EXHIBIT 10.11
CONSULTING AGREEMENT
1. The Consulting Agreement is effective January 1, 2005 between MEDIVISOR,
INC. (the "Company"), Xxxxxxx & Associates, Inc. ("MAI"), and Xxxxxxx X.
Xxxxxxx ("AJM", or the "consultant"). It is expressly agreed and understood
that:
a. MAI and AJM will provide consulting services to the Company.
b. For purposes of assuring payment of consulting fees, subsequent
to the amount due and payable to MAI at the signing of this
Agreement, AJM will be paid as an employee of the Company. AJM
will supply the necessary tax information to the Company, and
will, for purposes of payroll reporting, be treated as any other
employee with respect to payroll tax withholding and reporting.
He will be issued a W-2 at the end of the year.
2. MAI, through AJM, shall perform such services as mutually agreed upon by
the parties and as outlined in this Agreement and in the Appendix attached
hereto.
3. Consultant and MAI agree that neither will enter into any agreement with
any firm that is in direct competition with the Company during the term of
this Agreement.
4. It is also understood that AJM, will provide such advisory services as may
reasonably be requested by Medivisor, through its Chairman of the Board of
Directors and CEO, Xx. Xxxx Xxxxx ("Xxxxx"), in connection with
administration of the Company's affairs. The Company agrees that during the
term of the Agreement, AJM will report directly to Xxxxx.
5. AJM represents to the Company that neither he nor MAI has, with respect to
any other party, firm, or company in the same field of endeavor, any
agreement to provide consulting services to that may be considered directly
competitive to the Company on matters relating to the scope of this
consultancy, and will not enter into any such agreement during the term of
this Agreement without written permission from the Company.
6. Any party to this Agreement may disclose to another party any information
that the disclosing party would normally freely disclose to the other
members of the community at large, whether by publication, by presentation
at seminars, or informal discussions. The parties will, from time to time,
in connection with work contemplated under this Agreement, disclose
confidential information to each other ("Confidential Information.") Each
party will use reasonable efforts to prevent the disclosure of any of the
other party's Confidential Information to third parties for a period of two
(2) years from receipt thereof. Confidential Information that the recipient
may acquire pertains to the discloser's processes, equipment, programs,
developments, or plans that is both: (a) disclosed or made known by the
disclosure; and (b) identified in writing as "proprietary". The recipient
agrees not to disclose any Confidential Information to third parties or to
use any Confidential Information for any purpose other than performance of
the services contemplated by this Agreement, without prior written consent
of the Company. Confidential Information does not include information that
is or later becomes available to the public through no breach of this
Agreement by the recipient; is obtained by the recipient from a third party
who had the legal right to disclose the information to the recipient; is
already in the possession of the recipient on the date this Agreement
becomes effective; is independently developed by the recipient; or is
required to be disclosed by law, government, regulation, or court order. In
addition, Confidential Information does not include information generated
by the Consultant unless the information is generated as a direct result of
the performance of consulting services under this Agreement and is not
otherwise generated in the normal course of the Consultant's activities.
AJM and MAI will not voluntarily produce any materials pertaining to the
Company to any third party not authorized by the Company or Xxxxx. However,
it is acknowledged that AJM and MAI are free to produce such materials to
any third person that there be a direction to do so by what is reasonably
believed to be a court of competent jurisdiction. If subpoenas are served,
AJM or MAI will notify the Company of such service, and it will be the
responsibility of the Company or its representatives to make any
applications to vacate such portions as may be appropriate and to object to
the production of those materials. It is understood that AJM and MAI will
abide by whatever rulings are made by any court in these matters.
7. This Agreement shall be for a term ending May 31, 2005, unless otherwise
terminated pursuant to Appendix A. Extension of this Agreement or
consummation of a new Agreement is contingent upon reasonable terms and
conditions being agreed to between the Company and AJM. Termination of the
Agreement shall not affect: (a) the Company's obligation to pay for
services previously performed by the Consultant; and (b) reasonable
out-of-pocket expenses incurred by Consultant.
8. It is intended that AJM's function be similar to that of an administrator
and advisor for the Company. Written notices pursuant to this Agreement
shall be made to each party at the following addresses, unless otherwise
informed in writing of a change thereto:
Xx. Xxxxxxx Xxxxx Xxxxxxx X Xxxxxxx c/o
Medivisor, Inc. Xxxxxxx & Associates, Inc.
000 Xxxx Xxxxxxx Xxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
Tel. (000) 000-0000 Tel: (000) 000-0000
9. This Agreement replaces all previous discussions and agreements relating to
the subject matter hereof and constitutes the entire agreement between the
Company, AJM and MAI. This Agreement may not be modified in any respect by
any verbal statement. Any changes must be made by written documents signed
by Xxxx Xxxxx on behalf of the Company and by Xxxxxxx X. Xxxxxxx on behalf
of AJM and MAI. It is agreed between the parties that the signed Appendix
(Appendix A) is part of this Agreement.
10. In the event that a disagreement develops that the parties cannot arbitrate
between themselves, then the matter shall be referred to binding
arbitration under the auspices and rules of the American Arbitration
Association. The results of the arbitration shall be binding on the
parties. It is agreed that the parties will share equally the cost of said
arbitration but that the prevailing party shall be entitled to recover
reasonable attorney's fees.
11. The signatures below indicate that the individuals are authorized to enter
into this Agreement. The Agreement comprises all six (6) pages hereof.
IN WITNESS HEREOF, the parties have executed this Agreement effective
January 1, 2005:
__________________________ _________________________________
Xxxxxxx X Xxxxxxx, for Xxxx Xxxxx, Chairman and CEO, for
Xxxxxxx & Associates, Inc. Medivisor, Inc.
APPENDIX A
The Company and AJM have further agreed to the following:
A. Medivisor agrees to pay to AJM a monthly consulting fee of $4,500.00 during
the term of this Agreement, plus $4,500.00 due and payable to MAI at the
signing of this Agreement. AJM will also participate in the same
perquisites and fringe benefits accorded to the executive officers of the
Company, including bonus and incentive compensation arrangements. If AJM
does not participate in the Company's health care plan, the cost of a
family participation will be added to the monthly consulting fee. In
addition, it is agreed that the Company will (a) issue ten thousand
(10,000) shares of its common stock to EACH of consultant's grandchildren,
Xxxxxxx Xxxxxxxx Xxxxxxx (Social Security # ###-##-####) and Giuliana
Xxxxxxxx Xxxxxxx (Social Security # ###-##-####) and (b) 20,000 shares to
AJM (Social Security ####-##-####). The parties agree that the fair value
of the stock issued hereunder is approximately $.04 per share. The initial
fee payment and the stock issuance are to be made within 45 days after the
signing of this Agreement. It is anticipated that Xx. Xxxxxxx will devote
an average of approximately 20% of his time and effort to the Company's
affairs. If there is a need for a significant additional time commitment,
AJM will notify the Company, and discuss suitable adjustment to the basic
consulting fee. Inability to reach a reasonable agreement on compensation
for services to be rendered is just cause for termination of this
Agreement. The Company will be liable to pay MAI or AJM for any services
rendered and out of pocket expenses incurred through the date of
termination. Payment of fees is not contingent on Medivisor, Inc achieving
any particular outcome.
B. The scheduled expiration date of this Agreement will be May 31, 2005,
unless otherwise terminated pursuant to the terms of this Agreement.
C. It is expressly understood that the Company and its agents agree to hold
AJM, MAI and its representatives harmless from any liabilities, including
any reasonable costs and expenses relating to this Agreement incurred by
reason of any action taken or committed to be taken by AJM, MAI or its
representatives in good faith. In no event will AJM, MAI or its
representatives be liable for incidental or consequential damages. Should
information become known that would make continuation of this Agreement
inappropriate in the sole judgment of AJM, or if fees remain unpaid for
more than 15 days from the due date, it is acknowledged that AJM has the
right to terminate this Agreement without prejudice.
D. The signatures, as indicated below, indicate that the individuals are
authorized to enter into, and hereby approve this Appendix.
__________________ __________________________________
Xxxxxxx X Xxxxxxx, Xxxx Xxxxx, Chairman and CEO, for,
Medivisor, Inc.
AMENDMENT
That consulting agreement between Medivisor Inc. and Xxxxxxx & Associates Inc.,
effective January 1st, 2005 is hereby amended as follows.
-> Section 1 is revised to reflect that all consulting services will be paid to
Xxxxxxx & Associates Inc., and AJM will not be an employee of Medivisor for
any purpose whatsoever.
-> Appendix A subpart A is hereby amended to adjust the monthly consulting fee,
reflected in the first sentence to Xxxxxxx & Associates Inc. to $5600.00.
The third sentence is hereby deleted.
Agreed:
____________________________
Xxxx Xxxxx of Medivisor Inc.
____________________________________________
Xxxxxxx Xxxxxxx of Xxxxxxx & Associates Inc.
AMENDMENT #1
CONSULTING AGREEMENT BETWEEN
MEDIVISOR, INC.& XXXXXXX & ASSOCIATES, INC.
1. This amendment hereby modifies that consulting agreement dated January 2005
between Medivisor, Inc. and Xxxxxxx & Associates, Inc.
2. That consulting agreement originally expired May 31, 2005.
3. By mutual agreement both parties, the agreement will terminate March 31,
2005. Monthly payments will cease at that time. All stock to be issued
under the original terms remains due and payable.
IN WITNESS HEREOF, the parties have executed this Agreement effective March
23, 2005:
/s/ XXXXXXX X. XXXXXXX /s/ XXXX XXXXX
_________________________ _________________________________
Xxxxxxx X. Xxxxxxx, for Xxxx Xxxxx, Chairman and CEO, for
Xxxxxxx & Associates Inc. Medivisor Inc.
