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Exhibit 10.1
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CONSULTING AGREEMENT
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This Consulting Agreement ("Agreement") is made between PATIENT PORTAL
TECHNOLOGIES, INC., a Delaware corporation ("PPTI") and AUSPICIUM, LLC., A New
York limited liability company ("Auspicium"), with respect to the following:
RECITALS
WHEREAS, Auspicium is in the business of providing general business
consulting, finance, accounting and capital raising services to privately held
and publicly held corporations; and
WHEREAS, PPTI is a public company and wishes to retain the consulting
and capital raising services of Auspicium.
AGREEMENT
IN CONSIDERATION of the mutual promises made by Auspicium and PPTI, and
the terms and conditions hereafter set forth, the assistance that has been
provided by Auspicium from the period January 2008 through December 31, 2008,
the receipt and adequacy of such consideration being mutually acknowledged,
Auspicium and PPTI therefore agree to the following:
1. TERMS OF THIS CONSULTING AGREEMENT:
A. TERM: The initial term shall be for two (2) years commencing January
1, 2009. The term may be renewed in accordance with Section 1D.
B. CONSULTING, ACCOUNTING AND CAPITAL RAISING SERVICES: Auspicium will
provide general assistance to PPTI in the areas of healthcare consulting with
respect to the promotion of the Corporation's product development, sales,
strategy, and marketing activities. Additionally, Auspcium will aid PPTI in the
development of its accounting processes, operational systems and SEC
coordination as well as assist PPTI with identifying and developing
relationships with potential strategic partners and in obtaining additional
capital.
C. CONSIDERATION. For services rendered by Auspicium on behalf of PPTI
previous to and pursuant to this Agreement, upon execution of this Agreement,
PPTI shall pay all out-of-pocket expenses incurred by Auspicium and approved by
PPTI related to his activities included in this agreement. Auspicium or its
principal will be additionally compensated for all its services rendered
pursuant to Section 1B, through:
o the issuance to Auspicium, on January 2, 2009 of a grant of two
million shares(2,000,000)of restricted common stock pursuant to
the Restricted Stock Grant Agreement, dated as of January 2, 2009,
between PPTI and Auspicium; and
o Compensation equal to 3% of "Gross Proceeds Raised" as part of the
planned capital transaction between the company and outside
investors and / or lenders. Gross Proceeds Raised shall include
both cash and any securities, debt, or the cancellation of debt
included as part of a capital transaction, payable substantially
contemporaneously with the closing of the capital transaction.
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o In the event no financing transaction closes by April 30, 2009,
the company will owe Auspicium minimum compensation of $250,000.
Any portion of the compensation which is unable to be paid will
accrue interest at an annual rate of 8%. If the financing closes
at a later date, the company will owe Auspicium the difference of
the previous compensation earned of $250,000 and the balance of 3%
of the proceeds raised; and
o Effective January 1, 2009 the company will pay Auspicium a monthly
retainer of $10,000 for services rendered. Any unpaid retainer
will also accrue interest at an annual rate of 8%.
D. EXTENSIONS AND RENEWALS: This Agreement may be extended ("Extension
Period") on an annual basis by mutual agreement of the parties, following a
mutual1y negotiated, written amendment to this Agreement specifying the new time
period, the terms of the Amendment and Lorenz's compensation for the Extension
Period. Notice of mutually agreed extension amendment must comply with Section
1-E.
E. OFFICIAL NOTICE. All official communications or legal notices shall
be given in writing by registered or certified mail, addressed to the respective
party at the postal address or other address(es) as each party may hereafter
designate in writing, or when sent by facsimile transmission, charges prepaid.
The present addresses of the parties are as follows:
Patient Portal Technologies, Inc. Auspicium, LLC.
8276 Willett Parkway Attn: Michael Lorenz
Baldwinsville, NY 13027 5109 Waterford Wood Way
Fayetteville, NY 13066
2. CONFIDENTIALITY OF PROPRIETARY INFORMATION:
A. CONFIDENTIAL INFORMATION
1. "Confidential Information" means any proprietary information,
technical data or know-how disclosed to Auspicium or its
principal, either directly or indirectly in writing, orally, by
drawing, or by inspection or other tangible items. Confidential
Information shall include, without limitation, all business,
product, research and financial plans of PPTI disclosed to or
discussed with Auspicium.
2. PPTI agrees not to use any of Auspicium's confidential information
for its own uses or for any purpose except to carry out
discussions or a business understanding between Auspicium and
PPTI.
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3. Auspicium agrees not to disclose any of PPTI's Confidential
Information to any third party except, pursuant to confidentiality
agreements acceptable to PPTI, as required in the capital raising
process or as otherwise agreed to in writing by PPTI; and
Auspicium will take all reasonable measures to protect the secrecy
of and avoid disclosure or use of PPTI's Confidential Information.
4. Auspicium and PPTI acknowledge that nothing in this Agreement will
be construed as granting any rights, by license or otherwise, to
either party's or any of its parent or sibling companies'
confidential information, except as specified in this Agreement.
5. Auspicium and PPTI agree to be bound by the above terms contained
in this Section concerning both parties' confidential and
proprietary information that may be obtained in the course of this
Agreement.
B. USE: Both parties agree that any unauthorized use of any proprietary
information whether accidental or otherwise shall be construed as intentional
and shall be considered a breach of this Agreement.
3. ARBITRATION:
A. ARBITRATION BY AAA. All disputes that cannot be settled between the
parties together under this Agreement shall be settled by arbitration in
accordance with the rules of the American Arbitration Association then
controlling. Such arbitration shall be held in Onondaga County, New York.
B. DISPUTES SHALL NOT AFFECT AGREEMENT. Disputes, differences or
controversies between the parties during the term of this Agreement shall not
interrupt performance of this Agreement.
4. TERMINATION OF AGREEMENT:
A. BREACH: Unilateral termination of this Agreement prior to conclusion
of the two (2) year term shall be considered breach of this Agreement.
B. COSTS DUE UPON BREACH: Notwithstanding any breach of this Agreement
by PPTI, Auspicium shall be entitled to keep any shares of common stock, receipt
of fees, hard costs, compensation and expenses incurred for actual work
performed.
5. MISCELLANEOUS:
A. BEST EFFORTS BASIS: Auspicium agrees that it will at all times
faithfully, to the best of its experience, ability and talents, perform all the
duties that may be required of and from it pursuant to the terms of this
Agreement. There is no guarantee that its efforts will have any impact on PPTI's
business or that any subsequent financial improvement will result from its
efforts.
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B. BINDING LAW: This Agreement shall be subject to, governed by and
interpreted in accordance with the internal laws of the State of New York,
without giving effect to conflicts of law rules that would require the
application of the law of another jurisdiction. In the event that this
Agreement, any of its provisions or its outlined operations are found to be
inconsistent with or contrary to any such laws, rules or regulations, the latter
shall control
C. ENTIRE AGREEMENT: This Agreement shall constitute the entire
Agreement between the parties unless modified by a written amendment signed by
all of the parties or their successors in interest. There are no other
agreements, undertakings, restrictions, representations or warranties among the
parties other than those described and provided for in this Agreement and
expressly signed by the parties therein.
D. WAIVER: PPTI agrees that Auspicium's failure to enforce any
provision or provisions of this Agreement shall not in any way be construed as a
waiver of that provision or provisions, nor shall such failure prevent it from
thereafter enforcing each and every provision of this Agreement.
E. AUSPICIUM IS NOT AN AGENT OR EMPLOYEE OF PPTI: Auspicium's
obligations under this Agreement consist solely of the services previously
described. In no event shall Auspicium be considered to act as an employee,
affiliate or agent of PPTI or, except as such authority is otherwise expressly
delegated to Auspicium by the Board of Directors of PPTI, otherwise represent or
bind PPTI. For the purposes of this Agreement, Auspicium is an independent
contractor. All final decisions with respect to acts of PPTI, whether or not
made pursuant to or in reliance on information or advice furnished by Auspicium
in this Agreement, shall be those of PPTI. Auspicium's employees or agents shall
under no circumstances be liable for any expense incurred or loss suffered by
PPTI as a consequence of such action or decisions and the company will indemnify
Auspicium, against any claims or actions taken against it as a result of
performing its consulting services.
AGREED TO as of February 6, 2009
PATIENT PORTAL TECHNOLOGIES, INC.
By: /s/ Kevin J. Kelly
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Kevin J. Kelly, Chief Executive Officer
AUSPICIUM, LLC
By: /s/ Michael J. Lorenz
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Michael J. Lorenz, Chief Executive Officer
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