Exhibit 10.3
CONSULTING AGREEMENT
This Consulting Agreement (the "AGREEMENT"), effective as of September 19,
2005, is by and between TELZUIT MEDICAL TECHNOLOGIES, INC. (the "COMPANY"), a
Florida corporation having its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual maintaining an
address at (the "CONSULTANT").
-----------------------------------------------
BACKGROUND INFORMATION
The Company is in the business of researching, designing, developing,
marketing and selling ambulatory medical devices and services, and wishes to
expand it business by developing, owning and operating medical clinics (the
"CLINICS"). Consultant has expertise in owning, operating and building medical
clinics. The Company wishes to engage the consulting services of the Consultant
for a definite period of time and upon the particular terms and conditions
hereinafter set forth. The Consultant is willing to be so engaged.
Accordingly, the parties agree as follows:
OPERATIVE PROVISIONS
1. Engagement and Term. The Company hereby retains and engages
---------------------
Consultant and the latter hereby agrees to render consulting services to the
Company for a period of six (6) months commencing on September 19, 2005 and
ending on March 19, 2006, unless sooner terminated as herein provided (the
"INITIAL TERM"). Thereafter, this Agreement may be renewed for additional six
(6) month terms upon the written agreement of the parties (each a "SUCCESSOR
TERM"). Each party agrees to notify the other party in writing at least fifteen
(15) days prior to the expiration of this Agreement of its intention to renew or
not to renew this Agreement.
2. Cancellation. The Company or Consultant may terminate this
------------
Agreement at any time, for any reason or no reason, by providing written notice
thereof to the other party in accordance with Section 9(a) below.
-------------
3. Duties. During the term of this Agreement, whether Initial or
------
Successor, the Consultant shall provide consulting services to the Company in
the area of general project management related to the development and operation
of the Clinics. As an independent contractor, the Consultant shall consult with
the Company's Board of Directors regarding operations, personnel, marketing,
concept development, customer development, financing and strategic business
planning at the appropriate times as determined by the parties (the "SERVICES").
The Consultant shall provide all transportation and equipment necessary for the
performance of such Services; comply with all laws and regulations of any
governing body having jurisdiction over the performance of Consultant's
Services; and shall determine the means and manner of performance of any
Services rendered pursuant to this Agreement. Consultant shall spend that
amount of time which, in his, her or its sole judgment, is necessary to provide
the Services hereunder.
4. Consideration.
-------------
a. Remuneration. As consideration for the Consultant's services
------------
hereunder, Consultant shall receive a fee of Ten Thousand and No/100 Dollars
($10,000) per month for the term of this Agreement and any renewal thereof.
Monthly fees are payable in advance on the first of each month. If this
Agreement is cancelled pursuant to Section 2, the Company shall be under no
further obligation under this Agreement for, and the Consultant shall not be
entitled to receive, any other payments under this Agreement except for any
accrued, unpaid remuneration (as calculated on a pro rata basis) as of the date
of any cancellation of this Agreement.
b. No Employee Salary or Benefits. The Consultant is engaged in
--------------------------------
his, her or its own independent business and neither the Consultant nor its
employees shall receive a salary or other employment compensation from the
Company for the Services, nor shall Consultant be eligible for, or participate
in, any pension, health or other fringe benefit plan of the Company.
c. Expenses. Except as otherwise specified herein, or as set
--------
forth in a separate written instrument executed by the Company's President, the
Consultant shall be solely responsible for satisfying all of his, her or its
expenses incurred in performing his, her or its duties hereunder.
d. Taxes. The Consultant understands that the Company will not
-----
withhold any federal or local payroll or income taxes from the compensation
payable to the Consultant hereunder and the Consultant understands that it is
his, her or its obligation to make all deposits of federal, state or local taxes
payable as a result of the compensation that he, she or it receives hereunder.
The Consultant shall withhold all federal, state and local payroll or income
taxes from the compensation that the Consultant pays to his, her or its
employees, if any.
5. Independent Contractor Status. Consultant shall, at all times, and
------------------------------
for all purposes, be deemed an independent contractor with respect to the
Company. Accordingly, Consultant and the Company acknowledge the following:
a. Consultant shall not be deemed to be employed by the Company
for purposes of the Federal Social Security Act or any federal or state law
concerning employment, compensation for employment services rendered or
insurance for injuries sustained in the performance of its services, and
Consultant shall be required to file all tax forms required of an independent
contractor and shall be solely responsible for the payment and reporting of any
taxes due on whatever remuneration is paid by the Company to Consultant
hereunder;
b. Consultant is engaged in his, her or its own independent
business; accordingly, Consultant shall not be eligible for, and shall not
participate in, any pension, health or other fringe benefit plan of the Company;
and
c. Consultant shall have unilateral control over the manner in
which it shall provide the consulting services herein contracted for, inclusive
of work schedule and the location and operation of any business office, and the
Company shall have no direct or implied authority over Consultant's work nor
supervisory power over the procedures employed by the Consultant, other than to
assure itself with regard to the Consultant's adherence to reasonable standards
for the conduct of the Services contracted for hereunder.
6 No Authority to Bind the Company. The Consultant has no authority to
--------------------------------
enter into any contract or agreement on behalf of the Company and shall
not hold himself out to the public as an employee of the Company.
7. Non-Disclosure; Prohibited Activities.
---------------------------------------
a. Proprietary Information. During or after the termination of
------------------------
this Agreement (including expiration upon non-renewal), the Consultant shall not
communicate or divulge to, or use for the benefit of, any individual,
association, partnership, trust, corporation or other entity except the Company,
any Proprietary Information of the Company received by the Consultant by virtue
of performing his duties under this Consulting Agreement, without first being in
receipt of the Company's written consent to do so. For purposes of this
Agreement, the term "Proprietary Information" includes, but is not limited to,
(i) any and all trade secrets concerning the business and affairs of the
Company, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current and planned research and development, current and
planned distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies, business plans,
computer hardware, software and computer software and database technologies,
systems, structures and architectures; (ii) all information concerning the
business and affairs of the Company (which includes historical and current
financial statements, financial projections and budgets, tax returns and
accountants' materials, historical, current and projected sales, business plans,
strategic plans, marketing and advertising plans, publications, client and
customer lists and files, contracts, the names and backgrounds of key personnel
and personnel training techniques and materials, however documented), and all
information obtained from review of the Company's documents or property or
discussions with the Company regardless of the form of the communication; and
(iii) all notes, analyses, compilations, studies, summaries and other material
prepared by the Consultant to the extent containing or based, in whole or in
part, upon any information included in the foregoing.
b. Exceptions. The restrictions on the Consultant's disclosure of
----------
the Company's Proprietary Information set out herein do not apply to such
information which (i) is now, or which hereafter, through no act or failure to
act on the part of the Consultant becomes, generally known or available to the
public; or (ii) is required to be disclosed by a court of competent jurisdiction
or by an administrative or quasi-judicial body having jurisdiction over the
subject matter after the Consultant has given the Company reasonable prior
notice of such disclosure requirement.
c. Non-Solicitation. Consultant agrees that during the term of
----------------
this Agreement and during the one (1) year period following the termination of
such Agreement (including expiration upon non-renewal), the Consultant shall
not, directly or indirectly solicit or hire any employee of the Company (or its
subsidiaries) employed by the Company on the date the Consulting Agreement is
terminated or during the six (6) month period of time immediately preceding such
date. Those employees who directly worked for the Consultant prior to being
employed by the Company or those persons employed by the Company on a temporary
basis at the direction of the Consultant shall not be restricted for hire by the
Consultant at any time.
d. Enforcement. The Consultant acknowledges that (i)
-----------
Proprietary Information is a valuable asset of the Company and use of such
Proprietary Information would allow the Consultant to unfairly compete against
the Company; (ii) the restrictions contained in this Agreement are reasonable
in scope and are necessary to protect the Company's legitimate interests in
protecting its business; and (iii) any violation of the restrictions
contained in this Agreement will cause significant and irreparable harm to
the Company for which the Company has no adequate remedy at law. The parties
agree that damages at law, including, but not limited to, monetary
damages, will or may be an insufficient remedy to the Company and that
(in addition to any remedies that are available to Company, all of which
shall be deemed to be cumulative and retained by Company and not waived by
the enforcement of any remedy available hereunder) the Company shall also
be entitled to obtain injunctive relief, including, but not limited to, a
temporary restraining order, a temporary or preliminary injunction or a
permanent injunction, to enforce the provisions of this Agreement, as well as
an equitable accounting of and constructive trust for all profits or other
benefits arising out of or related to any such violation, all of which shall
constitute rights and remedies to which the Company may be entitled.
e. Divisibility of Covenant Period. If any covenant contained in
--------------------------------
this Agreement is held to be unreasonable, arbitrary or against public policy,
such covenant shall be considered divisible as to time, such that each month
within the specified period shall be deemed a separate period of time, resulting
in an intended requirement that the longest lesser time determined not to be
unreasonable, arbitrary or against public policy shall remain effective and be
specifically enforceable against the Consultant.
f. Intent of Parties; Survival. The covenants of the Consultant
-----------------------------
contained in this Section 7 shall be construed as agreements independent of any
---------
other provision of Consultant's engagement (including engagement under this
Agreement), and the existence of any claim of the Consultant against the Company
shall not constitute a defense to the enforcement by the Company of any covenant
contained in this section. The covenants contained in this Section 7 shall
---------
survive termination, expiration, non-renewal or cancellation of this Agreement.
8. Release; Indemnification. Consultant hereby voluntarily releases,
-------------------------
forever, discharges, and agrees to hold harmless and indemnify the Company and
its agents, officers, directors, and owners from any and all expenses, costs,
damages and liability which any indemnitee may suffer or sustain, including, but
not limited to, litigation expense and legal fees, which are related to, arise
out of, or are in any way connected with Consultant's provision of the Services.
9. Miscellaneous Provisions.
-------------------------
a. Notices. All notices under this Agreement shall be in writing
-------
and shall be considered as properly given or made if hand delivered, sent by
certified mail, overnight delivery service, facsimile or e-mail and addressed to
the location set forth in the preamble to this Agreement or to such other
address as any party may have designated by like notice furnished to all other
parties hereto. All notices, except change of address, shall be deemed
effective when deposited in the U.S. mail, received by an overnight carrier or
other delivery service or, when sent by facsimile or e-mail, when confirmation
of delivery is obtained by the sender. Notices of change of address shall be
deemed given when received.
b. Entire Agreement. This Agreement sets out the entire agreement
----------------
between the parties hereto on the subject matter hereof and supersedes and
replaces any and all prior agreements, understandings or arrangements between
the parties, written or oral, with respect to the subject matter hereof.
c. Amendments; Waivers. No amendment, modification or discharge
--------------------
of this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the parties to this Agreement. Any such
waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time.
d. Headings; Counterparts. The headings of this Agreement are
-----------------------
inserted for purposes of convenience and identification only, and are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall, together, constitute
one and the same instrument. The exchange of copies of this Agreement and any
ancillary agreements, and of signature pages, by facsimile transmission shall
constitute effective execution and delivery of this Agreement or the ancillary
agreements, as applicable, as to the parties and may be used in lieu of the
original Agreement or ancillary agreements, as applicable, for all purposes.
Signatures of the parties transmitted by facsimile shall be deemed to be their
originals for all purposes.
e. Severability. Every provision of this Agreement is intended
------------
to be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement
f. Assignment. This Agreement, including, but not limited to the
----------
agreements contained in Section 7 regarding confidentiality and
-----------
non-solicitation, shall be assignable by the Company without the prior written
consent of the Consultant. This Agreement shall inure to the benefit of and be
enforceable by the successors and assigns of the Company, including any
successor or assign to all or substantially all of the business and/or assets of
the Company, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock or otherwise. This is a personal service contract which
shall not be assignable by the Consultant.
g. Choice of Law; Venue; Jurisdiction. The undersigned expressly
-----------------------------------
agree, to the extent not otherwise barred by applicable law, that all terms and
provisions hereof shall be governed, interpreted and construed in accordance
with the laws of the State of Florida, and that venue, for all purposes, shall
lie in Orange County, Florida. The parties further agree that, irrespective of
any wording that might be construed to be in conflict with this paragraph, this
Agreement is one for performance in Florida. The parties to this Agreement
hereby agree that each waives any objection, whether constitutional, statutory
or otherwise, to a Florida court taking jurisdiction of any dispute between
them. By entering into this Agreement, each party understands that he, she or
it might be called upon to answer a claim asserted in a Florida court.
h. Legal Fees and Costs. If a legal action is initiated by any
-----------------------
party to this Agreement against the other party arising out of or relating to
the alleged performance or non-performance of any right or obligation
established hereunder, any and all fees, costs and expenses reasonably incurred
by each successful party or its legal counsel in investigating, preparing for,
prosecuting, defending against, or providing evidence, producing documents or
taking any other action in respect of, such action shall be the obligation of
and shall be paid or reimbursed by the unsuccessful party.
i. Waiver. The waiver by the Company of a breach of this
------
Agreement shall not be construed as a waiver of any subsequent breach by the
Consultant. The refusal or failure of the Company to enforce the
restrictive covenants contained herein or contained in any other similar
agreement against any other employee, agent, or independent contractor of the
Company, for any reason, shall not constitute a defense to the enforcement
of this Agreement by the Company against the Consultant, nor shall it give
rise to any claim or cause of action by such Consultant against the
Company.
j. Acknowledgments. The Consultant acknowledges that he, she or
---------------
it has been provided with a copy of this Agreement for review prior to signing
it, that the Company has encouraged the Consultant to have this Agreement
reviewed by his, her or its attorney prior to signing it and that the Consultant
understands the purposes and effects of this Agreement.
k. Execution of Additional Documents. Each party hereto agrees to
---------------------------------
execute and deliver such documents as may be necessary or desirable to carry out
the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of this 17th day of February, 2006.
TELZUIT MEDICAL TECHNOLOGIES, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
CONSULTANT
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[Signature Page to Consulting Agreement]
