Exhibit 4.1
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated January _____,
2004, is made by and between Xxxxxx X. Xxxxxx, an individual ("Consultant"),
whose address is 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, and
Dynamic Health Products, Inc., ("Client"), having its principal place of
business at 0000 Xxxxx Xxxxx Xx., Xxxxx 000, Xxxxx, Xxxxxxx 00000.
WHEREAS, Consultant desires to be engaged by Client to provide
information, evaluation and consulting services to the Client in his area of
knowledge and expertise on the terms and subject to the conditions set forth
herein;
WHEREAS, Client is a publicly held corporation with its common
stock shares trading on the Over the Counter Bulletin Board under the ticker
symbol "DYHP" and desires to further develop its business and increase it's
common stock share's value; and
WHEREAS, Client desires to engage Consultant to provide information,
evaluation and consulting services to the Client in his area of knowledge and
expertise on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant
provides to Client, the parties agree as follows:
1. Services of Consultant.
Consultant agrees to perform for Client all necessary services required
in working to bring about the effectiveness of the Client's business plan of
operations. As such Consultant will provide bona fide services to Client. The
services to be provided by Consultant will not be in connection with the offer
or sale of securities in a capital-raising transaction, and will not directly or
indirectly promote or maintain a market for Client's securities.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration for
services provided, Eighty three thousand, three hundred and thirty four (83,334)
shares of common stock of Client freely tradable pursuant to a Registration
Statement on Form S-8 (the "Shares"). The Shares are due and payable immediately
upon the effectiveness of the Form S-8 Registration Statement with the U.S.
Securities and Exchange Commission and with any appropriate states securities
administrator.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be disclosed to
the other party, including, but not limited to, product and business plans,
software, technical processes and formulas, source codes, product designs,
sales, costs and other unpublished financial information, advertising revenues,
usage rates, advertising relationships, projections, and marketing data
("Confidential Information"). Confidential Information shall not include
information that the receiving party can demonstrate (a) is, as of the time of
its disclosure, or thereafter becomes part of the public domain through a source
other than the receiving party, (b) was known to the receiving party as of the
time of its disclosure, (c) is independently developed by the receiving party,
or (d) is subsequently learned from a third party not under a confidentiality
obligation to the providing party.
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4. Termination and Renewal.
(a) Term.
This Agreement shall become effective on the date of this Agreement and
terminate one (1) year thereafter. Unless otherwise agreed upon in writing by
Consultant and Client, this Agreement shall not automatically be renewed beyond
its Term.
(b) Termination.
Either party may terminate this Agreement on thirty (30)-calendar days
written notice, or if prior to such action, the other party materially breaches
any of its representations, warranties or obligations under this Agreement.
Except as may be otherwise provided in this Agreement, such breach by either
party will result in the other party being responsible to reimburse the non-
defaulting party for all costs incurred directly as a result of the breach of
this Agreement, and shall be subject to such damages as may be allowed by law
including all attorneys' fees and costs of enforcing this Agreement.
(c) Termination and Payment.
Upon any termination or expiration of this Agreement, Client shall pay
all unpaid and outstanding consideration through the effective date of
termination or expiration of this Agreement. And upon such termination or
expiration, Consultant shall provide and deliver to Client any and all
outstanding services due through the effective date of termination or
expiration.
5. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor" relationship
between Consultant and Client.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are cumulative.
The rights of each of the parties hereunder shall not be capable of being
waived or varied other than by an express waiver or variation in writing.
Any failure to exercise or any delay in exercising any of such rights shall not
operate as a waiver or variation of that or any other such right. Any defective
or partial exercise of any of such rights shall not preclude any other or
further exercise of that or any other such right. No act or course of conduct or
negotiation on the part of any party shall in any way preclude such party from
exercising any such right or constitute a suspension or any variation of any
such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their heirs,
executors, administrators, representatives, successors, and permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement.
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(e) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(f) Severability.
Each part of this Agreement is intended to be severable. In the event
that any provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall be
severed or modified to the extent necessary to render it enforceable and as so
severed or modified, this Agreement shall continue in full force and effect.
(g) Section Headings.
The Section headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
(h) Construction.
Unless the context otherwise requires, when used herein, the singular
shall be deemed to include the plural, the plural shall be deemed to include
each of the singular, and pronouns of one or no gender shall be deemed to
include the equivalent pronoun of the other or no gender.
(i) Further Assurances.
In addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to make, execute
and deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(j) Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or by mail
(either a. United States mail, postage prepaid, or b. Federal Express or similar
generally recognized overnight carrier), addressed as follows (subject to the
right to designate a different address by notice similarly given):
To Client:
Xxxxxxx X. Xxxxxx,
Chief Executive Officer and President
Dynamic Health Products, Inc.
0000 Xxxxx Xxxxx Xx.
Xxxxx 000
Xxxxx, Xxxxxxx 00000
To Consultant:
Xxxxxx X. Xxxxxx
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
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(l) Governing Law.
This Agreement shall be governed by the interpreted in accordance with
the laws of the State of Florida without reference to its conflicts of laws
rules or principles. Each of the parties consents to the exclusive jurisdiction
of the federal courts of the State of Florida in connection with any dispute
arising under this Agreement and hereby waives, to the maximum extent permitted
by law, any objection, including any objection based on forum non coveniens, to
the bringing of any such proceeding in such jurisdictions.
(m) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(o) Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and have agreed to and accepted the terms herein on the date written
above.
Dynamic Health Products, Inc.
By:______________________________________
Xxxxxxx X. Xxxxxx,
Chief Executive Officer and
President
_________________________________________
Xxxxxx X. Xxxxxx, Consultant
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