Exhibit 99.1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of the
1st day of April, 2005, by and between America Service Group Inc, a Delaware
corporation (the "Company"), and healthprojects, LLC ("Consultant"). The Company
desires to retain Consultant as an independent contractor to perform consulting
services for the Company and Consultant is willing to perform such services on
terms set forth more fully below. In consideration of the mutual promises
contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services
generally described in Exhibit A and such other tasks, projects and
activities reasonably requested by the Company from time to time, as may be
reflected in amendments to Exhibit A ("Services"). Consultant shall
determine the means, methods and times for performance of the Services,
even if on an irregular basis. The Company shall receive only the results
of such Services. The Company will provide Consultant with appropriate
office space and support that may be necessary in connection with
Contractor's performance under this Agreement. In addition Contractor shall
be reimbursed for all reasonable out-of-pocket expenses incurred in the
completion of the Services as set forth on Exhibit B.
(b) The Company agrees to pay Consultant the compensation set forth in
Exhibit B for the performance of the Services.
2. CONFIDENTIALITY
(a) During the term of this Agreement (except as is strictly necessary
in connection with Consultant's performance of Consultant's duties under
this Agreement) and any time thereafter, Consultant shall keep secret and
retain in strictest confidence, and shall not use for Consultant's direct
or indirect benefit, or the direct or indirect benefit of an affiliate of
Consultant or of any person who is not a party to this Agreement, any
Confidential Information (as defined below), whether or not such
information is embodied in writing or other physical form or is retained in
the memory of Consultant, without the Company's prior written consent,
unless and to the extent that the Confidential Information is or becomes
generally known to and available for use by the public other than as a
result of Consultant's fault. Consultant's obligation of confidentiality
will not apply with respect to disclosures of Confidential Information that
are compelled by any legal, administrative or investigative proceeding
before any court, or any governmental or regulatory authority, agency or
commission; provided that Consultant notifies the Company thereof and
cooperates with the Company in obtaining a protective order or other
similar determination with respect to such Confidential Information.
(b) Upon the request of the Company, Consultant shall deliver to the
Company all documents, memoranda, notes, plans, records, reports and other
documentation, models, components, devices or computer software, whether
embodied in a disk or in other form (and all copies of all of the
foregoing), that contain Confidential Information, and any other
Confidential Information that Consultant may then possess or have under
Consultant's control.
(c) For purposes of this Agreement, "Confidential Information" means
any information relating to the business or affairs of the Company,
including, without limitation, information relating to: (i) marketing or
distribution data, (ii) business methods, plans and efforts, (iii)
personnel data, (iv) the identity of, or courses of dealings or contracts
with, actual or potential customers and government agencies, (v) financial
statements or other financial information, (vi) computer databases,
software programs and information relating to the hardware or software of
the Company and how such hardware or software is used in combination or
alone, (vii) servicing methods, equipment, programs, analyses or profit
margins, and (viii) information received by the Company from a third party
subject to the terms of a confidentiality, non-disclosure or similar
agreement or with the reasonable expectation that such information would be
treated as confidential or proprietary information. Failure to xxxx
information as confidential or proprietary will not adversely affect its
status as Confidential Information.
3. OWNERSHIP
(a) During the term of this Agreement, Consultant agrees to promptly
disclose to the Company and Consultant, without further consideration,
agrees to hold in trust for the sole right of benefit of Company and its
assigns and agrees to assign to the Company or its designee Consultant's
entire right, title and interest in and to all reports, analyses, ideas,
letters, memorandum, documentation, methods of operations, improvements,
and lists, information and materials and correspondence regarding current
or potential customers, prospects, alliances, governmental agencies and
providers of financing and other services (collectively the "Work
Product"), including all intellectual property rights with respect to this
Work Product which:
(i) relate to any of Consultant's work during the term of this
Agreement, whether alone or with others, whether or not during normal
working hours and regardless of whether Consultant's own equipment,
supplies or facilities or Company's equipment, supplies or facilities
were used to create the Work Product;
(ii) relate to any of Consultant's work during the term of this
Agreement, whether alone or with others, and which pertain to any
present or reasonably anticipated line of business activity of
Company; or
(iii) are aided by the use of time, equipment, supplies,
facilities, information or proprietary rights of Company.
(b) Consultant agrees that if in the course of performing the
Services, Consultant incorporates into any Work Product developed hereunder
any invention, improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which Consultant has an
interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, perpetual, irrevocable, worldwide license to make, have made,
modify, use and sell such item as part of or in connection with such Work
Product.
4. REPORTS
Consultant agrees that it will from time to time during the term of this
Agreement or any extension thereof keep the Company advised as to Consultant's
progress in performing the Services hereunder and that Consultant will, as
requested by the Company, prepare written reports with respect thereto. It is
understood that the time required in the preparation of such written reports
shall be considered time devoted to the performance of Consultant's Services.
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5. CONFLICTING OBLIGATIONS
Consultant certifies that Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this Agreement, or
that would preclude Consultant from complying with the provisions hereof, and
further certifies that Consultant will not enter into any such conflicting
agreement during the term of this Agreement.
6. TERM AND TERMINATION
(a) This Agreement will commence on the date first written above and
will continue until final completion of the Services or termination as
provided below.
(b) The Company or the Consultant may terminate this Agreement at any
time upon written notice thereof to the other party. Any such notice shall
be addressed to Consultant at the address shown below or such other address
as either party may notify the other of and shall be deemed given upon
delivery if personally delivered, or forty-eight (48) hours after deposited
in the United States mail, postage prepaid, registered or certified mail,
return receipt requested.
(c) Upon such termination all rights and duties of the parties toward
each other shall cease except:
(i) that the Company shall be obliged to pay, within thirty (30)
days of the effective date of termination, all amounts owing to
Consultant for unpaid Services and related expenses, if any, in
accordance with the provisions of Section 1 (Services and
Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and 8
(Independent Contractors) shall survive termination of this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may be
assigned or transferred by Consultant without the express written consent of the
Company.
8. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed to create any
association, partnership, joint venture, employment or agency relationship, but
Consultant shall perform the Services hereunder as an independent contractor,
and Consultant will not have the authority pursuant to this Agreement to enter
into contracts on behalf of, or otherwise bind the Company. Consultant
acknowledges and agrees that Consultant is obligated to report as income all
compensation received by Consultant pursuant to this Agreement, and Consultant
agrees to indemnify the Company and hold it harmless to the extent of any
obligation imposed on the Company (a) to pay withholding taxes or similar items
or (b) resulting from Consultant's being determined not to be an independent
contractor. Furthermore, under no circumstances shall Consultant look to the
Company as his employer. Consultant shall not be entitled to any benefits
afforded to the Company's employees including, without limitation, health
insurance, stock options or other equity awards, workers' compensation,
disability insurance, vacation or sick pay, or any other salary or benefits
except as set forth on Exhibit B of this Agreement.
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9. EQUITABLE RELIEF
Consultant agrees that it would be impossible or inadequate to measure and
calculate the Company's damages from any breach of the covenants set forth in
Section 2 or Section 3 hereof. Accordingly, Consultant agrees that if Consultant
breaches in Section 2 or Section 3, the Company has, in addition to any other
right or remedy available, the right to obtain from any court of competent
jurisdiction an injunction restraining such breach or threatened breach and
specific performance of any such provision. Consultant further agrees that no
bond or other security shall be required in obtaining such equitable relief and
Consultant hereby consents to the issuances of such injunction and to the
ordering of such specific performance.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Tennessee as
applied to agreements entered into and performed within Tennessee by residents
of that state.
11. ENTIRE AGREEMENT
This Agreement and the Exhibits hereto form the entire agreement of the
parties and supersede any prior agreements between them with respect to the
subject matter hereof.
12. DISCLOSURE OBLIGATIONS
Consultant acknowledges and agrees that to the extent the Company is
obligated under the federal securities laws to disclose the terms of this
Agreement or otherwise make this Agreement publicly available, Consultant
consents to the Company's public disclosure of this Agreement.
13. WAIVER
Waiver of any term or provision of this Agreement or forbearance to enforce
any term or provision by either party shall not constitute a waiver as to any
subsequent breach or failure of the same term or provision or a waiver of any
other term or provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
HEALTHPROJECTS, LLC AMERICA SERVICE GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: Name:
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Title: Title:
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Address: Address:
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Exhibit A
Services to be performed by Consultant:
Consultant shall assist in the development and implementation of a public
relations and communications strategy for the Company.
healthprojects, LLC: America Service Group Inc.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxxx
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Signature Signature
April 22, 2005 April 22, 2005
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Date Date
Exhibit B
Compensation of Consultant:
(a) Fees: $175.00 per hour; payable monthly in arrears upon receipt of
Consultant's proper invoices.
(b) Expenses: Company shall reimburse Consultant for all reasonable
out-of-pocket expenses directly related to performance of the Services
hereunder, including travel expenses and lodging.
Consultant shall submit to the Company a monthly statement detailing number
of hours worked and showing a detailed breakdown of expenses, and, upon request
of Company, Consultant shall provide documentation of such expenses.
healthprojects, LLC America Service Group Inc.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxxx
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Signature Signature
April 22, 2005 April 22, 2005
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Date Date
