CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated September 14, 2003
(the "Effective Date"), is made by and between Xxx Xxxxxx, an individual
("Consultant"), whose address is 00000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, and
Health Xxxx Medical, Inc., a Delaware corporation ("Client"), having its
principal place of business at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx,
00000.
WHEREAS, Consultant has extensive background and contacts in the area of
mergers and acquisitions;
WHEREAS, Consultant desires to be engaged by Client to provide information,
evaluation and consulting services to the Client in his knowledge and expertise
on the terms and subject to the conditions set forth herein;
WHEREAS, Client is currently a privately held corporation which is in
discussions to conduct a reverse merger with AGTSports, Inc. whose shares are
trading on the OTC Bulletin Board and desires to further develop its business;
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 agreed to perform for Client merger and acquisition services.
As such Consultant has provided and 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, One Million Four Hundred Fifty Thousand (1,450,000) of S-8
free trading common stock in Client ("Shares" or "Fee"), if and when Client
completes a reverse merger transaction with AGTSports, Inc. or another publicly
traded company. Within thirty (30) days after the Effective Date, Client will
cause to be filed with respect to the Shares a Form S-8 Registration Statement
with the SEC including any amendments thereto necessary to cause such Form S-8
to become effective. Shares are due and payable immediately upon the
effectiveness of the Form S-8 Registration Statement with the SEC and with any
appropriate state's 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.
4. LATE PAYMENT.
Client shall pay to Consultant all Shares within fifteen (15) days of the
due date. Failure of Client to finally pay any Shares within fifteen (15) days
after the applicable due date shall be deemed a material breach of this
Agreement, justifying suspension of the performance of the Services provided by
Consultant and will be sufficient cause for immediate termination of this
Agreement by Consultant. Any such suspension will in no way relieve Client from
payment of Shares, and, in the event of collection enforcement, Client shall be
liable for any costs associated with such collection, including, but not limited
to, legal costs, attorneys' fees, courts costs, and collection agency fees.
5. INDEMNIFICATION.
(A) CLIENT.
Client agrees to indemnify, defend, and shall hold harmless Consultant
and/or his agents, and to defend any action brought against said parties with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees to the extent that such action is based upon a claim
that: (i) is true, (ii) would constitute a breach of any of Client's
representations, warranties, or agreements hereunder, or (iii) arises out of the
negligence or willful misconduct of Client, or any Client Content to be provided
by Client and does not violate any rights of third parties, including, without
limitation, rights of publicity, privacy, patients, copyrights, trademarks,
trade secrets, and/or licenses.
(B) CONSULTANT.
Consultant agrees to indemnify, defend, and shall hold harmless Client, its
directors, employees and agents, and defend any action brought against same with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that such an action arises out of the
gross negligence or willful misconduct of Consultant.
(C) NOTICE.
In claiming any indemnification hereunder, the indemnified party shall
promptly provide the indemnifying party with written notice of any claim, which
the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
6. LIMITATION OF LIABILITY.
Consultant shall have no liability with respect to Consultant's obligations
under this Agreement or otherwise for consequential, exemplary, special,
incidental, or punitive damages even if Consultant has been advised of the
possibility of such damages. In any event, the liability of Consultant to
Client for any reason and upon any cause of action, regardless of the form in
which the legal or equitable action may be brought, including, without
limitation, any action in tort or contract, shall not exceed ten percent (10%)
of the fair market value of the Shares determined at the time such Shares were
paid.
7. TERMINATION AND RENEWAL.
(A) TERM.
This Agreement shall become effective on the date written above and shall
terminate four (4) months thereafter (the "Term"). 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 fees through the effective date of termination or
expiration of this Agreement. And upon such termination, Consultant shall
provide and deliver to Client any and all outstanding Services due through the
termination or expiration date of this Agreement.
8. 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,
except that performance of the Services to be provided by Consultant under this
Agreement are of a personal nature and the obligation(s) to perform the Services
will not be assignable or delegable in whole or in part unless the person to
whom the obligation to perform the Services is assigned or delegated is
Consultant's employee or independent contractor.
(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.
(E) ASSIGNMENT.
Neither this Agreement nor any other benefit or obligation to accrue
hereunder shall be assigned, transferred or delegated by either party, either in
whole or in part, without the written consent of the other party, and any
purported assignment, transfer or delegation in violation hereof shall be void.
(F) AMENDMENT.
This Agreement may be amended only by an instrument in writing executed by
all the parties hereto.
(G) 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.
(H) 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.
(I) 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.
(J) 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.
(K) 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: To Consultant:
Xxxxxxx Good, CEO/President Xxx Xxxxxx
Health Xxxx Medical, Inc. 00000 Xxxxxxxx Xxxxx
000 Xxxxxx Xxxxxxx Xxxx Xxxxxxx, Xxxxx 00000
Xxxxxxxxxxxx, Xxxxxxx, 00000
(L) GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Texas without reference to its conflicts of laws, rules or
principles. Each of the parties consent to the exclusive jurisdiction of the
federal courts of the State of Texas 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.
(N) SURVIVAL OF PROVISIONS.
The provisions contained in paragraphs 3, 5, 6, and 8 of this Agreement
shall survive the termination of this Agreement
(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.
HEALTH XXXX MEDICAL, INC.
By: /s/ Xxxxxxx Good
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Xxxxxxx Good, CEO/President
XXX XXXXXX
/s/ Xxx Xxxxxx
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Xxx Xxxxxx, Consultant
