EXHIBIT 99.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and executed as of the effective
date of the 4th day of January 2001, by and between eClickMD, Inc. located at
000 X. Xxxx Xxxxx, Xxxxx (hereinafter the "Company" or "eClickMD"), and Xxxxxx
Xxx ("Consultant"), a principal of Conduro Ventures, L.L.C. located at 0000 X.
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and is made with respect to the following
facts:
A. Consultant represents that he possesses the knowledge, experience and
ability to advise the Company in its business development, e-commerce research
and product development, advising and developing internet related training and
product implementation, marketing and strategic alliances development program,
targeting candidates as potential business, channel or development partners and
performing related services, to identify and secure additional management and
members of the Board of Advisors and Board of Directors and audit committee
members of the Company.
B. The parties have entered into this Agreement for the purpose of setting
forth the terms of consultancy of Consultant by the Company and believe that it
is in their mutual best interests to enter into a consultant agreement pursuant
to the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Scope of Representation. Company grants Consultant permission to act on
Company's behalf in assisting Company in its business development, e-commerce
research and product development, advising and developing internet related
training and product implementation, marketing and strategic alliances
development program, targeting candidates as potential business, channel or
development partners and performing related services, to identify and secure
additional management and members of the Board of Advisors and Board of
Directors and audit committee members of the Company. Consultant's services
shall be provided on a non-exclusive basis. Consultant shall provide his
services on a best efforts basis. These advisory and development services
include the following:
a. Assist and advise and perform research in business areas which
may benefit the business goals of the Company and may provide
value and benefits to it's customers and clients.
b. Assist, advise and develop business relationships with
potential business, channel or development partners and seek
other strategic relationships with medical or technology
companies that may have similar business interest to the
Company.
c. Advise the Company in implementing its business strategy
during the term, which will include: business development
services, e-commerce research and product development,
advising and developing internet related training and product
implementation, marketing and strategic alliances development
program, assisting in development of business and marketing
models and assisting legal, accounting, marketing and
technology departments in developing appropriate business and
e-commerce procedures and documents, identifying and securing
additional management and members of the Board of Advisors and
Board of Directors.
In conducting the forgoing efforts, Consultant will rely upon eClickMD to
provide all necessary information regarding the Company and its business plan.
You will furnish Consultant with all relevant material regarding the business
and financial condition of the Company that will be accurate and complete in all
material respects at the time furnished and will represent your best estimates
of future performance. Consultant will be relying, without independent
verification, on the accuracy and completeness of all financial and other
information that is and will be furnished to us by you. Any advice rendered by
Consultant pursuant to this letter may not be disclosed publicly in any manner
without Consultant's prior written approval and will be treated by you and us as
confidential.
Under no circumstances shall Consultant be required to provide any services
pursuant to this Agreement that would require registration or other filings by
it under any United States federal or state securities laws.
2. Consultant's Expenses. Throughout the term of this Agreement,
Consultant shall provide the types of services set forth in Section 1 from time
to time and upon the Company's reasonable request. Consultant shall perform such
services at and from his principal place of business. Consultant shall be solely
responsible for ordinary and reasonable expenses incurred during the course of
its performance of this Agreement, such as by way of example, telephone and fax
charges, copying charges and the like. The Company, upon prior approval, shall
promptly reimburse Consultant for any reasonable expenses, including travel and
lodging, that Consultant may incur on the Company's behalf in furtherance of
this Agreement.
3. Independent Contractor; No Power to Bind. Consultant is not an employee
of Company for any purpose whatsoever, but is an independent contractor. Company
is interested only in the results obtained by the Consultant, who shall have,
subject to the terms of this Agreement, sole control of the manner and means of
performing under this Agreement. Consultant does not have the right or authority
to create a contract or obligation either express or implied, on behalf of, in
the name of or binding upon Company, or to pledge Company's credit, or to extend
credit in the Company's name unless otherwise agreed in writing. Consultant
shall have no right or authority to commit Company in any manner without the
prior written consent of Company.
4. Compensation. Consultant shall be entitled to receive the following
direct compensation:
(a) Upon execution of this Agreement, Company shall pay Consultant
seventy five thousand (75,000) common shares for ongoing
services rendered effective the first business day of 2001 of
the Company registered pursuant to form S-8 for the initial
term of this Agreement in order to advise and achieve the
objectives of the Company; and,
(b) Warrants to purchase sixty thousand (60,000) common shares of
the Company for a term of one year at an exercise price of
fifty cents ($.50) per share Company registered pursuant to
form S-8, or if not available the next registration of common
shares by the company in the form of an SB-2 or other
registration statements, for the initial term of this
Agreement in order to advise and achieve the objectives of the
Company; and,
(c) Warrants to purchase one seventy-five thousand (75,000) common
shares of the Company for a term of two years at an exercise
price of seventy-five cents ($.75) per share Company
registered pursuant to form S-8, or if not available the next
registration of common shares by the company in the form of an
SB-2 or other registration statements, for the initial term of
this Agreement in order to advise and achieve the objectives
of the Company; and,
(d) For services rendered during the last quarter of 2000 by the
Consultants to the Company, options to purchase ninety-five
thousand (95,000) common shares of the Company under terms and
conditions allowed under the 2000 Stock Option Plan adopted by
the company and previously approved by the Shareholders
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5. Term. The initial term of this Agreement shall be for a term of nine
(9) months.
6. Warranties and Representations. Consultants' advisory services are
provided on a best efforts basis and are based on his personal experience and
expertise. There are no guarantees, warranties or representations of any kind
that Consultant's advise or services will produce any specific results for the
benefit of the Company. Actual results may substantially and materially differ
from those suggested by Consultant or included in the Exhibits attached hereto.
Consultant represents and warrants to Company that (a) he is under no
contractual restriction or other restrictions or obligations that are
inconsistent with this Agreement, the performance of his duties and the
covenants hereunder, and (b) he is under no physical or mental disability that
would interfere with his keeping and performing all of the agreements, covenants
and conditions to be kept or performed hereunder.
Consultant agrees that he has not been retained for any of the following
activities or purposes:
(a) For capital raising or for promotional activities regarding
the Company's securities:
(b) To directly or indirectly promote or maintain a market for the
Company's securities.
(c) To act as a conduit to distribute S-8 Securities to the
general public.
(d) To render investor relations services or shareholder
communications services to the Company.
(e) To render advice to the Company regarding the arrangement or
effecting of mergers involving the Company that have the
effect of taking a private company public.
7. Notice. Except as otherwise specifically provided, any notices to be
given hereunder shall be deemed given upon personal delivery, upon the next
business day immediately following the day sent if sent by overnight express
carrier, or upon the third business day following the day if sent by fax and
separately by postage prepaid by certified or registered mail, return receipt
requested, to the following addresses (or such other address as shall be
specified in any notice given):
In case of Consultant: Xxxxxx Xxx
0000 X. Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
In case of Company: eClickMD, Inc.
201E. Main
Xxxxx, Xxxxx 00000
Attn.: Xxx Xxxx
8. Waiver of Breach. The waiver by a party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of this Agreement.
9. Assignment. Except as otherwise provided herein, the rights and
benefits of the parties contained in this Agreement shall inure to the benefit
of and be binding upon the successors, assigns, administrators, and personal
representatives of the parties hereto. Consultant's duties under this Agreement
shall be non-delegable without the prior written consent of the Company. Neither
party shall have the right to assign this Agreement or any obligation set forth
hereunder without the written consent of the other party, which consent shall
not be unreasonably withheld; provided however, that Consultant may without such
consent assign any or all rights to any compensation hereunder if accomplished
in compliance with Section 18 hereof and in accordance with any and all
applicable laws.
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10. Compliance with Law. During the term, Consultant shall comply with all
laws and regulations applicable to Consultant in the conduct of his business.
11. Arbitration. Any controversy or claim arising out of or relating to any
interpretation, breach or dispute concerning any of the terms or provisions of
this Agreement, which disagreement is not settled within thirty days after it
arises, shall be settled by binding arbitration in Texas in accordance with the
laws of the State of Texas and under the rules then obtaining of the American
Arbitration Association and judgment upon the award rendered in said arbitration
shall be final and may be entered in any court of the State of Florida having
jurisdiction thereof. Any party hereto may apply for such arbitration.
12. Attorneys Fees. In the event that an action at law or in equity is
brought to enforce the provisions of this Agreement or to prevent a breach
thereof, the successful party in such action or arbitration proceeding shall be
entitled to an award of attorney's fees and other costs as shall be established
by the court or pursuant to a binding arbitration proceeding.
13. Hold Harmless & Indemnification. The Company shall hold Consultant
harmless from and against and shall indemnify him for any liability, loss, cost,
expenses or damages, including attorney's fees, howsoever caused by reason of
any injury or loss sustained by or to any person or property by reason of any
alleged wrongful act, misrepresentation or omission except for gross negligence,
willful misconduct or malfeasance and it shall pay all sums to be paid or
discharged in case of any action or any such damages or injuries relating to the
subject matter of this Agreement or services or obligations rendered hereunder.
14. Applicable Law. This Agreement shall be construed as a whole and in
accordance with its fair meaning. This Agreement shall be interpreted in
accordance with the laws of the State of Texas.
15. Entire Agreement. This Agreement, together with the documents and
exhibits referred to herein, embodies the entire understanding among the parties
and merges all prior discussions or communications among them, and no party
shall be bound by any definitions, conditions, warranties, or representations
other than as expressly stated in this Agreement, or as subsequently set forth
in writing, signed by the duly authorized representatives of all of the parties
hereto. This agreement, when executed shall supercede and render null and void
any and all preceding oral or written understandings and agreements.
16. No Oral Change; Waiver. This Agreement may only be changed, modified,
or amended in writing by the mutual consent of the parties hereto. The
provisions of this Agreement may only be waived in or by a writing signed by the
party against whom enforcement of any waiver is sought.
17. Conflict of Interest. Company acknowledges that, in the course of
Consultant's non-exclusive services and the term, Consultant may now or in the
future have certain potential or actual conflicts of interest. Without the
Company's written consent, Consultant shall not engage in any transaction that
may result in any actual or potential conflicts to the extent such conflicts may
reasonably prove to be substantially and materially injurious to the Company.
Notwithstanding any provision contained in this Agreement to the contrary, if
Consultant so engages without such consent in any transaction with any third
party that may reasonably result in such injury to the Company, then the Company
may terminate this Agreement immediately upon written notice and thereafter, the
Company shall have no further obligation to compensate Consultant hereunder.
18. Termination. Either party may terminate this agreement with cause with
thirty days prior written notice. Cause shall be defined to include gross
negligence or malfeasance, which arises in connection with fulfilling the
obligations of this Agreement.
19. Severability. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, inoperative or unenforceable as applied in
any particular case because it conflicts with any other provision or provisions
hereof, or any constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, sections or
subsections of this Agreement shall not affect the remaining portions of this
Agreement.
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20. Interpretation. Each of the parties acknowledge that it has been
represented by independent counsel of its choice throughout all negotiations
that have preceded the execution of this Agreement, and that it has executed the
same with consent and upon the advice of said independent counsel. Each party
and its counsel cooperated in the drafting and preparation of this Agreement and
the documents referred to herein, and any and all drafts relating thereto shall
be deemed the work product of the parties and may not be construed against any
party by reason of its preparation. Accordingly, any rule of law, including but
not limited to any decision that would require interpretation of any ambiguities
in this Agreement against the party that drafted it, is of no application and is
hereby expressly waived. The provisions of this Agreement shall be construed as
a whole and in accordance with its fair meaning to affect the intentions of the
parties and this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the effective date indicated above.
COMPANY: eClickMD , Inc.
by: /s/ XXXXXX X. XXXX
--------------------------
Xxxxxx X. Xxxx
CONSULTANT: Xxxxxx Xxx
by: /s/ XXXXXX XXX
--------------------------
Xxxxxx Xxx
CONSULTING AGREEMENT ADDENDUM
THIS ADDENDUM TO THE CONSULTING AGREEMENT dated January 4th, 2001 ("The
Agreement") is made and executed as of the effective date of the 10th day of
April 2001, by and between eClickMD, Inc. located at 000 X. Xxxx Xxxxx, Xxxxx
(hereinafter the "Company" or "eClickMD"), and Xxxxxx Xxx ("Consultant"), a
principal of Conduro Ventures, L.L.C. located at 0000 X. Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000 and is made with respect to the following facts:
A. This Addendum to the Consulting Agreement shall include all of the
terms and conditions set forth in The Agreement originally entered into
between the Parties unless otherwise stated herein.
B. For additional services rendered to the Company, the Consultant shall
be granted warrants to purchase one hundred thousand shares (100,000)
of the Company's common stock with an exercise price of $0.75 per share
with a term of two (2) years from the effective date of this agreement
addendum.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the effective date indicated above.
COMPANY: eClickMD , Inc.
by: /s/ XXXXXX X. XXXX
---------------------------
Xxxxxx X. Xxxx
CONSULTANT: Xxxxxx Xxx
by: /s/ XXXXXX XXX
---------------------------
Xxxxxx Xxx
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