Management Services Consulting Agreement with First Advisors, Inc.
Exhibit 10.1
Management Services Consulting Agreement
with
First Advisors, Inc.
This Management Services Consulting Agreement is entered into as of May 1, 2001 (the “Effective
Date”), by and between First Advisors, Inc., a Texas corporation
(“Consultant”), and National Health & Safety Corporation, a Utah corporation,
(“Company”).
RECITALS
A. The Company is engaged in the business of marketing discount healthcare cards to
the
consumer (the “Business”).
B. Through its
Employees, and through Contractors and Service Providers engaged by
Consultant, Consultant will arrange for personnel to provide general and specific consulting
services to Company as provided in this Agreement.
C. The Company desires
to engage Consultant to provide certain consulting services to
Company to assist Company in furthering its goals for the Business, and Consultant is willing
to accept such engagement to provide such consulting services to Company, upon the terms
and subject to the conditions contained in this Agreement.
AGREEMENT
Therefore, in consideration of the premises and the mutual covenants and
agreements contained in this Agreement, Company and Consultant agree as follows:
1.1 Definitions: For
purposes of this Agreement, the following terms are defined as set forth in this
Section 1.1. All references to a Recital, Article,
Section, or Schedule are to a Recital, Article,
Section, or Schedule of this Agreement, unless otherwise
indicated.
a.
Affiliate of any Person means any other Person who directly controls, is controlled by, or is
under common control with, such Person. For purposes of this definition, “control,”
“controlled by,” and “under common control with” means possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether through ownership
of voting securities or interests, by contract, or otherwise).
b.
Agreement means this Management Services Consulting Agreement, including all
Schedules, as it may be renewed, extended, restated, amended, or supplemented from time
to time.
c.
Business has the meaning given such term in Recital A.
d. Business
Day means every day on which commercial banks in the State of Texas are open
for business.
e. Cause
means:
(1) A material default in the performance of Consultant’s duties under this
Agreement, if
such default has not been cured by Consultant within 30 days following the receipt by
Consultant of notice of such material default given by Company, or
(2) Consultant’s dishonesty, willful misconduct, willful violation of any Law,
action (or
omission) involving moral turpitude and reflecting unfavorably upon the public image
of Company, or action (or omission) aiding or abetting a competitor, supplier, or
customer of Company to the material disadvantage of Company.
f.
Company has the meaning given such term in the initial paragraph of this Agreement.
g. Company
Representative has the meaning given such term in Section 2.8.
h.
Compensation has the meaning given such term in Section 4.1.
i.
Confidential Information means any information, other than Public Information, which is in
tangible form, which is deemed to be confidential by Consultant, which is marked as
confidential or proprietary (or words of similar import) at the time of disclosure to Consultant,
and which falls within any one or more of the following categories with respect to Company
and its Affiliates:
(1) Information concerning (i) operations, (ii) finances, (iii) business opportunities,
(iv)
business methods and concepts, and (v) business plans;
(2) Information concerning (i) customers, including customer names, customer lists,
and
the terms of contracts with customers, and (ii) suppliers, including the terms of
contracts with suppliers;
(3) Information concerning (i) products, (ii) services, (iii) marketing and sales plans
and
sales techniques, and (iv) other concepts or ideas related to the Business that are
proprietary and unique;
(4) Results of any tests and/or studies regarding the Business and/or any reports
from
any third person contractors or consultants engaged to analyze and/or interpret
research data in connection with the Business;
(5) Information concerning internal policies and procedures, including personnel
policies
and procedures;
(6) Information concerning Company’s relationships with its accountants,
attorneys,
bankers, insurance agents, or other third parties with whom Company maintains a
business relationship;
(7) Information related to, or that could be used in any way against Company or any
Affiliate of Company in connection with, any lawsuit or any dispute in which Company
or any Affiliate of Company is or might become involved; and
(8) Financial statements, reports, manuals, notebooks, letters (and other
correspondence), and other written material pertaining to the Business.
j.
Contractor means an individual with business experience and expertise who is engaged by
Consultant as an independent contractor to assist Consultant in the provision of Services to
Company pursuant to this Agreement (such engagement by Consultant may be limited to the
provision of Services hereunder or may encompass the provision of consulting services to
other Persons in addition to Company).
k. Effective
Date has the meaning given such term in the initial paragraph of this Agreement.
l.
Employee means an individual who is an employee of Consultant or an Affiliate of Consultant
and who is assigned by Consultant to provide Services to Company pursuant to this
Agreement.
m. Initial
Term means the period beginning on the Effective Date and ending on April 30, 2002.
n.
Inventions have the meaning given such term in Section 5.2.
o. Laws
means all applicable statutes, laws, treaties, ordinances, rules, regulations, orders,
writs, injunctions, decrees, judgments, or opinions of any Tribunal.
p.
Person means any individual, corporation, partnership, joint venture, limited liability
company, trust, Tribunal, or other entity.
q. Public
Information means:
(1) Information which is publicly available,
(2) Information which Consultant develops independently without use of any
Confidential
Information so long as Consultant’s independent development of such information
can be documented and verified,
(3) Information, other than Confidential Information delivered to Consultant by
Company
prior to the Effective Date, in Consultant’s possession on the Effective Date so long
as such possession can be verified, and
(4) Information that is rightfully received by Consultant from a third-party who has no
duty
of confidentiality with respect to such information.
r.
Rights means legal and equitable rights, remedies, powers, privileges, and benefits.
s. Service
Provider means a lawyer (or law firm), accountant (or accounting firm), public
relations professional (or public relations firm), or other professional service provider who is
either engaged by Consultant as an independent contractor to assist Consultant in the
provision of Services to Company pursuant to this Agreement or is recommended by
Consultant to Company and engaged by Company to provide professional services to
Company.
t.
Services have the meaning given such term in Section 2.2.
u. Taxes
mean all charges of any nature whatsoever imposed by any Law or Tribunal.
v. Term
means the Initial Term and any renewal or extension of the Initial Term.
w. Tribunal
means any (a) local, state, federal, or foreign judicial, executive, administrative,
regulatory, or legislative instrumentality, and (b) private arbitration board or panel.
1.2 Number and Gender ofWords: Whenever in
this Agreement the singular number is used, the same
shall include the plural where appropriate and vice
versa, and words of any gender shall include
each other gender where appropriate.
Article Two
Creation and Nature of Relationship
2.1 Engagement of Consultant: Upon the terms and subject to the conditions contained in this
Agreement, Company engages Consultant, effective as of the
Effective Date, as a business
consultant to provide the Services to Company; and Consultant
accepts such engagement and
agrees to provide the Services upon such terms and subject to
such conditions.
2.2 The Services: From time to time as requested by
Company, Consultant, as an independent
contractor, will provide the consulting services described in
Schedule A (collectively, the “Services”)
to Company during the Term.
2.3 Standard of Performance: Consultant represents and warrants to, and covenants
with, Company as
follows:
a. No
Conflicting Agreements: Consultant represents to Company that it is not subject to any
agreements or arrangements that prevent Consultant from complying with its obligations to
Company under this Agreement; and Consultant agrees while this Agreement remains in
effect it will not enter into any such conflicting agreements or arrangements.
b. Quality of
the Services: Consultant agrees that it will provide the Services with reasonable
care, skill, and diligence and in accordance with applicable professional standards customary
for consulting services similar to the Services, and warrants that the Services will be provided
by Employees, Contractors, and Service Providers selected and supervised by Consultant.
THE FOREGOING IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY
PROVIDER. PROVIDER MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS
OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY WARRANTY CONCERNING
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
c. Consultant
shall not in any event be liable for special, consequential, exemplary, or incidental
damages, including, but without limitation, loss of profit or goodwill, suffered by Company or
any Affiliate of Company.
d. Compliance
with Laws: Consultant agrees to use good faith efforts to comply with all
applicable Laws in providing the Services.
2.4 Employees, Contractors, and Service Providers: Consultant, at its sole
discretion, will assign such
of its Employees to the provision of the Services as it deems
appropriate or desirable; and, at its
election, Consultant may also engage one or more Contractors or
Service Providers to provide, or
assist Employees of Consultant in providing, the Services to
Company. If any Employee,
Contractor, or Service Provider assigned by Consultant to the
provision of the Services does not
satisfactorily perform assigned duties, or if Company considers
any Employee’s, Contractor’s, or
Service Provider’s conduct to be detrimental to Company
or the Business, Consultant will withdraw
such Employee, Contractor, or Service Provider promptly after
receipt of Company’s notification.
Subject to the limited Rights of Company contained in the
second sentence of this Section 2.4,
Consultant shall at all times maintain the Right to control,
direct, and supervise its Employees and
Contractors and Service Providers engaged by Consultant,
including the Right to discharge or
reassign any such Employee, Contractor, or Service Provider
providing Services under this
Agreement. The foregoing notwithstanding, in the event
Company requires the services of any
Service Provider and Company and/or Consultant believe
Company’s best interests will be served
by Company’s direct engagement of such Service Provider,
Consultant, at Company’s request, will
make recommendations regarding one or more qualified Service
Providers and Company, at its sole
discretion, may engage the Service Consultant of its choice to
provide the required professional
services; and in such event, Consultant will bear no
responsibility whatsoever for, or with respect to,
the actions (or omissions) of the Service Provider(s) engaged
by Company.
2.5 Time and Attention to the Services: The
engagement of Consultant to provide the Services is
intended as a part-time engagement that will not require
Consultant, or those of its Employees,
Contractors, or Service Providers providing Services to
Company, to devote its, or their, full time and
attention to the provision of the Services. Consultant
will use its good faith efforts to be responsive
to requests from Company for the provision of Services at
specified times; but Consultant, at its
reasonable discretion, will determine how much time and
attention to devote to the provision of the
Services.
2.6 Nature of Relationship: In its capacity as a
business consultant to Company under this Agreement,
Consultant will have no authority or power to bind Company to
any agreement, contract, or order, or
in any other manner, without Company’s written approval,
nor will Consultant be authorized to act as
an agent or representative of Company unless expressly
authorized in writing to do so. In the
performance of its duties under this Agreement, Consultant will
be an independent contractor with
the sole Right to supervise, manage, control, and direct the
performance of the details incident to
such duties, and nothing contained in this Agreement will be
deemed or construed to create a
partnership or joint venture, to create the relationship of
employer - employee, or, except as
expressly set forth herein or in a separate writing delivered
pursuant hereto, principal - agent, or to
otherwise create any liability for either Company or Consultant
with respect to any indebtedness,
liabilities, or obligations of the other or of any other
Person. Consultant will be free to set its own
hours and appointments and, as contemplated by Section 2.5, to
devote as much time to the
provision of Services as Consultant deems appropriate and
consistent with its obligations under this
Agreement.
2.7 Consultant Responsibilities: To facilitate the performance of the Services by
Consultant, Consultant
will provide access to its facilities, information, and
personnel (including, but without limitation, its
directors, officers, employees, advisors, and agents) to
Company during reasonable hours.
2.8 Company Representative: Company's representative for all matters related to
this Agreement and
the Services to be provided hereunder will be the Board of
Directors of Company or such other
representative as the Company may designate from time to time
by written notice to Consultant (the
“Company Representative”).
Subject to the independence afforded Consultant pursuant to other
provisions of this Article Two, Consultant will receive
instruction, direction, and supervision from the
Company Representative and the Company Representative will have
complete authority to act for
and on behalf of Company with respect to this Agreement and the
Services. Consultant will provide
the Company Representative with such information concerning the
provision of the Services, as the
Company Representative shall request from time to time.
Consultant will act upon the instructions
or directions of the Company Representative, but will not be
required to act upon any such
instructions or directions if acting upon the same would
require Consultant to incur any expenses or
to expend any of its own funds. At any time, Consultant
may seek instruction or direction from the
Company Representative, and may refrain from acting on any
matter with respect to which it has
sought instruction or direction until the requested instruction
or direction is provided to Consultant.
Under no circumstances will Consultant be liable for any action
taken or not taken in reliance on the
instruction or direction of the Company Representative.
2.9 Exclusivity:
a.
Consultant’s Right to Provide Consulting Services to Others: Subject to the conflict of interest
provisions contained in Section 7.16, nothing contained in this Agreement is intended to or
shall be deemed to limit Consultant’s ability to accept business consulting engagements from
other Persons, expressly excluding Persons who are competitors with Company and
Persons that have developed technology and/or that offer products or services similar to
those developed and/or offered by Company.
b.
Limitations on Company’s Right to Engage Other Consultants: While this Agreement
remains in effect, Company agrees that it will not engage any Person other than Consultant
to provide consulting services the same as or substantially similar to the Services to be
provided by Consultant under this Agreement; however, nothing contained in this Agreement
is intended to limit the ability of Company to engage any Person to provide consulting
services that differ from the Services or to otherwise enter into any arrangement with any
Person so long as such arrangement does not conflict with this paragraph b or other
provisions of this Agreement.
Article Three
Term and Termination
3.1 Term: This Agreement is effective on and as of the Effective Date
and it shall remain in effect for the
Initial Term and any renewals or extensions thereof, unless
earlier terminated in accordance with
Section 3.2.
3.2 Termination of this Agreement: This Agreement may be terminated as
follows:
a. By Mutual
Consent: Company and Consultant may terminate this Agreement at any time by
written mutual consent executed by an authorized officer or manager of Company and Consultant.
b. Without
Cause: For its sole convenience either Party may terminate this Agreement at any
time by giving written notice of termination to the other Party not less than 30 days before the
date of termination.
c. With
Cause: Either Party may terminate this Agreement at any time for Cause by giving
written notice of termination to the other Party. Notice given pursuant to this paragraph must
include a list of the actions or omissions constituting Cause and giving rise to such notice.
3.3 Unpaid Compensation: On or promptly after the effective date of termination
under this Section 3.2,
(i) Consultant will be paid all unpaid Compensation due to
Consultant under this Agreement and all
then unreimbursed expenses due to Consultant under this
Agreement, and (ii) Consultant will deliver
to Company all property of Company in the possession of
Consultant, including, but without
limitation tangible Confidential Information of Company in
Consultant’s possession, as required by
Section 5.1.
3.4 Renewals and Extensions: Unless earlier terminated by Company or Consultant
pursuant to Section
3.2, this Agreement will continue in effect after
the last day of the Initial Term until the earlier of (a)
termination by Company or Consultant pursuant to Section
3.2 or (b) the first anniversary of the
Effective Date, on which date this Agreement will terminate
unless further extended in writing by
Company and Consultant.
Article Four
Compensation and Expenses
4.1 Compensation to Consultant: During the
Term, Company will compensate Consultant for providing
the Services by the payment of the compensation set forth in
Schedule B (the “Compensation”).
Payment of Compensation due to Consultant shall be made in
accordance with Section 4.4, as
applicable.
4.2 Expenses: As part of the compensation payable to
Consultant pursuant to Section 4.1, Consultant
will be entitled to reimbursement for the following
out-of-pocket expenses incurred by Consultant in
connection with the provision of the Services or otherwise
incurred on behalf of Company, in all
cases at Consultant's actual cost without any markup or
increase:
a.
Contractors: Company will reimburse Consultant for fees and expenses paid or payable by
Consultant to any Contractor engaged by Consultant in respect of those Services provided
by such Contractor, provided that the engagement of such Contractor by Consultant and the
incurrence of such fees and expenses have been authorized by Company in advance.
b. Service
Providers: Company will reimburse Consultant for fees and expenses paid or
payable by Consultant to any Service Provider engaged by Consultant in respect of those
Services provided by such Service Provider, provided that the engagement of such Service
Provider by Consultant and the incurrence of such fees and expenses have been authorized
by Company in advance.
c.
Airfare: Company will reimburse Consultant for airfare incurred by Consultant (and its
Employees, Contractors, and Service Providers), if the travel for which airfare is authorized
by Company in advance.
d. Ground
Transportation: Company will reimburse Consultant for rental car, taxi, and other
ground transportation charges, including bridge tolls and similar expenses, incurred by
Consultant (and its Employees, Contractors, and Service Providers) in the course of travel
that has been authorized by Company in advance.
e. Lodging
and Meals: Company will reimburse Consultant for reasonable lodging and meal
expenses incurred by Consultant (and its Employees, Contractors, and Service Providers) in
the course of travel that has been authorized by Company in advance. Consultant will not be
entitled to reimbursement for lodging or meals purchased for individuals other than
Employees, Contractors, and Service Providers assigned to the performance of Services.
f.
Telephone: Company will reimburse Consultant (and its Employees, Contractors, and
Service Providers) for long distance and toll telephone calls placed by Consultant and
relating to the provision of Services.
g. Delivery
and Copying: Company will reimburse Consultant for messenger services, for
overnight delivery and express mail services, for telecopying services, and for copying
services or for use of Consultant's office photocopier at a rate not to exceed ten cents ($.10)
per page.
h.
Materials: Company will reimburse Consultant for materials and supplies provided by
Consultant to Company, purchased by Consultant for use in connection with the provision of
Services, or otherwise utilized by Consultant in connection with the provision of Services,
provided that such materials and supplies are of more than nominal value and their provision
to Company or utilization by Consultant are authorized by Company in advance.
i.
Research: Company will reimburse Consultant for the costs of market segment research,
competitive analysis research, and valuation research undertaken by third Persons, if the
engagement of such third Persons is approved in advance by Company.
j.
Taxes: Company will reimburse Consultant for Taxes, other than income and franchise
Taxes paid or payable by Consultant in respect of Compensation paid to Consultant, paid by
Consultant in connection with the provision of the Services to Company.
4.3 Taxes: All Compensation paid to Consultant
pursuant to Section 4.1 shall be paid without
withholding, set off, or deduction of any kind whatsoever,
except as otherwise required by applicable
Laws. Consultant will be responsible for the payment of
all income and franchise Taxes that arise
from the payment of Compensation to Consultant under this
Agreement. Any Taxes other than
income and franchise Taxes that arise from the payment of
Compensation to Consultant under this
Agreement, including, but without limitation, federal, state,
and local privilege and excise Taxes
attributable to the Services or the provision thereof, shall be
the responsibility of Company and if
paid by Consultant shall be added to an invoice as an expense to
be reimbursed by Company.
4.4. Non-Cash Compensation: Compensation payable to Consultant in the form of stock
warrants,
capital stock, or other securities will be payable in the manner
provided in Schedule B. In the event
Company fails timely to issue any stock warrant, capital stock,
or other securities, or otherwise
comply with its obligations in respect of any non-cash
Compensation, in accordance with Schedule
B, Consultant, at its election, may (i) suspend all
Services then being provided to Company, and/or
(ii) exercise any Rights Consultant may have under applicable
Law or otherwise in respect of
Company’s failure to comply with such obligations.
Article Five
Certain Covenants
5.1 Confidentiality: Consultant
acknowledges that in the course of providing the Services to Company
under this Agreement, Consultant will or may obtain certain
Confidential Information, which
Confidential Information has been or will be uniquely developed
by Company and cannot be readily
obtained by third Persons from outside sources. Consultant
accordingly agrees as follows:
a. Covenant
of Confidentiality: Consultant agrees that all Confidential Information
communicated in connection with this Agreement or the provision of the Services to
Consultant by, or otherwise belonging to, Company and its Affiliates, or their customers,
whether before or after the Effective Date, shall be and remain the property of Company,
shall at all times be held in confidence, and shall not be disclosed by Consultant to third-
parties (other than (i) Employees, Contractors, and Service Providers assigned to provide
Services hereunder or (ii) pursuant to the order of any Tribunal) without the prior written
consent of Company.
b. Care of
Confidential Information: Consultant will protect Confidential Information
communicated to it using at least the same degree of care, but no less than reasonable care,
to prevent the unauthorized use, disclosure, or publication of such Confidential Information
as Consultant uses to protect its own confidential information of like nature. Consultant will
be deemed to have discharged its obligations concerning the care of Confidential Information
if Consultant has exercised this degree of care and if upon discovery of and use or disclosure
not authorized or permitted by, or pursuant to, this Agreement Consultant uses its good faith
efforts to prevent any further use or disclosure and promptly notifies Company of such
unauthorized use or disclosure and the steps it is taking, or proposes to take, to prevent
further unauthorized use or disclosure.
c. Use of
Confidential Information: Consultant will use the Confidential Information obtained by
it solely for purposes related to the provision of the Services and for no other purpose.
d. Return of
Confidential Information: Promptly after termination of this Agreement, Consultant
will surrender to Company all data, lists, books, materials, and records of or pertaining to any
Confidential Information obtained in connection with this Agreement or the provision of the
Services hereunder, including any copies thereof and all property in the possession of
Consultant belonging to Company or any of its Affiliates.
e. Right to
Injunction: Consultant acknowledges that a violation or attempted violation on
Consultant’s part of any agreement in this Section 5.1 will cause irreparable damage to
Company and its Affiliates, and accordingly Consultant agrees that Company shall be
entitled as a matter of right to an injunction, out of any court of competent jurisdiction,
restraining any violation or further violation of such agreements by Consultant; such Right to
an injunction, however, shall be cumulative and in addition to any other remedies Company
may have.
f.
Survival: The terms and agreements set forth in this Section 5.1 shall survive expiration of
the Term or the termination of this Agreement for any reason, and shall remain in effect for
the period of 12 months following the expiration of the Term or the termination of this
Agreement. The existence of any claim of Consultant, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by Company of the
agreements contained in this Section 5.1.
5.2 Inventions or Discoveries: Either individually or
jointly with others, Consultant acknowledges that
during the Term it may discover, conceive, make, perfect, or
develop inventions, discoveries,
improvements, ideas, computer programs, know-how, and/or data
that result from the provision of
the Services and relate to the Business of Company
(“Inventions). Consultant agrees to disclose
and assign to Company any and all such Inventions and shall
promptly execute and deliver all
documents necessary to vest such Rights in Company.
5.3 Copyright: Consultant agrees that Company shall
own all original written materials, including
programming documentation, originated, and prepared specifically
for Company pursuant to this
Agreement. Consultant also acknowledges that such
copyrightable works are “works made for hire”
under U.S. copyright laws. Consultant further agrees, if
so requested, and at Company’s expense,
to execute written acknowledgments or assignments of copyright
ownership of works covered by this
Agreement as may be necessary to preserve or vest such Rights in
Company. Consultant further
waives and agrees not to assert any Rights, if any, to
attribution and integrity (“moral rights”) that
Consultant may have in any such copyrightable works.
5.4 Non-Solicitation: During the Term and for a period of 12 months after the
expiration or earlier
termination of this Agreement, neither party to this Agreement
will hire or solicit for hire any
employee of the other party, or of any Affiliate thereof, with
whom it has had contact in connection
with the provision of the Services under this Agreement without
the express written consent of the
other party. The foregoing notwithstanding, in the event
either party breaches the agreement of
such party to refrain from hiring any employee of the other
party contained in this Section 5.4, such
party will be obligated to pay the non-breaching party an amount
equal to 50% of the then current
annual salary of the employee who is wrongfully hired as
compensation for the expense incurred, or
anticipated to be incurred, in replacing such employee.
Article Six
Exculpation and Indemnification
6.1 Exculpation: Neither Consultant, nor any of its shareholders, members,
directors, managers,
officers, employees, contractors, agents, representatives, or
attorneys, nor any of Consultant’s
Affiliates, Contractors, or Service Providers, nor any of their
respective partners, shareholders,
members, directors, managers, officers, employees, contractors,
agents, representatives, or
attorneys, as applicable, shall be liable to Company, or any
Affiliate of Company, for honest
mistakes of judgement, or for action or inaction, taken
reasonably and in good faith for a purpose
that was reasonably believed to be in the interests of Company,
or for losses due to such mistakes,
action, or inaction, or to the negligence, dishonesty, or bad
faith of any employee, contractor, or
other agent of Consultant or any of Consultant’s
Affiliate’s, Contractors’, or Service Providers’
employees, contractors, or agents; provided, that such
employee, contractor, or agent was selected,
engaged, or retained and supervised with reasonable care;
and provided, that this Section 6.1 shall
not extend to any action which constitutes fraud, willful
misconduct, gross negligence, or a material
breach of this Agreement. Consultant may consult with
counsel and accountants in respect of the
provision of the Services and be fully protected and justified
in any action or inaction that is taken or
not taken in accordance with the advice or opinion of such
counsel or accountants, provided that
they shall have been selected with reasonable care.
Notwithstanding any of the foregoing to the
contrary, the provisions of this Section 6.1 shall not
be construed so as to relieve (or attempt to
relieve) any Person of any liability by reason of recklessness
or intentional wrongdoing to the extent
(but only to the extent) that such liability may not be waived,
modified, or limited under applicable
Law, but shall be construed so as to effectuate the provisions
of this Section 6.1 and of Section 6.2
to the fullest extent permitted by law.
6.2 Indemnification by Company: Company agrees to,
and does hereby, indemnify Consultant and
Consultant’s shareholders, members, directors, managers,
officers, employees, contractors, agents,
attorneys, and representatives, and Consultant’s
Affiliates, Contractors, and Service Providers, and
their respective partners, shareholders, members, directors,
managers, officers, employees, agents,
attorneys, and representatives, against all claims, damages,
losses, and expenses, including
reasonable attorneys’ fees and expenses, arising out of
Company’s performance under this
Agreement or otherwise with respect to the Business and/or the
Services that are caused in whole
or in part by Company’s willful misconduct or grossly
negligent act or omission or that are caused by
the willful misconduct or grossly negligent act or omission of
any Affiliate of Company, or of any
Person employed or engaged by Company for whose acts Company
may be liable.
6.3 Indemnification by Consultant: Consultant agrees
to, and does hereby, indemnify Company and
Company’s shareholders, members, directors, managers,
officers, employees, contractors, agents,
attorneys, and representatives against all claims, damages,
losses, and expenses, including
reasonable attorneys’ fees and expenses, arising out of
Consultant’s provision of the Services under
this Agreement that are caused in whole or in part by
Consultant’s willful misconduct or grossly
negligent act or omission or that are caused by the willful
misconduct or grossly negligent act or
omission of any Affiliate of Consultant, or of any Person
employed or engaged by Consultant for
whose acts Consultant may be liable.
7.1 Headings: The headings, captions, and
arrangements used in this Agreement are for convenience
only and do not limit, amplify, or modify the terms of this
Agreement.
7.2 Communications: Unless specifically otherwise
provided, whenever this Agreement requires or
permits any consent, approval, notice, request, or demand from
one party to another, such
communication must be in writing (which may be by facsimile
transmission or email acknowledged
by the recipient) to be effective and shall be deemed to have
been given on the day delivered or, if
mailed, on the third Business Day after it is enclosed in an
envelope, addressed to the party to be
notified at the address stated below, properly stamped, sealed,
and deposited in the appropriate
official postal service, or if emailed, on the day
acknowledged. For notice to be effective to the
Company, all members of the current Board of Directors must be
notified in accordance with this
paragraph
Until changed by notice, the address, facsimile number, and email address for each party is as follows:
For the Company: National Health & Safety Corporation:
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Xxxx X. Xxxxx |
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Xxxxx Xxxxxxx |
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Xxxxx X. Xxx, XX |
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Xxxxxx Xxxxxxxxx |
For the Consultant: First Advisors, Inc.
Attn: President
0000 Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000.0000
7.3 Survival: All covenants, agreements,
representations, and warranties made in this Agreement shall
survive all closings under this Agreement and, to the extent
expressly stated in certain Sections of
this Agreement, the expiration of the Term or the early
termination of this Agreement.
7.4 Governing Law: THIS AGREEMENT IS BEING EXECUTED
AND DELIVERED, AND IS INTENDED
TO BE PERFORMED, IN THE STATE OF TEXAS, AND THE LAWS (OTHER
THAN CONFLICT OF
LAWS PROVISIONS THEREOF) OF THE STATE OF TEXAS AND OF THE
UNITED STATES OF
AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES AND
THE VALIDITY,
CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS
AGREEMENT.
7.5 Mediation: Except for matters following under the provisions for injunctive
relief set forth in Article
Five, any controversy or claim arising out of or
relating to this Agreement, or a breach of any
provision hereof, shall first be submitted to mediation before
a mediator in Xxxxxx County, Texas who
is mutually acceptable to Company and Consultant. In the
event Company and Consultant cannot
reach agreement as to a mutually acceptable mediator, then each
of Company and Consultant shall
select a mediator in Xxxxxx County, Texas, and the two
individuals so selected shall then select a
third individual who shall serve as the mediator pursuant to
this Section 7.5. Any mediation
conducted under this Section 7.5 shall be conducted in
accordance with the Commercial Financial
Disputes Mediation Rules of the American Arbitration
Association.
7.6 Arbitration: Except for matters following under the provision for injunctive
relief set forth in Article
Five, any controversy or claim arising out of or
relating to this Agreement, or a breach of any
provision hereof, if not resolved by mediation pursuant to
Section 7.5, shall be settled by binding
arbitration held in Xxxxxx County, Texas in accordance with the
Commercial Financial Disputes
Mediation Rules of the American Arbitration Association, and
the award rendered by the arbitrators
shall be entered in any court having jurisdiction
thereof. Disputes resolved by arbitration will be
resolved by a panel of three arbitrators unless the parties
agree to resolution by a single arbitrator.
Prior to the commencement of hearings, each of the arbitrators
shall provide an oath of impartiality.
7.7 Venue: Any litigation arising out of or in connection with this Agreement,
whether initiated by
Company or Consultant, shall be brought in the district courts
of Xxxxxx County, Texas, or in the
United States District Court for the Western District of Texas,
Austin Texas.
7.8 Joint Defense: If Company and Consultant are named as defendants in the same
legal proceeding
(whether in court, an arbitration proceeding, a governmental
investigation, or otherwise), or in similar
or related legal proceedings, the sharing of information,
strategies, documents, or exhibits, joint
participation in interviews with witnesses or discussions with
consulting experts or others, or similar
cooperative action taken by them in connection with such
proceedings shall be subject to a “joint
defense” privilege and each of them shall, and shall use
commercially reasonable efforts to cause
their counsel and employees and agents to, maintain as
confidential any such shared information to
the same extent that such party maintains the confidentiality
of other privileged information (but shall
not have the Right to waive such privilege without the written
consent of the other party to the
proceeding).
7.9 Attorneys’ Fees: In any action to enforce this Agreement, the prevailing
party shall be entitled to
recover all out-of-pocket costs and expenses, and reasonable
attorneys’ fees, in addition to any
other relief to which it may be entitled.
7.10 Invalid Provisions: If any provision of this Agreement is
held to be illegal, invalid, or unenforceable,
such provision shall be fully severable; this Agreement shall
be construed and enforced as if such
provision had never comprised a part hereof; and the remaining
provisions shall remain in full force
and effect and shall not be affected by such provision or by
its severance. Furthermore, in lieu of
such provision there shall be added automatically a provision
as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable.
7.11 Entirety and Amendments: THIS AGREEMENT REPRESENTS THE
FINAL AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR
SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO
UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES. Only a written
instrument can amend this agreement.
Authorized officers of Company and Consultant must execute this
written instrument jointly. Further,
this agreement can be supplemented only by documents delivered
in accordance with the express
terms of this agreement.
7.12 Waivers: No course of dealing nor any failure or delay by
either party to this Agreement or by such
party’s officers, managers, directors, employees,
representatives, or attorneys with respect to
exercising any Right of such party hereunder shall operate as
any waiver thereof under this
Agreement. A waiver must be in writing and signed by the
party granting such waiver to be
effective, and such waiver will be effective only in the
specific instance and for the specific purpose
for which it is given.
7.13 Multiple Counterparts: This Agreement has been executed in a
number of identical counterparts,
each of which shall be deemed an original for all purposes and
all of which constitute, collectively,
one agreement; but, in making proof of this Agreement, it shall
not be necessary to produce or
account for more than one such counterpart.
7.14 Parties Bound; Assignments: This Agreement is binding upon,
and inures to the benefit of,
Company, Consultant, and their respective successors and
assigns; provided that Consultant may
not, without the prior written consent of Company, assign any
Rights, duties, or obligations
hereunder, and any purported assignment in violation of the
foregoing shall be void and ineffective.
7.15 Publicity: Consultant will submit to Company all advertising, sales promotion, press
releases, and
other publicity relating to this Agreement or the Services
performed hereunder in which Company's
name or xxxx is mentioned; and Consultant further agrees not to
publish or use such advertising,
sales promotion, press releases, or publicity without Company's
prior approval.
7.16 Compliance with Company Policy: Consultant's personnel performing Services on
Company's
premises shall observe in all material respects all security
and safety rules and all other applicable
rules and policies in force at the site of the Services.
7.17 Conflicts of Interest: This Agreement is intended to secure to Company Consultant's
assistance and
cooperation and shall preclude Consultant from performing
services similar to the Services for other
Persons that, in the reasonable judgment of Consultant, would
result in a conflict of interest with the
contractual relationship represented by this Agreement.
Consultant represents that it has advised
Company in writing prior to the Effective Date of any
relationship with any other Person, including
competitors of Company, which, in the judgment of Consultant,
would present a conflict of interest or
which, in the judgment of Consultant, would prevent Consultant
from performing the Services in
accordance with this Agreement. The foregoing
notwithstanding, nothing contained in this
Agreement is intended to restrict Consultant from providing
consulting services to, or engaging in
any contractual relationship with, any Person so long as such
services or other relationship will not
create a conflict of interest or otherwise contravene the terms
of this Agreement.
7.18 Force Majeure: Consultant shall not be liable to Company due to any failure or delay in
performance
of its obligations under this Agreement because of
circumstances beyond its control, including but
not limited to acts of God, acts of the public enemy, war,
civil disorders, flood, fire, riot, accident,
strikes or work stoppages, lockouts, embargo, inability to
obtain phone lines, government action
(including enactment of any Laws which restrict or prohibit the
providing of the Services
contemplated by this Agreement), and other causes beyond its
control whether or not of the same
class or kind as specifically named above. If Consultant
is unable to substantially perform its
obligations hereunder for any of the reasons described in this
Section 7.18, the obligation of
Consultant shall be suspended for the duration of, and to the
extent of, such force majeure event;
provided, that Consultant shall promptly notify Company of its
inability to perform, the steps it
proposes to take to rectify or mitigate such inability, and the
anticipated length of such inability.
7.19 Further Assurances: From time to time after the Effective Date, each party will, at the
expense of
the requesting party, execute and deliver such further
instruments and documents and take such
other action as the other party to this Agreement may
reasonably request in order more effectively to
carry out or confirm the intent of this Agreement.
7.20 Execution by Facsimile: The manual signature of any party hereto that is transmitted to
any other
party by facsimile shall be deemed for all purposes to be an
original signature. Any party that
delivers a signature page by facsimile agrees to deliver an
original manually signed counterpart of
such party’s signature page to any party who requests it
promptly after receipt of such request.
7.21 No Strict Construction: This Agreement is the result of substantial negotiations between
Company
and Consultant and their respective counsel and has been
prepared by their joint efforts.
Accordingly, the fact that one party’s counsel may have
drafted this Agreement or any portion hereof
is immaterial and this Agreement will not be strictly construed
against any party.
7.22 Construction: Whenever the context requires, the gender of all words used in this
Agreement
includes the masculine, feminine, and neuter. The term
“including” and variations of the term mean
“including without limitation.”
In Witness Whereof, as of the Effective Date, the authorized officers, or
representatives of the Company and Consultant have signed and delivered this Agreement to the other.
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For the Company: |
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For the Consultant: |
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National Health & Safety Corporation |
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First Advisors, Inc. |
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By: |
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By: |
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/s/Xxxx X. Xxxxx |
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/s/Xxxxxx Xxxxx |
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Xxxx X. Xxxxx |
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Xxxxxx Xxxxx |
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President and CEO |
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Senior Vice President |
Schedule A
The Services
The Services delivered to Company by Consultant under this Agreement are those indicated by the insertion of an
“x” (or other appropriate marking) in the box preceding each service:
1. Company Overview and Business Plan.
X 1.1 Analysis of
Company’s current status, with the objective of assisting Company in
defining specific and general areas for improvement and expansion of the
Business.
X 1.2 Review of
Company’s business and/or strategic plan (the “Business Plan”), with
the objective of assisting Company in polishing and refining the Business Plan.
(Consultant will have the obligation to write, prepare, and continuously update
the Business Plan).
X 1.3 Review of
Company’s marketing and sales plan, with the objective of assisting
Company in polishing and refining its marketing and sales plan for use in
connection with Company’s current and future efforts to grow its revenues.
X 1.4 Analysis of
Company’s target market, with the objective of assisting Company to
understand its market and competition and to position its products and services
within its target market.
2. Management and Personnel
X 2.1 Review of
management structure, and assessment of strengths and weaknesses
of members of management team, with the objective of making
recommendations regarding improvements to the management team of
Company.
X 2.2 Assistance with
recruitment of directors, advisory board members, officers,
managers, and other key personnel, with the objective of assisting Company
assemble a management team appropriate for the successful execution of
Company’s Business Plan.
X 2.3 Review of
Company’s compensation of directors, advisory board members,
officers, managers, and key personnel, including review of Company’s incentive
plan, with the objective of assisting Company with the development and
implementation of compensation and incentive arrangements appropriate for the
successful execution of Company’s Business Plan.
X 2.4 Review of
Company’s employment agreements, employee non-disclosure and
inventions agreements, and other agreements with employees, with the objective
of assuring that Company’s contractual relationships with its employees are
appropriate.
X 2.5 Review of
Company’s employee benefits program, employee policies, recruiting
procedures, employee manuals, and the like, with the objective of establishing
appropriate employee benefits policies and procedures.
3 Strategic and Professional Relationships.
X 3.1 Assist Company with
the development of a plan for establishing strategic
relationships with prospective suppliers, customers, manufacturers, distributors,
licensors, licensees, advisors, and others with whom a relationship might be
beneficial to the development of the Business.
X 3.2 Make introductions
to specific prospective strategic suppliers, customers,
manufacturers, distributors, licensors, licensees, advisors, and others consistent
with Company’s plan for establishing strategic relationships.
X 3.3 Assist Company in
assessing its professional services needs in one or more of
the following areas (as requested by Company and as agreed by Consultant):
accounting; legal; public relations; advertising; graphic design;
printing/production; insurance; website development; real estate; telecom;
hardware; software; and production systems; and make introductions to specific
persons in these areas.
Schedule B
Compensation
During the initial term of the Agreement and any renewals, the Company agrees to pay the Consultant in Common Stock of the
Company. The Consultant will be paid 1,250,000 shares per month. Payment of such stock shall be in advance, on the
first business day of each month, to the Consultant.
The Consultant acknowledges that the Common Stock to be issued under this Consulting Agreement will constitute “restricted
securities” under Rule 144 promulgated by the Securities and Exchange Commission. The Consultant represents that it
will not sell or transfer the Common Stock so issued except in compliance with the Securities Act of 1933.
The Company agrees to prepare and file with the Securities and Exchange Commission, at its sole expense and promptly after the
execution of this Agreement, one or more registration statements on Form S-8 (or any equivalent or successor form) to register all
Common Stock paid to the Consultant under this Agreement under the Securities Act of 1933.
