10.5 Xx. Xxxx XxXxxxxxx consulting agreement
CONSULTING AGREEMENT
This Agreement ("Agreement") is entered into this 6th day of June 2001, by and
between xxxxxxxx.xxx, Inc. a New Jersey corporation with offices at 0000 Xxxxx
000, Xxxxxxxxxxx, XX 00000 ("Corporation"), and Xx. Xxxx XxXxxxxxx whose
address is 00000 0xx Xxxxxx Xxxxx, Xxx #0000 St. Petersburg, Florida 33716
("Consultant").
In consideration of the mutual promises of the parties and other good and
valuable consideration, the parties hereby agree:
Section 1. Engagement. During the term of this Agreement, the Corporation
agrees to engage the Consultant to perform, and Consultant agrees to serve the
Corporation by providing, the services more fully described on Schedule A,
attached hereto. The Consultant shall be available for work at reasonable
times and for reasonable periods of time to perform such services at the
location or locations designated by the Corporation in STROUDSBURG, PA. The
Consultant shall report to the Chief Executive Officer, Xxxxxx X. Xxxxxx, at
the Corporation.
Section 2. Term. This Agreement shall commence on June 6th, 2001 and shall
terminate on June 6th, 2002, unless earlier terminated as described herein.
Section 3. Compensation. The Corporation shall pay the Consultant for the
services described herein in accordance with the provisions set forth in
Schedule B, attached hereto.
Section 4. Independent Contractor. The parties intend that the relationship
between them created under this Agreement is that of an independent contractor
only. The Consultant is not to be considered an agent or employee of the
Corporation for any purpose, and the Corporation is interested only in the
results obtained under this Agreement. The manner and means of performing the
services are subject to the Consultant's sole control.
Consultant shall be responsible for all state, federal, and local taxes,
including estimated taxes, social security, disability insurance, if any, and
any other similar form of payments, as well as all employment reporting, for
the Consultant and any of the Consultant's employees or agents.
Section 5. Proprietary Rights. The Consultant agrees that all Work Product
created solely or jointly by the Consultant, the Consultant's employees,
associates, or subcontractors, arising from work performed hereunder, or
previously conceived in anticipation of consulting work to be performed in
regard to the Corporation's engagement of the Consultant, shall be deemed
"work made for hire." The Consultant shall cause all of the Consultant's
employees, associates, or subcontractors assisting in creating the Work
Product to execute a similar acknowledgement that the Work Product is a "work
made for hire." The Consultant and all of the Consultant's employees,
associates, or subcontractors assisting in creating the Work Product shall
execute all such assignments, oaths, declarations, and other documents as may
be prepared by the Corporation to effect the foregoing.
Contractor Initial /i/JM
"Work Product" shall mean all documentation, manuals, teaching materials,
creative works, know-how, and information created on behalf of the
Corporation, in whole or in part, by the Consultant and all of the
Consultant's employees, associates, or subcontractors assisting in creating
the Work Product within the scope of this Agreement, whether or not
copyrightable or otherwise protectable.
Consultant shall make prompt and full disclosure of such inventions to the
Corporation and, at the Corporation's expense, shall assist in every lawful
way in obtaining for the Corporation patents for any or all of such
inventions, in perfecting in the Corporation all right, title, and interest in
and to such inventions and copyrights, in protecting or enforcing the
Corporation's rights therein, and in prosecuting and defending appeals,
interferences, infringement suits, and controversies relating thereto. The
Consultant shall do all other things necessary to effectuate the foregoing,
including but not limited to executing and delivering assignments, oaths, and
disclaimers as needed.
Section 6. Confidentiality. In order to induce the Corporation to enter into
this Agreement, the Consultant hereby agrees that, except with the written
consent of the Corporation, the Consultant shall keep confidential and not
divulge to any person that is not affiliated with the Corporation, during the
term of this Agreement or any time thereafter, any of the Corporation's
confidential information and business secrets, including, without limitation,
confidential information and business secrets relating to such matters as the
Corporation's finances and operations, the materials, processes, and
procedures used in the Corporation's operations, the names of the
Corporation's customers and their requirements, and the names of the
Corporation's suppliers. All papers, books, and records of every description,
including, without limitation, computer software, programs, modules, source
codes, data, designs, and results, as well as all reproductions thereof,
relating to the business and affairs of the Corporation, or its customers,
whether or not prepared by the Consultant, shall be the sole and exclusive
property of the Corporation. Upon termination of this Agreement, or upon
request by the Corporation, the Consultant shall surrender all tangible
evidence of such information to the Corporation.
The obligations of secrecy shall continue throughout the duration of this
Agreement and for three (3) years thereafter.
Section 7. Records. the Consultant shall keep full and accurate records of
all consulting work performed under this Agreement. All records, sketches,
drawings, prints, computations, charts, reports, and other documentation made
in the course of the consulting work performed hereunder, or in anticipation
of the consulting work to be performed in regard to this Agreement, shall at
all times be and remain the sole property of the Corporation. The Consultant
shall turn over to the Corporation all copies of such documentation on request
by the Corporation.
Contractor Initial /i/JM
Section 8. Early Termination. This Agreement may be terminated by the
Corporation at its discretion for any reason without penalty or; (i) upon the
death of the Consultant, (ii) upon the Consultant's physical or mental
incapacity or disability for a period of one (1) month, (iii) in the event
that the Consultant is accused or convicted of any misdemeanor or felony crime
or commits an act of moral turpitude, (iv) commits and act of fraud against
the Corporation, (v) upon the disclosure of unauthorized confidential
information by the Consultant, (vi) in the event that the Consultant fails to
perform the services contemplated by this Agreement with diligence or
competence, or (vii) the Consultant materially breaches this Agreement.
Section 9. Severability. The provisions of this Agreement shall be
severable, and if any part of any provision shall be held invalid or
unenforceable or any separate covenant contained in any provision shall be
held to be unduly restrictive and void by a final decision of any court or
other tribunal of competent jurisdiction, such part, covenant or provision
shall be construed to give it maximum lawful validity and the remaining
provisions of this Agreement shall nonetheless remain in full force and
effect.
Section 10. Entire Agreement. This Agreement contains the entire agreement
of the parties relative to the subject matter hereof, superseding and
terminating all prior agreements or understandings, whether oral or written,
between the parties hereto relative to the subject matter hereof, and this
Agreement may not be extended, amended, modified or supplemented without the
prior written consent of the parties hereto.
Section 11. Waivers. Any waiver of the performances of the terms or
provisions of this Agreement shall be effective only if in writing and signed
by the party against whom such waiver is to be enforced. The failure of either
party to exercise any rights under this Agreement or to require the
performance of any term or provision of this Agreement, or the waiver by
either party of any breach of this Agreement, shall not prevent a subsequent
exercise or enforcement of such rights or be deemed a waiver of any subsequent
breach of the same or any other term or provision of this Agreement.
Section 12. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered or sent by certified mail, postage prepaid, return receipt
requested, to the respective addresses of the parties hereto as set forth
above or to such other address as either party may designate by notice to the
other party given as herein provided.
Section 13. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflict of laws rules of such Commonwealth.
Contractor Initial /i/JM
IN WITNESS WHEREOF, the Corporation and the Consultant have executed this
Consulting Agreement as of the date first above written.
/s/Xx. Xxxx XxXxxxxxx /s/Xxxxxx X. Xxxxxx
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CONTRACTOR SIGNATURE CEO SIGNATURE xxxxxxxx.xxx
Schedule `A'
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The Consultant is hereby engaged to represent xxxxxxxx.xxx, Inc. to its
potential doctor affiliates. More specifically the consultant will educate
lasik practitioners across the country as to the advantages of the
xxxxxxxx.xxx Memorandum of Agreement/Management Services Agreement program. It
will be the consultant's primary objective to, at the direction of the
Company, enroll lasik MOA/MSA contracts in areas the Company deems
appropriate.
Contractor Initial /i/JM
SCHEDULE `B'
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CONTRACTOR'S NAME: Xx. Xxxx XxXxxxxxx
EFFECTIVE DATE: June 6, 2001
ADDRESS: 00000 0xx Xxxxxx Xxxxx, Xxx. 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
PHONE: 000-000-0000
DATE OF BIRTH: 8/29/52
COMPENSATION: Consultant agrees to consult for the first ninety (90) days of
this agreement without compensation as a show of good faith.
After this initial period of ninety (90) days, consultant will be paid
consulting fees in the amount of $8,333.33 per month.
Consultant will receive an additional bonus of $12,500.00 at the end of the
initial ninety (90) day period, providing the goal of 10 Management Services
Agreements are signed by the end of the first ninety (90) day period
($4,166.67 per month for the initial ninety (90) day period).
Consultant will receive an additional $1,000 bonus per completed Management
Services Agreement. These Management Services Agreements must be signed and
ratified by the Company and in place in markets that the Company has deemed
necessary.
All non-Company initiated cancellations of Memorandum of Agreement or
Management Services Agreement contracts that occur within 6 months of the
signing of the Management Services Agreement will be deducted from newly
initiated contracts for the purpose of calculating said bonus.
Consultant will be reimbursed for any reasonable out of pocket expenses
inclusive of cell phone charges and Internet connection fees.
Contractor Initial /i/JM
