EXHIBIT 10.8
CONSULTING AGREEMENT
This Agreement is between Amerifirst Financial Services, Inc., 814 A1A North,
Suite 300, Ponte Vedra Beach, FL 32082, (together with its affiliates
"Amerifirst") and Fasano Associates, Inc., 1015 18th St., N.W. Suite 204,
Washington, DC 20036, (together with its affiliates "Fasano").
W I T N E S S E T H:
WHEREAS, Amerifirst desires to assure itself of the Non-Exclusive services of
Fasano and desires to enter into an Non-Exclusive Consulting Agreement of
Services with Fasano, upon the terms and conditions hereinafter set forth; and
WHEREAS, Fasano is desirous of entering into such an agreement of Consulting
Services;
NOW, THEREFORE, in consideration of this Agreement and the mutual promises and
covenants hereinafter set forth, Amerifirst agree as follows:
1. Duties
A. Amerifirst shall submit viatical or senior settlement files, which
include all medical and other information needed to produce a life
expectancy estimate. Amerifirst warrants that such files fully
contain accurate and complete information. Files may be transmitted
electronically in a secure manner to mfasano@fasanoassociates.com or
in hard copy to Fasano at 1015 18th Street, NW, Suite 204,
Washington, DC 20036, or to such other addresses as Fasano shall
designate. Hard copy files shall consist of single sided copies.
Amerifirst shall submit a volume of files and file sizes as shall be
agreed upon by Amerifirst and Fasano.
B. Fasano shall review submitted files in timely fashion. If necessary,
Fasano may contact attending physicians or providers to obtain
clarification or verbal updates, provided files contain the
respective physician or provider's name, address and phone number
and provided files contain an authorization for release of
information. However, Amerifirst shall be responsible for ordering
any attending physician statements, paramedical exams or other
medical or underwriting information that may be required.
C. Based on information included in files provided by Amerifirst,
Fasano will produce a Mortality Profile Report, similar in format to
the attached sample report, Exhibit A, which is attached and
incorporated into this agreement. Mortality Profile Reports shall
include an estimate of life expectancy.
D. Life expectancy estimates (LE's) may be based on underwriting "table
ratings" converted into LE's by use of mortality tables, statistical
studies, and clinical judgment or by some combination of the above.
Fasano will use its best professional judgment in estimating life
expectancy. However, Fasano will not be liable for the accuracy or
appropriateness of any mortality tables used or for any mortality
rating or
estimated life expectancy provided; it being recognized that life
expectancy estimates are by their very nature imprecise.
E. Only Amerifirst shall use Mortality Profile Reports prepared by
Fasano. Amerifirst shall indemnify and hold Fasano harmless from any
third party who may, in whole or in part, directly or indirectly,
rely on such reports prepared by Fasano.
2. Term. This Agreement shall become effective on November 1, 2002 and shall
continue for a term of ninety (90) days. Thereafter, this Agreement shall
renew automatically for subsequent ninety (90) day terms, unless
terminated in writing by either party.
3. Compensation. Fasano will be paid $250.00 for each file reviewed of up to
250 single sided pages. There may be additional charges for files in
excess of 250 single sided pages which Amerifirst and Fasano shall agree
to before any analysis is begun. Also, Amerifirst shall reimburse Fasano
for any expenses it incurs in returning files to Amerifirst. Fasano shall
be compensated $100 for the re-review of a file, provided such re-review
is requested within three (3) months of Fasano's initial review. Re-review
of files submitted after three (3) months will be treated as a new
submission. Amerifirst shall pay Fasano within fifteen (15) days of
receipt of any invoice for files reviewed. Past due bills shall bear
interest at the rate of 1.5% per month.
4. Termination. After the initial ninety (90) day term, either party may
terminate this Agreement upon giving fifteen (15) days advance written
notice to the other party.
5. Non-Solicitation. During the term of this Agreement and for a period of
two years thereafter, Amerifirst and Fasano agree not to solicit or
interfere with the other party's employees, subcontractors or agents for
employment or contracting without the express advance written approval of
the other party. The parties further agree that any violation of this
provision will be cause for entry of a preliminary, temporary or permanent
mandatory or restraining injunctions, orders, judgments or decrees as may
be necessary to protect the non-defaulting party. In the event such action
becomes necessary to enforce this provision of the agreement, the
prevailing party shall be entitled to payment of its reasonable attorney's
fees and court costs.
6. Independent Contractor. It is understood and agreed that Fasano is acting
as an independent contractor in rendering services pursuant to this
Agreement and its employees and subcontractors are not employees of
Amerifirst. As an Independent Contractor, Fasano retains sole and absolute
discretion in the manner and means of providing the contracted services.
Amerifirst shall not be responsible for payment of employment taxes or
withholding of income or other taxes.
7. Confidential Information.
A. It is recognized by each party to this Agreement that certain
information, including but not limited to medical records of
applicants, Mortality Profile Reports, business practices,
proprietary know-how, marketing, pricing, financial information,
customer lists and data (collectively "confidential information"),
which is proprietary and non-public may be disclosed to the other
party pursuant to the Agreement. Amerifirst and
2
Fasano agree that confidential information will only be available to
officers, employees or agents of the parties who may be required to
have access to such confidential information, in order to perform
their duties under this Agreement and that confidential information
will not be disclosed to any other person, firm or entity without
obtaining the prior written consent of the other party.
B. Fasano may destroy all file materials reviewed after completion of
its review. However, Fasano may retain such files as long as it
maintains adequate security over them.
8. Any disputes relating to this Agreement will be governed by the laws of
the District of Columbia, without regard to conflict of law provisions.
Parties hereby agree that the venue for any legal proceedings relating to
this Agreement will be held in the state or federal courts of the District
of Columbia.
9. Any controversy or claim arising out of or relating to this contract, or
the breach of this contract shall be settled by arbitration administered
by the American Arbitration Association under its Commercial Arbitration
Rules as amended, and judgment on the award rendered by an arbitrator(s)
may be entered in any court having jurisdiction thereof. The prevailing
party shall be entitled to payment of its reasonable attorney's fees and
court costs.
10. This Agreement is expressly intended to govern the respective rights and
duties of the parties both during the term of this Agreement and
thereafter.
11. Entire Agreement and Amendments. Amerfirst and Fasano agree that this
Agreement constitutes the entire agreement between them with respect to
this subject matter. The terms and provisions of this Agreement shall not
be changed, amended, waived, modified or terminated in any respect
whatsoever, except by a written instrument executed by Amerifirst and
Fasano.
In witness whereof, the parties have executed this Agreement as of November 1,
2002.
On behalf of On behalf of
Amerifirst Financial Services, Inc. Fasano Associates, Inc.
/s/ John Tooke /s/ Michael Fasano
- ---------------------------- --------------------------------
Signature Signature
John Tooke Michael Fasano
- ---------------------------- --------------------------------
Printed Name Printed Name
President President
- ---------------------------- --------------------------------
Title Title
3
EXHIBIT A
SAMPLE MORTALITY PROFILE REPORT
Insured: Xxxxxx Xxxxxx Report Requested By: Amerifirst
Social Security Number: xxx-xx-xxxx Gender: Male
Date of Birth: 23 July 1950 Height: 72" (6/08/01)
Age: 51 Weight: 225lbs. (6/08/01)
Control Number: xxxxxxxx Smoking Status: NS
Medical History:
We have reviewed records from 1994 to 10 July 2001. The 8 June 2001 neurology
note indicates that Mr. Xxxxxx has "possible probable ALS." He developed slurred
speech in December 2000. The 10 July 2001 neurology note reports that he
recently developed difficulty with ambulation and rising from a sitting
position. Bulbar signs and diffuse motor neuron dysfunction were noted.
On 14 November 1994, Mr. Xxxxxx had cardiac catheterization following a SPECT
cardiolite that was suggestive of ischemia. Two 50% LAD lesions were found. On
26 March 1999, he had a negative stress test and a negative nuclear scan. No
recent angina was reported.
Estimated Life Expectancy: 21 months*
Discussion of Significant Medical Conditions Affecting Mortality*:
Mr. Xxxxxx has stable coronary artery disease, as well as treated and controlled
hypertension. While his cardiac conditions are of some concern, of most
significance by far is the presumptive diagnosis of ALS. Mr. Xxxxxx has a
neurologic condition that is progressing rapidly.
*Please note: Our estimated life expectancy is an estimate base on those records
provided to us by Amerifirst through 7/10/01 and our best judgment. There can be
no guarantee as to the accuracy of any specific estimated life expectancy and
Fasano Associates assumes no liability for any estimated life expectancy
provided.
- ------------------------------- -----------------------
David A. Vaughan, M.D., F.A.C.P. Date of Report
This report is intended only for the specific use of the company or individual
requesting the report and may not be distributed to any other party without the
written consent of Fasano Associates or the insured. All medical information
and/or information specific to the identity of any individual is considered
confidential under certain state and Federal laws. If your state or the insured
individual's state of residence requires such protection then state law
prohibits you from making further disclosure of the information without specific
written consent of the person to whom it pertains or as otherwise permitted by
law.
4