CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of August 6,
1995 between Medcross, Inc., a Florida corporation (the "Company"), and
Xxxxxxx X. Xxxxxx, an individual residing in Clearwater, Florida
("Consultant").
W I T N E S S E T H:
WHEREAS, in light of the expertise and experience of Consultant,
the Company desires to engage Consultant to provide the Company with
consulting services and Consultant is willing and able to provide such
services; and
WHEREAS, the Company and Consultant desire to set forth in a
formal written agreement the terms and conditions upon which Consultant
shall provide services to the Company;
NOW THEREFORE in consideration of the mutual benefits to be
derived from this Agreement, the Company and Consultant hereby agree as
follows:
1. Appointment; Consulting Services.
(a) The Company hereby retains Consultant to render those
consulting services contemplated by this Agreement until February 6,
1996. The term (the "Term") of this Agreement shall commence on the
date hereof and shall terminate on the date specified hereinabove.
Notwithstanding any other provision of this Section 1(a), the term of
this Agreement may be extended beyond the Term by the written agreement
of the parties.
(b) During the Term hereof, Consultant agrees to render to
the Company consulting advice as shall be reasonably requested from
time to time by the President of the Company in connection with the
business conducted or to be conducted by the Company. In performing
services hereunder, Consultant shall report to the Company's President
and shall perform such services from Consultant's residence in Tampa,
Florida or such other location as may be agreed to by the parties.
Consultant shall be required to devote up to five hours per week for
the first three months and three hours per week thereafter to the
performance of services hereunder. During the Term hereof, Consultant
shall be an independent contractor of the Company and not an employee.
During the Term hereof, Consultant shall have no power or authority to
represent or bind the Company unless specifically authorized in writing
by the President of the Company.
2. Payments to Consultant During the Term.
The Company agrees to pay to Consultant during the Term and any
extension thereof the following:
(a) In consideration of Consultant's performance of the
consulting services described herein during the Term hereof, the
Company agrees to issue to the Consultant warrants (the "Consultant's
Warrants") to purchase thirty-six thousand eight hundred fifty-eight
(36,858) shares of the Company's Common Stock at a purchase price equal
to the fair market value of the Common Stock on the date of grant.
Such options shall be promptly issued following the execution of this
Agreement and the delivery to the Company of all outstanding options
heretofore granted to the Consultant, whether or not the same are
vested or unvested, for cancellation together with any and all other
documents, agreements or acknowledgements reasonably requested by the
Company to evidence the cancellation of such options. The Consultant's
options shall be fully vested and exercisable any time from date of
grant up to two years thereafter. The shares of Common Stock
underlying the Consultant's Warrants shall be registered by the Company
with the Securities and Exchange Commission on Form S-8, at the
Company's sole expense, as soon after issuance of the Consultant's
Option as may be practicable, but not less than six months from the
date of grant.
(b) The Company shall reimburse Consultant for all
reasonable out-of-pocket expenses directly incurred by Consultant in
connection with Consultant's rendering of the consulting services set
forth in this Agreement, provided, however, that the incurrence of such
expenses in an amount greater than $100.00 must be approved in writing
in advance by the President of the Company. Any such reimbursement
hereunder shall be made by the Company within 14 days after submission
by Consultant of supporting documentation as reasonably required by the
Company.
3. Non-Competition.
During the Term hereof and for six months thereafter, Consultant
represents, warrants and covenants that he shall not, anywhere within
the greater Tampa Bay, Florida metropolitan area, the United States of
America or anywhere else in which the Company (or any of its
subsidiaries) is then doing business, engage in activities in direct
competition with the business of the Company or any subsidiary, whether
as an individual, investor, partner, joint venturer, consultant,
employee, agent, salesman, officer, or director or otherwise.
Investments in less than five percent of the outstanding securities of
any class of a publicly-traded company shall not be prohibited by this
Section 3. The provisions of this Section 3 are subject to the
provisions of Section 9 of this Agreement.
4. Confidential Information.
The parties hereto recognize that a major need of the Company is
to preserve its specialized knowledge, trade secrets, and confidential
information. The strength and good will of the Company is derived from
the specialized knowledge, trade secrets, and confidential information
generated from experience with the activities undertaken by the Company
and its subsidiaries. The disclosure of this information and knowledge
to competitors would be beneficial to them and detrimental to the
Company, as would the disclosure of information about the marketing
practices, pricing practices, costs, profit margins, analytical
techniques, and similar items of the Company and its subsidiaries. By
reason of his position with the Company, Consultant has or will have
access to, and has obtained or will obtain, specialized knowledge,
trade secrets and confidential information about the Company's
operations and the operations of its subsidiaries. Therefore, subject
to the provisions of Section 8 hereof, Consultant hereby represents,
warrants and covenants as follows, recognizing that the Company is
relying on the same in entering into this Agreement:
During the Term hereof and for six months following the last day
of the Term hereof, except for the exclusive benefit of the Company,
Consultant will not, directly or indirectly, use, disclose to others,
or publish or otherwise make available to any other party any
inventions or any confidential business information about the affairs
of the Company and its subsidiaries, including but not limited to
confidential information concerning their products, methods, analytical
techniques, technical information, customer information, employee
information, and other confidential information acquired by him in the
course of his past or future services for the Company. Consultant
agrees to hold as the Company's property all memoranda, books, papers,
letters, formulas and other data, and all copies thereof and therefrom,
in any way relating to the Company's or its subsidiaries' businesses
and affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment, or on demand of the
Company, at any time, to deliver the same to the Company within twenty
four (24) hours of such termination or demand.
5. Reasonableness of Restrictions; Specific Enforcement.
Consultant hereby agrees that the restrictions in this Agreement,
including without limitation those relating to the duration of the
provisions thereof and the territory to which such restrictions apply,
are necessary and fundamental to the protection of the business and
operation of the Company, its affiliates, subsidiaries and divisions
thereof, and are reasonable and valid. Each party acknowledges and
agrees that the Company would suffer irreparable damage if any of the
provisions of Section 3 or Section 4 were not performed by Consultant
in accordance with their specific terms or were otherwise breached.
Accordingly, the Company will be entitled to an injunction or
injunctions to prevent breaches of such provisions and to enforce
specifically such provisions in any court of competent jurisdiction
without the necessity of furnishing a bond of any type, and Consultant
will not oppose the granting of such relief on the grounds that an
adequate remedy at law exists.
6. Proprietary Information or Trade Secrets of Others.
Consultant represents, warrants and covenants that he will not
disclose to the Company, or use, or induce the Company to use, any
proprietary information or trade secrets of others and represents and
warrants that he has returned all property and confidential information
belonging to the Company. Consultant further represents, warrants and
covenants that he is not party to any agreement, oral or written, which
restricts his right or capacity to execute this Agreement or to compete
with a previous employer, associate or affiliate in any way whatsoever.
7. Consolidation; Merger; Sale of Assets; Change of Control.
Nothing in this Agreement shall preclude the Company from
combining, consolidating or merging with or into, transferring all or
substantially all of its assets to, or entering into a partnership or
joint venture with, another corporation or other entity, or effecting
any other kind of corporate combination provided that the corporation
resulting from or surviving such combination, consolidation or merger,
or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger, transfer of
assets or formation of such partnership or joint venture, this
Agreement shall inure to the benefit of, be assumed by, and be binding
upon such resulting or surviving transferee corporation or such
partnership or joint venture, and the term "Company," as used in this
Agreement, shall mean such corporation, partnership or joint venture,
or other entity and this Agreement shall continue in full force and
effect and shall entitle Consultant and his heirs, beneficiaries and
representatives to exactly the same compensation, benefits,
perquisites, payments and other rights as would have been their
entitlement had such combination, consolidation, merger, transfer of
assets or formation of such partnership or joint venture not occurred.
8. Survival of Obligations.
The obligations of the parties under Sections 3, 4, 5, 6, and 9 of
this Agreement shall survive the termination for any reason of this
Agreement (whether such termination is by the Company, by Consultant,
upon the expiration of this Agreement or otherwise).
9. Reformation; Severability.
In case any one or more of the provisions or part of a provision
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to
affect any other jurisdiction or any other provision or part of a
provision of this Agreement nor shall such invalidity, illegality or
unenforceability affect the validity, legality or enforceability of
this Agreement or any provision or provisions hereof in any other
jurisdiction, and this Agreement shall be reformed and construed in
such jurisdiction as if such provision or part of a provision held to
be invalid or illegal or unenforceable had never been contained herein
and such provision or part reformed so that it would be valid, legal
and enforceable in such jurisdiction to the maximum extent possible.
In furtherance and not in limitation of the foregoing, the Company and
Consultant each intend that the representations, warranties and
covenants contained in Sections 3 and 4 shall be deemed to be a series
of separate representations, warranties and covenants, one for each
county, state, territory or jurisdiction of the United States and any
foreign country referenced therein. If, in any judicial proceeding, a
court shall refuse to enforce any of such separate representations,
warranties and covenants, then such unenforceable representations,
warranties and covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to
permit the remaining separate representations, warranties and covenants
to be enforced in such proceedings. If, in any judicial proceeding, a
court shall refuse to enforce any one or more of such separate
representations, warranties and covenants because the total time
thereof is deemed to be excessive or unreasonable, then it is the
intent of the parties hereto that such representations, warranties and
covenants, which would otherwise be unenforceable due to such excessive
or unreasonable period of time, be enforced for such lesser period of
time as shall be deemed reasonable and not excessive by such court.
10. Entire Agreement; Amendment.
This Agreement contains the entire agreement between the Company
and Consultant with respect to the subject matter thereof. This
Agreement may not be amended, waived, changed, modified or discharged
except by an instrument in writing executed by or on behalf of the
party against whom any amendment, waiver, change, modification or
discharge is sought. No course of conduct or dealing shall be
construed to modify, amend or otherwise affect any of the provisions
hereof.
11. Notices.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i)
upon delivery, if personally delivered, (ii) the next business day, if
delivered with all charges prepaid to a recognized overnight delivery
service for next day delivery, or (iii) five days after mailing, if
mailed, postage prepaid, via first class mail, in each such case as
follows:
(a) To the Company: (b) To Consultant:
Medcross, Inc. Xxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
with an additional copy by like means to:
De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xx Xxxxxxx, Esquire
and/or to such other persons and addresses as any party shall have
specified in writing to the other.
12. Assignability.
This Agreement shall not be assignable by Consultant and shall be
binding upon, and shall inure to the benefit of, the successors of the
Company. Notwithstanding any other provision of this Agreement, this
Agreement shall be assignable by the Company provided that the assignee
is a controlled subsidiary of the Company.
13. Representation by Counsel.
Each of the parties hereto represents, warrants and covenants that
he or it has had ample opportunity to consider entering into this
Agreement and has had an opportunity to consult with counsel regarding
this Agreement prior to executing the same.
14. Governing Law.
This Agreement shall be governed by and construed under the laws
of the State of Florida without regard to the conflicts of law
principles thereof.
15. Waiver and Further Agreement.
Any waiver of any breach of any terms or conditions of this
Agreement shall not operate as a waiver of any other breach of such
terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. Each of the parties hereto
agrees to execute all such further instruments and documents and to
take all such further action as the other party may reasonably require
in order to effectuate the terms and purposes of this Agreement.
16. Headings of No Effect.
The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
17. Counterparts.
This Agreement may be executed by the parties hereto in one or
more counterparts each of which shall be an original and all of which
shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ATTEST: MEDCROSS, INC.
By: /s/ Xxxxx Y.L. Toh
Xxxxx Y. L. Toh, President
WITNESS: CONSULTANT:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
