Exhibit 10.4
AMENDED AND RESTATED CONSULTING AGREEMENT
AGREEMENT made as of this 23rd day of December 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
WITNESSETH
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 continue
to provide services to the Company;
WHEREAS, the Consultant and the Company previously entered into a form
of consulting agreement dated August 23, 1999, the terms and conditions of which
have been mutually amended by the parties, which amendments are deemed to be
effective as of the date of this Agreement;
WHEREAS, the Company desires to continue to retain the Consultant to
provide required business advisory services and investment banking advice in the
Field;
WHEREAS, the Consultant desires to continue to be retained to render
such services upon the terms and conditions set forth in this Agreement; 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. Effective as of the date hereof, the terms and conditions of this
Agreement, as amended and restated, shall control the consulting relationship
between the Consultant and the Company.
2. Prior to the date hereof, 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 a certain
Subordination Agreement entered into on February 24,1999 by the Company and DVI
and is to replace a like Guaranty previously given by Xxx Xxxxxx, M.D., the
previous Guarantor to a certain loan to TrueVision Laser Center of Albuquerque,
Inc., a subsidiary of the Company ("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 consummate the refinancing of the excimer laser equipment utilized in
TrueVision's facility.
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2. (a) Subject all times to the supervision and direction of the
Company's chief executive officer, the Consultant shall, during the term hereof,
render business advisory, investment banking consulting and technical services
to the Company ("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 chief executive officer 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 the 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 the Company's
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 the Services, an idea
or concept shall be further studied or developed.
(c) As long as the Guaranty is in effect, the Company shall use its
best efforts to nominate and retain the Consultant as a member of the Company's
board of directors. Consultant shall be entitled to receive reimbursement for
all reasonable costs incurred in board of director 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 forgoing
notwithstanding, this Agreement may be extended or renewed by mutual consent of
the parties hereto.
4. In full satisfaction for: (i) the Services to be rendered hereunder;
and (ii) the delivery of the Consultant's Guaranty, the Consultant hereby
accepts and shall receive the following consideration:
(a) As compensation to the Consultant for providing the
Services, the Consultant will receive an annual consulting fee of
$60,000 paid monthly in advance at the rate, of $5,000 per month
("Monthly Fee") for services rendered. The Monthly Fee will commence
January 1. 2000. 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
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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) As consideration for the Consultant's agreement to provide
the Guaranty, and in addition to the consideration set forth in Section
2(a) above, the Company shall cause to be issued to the Consultant
non-statutory common stock options to purchase 83,333 shares ("Shares")
of the Company's Common Stock at an exercise price of $6.15 per share,
which options shall be granted pursuant to the form of non-statutory
stock option agreement annexed to this Agreement as EXHIBIT "A" and
incorporated herein by reference. Subject to the restrictions on
exercise of the options set forth in EXHIBIT "A", 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 advise 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,
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except those set forth in paragraphs 8 and 9 hereof, shall
terminate as of such date. For the purpose 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 the 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 provided 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)
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.
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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 amends and supercedes any prior consulting agreement
entered into by these parties, 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.
Consultant:
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Xxxxx X. Xxxxxxx
TrueVision International, Inc.:
By:
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Xxxx Xxxxx, Chief Executive
Officer
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