Exhibit 10.7 Consulting Agreement with Xxxxxxx & Associates, Inc.,
Financial Advisor, dated October 1, 2004
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, in
compliance with Rule 415(a)(1)(ix), at a price of $1.25 per share for
the duration of the Offering by the Company, 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
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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.
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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.
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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.
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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.
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