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Consulting Agreement
with
Xxxxxx Capital Funding Group
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CONSULTING AGREEMENT
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AGREEMENT, made as of this 1ST day of February, 1997, by and between
Health Professionals, Inc., a Delaware corporation having its principal place of
business at 000 Xxxx Xxx Xxxx Xxxx., Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
"HPI") and Xxxxxx Capital Funding Group, a Florida Corporation, 0000 Xxxxxxxxxx
Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx (hereinafter "TCFG").
W I T N E S S E T H:
WHEREAS, TCFG possesses significant business and financial contacts
throughout the Broward County Community; and
WHEREAS, HPI is desirous of utilizing TCFG's extensive network of
contacts for the purpose of expanding its own business as more fully set forth
herein; and
WHEREAS, TCFG is willing to provide such services and to be
compensated therefor by receipt of shares of HPI common stock in lieu of cash
compensation; and
WHEREAS, HPI is desirous of entering into such an arrangement.
WHEREAS TCFG has expertise in financial and management type service
HPI requires and has engaged the service of Xxxxxx XxXxxx ("Consultant") who has
significant experience and expertise in business and financial management and
consulting, particularly as such relates to financially distressed companies and
so-called "management turn-around" situations.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows.
1. Services to be Rendered.
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(a) During the term of this Agreement, TCFG shall render the
following services to HPI: (i) implementation of short term and long term
business and financial planning in order to fully develop HPI's assets,
resources and services, particularly as such relate to the Broward County
Community; (ii) implementation of a marketing program to assist HPI
in broadening the worldwide markets for its business and services and to promote
its image worldwide; (iii) assist HPI in monitoring the services rendered by its
outside consultants and contractors; (iv) advise HPI relative to the continued
development of a stockholder relations program; (v) assist HPI in developing
programs and resources to enable and enhance its capacities to secure regulatory
approvals on a worldwide basis; (vi) advise and assist HPI in identifying,
evaluating and structuring business combinations. Such services shall be
rendered by in so many hours a week as TCFG, in its sole and absolute
discretion, shall see fit, however TCFG shall provide a minimum of ___ hours per
month rendering said services. All work to be performed and services to be
rendered hereunder shall be in consultation with HPI management. HPI agrees to
make all its senior management, as well as members of its Board of Directors,
available to TCFG at all reasonable times during normal business hours during
the term of this Agreement.
(b) The services to be rendered hereunder shall be performed by TCFG
and Xxxxxx XxXxxx, and such services may not be subcontracted or otherwise
performed by third parties on behalf of TCFG without the prior written
permission of HPI.
(c) The services to be rendered by TCFG and Xxxxxx XxXxxx to HPI may
be rendered by TCFG at any location of its choosing including, without
limitation, at TCFG's offices in Broward County.
(d) Nothing contained in this Agreement shall in any way be deemed
as preventing or restricting TCFG from in any way performing any other business
services for other individuals or entities or for their own account.
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2. Compensation.
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(a) As compensation for the full and complete rendition of the
services to be rendered hereunder, HPI shall pay TCFG a fee of 300,000 shares
(the "Shares") of its common stock, $.02 per share, payable in full no later
than February 28, 1997. (b) HPI agrees that it will, no later than ________,
1997, file or cause to be filed with the Securities and Exchange Commission and
the American Stock Exchange, a Registration Statement on Form S-8 (or similar
form), which Registration Statement shall cover the sale or other disposition by
TCFG of all the Shares and further that HPI shall use its best efforts to obtain
the effectiveness of such Registration Statement as soon as practicable. HPI
shall be required to effect a registration or qualification pursuant to this
subsection (b) on one occasion only. All expenses of any registration and
offering of the Shares pursuant to this paragraph (including, without
limitation, registration fees, qualification fees, fees and disbursements of
HPI's counsel and printing expenses) shall be borne by HPI .
3. Term of Agreement.
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This Agreement shall be for a period of three (3) years from the
date hereof unless terminated sooner as provided herein. In the event that TCFG
terminates this Agreement before the expiration before the expiration of the 3
year term, then TCFG shall be obligated to return equal to the remaining months
of the contract over 36 multiplied by 300,000 shares or its equivalent in cash.
4. TCFG'S AND TCFG'S REPRESENTATION AND WARRANTY. TCFG represents
and warrants to HPI that it has the authority to enter into this Agreement and
to perform all obligations hereunder.
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5. REPRESENTATIONS AND WARRANTIES (a) HPI hereby represents and
warrants to TCFG and its permitted assigns as follows: (i) No Consents. No
permit, consent, approval, authorization, order of, or filing with, any court or
governmental authority is required in connection with the execution and delivery
by HPI of this Agreement or to consummate the transactions contemplated hereby,
except for the filing of the Registration Statement as provided in subsection
2(b). (ii) Authorization of Agreement, Etc. HPI has full right, power and
authority to execute and deliver this Agreement and any document, certificate or
instrument required hereunder and any agreement to be executed (collectively,
the "Documents") and to perform all of its obligations hereunder and thereunder
or contemplated hereby or thereby. The Documents have been, or will be, duly
executed and delivered by HPI and the execution, delivery and performance by HPI
of the Documents has been duly authorized by all requisite corporate action by
HPI; and each constitutes, or will constitute, the legal, valid and binding
obligation of HPI enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
usury or other similar laws affecting the enforcement of creditors' rights
generally. (iii) Authorization. The (A) authorization, execution, delivery and
performance of the Documents; (B) authorization, issuance, sale and delivery of
the Shares will not (i) violate any provision of law or statute or any order of
any court or other governmental agency or (ii) conflict with or result in any
breach of any of the terms, conditions or provisions of, or constitute (with due
notice or lapse of time or both) a default under, or result in the creation of
any lien, security interest, charge or encumbrance upon any of the properties or
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assets of HPI under its charter, the By-laws of HPI or any indenture, mortgage,
lease agreement or other agreement or instrument to which HPI is a party or by
which it or any of its property is bound.
(iv) ISSUANCE OF SECURITIES, ETC. HPI has all requisite corporate
power and authority to issue, sell and deliver the Shares and such issuance,
sale and delivery has been duly authorized by all requisite corporate action of
HPI and when so issued, sold and delivered (i) the Shares will be duly and
validly issued and outstanding, fully paid and nonassessable with no personal
liability attaching to the ownership thereof and will be free and clear of all
liens, charges, claims, encumbrances, restrictions or preemptive or any other
similar rights imposed by or through HPI and HPI shall have paid all taxes, if
any, in respect of the issuance thereof; and (ii) none of the Shares will be
subject to preemptive or any other similar rights of the shareholders of HPI or
others. The offer and sale of the Shares is exempt from the registration
requirements of the Securities Act and the rules and regulations promulgated
thereunder and the Shares will be issued in compliance with all applicable
Federal and state securities laws.
(b) TCFG hereby represents and warrants to HPI that it is acquiring the
Shares for their own account for investment purposes and without a view to the
resale or distribution thereof.
6. Indemnity Obligations.
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(a) HPI agrees to indemnify and hold harmless TCFG, as follows:
(i) against any and all losses, liabilities, claims, damages and
reasonable expenses whatsoever arising out of any untrue statement or alleged
untrue statement of a fact set forth in the Registration Statement or the
omission or alleged omission therefrom of a fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading unless such statement or omission was made in reliance on and in
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conformity with written information furnished to HPI by the TCFG expressly for
inclusion in the Registration Statement;
(ii) against any and all losses, liabilities, claims, damages and
expenses whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, commenced or threatened, or any claim whatsoever based upon (A)
any such untrue statement or omission or any such alleged untrue statement or
omission unless such statement or omission was made in reliance on and in
conformity with written information furnished to HPI by TCFG expressly for
inclusion in the Registration Statement or (B) the rendition by TCFG of any of
its services pursuant to this Agreement, except for any gross negligence,
malfeasance, act of bad faith or breach of trust by TCFG or for its failure to
adhere to the terms and conditions of this Agreement; and
(iii) against any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under clause (i) or (ii) above unless such
statement or omission was made in reliance on and in conformity with written
information furnished to HPI by TCFG expressly for inclusion in the
Registration Statement.
(b) HPI agrees to indemnify and hold harmless TCFG, to the same
extent as the foregoing indemnity, against any and all losses, liabilities,
claims, damages and reasonable expenses whatsoever directly arising out of the
exercise by any person of any right under the Securities Act, the Exchange Act
on account of violations of the representations, warranties or agreements set
forth in Section 5 hereof.
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(c) TCFG agrees to indemnify and hold harmless HPI, its officers,
directors, employees, agents and counsel and each other person, if any, who
controls HPI, to the same extent as the foregoing indemnity from HPI to TCFG in
Sections 6(a) and 6(b) hereof, but only with respect to (i) statements or
omissions, if any, made in the Registration Statement in reliance upon and in
conformity with written information furnished to HPI by TCFG expressly for
inclusion in the Registration Statement; and (ii) any action which is the result
of the gross negligence, malfeasance, act of bad faith or breach of trust by
TCFG or for TCFG's failure to adhere to the terms of this Agreement. If any
action shall be brought against HPI or any other person so indemnified based on
the Registration Statement and in respect of which indemnity may be sought
against TCFG pursuant to this Section 6(c), TCFG shall have the rights and
duties given to an indemnifying party under Section 6(d) hereof and HPI and each
other person so indemnified shall have the rights and duties given to
indemnified parties pursuant to Section 6(a) hereof. The foregoing agreement to
indemnify shall be in addition to any liability TCFG may otherwise have
including liabilities arising under this Agreement.
(d) If any action is brought against either HPI or TCFG (each, an
"Indemnified Party" and collectively, "Indemnified Parties"), in respect of
which indemnity may be sought against the other pursuant to Sections 6(a) - 6(c)
above, each such Indemnified Party shall promptly notify the other (the
"Indemnifying Party") in writing of the institution of such action (but the
failure to so notify shall not relieve the Indemnifying Party from any liability
it may have under this Section 6 unless such failure results in the imposition
of a default judgment which cannot be reopened) and the Indemnifying Party shall
promptly assume the defense of such action, including the retention of counsel
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(reasonably satisfactory to each such Indemnified Party) and payment of
expenses. Each such Indemnified Party shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of each such Indemnified Party unless the employment of such counsel
shall have been authorized in writing by the Indemnifying Party in connection
with the defense of such action or the Indemnifying Party shall have not have
promptly employed counsel reasonably satisfactory to each such Indemnified Party
to have charge of the defense of such action or each such Indemnified Party
shall have reasonably concluded that there may be one or more legal defenses
available to it or them or to other Indemnified Parties which are different from
or additional to those available to one or more of the Indemnifying Parties and
it would be inappropriate for the same counsel to represent both parties due to
actual or potential differing interests between them, in any of which events
such fees and expenses shall be borne by the Indemnifying Party and the
Indemnifying Party shall not have the right to direct the defense of such action
on behalf of each Indemnified Party. Anything in this Section 6(d) to the
contrary notwithstanding, the Indemnifying Party shall not be liable for any
settlement of any such claim or action effected without its written consent,
which consent shall not be unreasonably withheld. HPI agrees to promptly notify
TCFG of the commencement of any litigation or proceedings against HPI or any
of its officers or directors in connection with the Registration Statement.
7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed
that TCFG is being engaged as a self-employed independent contractor and not as
an employee or agent of HPI. HPI will not withhold or pay any taxes relating to
any of TCFG's activities hereunder, nor will HPI provide worker's compensation,
disability, health or any other insurance coverage.
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8. General.
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(a) This Agreement constitutes the entire agreement between the
parties relating to the subject matter hereof, and supersedes all prior
understandings, agreements, and documentation relating to the subject matter
hereof. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both parties hereto.
(b) The expiration of the term of this Agreement notwithstanding,
provisions which are intended to survive and continue such expiration
(including, without limitation, Section 6 hereof) shall so survive and continue.
(c) All notices which may be given under the provisions of this
Agreement or otherwise shall be conclusively deemed to have been given if
delivered personally or sent by certified mail, return receipt requested, with
postage prepaid, to each of the parties hereto at the respective addresses set
forth above, or to such other address or addresses as either party may
hereinafter designate in writing as his or its address for this purpose in the
manner herein provided for giving notices. The date of giving of such notice
shall be conclusively deemed to be the date of receipt, if delivered personally,
or the date of postmark, if mailed.
(d) No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by the
party claimed to have waived or consented.
(e) The rights and obligations of the parties hereunder may not be
assigned by any such party without the prior written consent of the other. This
Agreement shall inure to the benefit of and be binding upon the successors (by
operation of law) and the permitted assigns of the parties hereto.
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(f) Whenever the sense of this Agreement so requires, the masculine
gender shall be deemed to include the feminine and/or neuter gender, and the
plural, the singular and vice versa.
(g) The titles set forth in this Agreement are for convenience of
reference only and shall not be considered as part of this Agreement in any
respect nor shall they in any way affect the substance of any provision
contained in this Agreement.
(h) This Agreement, its performance and the rights, obligations and
remedies of the parties hereto, shall be construed and governed by the laws of
the State of Florida without regard to its principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the year and date first above written.
HEALTH PROFESSIONALS, INC.
By: s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, CEO
XXXXXX CAPITAL FUNDING GROUP
By: s/ Xxxxxx XxXxxx
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April 7, 1997
Health Professionals, Inc.
000 X. Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, Xx 00000
(000) 000-0000, Fax (000) 000-0000
XXXXXX CAPITAL FUNDING GROUP
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxx XxXxxx
RE: HEALTH PROFESSIONALS, INC
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Dear Xxx:
This shall confirm Health Professionals, Inc.'s agreement with Xxxxxx
Capital Funding Group as it relates to the amount of shares to be issued in
connection with consulting services.
This shall confirm that instead of the 300,000 shares as set forth in the
agreement, that you will receive 100,000 shares.
Please sign below confirming our agreement.
Very truly yours,
/s/Xxxxxxxx X. Xxxxxx
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Vice President-General Counsel
BJB:cp
Accepted and Agreed
XXXXXX CAPITAL FUNDING GROUP
By: /s/Xxxxxx XxXxxx
Xxxxxx XxXxxx
