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EXHIBIT 4.1
AMENDED
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT dated as of the 15th day of July, 1998, is
entered into by and between Xxxxx Xxxx Stack, a Florida resident ("Stack"), and
Oak Tree Medical Systems, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Oak Tree and Stack are parties to a Stipulation and Agreement
of Compromise, Settlement and Release filed with the Court of Chancery of the
State of Delaware on May 22, 1998 (the "Settlement Agreement"), pursuant to
which Stack will serve as an consultant to the Company and be granted options
(the "Options") to purchase 60,000 shares of common stock of the Company (the
"Option Shares"), as more fully described herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. APPOINTMENT OF CONSULTANT. The Company engages Stack ("Consultant")
and Consultant hereby agrees to render services to the Company as a management
consultant at the request of the Company as set forth below.
(a) During the term of this Agreement, Consultant shall, at
the request of management, provide advice relating to general corporate and
business matters in connection with the operation of the business of the
Company. Utilization of the Consultant's services pursuant to this Agreement
shall be at the sole discretion of the Company.
(b) As consideration for its consulting services hereunder,
the Company agrees to compensate Consultant as described in Section 2.
(c) The term shall be that period commencing on the date
hereof and ending either December 31, 1998 or the date of change of control of
management, whichever occurs earlier.
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(d) Consultant and the Company hereby acknowledge that
Consultant is an independent contractor. Consultant shall not hold himself out
as, nor shall he take any action from which others might infer, that he is a
partner of, agent of or a joint venturer of the Company. Consultant shall have
no authority to bind the Company to any third party. Similarly, the Company
shall not in written or oral communications indicate that the Consultant is a
part of the Company or working in any capacity other than consultant or that he
has any other duties or responsibilities other than as consultant as outlined in
1(a).
(e) Consultant's services under this Section 1 shall terminate
upon the occurrence of any of the following events: (i) the death of Stack; or
(ii) the disability of Stack, which, for purposes hereof shall mean Consultant's
inability, due to the physical or mental impairment of Stack, to perform the
consulting services required hereunder for a period of thirty (30) consecutive
days during any consecutive ninety (90) day period. Notwithstanding the
preceding the total compensation shall be deemed earned in full after thirty
days from the date of this Agreement and shall inure to the benefit of Stack's
heirs if Stack predeceases the termination date of this Agreement.
2. COMPENSATION TO CONSULTANT. As consideration for Consultant's
consulting services, the Company shall issue to Consultant the Options.
(a) The Options will (i) vest immediately, and (ii) will
expire two years from the date the registration statement becomes effective
(whether or not this Agreement is terminated prior to the expiration of such two
year period). The exercise price for each Option Share will be $1.49 per share.
(b) Promptly following the execution of this Agreement, but
in no event later than thirty (30) days following the date hereof, the Company
shall prepare and file a registration statement on Form S-8 (or successor or
other applicable form) under the Securities Act of 1933, as amended (the "Act").
(c) Stack acknowledges that the sale of the Option Shares
are subject to the volume limitations and exceptions thereto set forth in the
Settlement Agreement, and that any transferee of the Option or Option Shares
(unless pursuant to a sale by a broker in the open market) shall be bound by
such volume limitations.
(d) The obligation for payment of the consideration and all
parts of sections 2(a), (b), and (c) listed above are to be deemed irrevocable.
3. CONFIDENTIALITY. Stack will not disclose to any other person, firm
or corporation, nor use for its own benefit, during or after the term of this
Agreement, any trade secrets or other information designated as confidential by
the Company which is or has been acquired by Stack in the course of its
performing services to the Company. (A trade secret is information not generally
known to the trade which gives the Company an advantage over its competitors.
Trade secrets can include, by way of example, products or services under
development, production methods and processes, sources of supply, customer
lists, marketing plans and information concerning the filing or pendency of
patent applications). Any management advice rendered by Stack pursuant to this
Agreement may not be disclosed publicly in any manner without the prior written
approval of the Company. The provisions of this Section 3 shall survive the
termination and expiration of this Agreement.
4. ASSIGNMENT. Because of the personal nature of the services to be
rendered, without the prior written consent of the Company, the Consultant may
not assign, transfer or xxxxx any of his rights or duties under this Agreement,
nor shall he delegate any of the obligations or duties required to be kept or
performed by it under this Agreement.
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5. SEVERABILITY. In the event that any term, provision or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of this Agreement shall remain in full
force and effect and shall not be affected, impaired or invalidated thereby.
6. MISCELLANEOUS. This Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and supersedes and cancels
any prior communications, understandings and agreements between the parties.
This Agreement cannot be modified or changed, nor can any of its provisions be
waived, except by written agreement signed by all parties. This Agreement shall
be governed by the laws of the State of Florida. In the event of any dispute as
to the terms of this Agreement, the prevailing party in any litigation shall be
entitled to reasonable attorneys' fees.
IN WITNESS WHEREOF, the undersigned have executed this Consulting
Agreement as of the day and year first above written.
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
/s/ Xxxxx Xxxx Stack
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Xxxxx Xxxx Stack
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