Exhibit 4.12
CONSULTING AGREEMENT
Agreement made this 10 day of January, 2003, between CareDecision
Corporation, (hereinafter referred to as "Corporation"), and Xxxxxx
Xxxxxxxx, (hereinafter referred to as "Consultant"):
In consideration of the mutual promises contained in this
Agreement, the contracting parties agree as follows:
Recitals:
A. It is the desire of the Corporation to engage the services of
the Consultant to consult with the Corporation regarding certain
opportunities available to provide the Corporation Services as
described in Section 2 below.
B. Prior to this Agreement, the Corporation and Consultant have
agreed that a compensatory, mutually binding agreement, is in the
best interest of the Corporation.
AGREEMENT
Term
1. The respective duties and obligations of the contracting
parties shall be for a period of one hundred eights (180) days
commencing on the date of January 10, 2003.
Services Provided by Consultant
2. Services
(a) The Consultant will devote such amount of time and effort
necessary to accomplish the services required. However, there is
no requirement that Consultant devote a certain amount of time or
effort hereunder. During the term of this Agreement, Consultant
will:
- consult with and advice CareDecision Corporation in connection
with any and all matters relating to CareDecision Corporation's
corporate governance and potential BBX application, as CareDecision
Corporation may reasonably request.
- introduce certain strategic partners to the Corporation.
- provide other Consultative services as requested by the Board
of Directors (collectively, Consultative Services).
(b) Corporation and Consultant will mutually agree upon any
additional duties that Consultant may provide for Corporation
outside of this Agreement.
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Compensation
3. For the services provided under this Agreement, the Company
shall pay consultant a consulting fee of Eighty Thousand Dollars
($80,000.00) (the "Consulting Fee"). In lieu of cash payment, the
parties agree that, upon execution of this Agreement, the monies
due to Xx. Xxxxxxxx under this Agreement shall be applied to the
exercise of an option granted to Xx. Xxxxxxxx by the Company
pursuant to an Incentive Stock Option Agreement to purchase Two
Million (2,000,000) common shares of stock of the Company, at an
exercise price of $0.04 per share.
Compliance
4. If a registration is contemplated, the shares shall have
"piggy back" registration rights and will, at the expense of the
Corporation, be included in said registration.
Representations of Corporation
5. Representations of Corporation
(a) The Corporation, upon entering this Agreement, hereby warrants
and guarantees to the Consultant that all statements, either
written or oral, made by the Corporation to the Consultant are true
and accurate, and contain no misstatements of a material fact. The
corporation acknowledges that the information it delivers to the
Consultant will be used by the Consultant in preparing materials
regarding the Corporation's business, including but not necessarily
limited to, its financial condition, for dissemination to the
public. Therefore, in accordance with Paragraph 6, below, the
Corporation shall hold harmless the Consultant from any and all
errors, omissions, misstatements, negligent or intentional
misrepresentations, contained in any information furnished by
Corporation to Consultant, in accordance with and pursuant to the
terms and conditions of this Agreement for whatever purpose or
purposes the Consultant sees fit to use said information. The
Corporation further represents and warrants that as to all matters
set forth within this Agreement, the Corporation has had
independent legal counsel and will continue to maintain independent
legal counsel to advise the Corporation of all matters concerning,
but not necessarily limited to, corporate law, corporate relations,
investor relations, all manners concerning and in connection with
the Corporation's activities regarding the Securities Act of 1933
and 1934, and state Blue Sky or Securities laws.
Consultant has no responsibility to obtain or render legal advice
in connection with the Corporation's sale of securities. All
legal, regulatory or licensing matters as relates to the corporate
sale of securities are the responsibility of the Corporation and
its counsel.
(b) Corporation shall provide, at its' expense, suitable "Due
Diligence" packages to Consultant as needed.
Limited Liability
6. With regard to the services to be performed by the Consultant
pursuant to the terms of this Agreement, the Consultant shall not
be liable to the Corporation, or to anyone who may claim any right
due to any relationship with the Corporation, or any acts or
omissions in the performance of services on the part of the
Consultant, or on the part of the agents or employees of the
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Consultant, except when said acts or omissions of the Consultant
are due to its willful misconduct or culpable negligence.
Termination
7. This Agreement will terminate upon the period of one hundred
eights (180) days from the date of this Agreement or by the
Company. In the event this Agreement is terminated by the
Corporation, all compensation paid by Corporation to the Consultant
shall be deemed earned, and no part of the compensation will be
refunded or prorated.
Notices
8. Notices to be sent pursuant to the terms and conditions of
this Agreement, shall be sent as follows:
As to Consultant:
Xxxxxx Xxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
(000) 000-0000
As to Corporation:
CareDecision Corporation
0 Xxxx Xxxxx, 00xx Xxxxx, Xxxxx 0000-00
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 office
(000) 000-0000 Fax
Trade Secrets - Confidentiality
9. Corporation and Consultant mutually acknowledge and agree that
any confidential information is proprietary to and a valuable trade
secret of Consultant or Corporation as applicable and that any
disclosure or unauthorized use thereof will cause irreparable harm
and loss to consultant. The parties hereto agree that all such
information conveyed to Corporation regarding the operations and
services of Consultant or to Consultant regarding the operations,
services and products of the Corporation constitutes a trade secret
and shall be afforded the protections provided the Uniform Trade
Secrets Act or any other applicable laws.
The Corporation and the consultant agree at all times during the
term this Agreement and after the termination of this Agreement to
hold in strictest confidence, and not to use, except for the
benefit of the other party, or to disclose, transfer or reveal,
directly or indirectly to any person or entity any Confidential
information without the prior written authorization of the other
party for a period of two (2) years. For purposes of this
Agreement, Confidential Information shall mean any and all
information that is not generally known and that is proprietary to
both parties or any of their clients, consultants or licensors.
Confidential Information includes, without limitation, names of
investors, buyers, sellers, borrowers, lenders introduced by the
Consultant of its associates' business plans, client lists
consultants, financial information, and trade secrets about the
Consultant and its products and information or other proprietary
information relating to designs, formulas, developmental or
experimental work, know how, products processes, computer programs,
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source codes, databases, designs, schematics, or other original
works of authorship.
Attorneys' Fees - Arbitration
10. In the event any litigation or controversy, including
arbitration, arises out of or in connection with this Agreement
between the parties hereto, the prevailing party in such
litigation, arbitration or controversy, shall be entitled to
recover from the other party or parties, all reasonable attorneys'
fees, expenses and suit costs, including those associated within
the appellate or post judgment collection proceedings.
Any dispute or disagreement arising out of this Agreement
shall be fully and finally resolved through binding arbitration,
before a single arbitrator in Philadelphia, Pennsylvania in
accordance with the rules of the American Arbitration Association
governing commercial disputes. In the event that the parties
cannot agree upon a single arbitrator, the arbitrator shall be a
retired judge of the Philadelphia District Court upon ex parte
application by any party on 72 hours notice to the other
party(ies). The costs of the Arbitration including without
limitation, the fees of the arbitrator (but excluding each party's
attorney's fees) shall be initially shared equally by the parties
but may be awarded by the arbitrator as additional damages in favor
of the prevailing party. The Arbitrator shall apply Pennsylvania
law in reaching his decision. The decision of the arbitrator shall
be binding and nonappealable.
Governing Law
11. This Agreement shall be construed under and in accordance with
the laws of the State of Pennsylvania, and all obligations of the
parties created under it are performed in Philadelphia County,
Pennsylvania. In any controversy arising out of this Agreement,
venue for said proceeding shall be in Philadelphia County,
Pennsylvania.
Parties Bound
12. This Agreement shall be binding on and inure to the benefit of
the contracting parties and their respective heirs, executors,
administrations, legal representatives, successors, and assigns
when permitted by this Agreement.
Miscellaneous
13. Other miscellaneous provisions:
(a) Subsequent Events. Consultant and the Corporation each agree
to notify the other party if, subsequent to the date of this
Agreement, either party incurs obligations which could compromise
its efforts and obligations under this Agreement.
(b) Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing executed by
the parties hereto.
(c) Further Actions and Assurances. At any time and from time to
time, each party agrees, at its or their expense, to take actions
and to execute and deliver documents as may be reasonably necessary
to effectuate the purposes of this Agreement.
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(d) Waiver. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions hereunder
may be waived in writing by the party to whom such compliance is
owed. The failure of any party to this Agreement to enforce at
any time any of the provisions of this Agreement shall in no way
be construed to be a waiver of any such provision or a waiver of
the right of such party thereafter to enforce each and every such
provision.
No waiver of any breach of or non-compliance with this Agreement
shall be held to be a waiver of any other or subsequent breach or
non-compliance.
(e) Assignment. Neither this Agreement nor any right created by
it shall be assignable by either party without the prior written
consent of the other.
(f) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors, and
assigns.
(g) Entire Agreement. This Agreement contains the entire
agreement between the parties hereto and supersedes any and all
prior agreements, arrangements, or understandings between the
parties relating to the subject matter of this Agreement. No
oral understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express or
implied, other than as set forth herein, have been made by any
party.
(h) Severability. If any part of this Agreement is deemed to
be unenforceable the balance of the Agreement shall remain in
full force and effect.
(i) Counterparts. A facsimile, telecopy, or other
reproduction of this Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument, by one or more parties hereto and such
executed copy may be delivered by facsimile of similar
instantaneous electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen. In
this event, such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request
of any party hereto, all parties agree to execute an original
of this Agreement as well as any facsimile, telecopy or other
reproduction hereof.
(j) Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
IN WITNESS WHEREOF, to the terms and conditions described herein,
the parties have set their hands and seal as of the date written
above.
CareDecision Corporation The Consultant: Xxxxxx Xxxxxxxx
Xxxxxx Xxx, President
by: /s/ Xxxxxx Xxx by: /s/ Xxxxxx Xxxxxxxx
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Date: January 10, 2003 Date: January 10, 2003
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