CONSULTING AGREEMENT
Exhibit
10.13
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This
CONSULTING AGREEMENT (this "Agreement") is made effective as of the 25th day of
August, 2008 (the "Effective Date"), by and between The Amacore Group, Inc., a
Delaware Corporation (the "Company"), and Xxxxxxxx Xxxxxxx, an individual
resident living in London, United Kingdom (the "Consultant").
RECITALS:
WHEREAS,
the Company desires to engage the Consultant to perform the consulting services
as more fully set forth herein; and
WHEREAS,
the Consultant desires to be engaged by the Company on the terms and conditions
set forth in this Agreement.
NOW,
THEREFORE, in consideration of the Recitals and of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. Engagement. The
Company hereby engages the Consultant to perform the Services (as defined
herein) and the Consultant hereby accepts such engagement with the Company in
accordance with the terms and conditions set forth in this Agreement. The
Consultant shall devote such time and attention to the Services as are
reasonably necessary to perform such Services, but the Company acknowledges that
this Agreement is not exclusive and that Consultant can provide non-competing
services to other entities or on his own behalf.
2. Services. The
Consultant shall provide on a non-exclusive basis to the Company management,
business, operational, financial, accounting, and other consulting services from
time to time as may be requested by the Company or its agents or representatives
(the "Services").
3. Consulting Fee. In
consideration for performing the Services for the Company, the Company shall pay
the Consultant as follows:
(a) upon
execution of this Agreement, the Company shall issue to the Consultant a
one-time grant of 500,000 shares of the Company's Class A Common Stock, which
grant shall be subject to Rule 144 under the Securities Act of 1933;
and
(b) for
the term of this Agreement, a fee paid at an annual rate of Three Hundred Ninety
Thousand Seven Hundred Fifty Dollars ($390,750), which fee shall be payable in
equal installments in accordance with the Company's customary payroll practices.
All late payments will incur an interest charge at the rate of 5% per annum from
the due date through the date of payment.
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4. Other Consulting
Arrangements.
(a) Health and Dental
Benefits. The Company hereby agrees that, for the term of this Agreement,
it shall reimburse the Consultant for health and dental insurance, which
reimbursement amount is included in the amount of the fee payable under Section
3 hereof. The Consultant acknowledges and agrees that he has received
information regarding his right to elect continuation of his group health and
dental insurance coverage under federal law ("COBRA"), which if elected may
allow him to continue that insurance coverage for up to an eighteen (18)- month
period after his separation. If the Consultant wishes to elect COBRA coverage,
the Consultant agrees that he shall be responsible for the full COBRA
premium.
(b) Expense
Reimbursement. Provided that the Consultant has obtained the prior
written authorization by the Company to incur an expense in connection with the
provision of Services, the Company shall pay, upon submission of appropriate
vouchers and supporting documentation, such authorized expense incurred by the
Consultant, in accordance with the Company's usual and ordinary expense
reimbursement practices.
5. Term and
Termination.
(a) Term. This Agreement
shall commence as of the Effective Date and shall continue in full force for a
period of six months thereafter (the "Term"), unless earlier terminated as
provided herein.
(b) Termination. This
Agreement may be terminated prior to expiration of the Term as provided in
paragraph 5(a) above, by prior written notice to the other party as
follows:
(i) by
either party, in the event the other party should breach or fail to perform any
of its material obligations hereunder and should fail to remedy such breach or
nonperformance within thirty (30) calendar days after receiving written demand
therefor. Notwithstanding, the Company may not claim a breach of non-performance
based on the number of hours Consultant works or based on requested travel not
taken by Consultant;
(ii) by
either party, effective immediately, if the other party shall have been
convicted of a felony violation or if Consultant is arrested or charged with a
crime not instigated by the Company and such arrest or charge negatively effects
the business or reputation of ACGI; or
(iii)
by the Company, effective immediately, if the Consultant (1) knowingly makes any
materially false or untrue statements or representations to the Company herein
or in the performance of its obligations hereunder; or (2) engages in gross
negligence, willful misconduct or fraud in the performance of the Services
hereunder.
6. Return of Materials.
Upon termination of this Agreement for any reason, the Consultant shall promptly
return to the Company all files, credit cards, keys, instruments, equipment,
vehicles, and any other property or materials provided to the Consultant by the
Company.
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7. Covenant Not to
Compete.
(a) Scope of Covenant.
The Consultant agrees that, subject to 7(b) herein, during any Term of this
Agreement and for a period of one (1) year commencing upon the expiration or
termination of the Consultant's engagement hereunder (for any reason whatsoever)
(the "Termination Date") the Consultant shall not, directly or indirectly, for
himself or on behalf of or in conjunction with any other person, persons,
company, partnership, corporation or business of whatever nature, without the
prior written consent of the Company:
(i) engage,
as an officer, director, shareholder, owner, partner, joint venturer, or in a
managerial capacity, whether as an employee, independent contractor, consultant
or advisor, or as a sales representative, in any business selling any products
or services in direct competition with the Company or any of its subsidiaries
anywhere in the United States, its territories or possessions (the
"Territory");
(ii) solicit
any person who is at the Termination Date, or who was within one (1) year prior
to the Termination Date, an employee of the Company or any of its subsidiaries
for the purpose or with the intent of enticing such employee away from or out of
the employ of the Company or any of its subsidiaries, except Mr. Xxxxx Xxxxxx,
Xx. Xxxxx Xxxxxxx and Xx. Xxxxxx Xxxxxx;
(iii) call
upon any person or entity which is, at the Termination Date or which has been,
within one (1) year prior to Termination Date a customer of the Company or any
of its subsidiaries within the Territory for the purpose of soliciting or
selling products or services in direct competition with the Company or any of
its subsidiaries in its Business within the Territory, where Business is defined
as health care products or programs that are being sold by the Company as of the
Effective Date; or
(iv) engage
in any act intended to cause any customer or potential customer of the Company
located in the Territory with whom the Consultant had contact to discontinue,
curtail or forego Business with the Company or to do Business with another
entity, firm, business or enterprise which is competitive with the Business of
the Company or its clients.
Provided,
however, that nothing in this Section 7(a) shall be construed to preclude the
Consultant from acquiring as a passive investment not more than 5% of the
capital securities of any business enterprise whether or not engaged in
competition with the Company or its subsidiaries, if and to the extent such
securities are actively traded on a national securities exchange or in the
over-the-counter market in the United States or on any foreign securities
exchange.
(b) Target Companies Activities
Allows. Notwithstanding Section 7(a), unless the Company by written
notice has informed Consultant that the Company has entered into definitive
agreement(s) with target compan(y/ies) listed on Schedule A hereto (each a
"Target" and collectively, the "Targets"), then at any time after the close of
business on , Consultant can freely conduct any activities related to
Target(s) without violating Section 7(a) and without breaching this Agreement.
Such activities may include, but are not limited to, conducting due diligence,
acquiring an interest, acquiring a controlling interest, meeting with potential
investors, raising funds, reviewing potential transactions, and meeting with
management from either company. But if Consultant does move forward with any
activity resulting in Consultant's directly or indirectly acquiring an interest
(greater than 5%) in any Target(s), or becoming an officer, director,
shareholder, owner, partner, joint venturer, or in a managerial capacity,
whether as an employee, independent contractor, consultant or advisor in
Target(s), he will resign from the Board of Directors of Company and this
Agreement will terminate.
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(c) Reasonableness. The
Consultant acknowledges that the Company and its subsidiaries are currently and
actively pursuing plans to expand their operations throughout the entire
Territory, both through operational growth and by the acquisition of businesses,
that may or may not be identified as of the date of this Agreement. The
Consultant acknowledges and agrees that the restrictions set forth in this
Section 7 are founded on valuable consideration and are reasonable in duration
and geographic area in light of the activities and business of the Company and
it subsidiaries on the date of the execution of this Agreement and the current
plans of the Company and its subsidiaries and that such restrictions are
necessary to protect the legitimate interests of the Company. It is also the
intent of the Company and the Consultant that such covenants be construed and
enforced in accordance with the changing activities, business and locations of
the Company and it subsidiaries throughout the term of this
covenant.
(d) Severability. The
covenants in this Section 7 are severable and separate, and the unenforceability
of any specific covenant shall not affect the provisions of any other covenant.
Moreover, in the event any court of competent jurisdiction shall determine that
the scope, time or territorial restrictions set forth are unreasonable, then it
is the intention of the parties that such restrictions be enforced to the
fullest extent which the court deems reasonable, and this Agreement shall
thereby be reformed.
(e) Enforcement by the Company
Not Limited. All of the covenants in this Section 7 shall be construed as
an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of the Consultant against the Company,
whether predicated in this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants. It is specifically
agreed that the period of one year stated at the beginning of this Section 7,
during which the agreements and covenants of the Consultant made in this Section
7 shall be effective, shall be computed by excluding from such computation any
time during which the Consultant is in violation of any provision of this
Section 7.
8. Confidentiality and
Proprietary Rights.
(a) Confidentiality. The
Consultant acknowledges that, by reason of his providing Services to the
Company, he will have access to confidential information of the Company and its
subsidiaries and affiliates, including, without limitation, information and
knowledge pertaining to products, inventions, discoveries, improvements,
innovations, designs, ideas, trade secrets, proprietary information,
manufacturing, packaging, advertising, distribution and sales methods, sales and
profit figures, customer and client lists and relationships between the Company,
any of its subsidiaries or affiliates and dealers, distributors, sales
representatives, wholesalers, customers, clients, suppliers and others who have
business dealings with them ("Confidential Information"). The Consultant
acknowledges that such Confidential Information is a valuable and unique asset
of the Company and its subsidiaries and affiliates and covenants that, both
during and for a period of five years after the Term, he will not disclose any
Confidential Information to any person without the prior written authorization
of the Company. The obligation of confidentiality imposed by this Section 8
shall not apply to (a) Confidential Information that otherwise becomes generally
known in the industry or to the public through no act of the Consultant in
breach of this Agreement or any other party in violation of an existing
confidentiality agreement with the Company or any of its subsidiaries or
affiliates or (b) Confidential Information which is required to be disclosed by
court order or applicable law
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(b) Use of Confidential
Information. The Consultant shall not use any portion of the Confidential
Information supplied by the Company hereunder or any patent, trademark, or other
intangible property right of the Company, except as his obligations under this
Agreement may require.
(c) Protection of Proprietary
Rights. The Consultant agrees to cooperate with and assist the Company,
at the Company's expense, in the protection of trademarks, patents, or
copyrights owned by or licensed to the Company, and shall inform the Company
immediately of any infringements or other improper action with respect to such
trademarks, patents, or copyrights that shall come to the attention of the
Consultant.
(d) HIPAA. The Consultant
acknowledges that while performing the Services for the Company, the Consultant
may have access to and obtain knowledge of certain confidential information
about patients of the Company clients that is protected by the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA"). the Consultant hereby
acknowledges receipt of information regarding compliance with HIPAA and agrees
to abide by the requirements of HIPAA.
9. Indemnification.
(a) The
Company shall indemnify and hold harmless the Consultant from and against all
losses, damages, costs, expenses (including without limitation, expenses
incurred in connection with investigating, defending or enforcing any action,
suit, claim, investigation or proceeding incident to any matter indemnified
hereunder), liabilities, claims, settlement payments, fines, penalties,
corrective or remedial costs, awards, judgments, interest, diminution in value,
and other charges or damages of any kind (including, without limitation,
reasonable attorneys' fees and other reasonable legal costs and expenses,
including without limitation those incurred in connection with any suit, action,
claim, investigation or other proceeding) (collectively, "Losses") incurred by
the Consultant in connection with any claim against the Consultant or a
proceeding to which the Consultant is party on account of, arising out of or
relating to the Consultant's performance of Services hereunder; provided that
the Company shall have no indemnification obligation: (i) to the extent of the
Consultant's fraud, bad faith, gross negligence or willful misconduct; (ii) for
representations or statements made by Consultant in his role as a Consultant not
specifically authorized by Company herein or otherwise in writing, or (iii) any
violation by the Consultant of any applicable law or regulation.
(b) The
Consultant shall indemnify and hold harmless the Company, and the Company's
affiliates and their respective officers, directors, employees, representatives
and agents (for purposes of this Section 9(b), the "Company"), from and against
all Losses incurred by the Company in connection with any claim against the
Company or a proceeding to which the Company is party on account of, arising out
of or relating to (i) the Consultant's fraud, bad faith, gross negligence or
willful misconduct; (ii) representations or statements made by the Consultant,
or (iii) any violation by the Consultant of any applicable law,
regulation
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10. Specific Performance.
Consultant consents and agrees that if the Consultant violates any of the
provisions of Sections 6, 7, or 8 hereof, the Company and its subsidiaries and
affiliates would sustain irreparable injury and that monetary damages would not
provide adequate remedy to the Company or any of its subsidiaries or affiliates.
Therefore, the Consultant hereby agrees that the Company and any affected
subsidiary or affiliate shall be entitled to have Sections 6, 7, or 8 hereof
specifically enforced (including, without limitation, by injunctions and
restraining orders) by any court having equity jurisdiction. Nothing contained
herein shall be construed as prohibiting the Company or any of its subsidiaries
or affiliates from pursuing any other remedies available to it for such breach
or threatened breach, including the recovery of damages from the
Consultant.
11. Independent
Contractor. Consultant and Company understand and acknowledge that
Consultant's relationship with Company is that of an independent contractor and
nothing in this Agreement is intended to or should be construed to create a
partnership or joint venture relationship. Both parties also acknowledge that
the Company shall have no duty, responsibility, or obligation: (a) to withhold
and/or pay FICA taxes or federal, state or local income and other taxes; (b) to
comply with or contribute to state worker's compensation and/or state or federal
unemployment compensation funds or to comply with any other laws relating to
employees with respect to the Consultant; or (c) to provide the Consultant with
any Company fringe or other benefits available to Company employees; provided
that the Company will provide the Consultant with a report of payments made
under this Agreement on IRS Form 1099-MISC after the end of each calendar
year.
12. Survival. The
obligations set forth in Sections 4, 6, 7, 8, 9, and 10 hereof shall survive any
termination or expiration of this Agreement, and any other Section that provides
a party with rights (including without limitation, rights to receive payments)
that have not been fully satisfied as of such termination or expiration, will
also survive any termination or expiration of this Agreement for any reason
whatsoever.
13. Successors and
Assignment. The Consultant's duties, obligations and services rendered
under this Agreement are personal in nature and are unique and peculiar to the
Consultant. Therefore, without the Company's prior written consent, the
Consultant shall not assign, transfer, sell, encumber, pledge or otherwise
alienate the Consultant's duties, obligations or responsibilities under this
Agreement. Consultant may assign his rights under this Agreement. This Agreement
cannot be assigned by the Company without Consultant's prior written consent.
This Agreement will be binding upon and inure to the benefit of the Company and
any successor to the Company, including, without limitation any persons
acquiring directly or indirectly all or substantially all of the business or
assets of the Company whether by purchase, merger, consolidation, reorganization
or otherwise (and such successor shall thereafter be deemed the Company for the
purposes of this Agreement).
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14. Notice. Any notice
(including notice of change of address) permitted or required to be
given pursuant to the provisions of this Agreement shall be in writing and sent
by registered or certified mail, return receipt requested, or by hand delivery
to the parties at the following addresses:
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If
to the Company:
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The
Amacore Group, Inc. Attn: President
0000
X. Xxxxxxxxx Xxxx. Xxxxx 000
Xxxxx,
XX 00000
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If
to the Consultant:
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Xxxxxxxx
Xxxxxxx
Flat
14
00
Xxxxxxxxxx Xxxxxxx Xxxxxx
X0
0XX
XX
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Notice
properly given by mail shall be deemed effective three (3) business days after
mailing.
15. Entire Agreement. This Agreement constitutes the
entire agreement and understanding between the Company and the Consultant
concerning the Consultant's engagement by the Company, and supersedes any and
all previous agreements or understandings, whether written or oral, between the
Consultant and the Company concerning such engagement. This Agreement may only
be modified or amended by a written document executed by all parties
hereto.
16. Waiver. The waiver by
either party of the breach of any covenant or provision in this Agreement shall
not operate or be construed as a waiver of any subsequent breach by either
party.
17. Invalidity of Any
Provision. The provisions of this Agreement are severable, it being the
intention of the parties hereto that should any provision hereof be invalid or
unenforceable, such invalidity or unenforceability of any provision shall not
affect the remaining provisions hereof, but the same shall remain in full force
and effect as if such invalid or unenforceable provision were
omitted.
18. Applicable Law and
Venue. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware. With respect to any suit,
action or other proceeding arising from, or relating to, this Agreement, the
parties hereby irrevocably agree to the exclusive personal jurisdiction and
venue of the Federal and state courts located within the state of
Florida.
19. Headings. Headings in
this Agreement are for informational purposes only and shall not be used to
construe the intent of this Agreement.
20. Counterparts. This
Agreement may be executed simultaneously in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as
of the date first above written.
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CONSULTANT:
/s/ Xxxxxxxx
Xxxxxxx
Xxxxxxxx
Xxxxxxx
COMPANY:
/s/
Xxx
Xxxxxx
Xxx
Xxxxxx
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