Exhibit 10.4
CONSULTING AGREEMENT
AGREEMENT made as of this 1st day of April, 1998 by and between TopForm, Inc
("TopForm") with an address at 000 X Xxxxxx, Xxx Xxxxx, XX 00000 and Xxxxxx
Xxxxxxxxx (the "Consultant"), with an address of 0000 X. Xxxxxxx Xx., Xxx
Xxxxxxx, 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
medical 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 herein set forth; and
WHEREAS, the Company desires the Consultant not to compete with the Company.
NOW, THEREFORE, in consideration of the premises 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
was provided pursuant to a Subordination Agreement entered into on February
24, 1998 by and among Consultant, Xxx Xxxxxx, M.D.; Truevision Laser Center
of Albuquerque, Inc. ("Truevision") and DVI Financial Services, Inc.,
("DVI"). Truevision, is obtaining 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 VISX 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 medical advisory, investment banking consulting and technical
services to the Company (the "Services"). Such Services shall relate to the
further research and development of the Field, 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.
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(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 or his designee as a nonvoting advisor to the Company's Board of
Directors. The Company shall notify and invite Consultant to each meeting of
the Board. Consultant shall receive all notices and other correspondence and
communications set by the Company to Members of the Board. Consultant shall
be entitled to receive reimbursement for all reasonable costs incurred in
attending such meetings including, but not limited, 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.
4. In full satisfaction for services to be rendered hereunder pursuant to
paragraph 1, the Consultant hereby accepts, the following compensation:
(a) The Consultant will receive an annual salary of $60,000 paid
monthly in advance at the rate of $5,000 per month (the "Monthly Fee") for
services rendered as a member of the Company's Medical Advisory Board. The
Monthly Fee will commence on July 1, 1998. 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.
(b) In addition to the consideration set forth in Section 2(a) above,
the Consultant shall be entitled to purchase 400,000 post split shares (the
"Shares") of the Company's Common Stock at par value. The Shares 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) Immediately following the completion of the DVI Laser Refinancing,
Consultant shall be paid all outstanding expenses in the amount of
approximately $6,400.
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(d) Consultant shall be paid all past due and then pending consultant
fees owed to him by True Vision, accrued at the rate of $5,000 per month, or
an aggregate of $50,000 as of this date. The monies shall be paid to
Consultant from the proceeds of the Company's proposed private placement but
in any event no later than June 30, 1998.
(e) The Company hereby represents and warrants that 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 this 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 non-performance 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.
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
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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.
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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.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
/s/ XXXXXX XXXXXXXXX
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Xxxxxx Xxxxxxxxx
TOPFORM, INC.
By: /s/ XXXX XXXXX
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Xxxx Xxxxx, President
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