.
4. Consultant shall have no authority to bind Company by or to any
obligation, agreement, promise or representation. Consultant shall not
incur any liability on behalf of Company or in any way represent or
bind Company in any manner or thing whatsoever and nothing herein shall
be deemed to constitute either party the agent or legal representative
of the other. Consultant shall not have the authority and shall not
represent that he has authority to approve check requests or to order,
purchase or otherwise obtain any equipment, supplies, services or other
materials on behalf of Company.
5. In consideration of Consultant's entering into this Agreement, the
Company has agreed to compensate the Consultant by issuing 20,000
shares of the Company's Class A Common Stock. The Company intends to
register the shares issued to Consultant on Form S-8.
6. Consultant understands and agrees that Consultant is an independent
contractor rather than an employee or agent of Company. Consultant
hereby warrants and represents that he has all necessary licenses,
visas, work permits or other government approvals required to perform
the Services.
7. Consultant shall be responsible for withholding, paying, and reporting
any and all required federal, state or local income, employment and
other taxes and charges. Consultant understands and agrees that Company
will make no deduction from payments to Consultant for federal or state
tax withholdings, social security, unemployment, workers' compensation
or disability insurance.
8. Consultant understands and agrees it is not eligible for dental,
medical, disability, hospitalization, life insurance, vacation, travel
benefits and other employee welfare and benefit programs maintained by
Company based on the Services or otherwise. In addition, Consultant
shall not be eligible to participate in or accrue benefits under other
programs which are available to employees of the Company.
9. The Company has invested and will continue to invest considerable
effort and expense in the development of technology and other
Proprietary Information. The Company has taken steps and will continue
to take all reasonable steps necessary to protect the secrecy of
Proprietary Information of the Company. Consultant acknowledges and
agrees that Consultant's position with the Company will afford
Consultant an opportunity to access Proprietary Information of the
Company. The misappropriation, unauthorized use, or disclosure of
Proprietary Information would cause irreparable harm to the Company.
Consultant agrees to hold Proprietary Information in confidence for the
benefit of the Company. Consultant shall not directly or indirectly use
or disclose, except as authorized in writing by the Company, any
Proprietary Information (whether or not developed or compiled by
Consultant) for any purpose not directly related to the Company's
Business, and then only for the benefit of the Company. Consultant's
obligations as set forth in this paragraph 9 shall remain in effect
with respect to Trade Secrets, for so long as the Company is entitled
to protection of rights in such Trade Secrets under applicable law, and
with respect to Confidential Information for the duration of engagement
and for a period of three (3) years after termination of engagement.
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10. Consultant acknowledges and agrees that all Work Product and all
physical embodiments thereof produced by the Consultant during the
period of Consultant's engagement by the Company shall be considered
"work for hire" as such term is defined in 17 U.S.C. Section 101, the
ownership and copyright of which shall be vested solely in the Company.
If any of the Work Product may not, by operation of law, be considered
work made for hire by Consultant for the Company, or if ownership of
all right, title, and interest of the intellectual property rights
therein shall not otherwise vest exclusively in the Company, Consultant
hereby assigns to the Company, and upon the future creation thereof
automatically assigns to Company, without further consideration, the
ownership of all Work Product. Consultant agrees (a) to disclose
immediately to the Company all Proprietary Information developed in
whole or part by Consultant during the term of Consultant's engagement
by the Company; (b) to comply with all record-keeping requirements of
the Company; and (c) at the request and expense of the Company, to do
all things and sign all documents or instruments reasonably necessary
in the opinion of the Company to eliminate any ambiguity as to the
rights of the Company in such Proprietary Information including,
without limitation, providing to the Company's employees full
cooperation in any litigation or other proceeding to establish,
protect, or obtain such rights. In the event that the Company is unable
for any reason whatsoever to secure the Consultant's signature to any
document reasonably necessary or appropriate for any of the foregoing
purposes (including without limitation, renewals, extensions,
continuations, divisions, or continuations in part), Consultant hereby
irrevocably designates and appoints the Company and its duly authorized
officers and agents as Consultant's agent and attorney-in-fact to act
for and on behalf of Consultant for the limited purpose of executing
and filing any such document and doing all other lawfully permitted
acts to accomplish the foregoing purposes with the same legal force and
effect as if executed by Consultant. This appointment is coupled with
an interest and shall survive the death or disability of Consultant.
Upon request by the Company, and in any event upon termination of
Consultant's engagement, Consultant shall promptly deliver to the
Company all property belonging to the Company including, without
limitation, all Work Product and Proprietary Information (and all
embodiments thereof) then in Consultant's custody, control, or
possession, as a condition precedent to any remuneration payment due to
Consultant.
11. Definitions. The following capitalized terms are used in this Agreement
with the meanings thereafter ascribed:
"Confidential Information" means information, other than Trade
Secrets, that is of value to its owner and is treated by its
owner as confidential, including, but not limited to: (a) any
useful process, formula, composition of matter, or device
which (i) is new or which Consultant has a reasonable basis to
believe may be new, (ii) is being used or studied by the
Company and is not described in a patent, and (iii) is not
readily ascertainable from inspection of any commercially
available product of the Company; (b) any engineering,
technical, or product specifications of any current or future
product of the Company; (c) any computer software (whether in
source or object code) and all flow charts, algorithms, coding
sheets, design concepts, test data, or documentation related
thereto, whether or not copyrighted, patented, or patentable;
(d) information concerning the Company's pricing strategies,
licensing strategies, and advertising campaigns; (e)
information regarding Company executives, employees, personnel
assignments, customers, and suppliers; (f) Company financial
information; (g) Company training, policy, and procedure
manuals; (h) the terms and conditions of this Agreement; and
(i) any data or information defined herein as a Trade Secret,
but which is determined by a court of competent jurisdiction
not to rise to be a trade secret under applicable law.
"Proprietary Information" means, collectively, Confidential
Information and Trade Secrets.
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"Trade Secrets" means information, without regard to form,
including, but not limited to, technical or nontechnical data,
a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data,
financial plans, product plans, or a list of actual or
potential customers or suppliers which is not commonly known
by or available to the public and which information: (a)
derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of efforts
that are reasonable under the circumstances to maintain its
secrecy.
"Works" means inventions (whether or not patentable),
discoveries, improvements, designs, techniques, data and
databases, materials, documentation, computer programs, and
all other works of authorship and all embodiments thereof,
created or developed in whole or in part by Consultant,
including all worldwide rights therein under patent,
copyright, Trade Secret, Confidential Information, or other
property right.
"Work Product" means all Works that have been produced or
created during the term of this Agreement, or prior to the
date of this Agreement if the Company paid for the development
of such product. Notwithstanding the foregoing, "Work Product"
shall not include Works developed entirely on Consultant's own
time without using the Company's equipment, supplies,
facilities, or Proprietary Information, except for those
inventions that either (i) related at the time of conception
or reduction to practice to the Company's business or
anticipated research or development of the Company, or (ii)
result from any work performed by Consultant for the Company.
12. This Agreement may be terminated by Company or Consultant without cause
in their sole discretion by providing the other party with at least
thirty (30) calendar days' advance written notice (the "Notice
Period"); provided that, if Consultant shall choose to terminate this
Agreement prior to the expiration of its term, the Company shall not be
obligated to make any payments due thereafter.
13. It is understood and agreed by the parties that the services of
Consultant are unique and personal in nature and both Consultant and
Company shall not delegate or assign all or any portion of its required
performance to any other individual, firm or entity.
14. No waiver, amendment or modification of any provision of this Agreement
shall be effective unless in writing and signed by both parties. No
failure or delay by either party in exercising any right, power or
remedy under this Agreement shall operate as a waiver of any such
right, power or remedy.
15. This Agreement shall be binding upon and inure to the benefit of the
heirs, successors, and assigns of the parties hereto.
16. Notices hereunder shall be given in writing and will be deemed to have
been given (a) on the date delivered in person, (b) on the date
indicated on the return receipt if mailed postage prepaid, by certified
or registered U.S. mail, with return receipt requested, (c) twenty-four
(24) hours after transmittal by facsimile, if sent by 5:00 p.m. Eastern
Time, on a regular business day and confirmation of receipt thereof is
reflected or obtained, or (d) if sent by overnight courier service, on
the next business day after delivery to the courier service (in time
for and specifying next day delivery). In each case such notices shall
be sent to the address or facsimile number set forth below. Either
party may change such address by giving (15) days written notice to the
other party hereto.
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If to the Company: Xxxxx Xxxxxx
Eye Care International, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxx, XX
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Consultant: Xxxx X. Xxxxxxx
0000 XX 000 Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
17. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be contrary to law, the remaining provisions
of this Agreement shall remain in full force and effect.
18. This Agreement and the Exhibits hereto constitute the entire Agreement
between the parties concerning the subject matter hereof and supersedes
all prior negotiations and discussions with respect to such subject
matter. This Agreement may be modified in writing only, signed by the
parties hereto.
19. The remedies hereunder shall be cumulative and not alternatives; the
election of one remedy for a breach shall not preclude pursuit of other
remedies.
20. Whenever required by the context, references herein to the singular
shall include the plural and the masculine gender shall include the
feminine gender. For the purposes of this Agreement, unless the context
clearly requires otherwise, "or" is not exclusive and "including" shall
mean "including, but not limited to."
21. The section and other headings contained in this Agreement are for
reference purposes only and shall not affect the interpretation of this
Agreement.
22. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument.
23. This Agreement shall be exclusively governed by and construed in
accordance with the laws of the State of Florida. If any action is
brought among the parties with respect to the this Agreement or
otherwise, by way of a claim or counterclaim, the parties agree that in
any such action, and on all issues related to this Agreement, the
parties irrevocably waive their right to a trial by jury. Exclusive
jurisdiction and venue for any such action shall be the State Courts of
Hillsboro County, Florida. In the event suit or action is brought by
any party under this Agreement to enforce any of its terms, or in any
appeal there from, it is agreed that the prevailing party shall be
entitled to reasonable attorney's fees at trial and all appellate
levels.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
Eye Care International, Inc.
By: /s/ Xxxxx Xxxxxx /s/ Xxxx X. Xxxxxxx
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Xxxxx Xxxxxx, President Xxxx X. Xxxxxxx
