EXHIBIT 10.4
Eonnet Media, Inc. Medical Advisory Council
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of
December 26, 2001 (the "Effective Date"), between Eonnet Media, Inc., Inc., a
Florida corporation (the "Company"), and Xxxxxx X. Xxxxxx, M.D. (the
"Consultant").
RECITALS
WHEREAS, the Company is a technology solutions and healthcare
information provider for the electronic health ("E-Health") marketplace; the
Company's Internet-based services fulfill the administrative, communications,
and information needs of doctors and other healthcare professionals;
WHEREAS, the Company has formed a Medical Advisory Council (the
"Advisory Council") to consist of ten physicians from different specialties and
charged with different responsibilities, including but not limited to:
o Help the Company regarding content development for different
medical specialties;
o Help in planning educational activities;
o Serve as a liaison with medical associations, medical
institutions, and various hospitals;
o Help in developing various programs for patients, medical
students, and physicians;
o Recommend to the Board regarding need of physicians in offices
regarding network solutions and website needs;
o Recommend to the Board regarding various channels such as
Billing/Collection Module, Person physician Portal, Office
Research, Internet IRB, Liaison with 3rd parry Insurance,
Practice guidelines developments, Disease Center, CME, On line
Board preparation, ASP modules for physicians, ASP modules for
Medical students/ Residents, Non medical need for physicians,
Wireless applications for physicians, Lab Links and ASP
module, Strategic relations with Pharmaceuticals.
WHEREAS, the Company desires to engage the Consultant serve as Chairman
of the Advisory Council to perform certain services for and on behalf of the
Company, and the Consultant desires to perform such services, in accordance with
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Engagement. Subject to the terms and conditions set forth in
this Agreement, the Company hereby engages the Consultant as Chairman of the
Company's Advisory Council to perform the services described herein, and the
Consultant hereby accepts such engagement.
2. Services. During the term of this Agreement, the Consultant
agrees to use his best efforts and to devote such time as is reasonably
necessary to serve as Chairman of the Advisory Council and to perform the
following services:
o Assist the Company in coordinating its medical-related
activities;
o Hold a quarterly meetings and report to the Company's Board of
Directors the Advisory Council's recommendations;
o Act as spokespersons for the Company's medical-related
activities;
o Consultant with the Board on a monthly basis;
o Recommend to the Company's Chief Executive Officer the various
need of physicians to enhance the image of Company in E-Health
on a weekly basis;
o Recruit the other members of the Advisory Council and assign
individual responsibilities;
o Evaluate the performance of the members of the Advisory Council.
3. Compensation. In consideration for the services to be rendered
under this Agreement by Consultant and as compensation for the income he could
have otherwise earned if he had not agreed to keep himself available to the
Company, the Company shall pay Consultant compensation at the rate of eight
thousand three hundred thirty-three dollars and thirty-three cents ($8,333.33)
per month commencing after the successful public offering, and continuing each
month thereafter for total of thirty-six (36) months. All compensation due to
consultant under this Section shall accrue until time the Company has sufficient
funds and working capital to pay such compensation. In addition, the Company
will furnish Consultant with one full-time secretary to carry out all the
medical-related activities for the Advisory Council. The Company shall reimburse
Consultant for reasonable travel expenses incurred by him in performing services
hereunder
4. Independent Contractor. At all times during the performance of
services hereunder, the Consultant shall act as an independent contractor. The
Consultant shall not be considered an employee of the Company for any purpose
(except to the extent that Consultant also serves as an officer of the Company),
and shall not be entitled to any of the benefits that the Company may provide
for its employees. Moreover, it is expressly agreed by the parties that no
agency relationship is, or shall be deemed to have been, created by this
Agreement, and no party shall by reason of this Agreement have the power or
authority to bind any other party contractually or otherwise. The Consultant
shall be solely responsible for the payment and reporting of any and all federal
and state taxes and withholdings due on amounts paid hereunder, and Company
shall not withhold any amounts for federal, state or local income taxes or
taxes, assessments or withholding liabilities arising from an employment
relationship, including, but not limited to, workers' compensation insurance,
social security, unemployment compensation, income tax withholding, insurance or
fringe benefits. The Consultant shall indemnify and hold Company harmless from
and against any costs, damages or liabilities relating to any such taxes,
assessments or withholdings.
5. Proprietary Rights.
a. Ownership of Work Product. All of the Work Product (as
hereafter defined) shall belong exclusively to the Company. If by
operation of law any of the Work Product, including all related
intellectual property rights, is not owned in its entirety by the
Company automatically upon creation thereof, then the Consultant agrees
to assign, and hereby assigns, to the Company the ownership of such Work
Product, including all related intellectual property rights.
b. Work Product Defined. As used herein, the term "Work
Product" shall mean and include, without limitation, any financial
materials, analyses, business and marketing plans, data compilations,
reports, and any other materials or documentation, regardless of form,
produced as a result of the Consultant's services hereunder or delivered
by the Consultant in the course of performing that work.
6. Confidentiality. The Consultant covenants and agrees that,
during and after the term of this Agreement, he shall not take, copy or use,
directly or indirectly, or otherwise disclose to anyone, any Confidential
Information (as hereinafter defined), except (a) as necessary to carry out his
duties and responsibilities under this Agreement, (b) as authorized in writing
by the Company, or (c) as required by applicable law or order of any court or
governmental agency. For purposes of this Section, "Confidential Information"
shall mean and include, without limitation, the terms of this Agreement and any
and all ideas, suggestions, innovations, concepts, strategies, discoveries,
methods, products, computer software and programs, notes, worksheets, technical
data, research and development projects, financial data, business and marketing
plans, financial plans, customer and supplier lists, business methodology,
processes, production methods and techniques, promotional materials, and any
other confidential or proprietary information of Company, its licensors or
customers, and any information of a competitively sensitive or proprietary
nature which he receives in connection with the services performed hereunder.
Notwithstanding the foregoing, Confidential Information shall not include such
information as the Consultant can prove (i) was in the public domain, being
publicly and openly known, prior to the date hereof, or, subsequent to such
date, became part of the public domain, being publicly and openly known, through
lawful and proper means, (ii) was independently developed by the Consultant
without use of or reference to the Confidential Information, or (iii) was
approved by the Company for the use and disclosure by the Consultant without
restriction. In any action to enforce these Confidential Information provisions,
the prevailing party is entitled to recover its attorneys' fees and costs.
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7. Restrictive Covenants. During the term of this Agreement and for
a period of two years thereafter, the Consultant will not, on his own behalf or
on behalf of any other person or entity, directly or indirectly, do any of the
following, without the prior written consent of the Company: (a) own, operate,
manage, consult with, advise, finance, be employed by, or otherwise have any
interest in any business in the United States which is engaged in, or is
planning to engage in, any business that competes with the Company; or (b) hire,
employ or otherwise contract for the services of any person who was an employee
of the Company at any time during the twelve (12) months immediately before the
date of termination of this Agreement or solicit, entice or persuade any current
employee to terminate his or her employment with the Company for any reason.
8. Separate Agreements; Injunctive Relief. The covenants and
restrictions contained in Sections 6, 7, and 8 of this Agreement shall be
construed as separate agreements independent of any other agreement, claim or
cause of action of the Consultant against the Company whether predicated on this
Agreement or otherwise, and no other agreement, claim or cause of action
asserted by the Consultant shall constitute a defense to the enforcement by the
Company of these covenants. These covenants are necessary to protect the
legitimate business interests of the Company, and any violation or breach of
such provisions will result in irreparable injury to the Company for which
monetary damages are acknowledged by the parties to be inadequate. In addition
to any relief at law which may be available to the Company for such violation or
breach and regardless of any other provision contained in this Agreement, the
Company shall be entitled to injunctive and other equitable relief as a court
may grant.
9. Representations and Warranties of the Consultant. The Consultant
represents and warrants to the Company as follows (which representations and
warranties shall survive the termination of this Agreement): (a) the Consultant
has all requisite power and authority to enter into this Agreement and to
perform its obligations hereunder; (b) neither the execution nor the delivery or
performance of this Agreement by the Consultant will violate or cause a breach
of any applicable law, regulation, rule or ordinance or any agreement, document
or instrument to which the Consultant is a party or may be bound or affected;
(c) the Consultant will comply with all applicable laws, rules, regulations and
ordinances in connection with the performance of services hereunder; and (d)
none of the work provided by the Consultant hereunder will infringe any
copyright, patent, trade secret or other proprietary or contractual right held
by any third party.
10. Indemnification. The Consultant agrees to indemnify, defend and
hold harmless the Company and its shareholders, directors, officers, employees,
agents and representatives from and against any and all claims, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees) asserted against, resulting to, imposed upon or incurred by any
of them arising out of or resulting from any of the following: (a) the
inaccuracy or breach of any representation or warranty of the Consultant
contained in this Agreement; (b) the breach of any covenant or agreement of the
Consultant contained in this Agreement; or (c) the Consultant's performance of
services hereunder or the use or application of the Consultant's work by the
Company.
11. Term and Termination.
a. Term. The term of this Agreement shall begin effective
as the effective date of this Agreement and shall continue for a period
of thirty six ( 36) months, until December 1, 2003.
b. Effect of Termination. Termination of this Agreement
shall not in any way terminate, limit or restrict the rights and
remedies of any party hereto against any other party which has violated,
breached or failed to satisfy any of its representations, warranties,
covenants, agreements, conditions or other provisions of this Agreement
prior to the termination hereof. Subject to the foregoing, none of the
parties hereto shall have any further obligations under or pursuant to
this Agreement following the termination hereof, except as otherwise
provided by this Agreement.
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12. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
interpreted according to the laws of the State of Florida, without
regard to its conflict of laws principles.
b. Notices. All notices, requests, demands and other
communications hereunder shall be given in writing and shall be deemed
given when: (a) personally delivered; (b) sent by telecopier, facsimile
transmission or other electronic means of transmitting written
documents; or (c) sent to the parties at their respective addresses
indicated herein by registered or certified U.S. mail, return receipt
requested and postage prepaid, or by private overnight mail courier
service. If personally delivered, such communication shall be deemed
delivered upon actual receipt; if electronically transmitted, such
communication shall be deemed delivered the next business day after
transmission; if sent by registered or certified mail, such
communication shall be deemed delivered two (2) business days after
deposited in a U.S. mail receptacle in the form required hereunder; and
if sent via private overnight courier (e.g., Federal Express), such
communication shall be deemed delivered one (1) business day after being
sent. Any party to this Agreement may change its address for the
purposes of this Agreement by giving notice thereof in accordance with
this Section.
c. Assignment; Subcontracting. The Consultant may not
assign or subcontract this Agreement or any of his rights or
responsibilities hereunder, without the prior written consent of the
Company. Notwithstanding any such consent, the Consultant shall remain
primarily responsible and liable for performance of the services and
other obligations of the Consultant hereunder.
d. Entire Agreement; Amendment. This Agreement constitutes
the entire agreement of the parties hereto with respect to the subject
matter hereof and supersedes and replaces any and all prior agreements,
representations, proposals, discussions and communications with respect
thereto. This Agreement may be amended or modified only in a written
instrument specifically referring to this Agreement and signed by all
of the parties hereto.
e. Waiver. No waiver of any provision of this Agreement
shall be valid unless it is in writing and signed by the party against
which it is sought to be enforced. No waiver of any provision of this
Agreement may at any time be deemed a waiver of any other provision of
this Agreement at such time or a waiver of such or any other provision
at any other time.
f. Severability. In the event that any portion of this
Agreement shall be adjudicated invalid or unenforceable for any reason,
the remainder of this Agreement shall remain in full force and effect
and shall be severed from the portion or portions deemed invalid or
unenforceable. Without limiting the foregoing, if a court of competent
jurisdiction should determine that any of the provisions of Sections 8
are not enforceable, in whole or in part, the parties declare that it is
their intention that such unenforceable provisions be deemed reformed so
that they apply only to the maximum extent to which they can be
enforced.
g. Binding Effect. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and permitted
assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date.
COMPANY: ONSULTANT:
EONNET MEDIA, INC.
By: /s/ Xxxxxxx Xxxxxx Signature: /s/ Xxxxxx X. Xxxxxx
----------------------------- ----------------------------
Name: Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx, M.D.
Title: Chief Executive Officer
Company Address:
0000 000xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Consultant Address:
0000 Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx-00000
000-000-0000
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