(Exhibit 10.20)
CONSULTING AGREEMENT
Effective as of March 1, 2000, MEDIX RESOURCES, INC. a Colorado corporation
(the "Company") located at 0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000, and Xxxx X. Xxxxx, (the "Consultant"), located at 0000 X. Xxxx Xxxxx
Xxxxxx, Xxxx Xxxx, XX 00000, agree as follows:
1. (a) The Company agrees to and does hereby retain the Consultant to
perform the following services (the "Services") for the Company: to advise the
Company on matters of past company practices, decisions and procedures as
requested by the President of the Company, to advise and consult with the
President or any officer designated by the President on any matter of then
current significance to the Company, and to generally assist the Company in the
transition after the Consultant's retirement from his employment with the
Company, and the offices of Chairman of the Board and President of the Company.
(b) Consultant shall not be required to devote his full time and
attention to the performance of the Services, but shall devote only so much of
his time and attention as is necessary to provide the Services in a timely and
competent manner in the mutual judgment of the Consultant and President and CEO
of the Company.
2. The term of this Agreement (including any extended term, the
"Term") shall commence on the date hereof and will terminate on December 31,
2001. The Term of this Agreement may be extended for any number of one-year
periods after the initial Term upon the mutual consent of the Consultant and the
President and CEO of the Company.
3. (a) Consultant shall receive a fee, paid by the company during the
initial Term at the rate of $232,815 per year for 2000 ($194,012.50 for the ten
month period) and $254,777 per year for 2001, payable every two weeks during the
Term.
(b) The Company shall reimburse Consultant for out-of-pocket
expenses that have been mutually agreed to in advance. Consultant shall provide
to the Company a copy of all third-party invoices, receipts or other evidence
of the expenditures by Consultant.
4. (a) Consultant hereby assigns to the Company any right, title or
interest he may have (including patent rights, copyrights, trade secret rights,
trademark rights, sui generis database rights, and all other intellectual
property rights of any sort throughout the world) relating to any and all
inventions (whether or not patentable), works of authorship, designations,
designs, know-how, ideas and information made or conceived or reduced to
practice, in whole or in part, by Consultant, (i) during the Term that relate to
the subject matter of, or arise out of, the Services, or (ii) constitute any
Proprietary Information (as defined below) (collectively, "Inventions").
Consultant will promptly disclose and provide all Inventions to Company.
Consultant shall further assist Company, at its request and expense, to further
evidence, record and perfect such assignments and to perfect, obtain, maintain,
enforce and defend any rights assigned. Consultant hereby irrevocably designates
and appoints the Company as its agent and attorney-in-fact to act for and in
Consultant's behalf to execute and file any documents and to do all other
lawfully permitted acts to further the foregoing with the same legal force and
effect as if executed by Consultant.
(b) Consultant agrees that all Inventions and all other business,
customer, marketing, technical and financial information (including, without
limitation, the identity of and information relating to the Company's customers
or employees) that Consultant develops, learns or obtains during the Term that
relate to the Company or its business or that are received by or for the Company
in confidence, constitute "Proprietary Information," provided that Proprietary
Information shall not include information in the public domain through no fault
of Consultant. Consultant will hold in confidence and not disclose or, except in
performing the Services, use any Proprietary Information. In addition,
Consultant agrees not to use any of such Proprietary Information as "insider
information" in connection with the trading of the Company's securities, either
for his own account or as a "tipper" to benefit any third person, and the
Consultant acknowledges that he owes a fiduciary duty to the Company to refrain
from any such improper use of insider information. Upon termination of this
Agreement, and as otherwise requested by Company, Consultant will promptly
return to the Company all items and copies containing or embodying Proprietary
Information, except that Consultant may keep personal copies of his compensation
records and this Agreement.
(c) As additional protection for Proprietary Information, Consultant
agrees that during the Term and for one year thereafter, Consultant will not
encourage or solicit any employee or consultant of Company to leave Company for
any reason, and Consultant will not engage in any activity that is in any way
competitive with the business of Company, and Consultant will not assist any
other person or organization in competing or in preparing to compete with any
business of Company.
5. Upon any material breach of this Agreement by either party, the
other party may terminate this Agreement upon fifteen days' notice to the
breaching party. Sections 4 and 6 of this Agreement and any remedies for breach
of this Agreement shall survive any termination or expiration.
6. Notwithstanding any provision hereof, for all purposes of this
Agreement each party shall be and act as an independent contractor and not as
partner, joint venturer, or agent of the other and shall not bind nor attempt to
bind the other to any contract. Consultant is an independent contractor and is
solely responsible for all taxes, withholdings, and other statutory or
contractual obligations of any sort, including, but not limited to, Workers'
Compensation Insurance; and Consultant agrees to defend, indemnify and hold
Company harmless from any and all claims, damages, liability, attorneys' fees
and expenses on account of (i) an alleged failure by Consultant to satisfy any
such obligations or any other obligation (under this Agreement or otherwise) or
(ii) any other action or inaction of Consultant.
7. In connection with Consultant's retirement from the Company, the
Company hereby agrees that it will register all of the Company's shares of
Common Stock issuable to Consultant upon Consultant's exercise of warrants or
options to purchase Common Stock on a Form S-8 registration statement, with
respect to the sale of the shares to Consultant, and in addition will register
all of the Company's shares of Common Stock, which the Consultant currently owns
or has a right to purchase, on a Form S-2 registration statement, with respect
to the sale of the shares by Consultant. Such registration statements shall be
filed as soon as possible by the Company. In addition, the Consultant and the
Company agree that for the purposes of Section 16 of the Securities Exchange Act
of 1934, as amended, and the regulations thereunder, the Consultant does not
fall into the category of "any other person who performs similar policy-making
functions for the issuer," which would subject the Consultant to the reporting
and trading restrictions of Section 16.
8. This Agreement and the Services to be provided hereunder are
personal to Consultant, who shall not have the right to assign, transfer or
subcontract any obligations under this Agreement without the written consent of
the Company. Any attempt to do so shall be void.
9. Consultant agrees that he has not been made an agent of the Company
for any purpose and will not claim to be acting in that capacity. Consultant
shall indemnify and hold harmless the Company against any loss, claim, expense
or damages that the Company suffers as a result of Consultant's breach of this
provision.
10. Any waiver, amendment or modification of any of the provisions of
this Agreement, or any termination of this Agreement, shall not be valid unless
in writing and signed or initialed by the parties hereto. A waiver of the breach
of any provisions hereof or a default under any provision hereof shall not be
deemed a waiver of such provisions or any subsequent breach or default of any
kind or nature.
11. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Colorado, without regard to rules governing
conflict of laws thereof. All notices shall be in writing and shall be deemed
given upon receipt by the party to whom addressed at the addresses provided
above or at any address for which a notice has been given as herein provided.
This Agreement shall be enforceable by decrees of specific performances as well
as other remedies. Any breach of Section 4 of this Agreement will cause
irreparable harm to the Company for which damages would not be an adequate
remedy, and therefore, the Company will be entitled to injunctive relief with
respect thereto in addition to any other remedies permitted by law. This
Agreement shall inure to the benefit of, and bind, the parties hereto and their
respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the Consultant and the below captioned authorized
signatories for Medix Resources, Inc. have hereunder set their hands, and have
caused these presents to be duly executed and authorized as of the date first
written above.
MEDIX RESOURCES, INC.
By:____________________
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Xxxx X. Xxxxx
President and CEO
