Exhibit 10.2
CONSULTING AGREEMENT
AGREEMENT made as of this 23rd day of August, 1999 by and between
TrueVision International, Inc. ("TrueVision") with an address at 0000
Xxxxxxxxx XX, Xxxxx 000, Xxxxxxxxxxx, Xxx Xxxxxx 00000 and Xxxxx X. Xxxxxxx
(the "Consultant"), with an address at 000 Xxxxxx Xx., Xxx Xxxxx, XX 00000.
W I T N E S S E T H
WHEREAS, Consultant possesses certain knowledge and expertise in certain
fields in which the Company is conducting research and development and/or is
otherwise engaged in business (the "Field"), and desires to provide services
to the Company;
WHEREAS, the Company desires to retain the Consultant to provide
required Business advisory services and investment banking advice in the
Field;
WHEREAS, the Consultant desires to be retained to render such services
upon the terms and conditions hereto set forth; and
WHEREAS, the Company desires the Consultant not to compete with the
Company.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
1. Simultaneous with the execution of this Agreement, Consultant shall
have entered into and executed an Unconditional Continuing Guaranty (the
"Guaranty") in favor of DVI Financial Services, Inc. ("DVI"). The Guaranty is
provided pursuant to the Subordination Agreement entered into on February 24,
1999 and is to replace Xxx Xxxxxx, M.D., the previous Guarantor to a certain
loan to TrueVision Laser Center of Albuquerque, Inc. ("TrueVision") and DVI
Financial Services, Inc., ("DVI"). Truevision, has obtained leases, loans,
extensions of credit and other financial services from DVI, and was required
to provide the Guaranty in order to close the refinancing of the Albuquerque
VIX laser facility.
2. (a) Subject all times to the supervision and direction of the
officers and Board of Directors of the Company, the Consultant shall during
the term hereof render Business advisory, investment banking consulting and
technical services to the Company (the "Services"). Such Services shall
relate to further research and development of the Company, as part of the
business of the Company, as the same shall now or hereafter exist, or as the
Company's Board of Directors or officers may from time to time reasonably
request. The Consultant shall perform his duties as an independent
contractor, and not as an employee, by use of his best efforts and due
diligence.
(b) Consultant may offer ideas or concepts to Company at any time that
are not specifically requested by the Company, however, Consultant shall
first present a broad and general oral outline of the proposed Services to
the Company, for the purpose of minimizing Consultant's efforts in those
instances where the proposed idea or concept may not appear to be consistent
with the Company's research objectives; may appear to duplicate Company
activities planned or in progress; or may appear to have been previously
considered by the Company. It is understood that the Company shall have the
sole and exclusive right to accept or reject any Service offered, and the
sole and exclusive right to determine the extent, if any, to which a Service
idea or concept shall be further studied or developed.
(c) As long as the Guaranty is in effect, the Company shall engage
Consultant as a Member of the Company's Board of Directors. Consultant shall
be entitled to receive reimbursement for all reasonable costs incurred in
meetings including, but not limited to food, lodging and transportation. In
addition, Consultant shall be entitled to the same compensation as the
Company gives to other non-employee directors for acting in such capacity.
3. This Agreement is for a term of thirty-six (36) months (the "Term"),
subject to earlier termination as provided in paragraph 6 below. The
foregoing notwithstanding, this Agreement may be extended or renewed by
mutual consent of the parties hereto.
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4. In full satisfaction for services to be rendered hereunder pursuant
to paragraph, the Consultant hereby accepts, the following compensation:
(a) The Consultant will receive an annual consulting fee of
$60,000 paid monthly in advance at the rate of $5,000 per month (the
"Monthly Fee") for services rendered. The monthly Fee will commence June
1, 1999. In addition to the Monthly Fee, the Company will reimburse the
Consultant on a monthly basis for all reasonable travel and
out-of-pocket expenses incurred by the Consultant in the performance of
his duties hereunder, and the Consultant shall account for such expenses
to the Company. Consultant shall also be entitled to receive the same
benefits that are available to employees of the Company on the same
terms and conditions as such employees, and shall participate in the
grant or award of stock options from the Company's 1998 Stock Option
Plan (and any successor or supplemental stock option plan) at a level
which is commensurate with other senior management of the Company.
(b) In addition to the consideration set forth in Section 2(a)
above, the Company shall cause to be assigned to the Consultant certain
issued and outstanding options to purchase 83,333 post split shares (the
"Shares") of the Company's Common Stock at $0.86 per share, which
options ("Medley Options") were initially issued to Xx. Xxxxxx Xxxxxx
("Xx. Xxxxxx") in exchange for her delivery of an irrevocable and
continuing guarantee agreement given by Xx. Xxxxxx on or about February
24, 1998, and which is referred to in Section 1 of this Agreement. The
Medley Options shall be assigned to the consultant within ten business
days after the date of this Agreement, and the Company shall enter such
assignment on its option registry in order to reflect the assignment of
the Medley Options from Xx. Xxxxxx to the Consultant as of the date
hereof. The shares underlying these options shall be registered by the
Company with the Securities and Exchange Commission ("SEC") on the next
available registration statement and if not so registered within six
months from the date hereof, shall be included on a Form S-8
Registration Statement or any other available registration statement to
be filed within seven months from the date hereof.
(c) The Company hereby represents and warrants it will use its
best efforts to make all laser financing payments to DVI described in
Section 1 above, on a timely basis.
5. All obligations of the Consultant contained herein shall be subject
to the Consultant's reasonable availability for such performance, in view of
the nature of the requested service and the amount of notice received. The
Consultant shall devote such time and effort to the performance of his duties
hereunder as the Consultant shall determine is reasonably necessary for such
performance. The Consultant may look to such others for such factual
information, investment recommendations, economic advice and/or research upon
which to base his advice to the Company hereunder, as it shall deem
appropriate. The Company shall furnish to the Consultant all information
relevant to the performance by the Consultant of his obligations under this
Agreement, or particular projects as to which the Consultant is acting as
advisor, which will permit the Consultant to know all facts material to the
advice to be rendered, and all material or information reasonably requested
by the Consultant. In the event that the Company fails or refuses to furnish
any such material or information reasonably requested by the Consultant, and
thus prevents or impedes the Consultant's performance hereunder, any
inability of the Consultant to perform shall not be a breach of his
obligations hereunder.
6. If, during the term of the agreement, the Consultant voluntarily
terminates his services as Consultant or is terminated by the Company for
Cause, as such term is defined below, then the term of this agreement shall
end without further action by either party hereto, and all rights and
obligations of the parties hereunder, except those set forth in paragraphs 8
and 9 hereof, shall terminate as of such date. For the purposes of this
Agreement, "Cause" shall mean either the nonperformance of the Consultant's
duties set forth herein, as reasonably determined by the Company, or the
conviction of the Consultant for a felony committed against the Company.
7. Except with respect to business activities competitive to the
Company's Field, nothing contained in this Agreement shall limit or restrict
the right of the Consultant or of any partner, employee, agent or
representative of the Consultant, to be a partner, director, officer,
employee, agent or representative of, or to engage in any other business,
whether of a similar nature or not, nor to limit or restrict the right of the
Consultant to render services of any kind to any other corporation, firm,
individual or association.
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8. The Consultant will hold in confidence any confidential information,
which the Company provides to the Consultant pursuant to this Agreement
unless the Company gives the Consultant permission in writing to disclose
such confidential information to a specific third party. Notwithstanding the
foregoing, the Consultant shall not be required to maintain confidentiality
with respect to information (i) which is or becomes part of the public
domain; (ii) of which it had independent knowledge prior to disclosure; (iii)
which comes into the possession of the Consultant in the normal and routine
course of his own business from and through independent non-confidential
sources; or (iv) which is required to be disclosed by the Consultant by
governmental requirements. If the Consultant is requested or required (by
oral questions, interrogatories, requests for information or document
subpoenas, civil investigative demands, or similar process) to disclose any
confidential information supplied to him by the Company or its
representatives, the Consultant shall, unless prohibited by law, promptly
notify the Company of such request(s) so that the Company may seek an
appropriate protective order. This Paragraph shall survive the termination of
this Agreement.
9. The Company and the Consultant agree to indemnify and hold each other
harmless including their respective partners, employees, agents,
representatives and controlling persons (and the officers, directors,
employees, agents, representatives and controlling persons of each of them)
from and against any and all losses, claims, damages, liabilities, costs and
expenses (and all actions, suits, proceedings or claims in respect thereof
and any legal or other expenses in giving testimony or furnishing documents
in response to a subpoena or otherwise (including, without limitation, the
cost of investigating, preparing or defending any such action, suit,
proceeding or claim, in which either the Company or the Consultant is a
party), as and when incurred, directly or indirectly, caused by, relating to,
based upon or arising out of this Agreement. This Paragraph shall survive the
termination of this Agreement.
10. This Agreement may not be transferred, assigned or delegated by any of
the parties hereto without the prior written consent of the other party
hereto.
11. The failure or neglect of the parties hereto to insist, in any one or
more instances, upon the strict performance of any of the terms or conditions
of this Agreement or their waiver of strict performance of any of the terms
or conditions of this Agreement shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
12. Any notices hereunder shall be sent to the Company and to the Consultant
at their respective addresses set forth above. Any notice shall be given by
registered or certified mail, postage prepaid, and shall be deemed to have
been given when deposited in the United States mail. Either party may
designate any other address to which notice shall be given, by giving written
notice to the other of such change of address in the manner herein provided.
13. This Agreement has been made in the State of California and shall be
construed and governed in accordance with the laws thereof without giving
effect to principles governing conflicts of law.
14. This Agreement contains the entire agreement between parties, may
not be altered or modified, except in writing and signed by the party to be
charged thereby, and supersedes any and all previous agreements between the
parties relating to the subject matter hereof.
15. This Agreement shall be binding upon the parties hereto, the indemnified
parties referred to in Section 9, and their respective heirs, administrators,
successors and permitted assigns.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
Consultant
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
TrueVision International, Inc.:
By: /s/ XXXX XXXXX
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Xxxx Xxxxx, President
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