Exhibit 10.(g)
Consulting Agreement
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made as of December 16,
1999, by and between OmniComm Systems, Inc., a Delaware corporation (hereinafter
referred to as "Company"), and Cees Wit and/or Guus van Kesteren (hereinafter
collectively referred to as "Consultant").
RECITALS:
Whereas, the Company is in the business of developing and implementing
a web-based application for the remote collection, compilation, and management
of clinical trial data and clinical trials ("TrialMasterTM"); and
Whereas, the Consultant has certain expertise in and has established
relationships with companies and institutions involved in conducting clinical
trials; and
Whereas, the Company desires to retain the Consultant, and Consultant
desires to be retained by the Company, upon the following terms and conditions.
Now Therefore, in consideration of the mutual promises and conditions
contained herein, the parties agree to be legally bound as follows:
1. Status of Consultant. The Consultant for purposes of this Agreement
shall be considered an independent consultant. The Company is not responsible
for withholding, and shall not withhold, FICA or taxes of any kind from any
payments that it owes the Consultant. The Consultant shall not be entitled to
receive any benefits which employees of the Company are entitled to receive and
shall not be entitled to workers' compensation, unemployment compensation,
medical insurance, life insurance, paid vacations, paid holidays, pension,
profit sharing, or Social Security on account of their work for the Company.
2. Nature of Consultancy. Consultant shall assist the Company in the
marketing and promotion of TrialMasterTM and shall use his relationships within
the medical device and drug industry to develop sales leads and introductions.
Any introductions developed by Consultant shall be at the level of Director of
Clinical Research, or equivalent position, or at a level immediately below that
position.
3. Efforts of Consultant. While acting as a consultant for the Company,
the Consultant shall devote his best efforts and skill to the performance of his
duties as a Consultant to the Company.
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4. Notification. The Consultant shall notify the Company in writing of
any individuals, companies or institutions that the Consultant has contacted
concerning the TrialMaster(TM) system ("Notified Party"). The written
notification shall contain the name of the company or institution, person
contacted, and a general description of the company's or institution's core
business. Compensation shall be owed only for transactions involving a Notified
Party. If a meeting between the Company and the Notified Party does not take
place within one hundred and twenty (120) days of the Company being notified of
the existence of the Notified Party the individual and company shall cease to be
a Notified Party for all purposes including compensation. The initial Notified
Parties are attached hereto as Exhibit A as if incorporated herein.
5. Compensation. The Consultant shall be paid a commission set forth
below based on the net invoice price of all products and services sold to a
Notified Party. In the event there is recurring revenue from a Notified Party,
the commission paid shall be recalculated as follows:
(a) 1st Year: 20%
(b) 2nd Year: 10%
(c) 3rd Year: 8%
(d) 4th Year: 7.5%
(e) 5th Year: 5%
At the conclusion of the fourth year no further compensation will be due or
owing. Payment shall be due and paid within fifteen (15) days of the end of the
calendar quarter. The Company may, in its sole and absolute discretion, remit
funds earlier. The Company shall provide to the Consultant within 90 days of the
end of the Company's fiscal year audited financial information concerning the
revenues generated from the Notified Parties.
6. Expenses. The Company agrees to reimburse Consultant for any and all
expenses incurred in the course of providing services under this Agreement if
the expenses have been submitted and approved in writing in advance of being
incurred.
7. Term. The term of this Agreement shall commence on the date
initially set forth above and shall continue for one (1) year (the "Initial
Term"), with subsequent one (1) year renewal periods ("Renewal Term"), unless
either party chooses to terminate this Agreement by giving notice at least
90-days prior to the beginning of a Renewal Term.
8. Termination by Consultant or Company. Either party shall have the
right in their sole and absolute discretion to terminate the Agreement after the
Initial Term and their respective rights and obligations on ninety (90) days
written notice, except compensation shall be paid in accordance with the terms
and conditions of this Agreement.
9. Disclosure of Confidential Business and Technical Information. The
Consultant recognizes and acknowledges that the Company's trade
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secrets and proprietary information and processes, ("Confidential Business and
Technical Information") as they may exist from time to time, are valuable,
special and unique assets of the Company's business, access to and knowledge of
which are essential to the performance of the Consultant's duties hereunder. The
Consultant will not, during or after the term of his employment by the Company,
in whole or in part, disclose such Confidential Business and Technical
Information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever, nor shall the Consultant make use of any such
Confidential Business and Technical Information for his own purposes or for the
benefit of any person, firm, corporation or other entity except the Company
under any circumstances during or after the term of his employment, provided
that after the term of his employment these restrictions shall not apply to such
secrets, information and processes which are then in the public domain provided
that the Employee was not responsible, directly or indirectly, for such secrets,
information or processes entering the public domain without the Company's
consent. In the event an action is instituted and prior knowledge is an issue,
it shall be the obligation of the Employee to prove by clear and convincing
evidence that the Confidential Business and Technical Information disclosed was
in the public domain, was already known by the Consultant, or was developed
independently by the Consultant. The Consultant agrees to hold as the Company's
property, all memoranda, books, papers, letters, formulas and other data, and
all copies thereof and therefrom, in any way relating to the Company's business
and affairs, whether made by him or otherwise coming into his possession, and on
termination of his employment, or on demand of the Company, at any time, to
deliver the same to the Company.
10. Inventions. The Consultant hereby sells, transfers and assigns to
the Company or to any person, or entity designated by the Company, all of the
entire right, title and interest of the Consultant in and to all inventions,
ideas, disclosures and improvements, whether patented or unpatented, and
copyrightable material, made or conceived by the Consultant specifically for the
Company or at the Company's premises, solely or jointly, or in whole or in part,
during the term hereof which (i) relate to methods, apparatus, designs,
products, processes or devices sold, leased, used or under construction or
development by the Company or any subsidiary, or (ii) otherwise relate to or
pertain to the business, functions or operations of the Company or any
subsidiary. The Consultant shall communicate promptly and disclose to the
Company, in such form as the Company requests, all information, details and data
pertaining to the aforementioned inventions, ideas, disclosures and
improvements; and, whether during the term hereof or thereafter, the Consultant
shall execute and deliver to the Company such formal transfers and assignments
and such other papers and documents as maybe required of the Consultant at the
Company's expense to permit the Company or any person or entity designated by
the Company to file and prosecute the patent applications and, as to
copyrightable material, to obtain copyright thereon.
11. Covenant Not to Compete. During the term of this Agreement the
Consultant shall not, directly or indirectly, be employed or retained by an
individual or entity or involved in any activity that
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is involved in or with the development of an application that is the subject of
this Agreement.
12. Remedies. If there is a breach or threatened breach of Section(s)
9, 10, or 11 of this Agreement, the Company shall be entitled to an injunction
restraining the Consultant from such breach. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies for such breach or
threatened breach.
13. GENERAL PROVISIONS
13.1 Invalidity of Provisions. In the event that any
provision or portion of a provision of this Agreement shall be held to be
unreasonable or unenforceable, such unenforceability shall attach to such
provision or portion thereof only to the extent of the specific finding of
unenforceability, and in all other respects such provision or portion thereof
shall be deemed enforceable, it being the intention of the parties that this
Agreement be construed in all respects as if such invalid or unenforceable
provision were omitted.
13.2 Non-Assignability. This Agreement is personal and shall
not be assigned by Consultant. This Agreement may be assigned by the Company
to any person or entity that acquires the entire assets of the Company
13.3 Applicable Law and Forum. The validity, construction and
effect of this Agreement and the respective rights and obligations of the
parties hereunder, shall be governed by and determined in accordance with the
laws of the state of Florida in the United States of America as such laws are
applied to contracts between Florida residents entered into and to be performed
entirely within the state of Florida, without reference to principles of
conflicts of law. All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined in a state or federal court sitting in
the County of Dade, State of Florida. Service of process shall be considered
effective if done pursuant to any of the methods set forth in Rule 4(i), Federal
Rule of Civil Procedure or pursuant to Florida law.
13.4 Waiver of Breach. The waiver by Company of breach of
any provision of this Agreement by Consultant shall not operate or be construed
as a waiver of any subsequent breach by Consultant.
13.5 Entire Understanding. This Agreement shall
constitute the entire understanding between the parties with reference to the
subject matter hereof, shall supersede all prior understandings or agreements,
whether oral or written and shall not be altered, modified, or discharged except
in a writing signed by the parties.
13.6 Benefit of Parties. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of Consultant and
his personal representatives and the Company, its successors and permitted
assigns.
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13.7 Right to Contract. The parties represent and
warrant that each has the right to enter into this Agreement and to assume all
obligations and grant all rights herein and that Consultant has neither made nor
will make any contractual or other commitments that are in conflict with this
Agreement.
13.8 Litigation. In the event of any cause of action,
arbitration or litigation arising hereunder, all costs and reasonable
attorney's fees of the prevailing party, including, without limitation,
attorney's fees and costs at all administrative and appellate levels and in all
bankruptcy proceedings, shall be paid by the other party.
13.9 Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall be deemed to be an original, but all
of which shall be deemed to constitute but one instrument.
13.10 Confidentiality of Relationship. The existence of the
relationship between the Company and the Consultant, the Agreement, and any
other matters relating to the relationship between the Company and the
Consultant shall not be disclosed to any party unless written authorization is
given by the Consultant prior to such disclosure.
13.11 Assignment and Third Parties. The Consultant will
assign this Agreement to third parties. No additional compensation or fees
shall be paid to a third party.
[INTENTIONALLY LEFT BLANK-SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have set there hands the day and
year first above written.
Consultant
/s/Cees Wit
-----------
Cees Wit
/s/Guus van Kesteren
--------------------
Guus van Kesteren
OmniComm Systems, Inc.
By:/s/Peter S. Knezevich
---------------------
Peter S. Knezevich
Chief Executive Officer
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Exhibit A To Consulting Agreement
Notified Parties
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<CAPTION>
COMPANY/INSTITUTION PERSON CONTACT CORE BUSINESS
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<S> <C> <C>
Amgen-USA Pharma
Ares Serono-Switzerland Dr. Patrick Engrand-Biostatistician Pharma
Clifden Healthcare Ltd.-UK Dr. C. Mugglestone/T. Anscomb-Partners CRO
Covance-USA Dr. John Mills-Corporate VP and Gen. Mgr. CRO
Croda-UK Dr. Keith Layden-Man. Dir. Croda Leek Chemicals/OTC/Pharma
GlaxoWellcome K. Roosjen-VP Northern Europe Pharma
Health Care Consultancy Group-Switzerl. Urs W. Eggimann-Man. Dir. Pharma Consultancy
R. Herreman-Belgium R. Herreman Pharma/Hospital supplies/Investor
Hoechst-Germany Dr.T. Kiy-R&D Technology Mgr. Pharma
IMS-Netherlands Jan Hein Lans-Gen. Mgr. Pharma Market info
Innogenetics-Belgium Paul Appermont-VP Bus. Devt+Operations Pharma
J & C Management Co., Inc.-USA Dr. Cliff Siporin-CEO CRO
Janssen Pharmaceutica-Belgium Dr. G. Van Reet-President Pharma
Johnson&Johnson-USA Robert Coradini-VP Bus. Devt. Professional Devices
Kent Ollson-Sweden Kent Ollson-owner Pharma Consultancy
Knoll Pharma-Germany Prof. Schlick-VP R&D Pharma
Maxxim-Netherlands Rob W. Beek-VP Europe Hospital supplies
MediSearch Int.'l-Belgium Dr.Remi Van Den Broeck-Man. Dir. CRO
Organon-Netherlands Dr. D. Vergauwen-VP R&D Pharma
Quintiles-USA Anne Wiles-Exec. V.P. Bus. Devt. CRO
Rijks Universiteit Leiden-Netherlands Prof. J.M. Wit-Chairman Pediatrics Pediatrics
Scotia-UK Dr. D. Selkirk-VP R&D Pharma
Solvay-Belgium B. Quist-VP Bus. Devt. Pharma
South Fla. Gastro. Interology Grp. Dr. Lopez IPA
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