EXHIBIT 99.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and executed as of the
28th of November, 2000, by and between eClickMD, Inc. located at 000 X. Xxxx
Xxxxx, Xxxxx (hereinafter the "Company" or "eClickMD"), and Xxxx Xxxxxx &
Associates located at 000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
including the services of others ("Consultant"), and is made with respect to the
following facts:
A. Consultant represents that he possesses the knowledge and ability to
advise the Company in its business reorganization, compliance and disclosure
program, and in basic due diligence.
B. The parties have entered into this Agreement for the purpose of setting
forth the terms of consultancy of Consultant by the Company.
C. Company and Consultant 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 reorganization, compliance
and basic due diligence. Consultant's services shall be provided on a
non-exclusive basis. Consultant shall provide his services on a best efforts
basis. These advisory services include the following:
a. Advise and assist the Company internally to operate as a
public Company with respect to documentation, disclosure
policies and required statutory security law compliance.
b. Advise the Company in organizing its investor relations
program both internally or through outside providers.
c. Advise the Company in implementing its reorganization strategy
during the term.
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.
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
a non-refundable retainer of fifty thousand (50,000) common
shares of the Company registered pursuant to form S-8 for the
initial term of this Agreement in order to commence due
diligence and feasibility of achieving the objectives of the
Company; and,
(b) Options to purchase 300,000 common shares of the Company for a
term of one year at an exercise price of seventy-five cents
($.75) per share.
5. Term. The initial term of this Agreement shall be for a term of three
(3) 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.
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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: Xxxx Xxxxxx and Associates
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
In case of Company: eClickMD
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 xxxxx
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 acordance with any and all
applicable laws.
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. Incorporation by Reference. The Confidentiality and Non-Circumvention
Agreement attached hereto as an exhibit is incorporated herein by reference in
its entirety.
12. 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 California in accordance with
the laws of the State of California 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.
13. 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.
14. 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,
wilful 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.
15. 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 California.
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16. 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.
17. 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.
18. 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.
19. Termination. This agreement may be terminated by either party 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.
20. 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.
21. 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
NOVEMBER 28, 2000.
COMPANY: eClickMD , Inc.
by: /s/ XXXXXX X. XXXX
----------------------------
Xxxxxx X. Xxxx
CONSULTANT: Xxxx Xxxxxx & Associates
by: /s/ JOFF POLLEN
----------------------------
Xxxx Xxxxxx
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