Exhibit 4.11
CONSULTING AGREEMENT
This CONSULTING AGREEMENT is entered into as of
January 3, 2003 by and between CareDecision Corp. a Nevada
corporation, (the "Company"), and Xx. Xxxxxx X. Xxxx ("Xx. Xxxx"),
and is effective upon the execution by the parties hereto.
1. DUTIES AND RESPONSIBILITIES.
A. Xx. Xxxx shall provide assist the
Corporation to increase corporate awareness within the industry.
Xx. Xxxx shall report to and perform additional duties and
responsibilities as assigned to him by the Company's President, or
such other person as may be designated by the Company's Board of
Directors.
B. Xx. Xxxx agrees to devote part of his
time and attention to the Company, to use his best efforts to
advance the business and welfare of the Company, to render his
services under this Agreement fully, faithfully, diligently,
competently and to the best of his ability.
2. PERIOD OF EMPLOYMENT.
A. Xx. Xxxx'x employment with the Company
shall be governed by the provisions of this Agreement from January
3, 2003, and continuing until this Agreement terminates pursuant to
written notification by either the Company Xx. Xxxx, which
notification may occur on September 30, 2003, or at any time
thereafter. The period during which Xx. Xxxx provides services to
the Company pursuant to this Agreement shall be referenced in this
Agreement as the "Employment Period."
B. During the Employment Period of this
Agreement, if Xx. Xxxx is terminated other than for Cause or if he
resigns for Good Reason, he shall be entitled to the payments and
other benefits, set forth in Paragraph 7 of this Agreement.
3. COMPENSATION.
A. For the services provided under this Agreement, the
Company shall pay consultant a consulting fee of One Hundred Forty
Thousand Dollars ($140,000.00) (the "Consulting Fee"). In lieu of
cash payment, the parties agree that, upon execution of this
Agreement, the monies due to Xx. Xxxx under this Agreement shall be
applied to the exercise of an option granted to Xx. Xxxx by the
Company pursuant to an Incentive Stock Option Agreement to purchase
Three Million Five Hundred Thousand (3,500,000) common shares of
stock of the Company, at an exercise price of $0.04 per share.
4. EQUITY PARTICIPATION.
Xx. Xxxx may be granted options to purchase shares of the Company's
common stock.
5. EXPENSE REIMBURSEMENT.
In addition to the compensation specified in
Paragraph 3, Xx. Xxxx shall be entitled, in accordance with the
reimbursement policies in effect from time to time, to receive
reimbursement from the Company for reasonable business expenses
incurred by Xx. Xxxx in the performance of his duties hereunder,
provided Xx. Xxxx furnishes the Company with vouchers, receipts and
other details of such expenses in the form required by the Company
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sufficient to substantiate a deduction for such business expenses
under all applicable rules and regulations of Federal and State
taxing authorities.
6. FRINGE BENEFITS.
A. Xx. Xxxx shall, throughout the Employment
Period, shall not be eligible to participate in all group term life
insurance plans, group health plans, accidental death and
dismemberment plans and short-term disability programs and other
employee perquisites which are made available to the Company's
employees.
B. Should the Company terminate Xx. Xxxx'x
employment for Cause, as defined below, or should Xx. Xxxx
voluntarily resign other than for Good Reason, the Company shall
have no obligation to Xx. Xxxx under this Agreement. Should the
Company terminate Xx. Xxxx'x employment other than for Cause during
this Agreement, or should Xx. Xxxx resign for Good Reason, the
Company shall have no further obligation under this Agreement,
7. GOOD REASON.
For Purposes of this agreement, "Good Reason"
shall mean:
A. A material reduction in the duties,
responsibilities, status, reporting responsibilities, title, or
offices that Xx. Xxxx had with the Company immediately before the
reduction.
B. A change in control in which Xx. Xxxx is
not offered a similar position.
C. The failure of any successor to the
Company by merger, consolidation or acquisition of all or
substantially all of the business of the Company to assume the
Company's obligations under this Agreement.
D. A material breach by the Company of its
obligations under this Agreement. In no event, however, shall a
Change in Control be deemed to occur in connection with any public
offering of the Common Stock.
8. RESTRICTIVE COVENANTS.
During the Employment Period:
(i) Xx. Xxxx shall devote the required
amount of time necessary to achieve the tasks present to him by the
Company under the terms of this Agreement, except during periods of
illness or vacation periods.
9. NON-COMPETITION DURING THE EMPLOYMENT PERIOD.
Xx. Xxxx acknowledges and agrees that given the
extent and nature of the confidential and proprietary information
he will obtain during the course of his business relationship with
the Company, it would be inevitable that such confidential
information would be disclosed or utilized by Xx. Xxxx should he
obtain employment from, or otherwise become associated with, an
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entity or person that is engaged in a business or enterprise that
directly competes with the Company.
Consequently, during any period for which Xx. Xxxx is receiving
payments from the Company, either as wages or as a severance
benefit, including but not limited to severance pay pursuant to
paragraph 7, Xx. Xxxx shall not, without prior written consent of
the Company's Board of Directors, directly or indirectly own,
manage, operate, join, control or participate in the ownership,
management, operation or control of, or be employed by or connected
in any manner with, any enterprise which is engaged in any business
competitive with or similar to that of the Company; provided,
however, that such restriction shall not apply to any passive
investment representing an interest of less than two percent (2%)
of an outstanding class of publicly-traded securities of any
Company or other enterprise which is not, at the time of such
investment, engaged in a business competitive with the Company's
business.
10. PROPRIETARY INFORMATION.
As a condition precedent to Xx. Xxxx'x employment
with the Company, Xx. Xxxx will execute the Company's standard
Confidential Information and Assignment of Inventions Agreement Xx.
Xxxx'x obligations pursuant to the Confidential Information and
Assignment of Inventions Agreement will survive termination of Xx.
Xxxx'x employment with the Company.
11. SUCCESSORS AND ASSIGNS.
This Agreement is personal in its nature and Xx.
Xxxx shall not assign or transfer his rights under this Agreement.
The provisions of this Agreement shall inure to the benefit of, and
be binding on each successor of the Company whether by merger,
consolidation, transfer of all or substantially all assets, or
otherwise and the heirs and legal representatives of Xx. Xxxx.
12. NOTICES.
Any notices, demands or other communications
required or desired to be given by any party shall be in writing
and shall be validly given to another party if served either
personally or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such
notice, demand or other communication shall be served personally,
service shall be conclusively deemed made at the time of such
personal service. If such notice, demand or other communication is
given by mail, such notice shall be conclusively deemed given forty-
eight (48) hours after the deposit thereof in the United States
mail addressed to the party to whom such notice, demand or other
communication is to be given as hereinafter set forth:
To the Company:
Xxxxxx Xxx, President
CareDecision Corporation
0 Xxxx Xxxxx, 00xx Xxxxx, Xxx. 0000-00
Xxx Xxxx, XX 00000
To Xx. Xxxx:
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Dr. Xxxxxx Xxxx
23136 Park Contessa
Calabasas, CA. 91302
Any party may change its address for the purpose of receiving
notices, demands and other communications by providing written
notice to the other party in the manner described in this
paragraph.
13. GOVERNING DOCUMENTS.
This Agreement along with the documents expressly
referenced in this Agreement constitute the entire agreement and
understanding of the Company and Xx. Xxxx with respect to the terms
and conditions of Xx. Xxxx'x engagement with the Company and the
payment of severance benefits and supersedes all prior and
contemporaneous written or verbal agreements and understandings
between Xx. Xxxx and the Company relating to such subject matter.
This Agreement may only be amended by written instrument signed by
Xx. Xxxx and an authorized officer of the Company. Any and all
prior agreements, understandings or representations relating to Xx.
Xxxx'x relationship with the Company are terminated and cancelled
in their entirety and are of no further force or effect.
14. GOVERNING LAW.
The provisions of this Agreement will be
construed and interpreted under the laws of the State of Nevada. If
any provision of this Agreement as applied to any party or to any
circumstance should be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the
invalidity of that provision shall in no way affect (to the maximum
extent permissible by law) the application of such provision under
circumstances different from those adjudicated by the court, the
application of any other provision of this Agreement, or the
enforceability or invalidity of this Agreement as a whole. Should
any provision of this Agreement become or be deemed invalid,
illegal or unenforceable in any jurisdiction by reason of the
scope, extent or duration of its coverage, then such provision
shall be deemed amended to the extent necessary to conform to
applicable law so as to be valid and enforceable or, if such
provision cannot be so amended without materially altering the
intention of the parties, then such provision will be stricken and
the remainder of this Agreement shall continue in full force and
effect.
15. REMEDIES.
All rights and remedies provided pursuant to this
Agreement or by law shall be cumulative, and no such right or
remedy shall be exclusive of any other. A party may pursue any one
or more rights or remedies hereunder or may seek damages or
specific performance in the event of another party's breach
hereunder or may pursue any other remedy by law or equity, whether
or not stated in this Agreement.
16. NO WAIVER.
The waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as
a waiver of any later breach of that provision.
17. COUNTERPARTS.
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This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
CareDecision Corporation
/s/ Xxxxxx Xxx
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By: Xxxxxx Xxx
Title: President
Xx. Xxxxxx X. Xxxx.
/s/ Xxxxxx Xxxx
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Title: Consultant
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