EXHIBIT 10.9
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into effective as of February
9, 1998, by and between TrueVision Laser Centers of Albuquerque, Inc. (the
"Company"), a Nevada corporation, RB&A, Inc. (the "Consultant"), and Topform,
Inc. ("Topform").
RECITALS
WHEREAS, the Company desires to utilize the services of the Consultant to
assist in the development of a long-term strategic plan for the Company,
including, but not limited to the areas of management, marketing and finance,
and for such other management consulting services as may be mutually agreed
upon by Consultant and the Chairman of the Board of Directors of the Company;
WHEREAS, the Company desires to enter into an arrangement with Consultant
under which Consultant will be guaranteed a minimum amount of cash
compensation and will be provided with stock options;
WHEREAS, the Company and the Consultant acknowledge that certain stockholders
of the Company have entered into a letter intent under which Topform will
acquire 84% of the Company's Common Stock;
WHEREAS, the Consultant is willing to provide said services upon the terms
and conditions herein provided; and
WHEREAS, both parties desire to embody the terms and conditions of the
Consultant's service to the Company into a written agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto hereby agree as follows:
1. SERVICES. During the term hereof, the Consultant will (i) assist
the company in the development of a long-term strategic plan, including, but
not limited to the areas of management, marketing and finance; and (ii)
perform such other management consulting services as may be mutually agreed
upon by Consultant and the Chairman of the Board of Directors of the Company.
The Consultant agrees to devote as much time as necessary to the performance
of said duties.
2. COMPENSATION. In consideration of Consultant's agreement to enter
into the Agreement and to perform the services referenced in Section 1 hereof
on a basis which calls for certain specific payments to be made without
regard to the Company's financial condition, the Company shall pay the
Consultant as follows:
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(i) Options to purchase eighteen thousand (18,000) shares of the
Company's common stock at a price of $20.00 per share ("Options") shall
be issued to consultant immediately upon execution of the Agreement. The
Options shall not be exercisable unless the shareholders of the Company
shall consummate the proposed transaction with Topform. Further, the
Options shall have a cashless exercise provision, and shall be
automatically converted at the time that Topform acquires 84% of the
Company's outstanding Common Stock into options to acquire 4,000,000
shares of Topform at $.09 per share, which represents a proportional
adjustment in the same ratio that the Topform Shareholders will be
exchanging their shares of the Company for shares of Topform.
(ii) Subject to the condition that Topform consummate the
acquisition of 84% of the outstanding Common Stock of the Company, cash
compensation in the amount of $4,000 per month for 24 months (i.e., an
aggregate of $96,000). Such compensation shall begin to accrue on the
day that Topform acquires 84% of the Company's outstanding Common Stock
(the "Closing Date") with additional amounts accruing on the same day of
each succeeding month until a total of $96,000 has been accrued and paid
to Consultant. Payments will commence at the earlier of the time that
either Topform or the Company complete a private placement in which
gross proceeds of $25,000 are raised on June 1, 1998 (the "First Payment
Date"), with the first payment being equal to the total amount accrued
from the Closing Date until the First Payment Date. If the Company fails
to make any payment when due, and such payment is not made within
forty-five (45) days after the due date, the entire remaining balance
due to Consultant shall be accelerated and become immediately due and
payable. For example if the Company made twelve payments on time and
then failed to make the thirteenth payment no later than the forty-fifth
day after such payment was due, then the remaining twelve payments
(i.e., $48,000) would be immediately due and payable. Further, the
parties agree that Consultant may elect to have any monthly payment due
hereunder applied to the partial exercise of the Option referenced above
in Section 2(i).
3. TERM. The term of this Agreement shall be effective from February
9, 1998, and continue until twenty-four months after Topform consummates the
acquisition of 84% of the Company's outstanding Common Stock, unless extended
by mutual consent in writing by the Company and Consultant. If Topform fails
to consummate such acquisition on or before March 31, 1998 (unless the
parties agree to a later date), then this Agreement shall automatically
terminate and the obligations of the parties under this Agreement shall
automatically terminate and no party shall have any further obligations to
any other party under this Agreement.
4. EXPENSES. The consultant shall be reimbursed for all reasonable
out-of-pocket expenses, including, but not limited to travel expenses,
actually and properly incurred by him in connection with his duties
hereunder, upon presentation of vouchers therefore.
5. CONSULTANT AS INDEPENDENT CONTRACTOR. This Agreement shall not
constitute an employer-employee relationship. It is the intent of each party
that Consultant be an independent contractor and not an employee of the
company or any of its affiliates.
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6. CONFIDENTIALITY. Unless otherwise authorized by the Company,
Consultant shall treat a proprietary all non-public information belonging to
the Company or its affiliates which is disclosed to the Consultant in the
course of the performance of services hereunder.
7. ASSIGNMENT. Consultant may assign any rights to payment provided
for hereunder; provided that the services to be provided by Consultant must
continue to be provided by Will X. Xxxxx. Any attempt by the Company to
assign any rights, duties or obligations which arise under this Agreement
without the prior written sent of Consultant shall be void and shall
constitute a breach of the terms of this Agreement.
8. ENTIRE AGREEMENT MODIFICATION. This Agreement constitutes the
entire agreement between the parties hereto. No promises, guarantees,
inducements or agreement, whether oral or written, express or implied have
been made or shall be of any force or effect other than as contained in this
Agreement. This Agreement can only be modified or changed in writing signed
by both parties.
9. NOTICES. any notices, request, demand or other communication
required or permitted hereunder shall be deemed properly given when
personally served in writing or when deposited in the United States mail,
postage prepaid, addressed to the other party at the following address:
If to the Company: 000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
If to the Consultant 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
10. BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit and
be binding upon the parties hereto and their respective legal
representatives, administrators, executors, successors, subsidiaries and
affiliates.
11. GOVERNING LAW. This Agreement is made and shall be governed and
construed in accordance with the laws of the State of Colorado.
12. SURVIVAL. The duty of the Company to make, and the right of the
consultant to receive the payments provided for in Section 2(ii) of this
Agreement shall survive the termination of the Agreement, except as otherwise
provided in said Section 2.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and
its seal to be affixed hereunto by its officer thereunto duly authorized and
the consultant has signed this Agreement, all as of the day and year written
above.
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RB&A, INC.
By: /s/ WILL X. XXXXX
----------------------------------------------------
Will X. Xxxxx, Consultant
TOPFORM, INC.
By: /s/ WILL X. XXXXX
----------------------------------------------------
Will X. Xxxxx, President
TRUEVISION LASER CENTERS OF ALBUQUERQUE, INC.
By: /s/ XXXX X. XXXXX
----------------------------------------------------
Xxxx X. Xxxxx, President
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