EXHIBIT 10.32
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 16th day
of May, 2005, by and between National Health Partners, an Indiana corporation
(the "Company"), and Xxxx Xxxxxx ("Consultant").
WITNESSETH:
WHEREAS, Consultant desires to provide consulting services to the
Company and the Company desires to retain Consultant to provide such consulting
services to the Company.
NOW, THEREFORE, in consideration of the promises and conditions set
forth herein, the receipt and sufficiency of which hereby is acknowledged, and
intending to be legally bound, the Company and Consultant agree as follows:
1. Retention. The Company hereby retains Consultant to provide certain
consulting services to the Company for a term commencing on the date hereof and
terminating December 30, 2005 (the "Consulting Term"), unless extended by mutual
agreement of the parties, and Consultant hereby accepts such engagement,
pursuant to the terms and conditions set forth herein.
2. Independent Contractor. Consultant and Company acknowledge and agree that the
relationship hereunder created is one of an independent contractor and not one
of employment. Consultant shall at all times during the Consulting Term act as
an independent contractor and nothing hereunder shall be construed to be
inconsistent with this relationship or status or create or imply a relationship
of employer-employee between the Company and Consultant. Consultant shall not
hold Consultant out to third parties as an employee or officer of Company, and
shall have no authority to bind or commit the Company, legally or otherwise.
Except as expressly provided herein, the Consultant shall not be entitled to any
benefits paid by the Company to its employees. The Consultant shall be solely
responsible for any tax consequences applicable to Consultant by reason of this
Agreement and the relationship established hereunder, and the Company shall not
be responsible for the payment of any federal, state or local taxes or
contributions imposed under any employment insurance, social security, income
tax or other tax law or regulation with respect to the Consultant's performance
of consulting services hereunder. Company and Consultant shall report any and
all payments made by Company pursuant to this Agreement to the appropriate
governmental agencies in a manner consistent with Consultant's status as an
independent contractor.
3. Consulting Services. Consultant shall provide the following marketing and
advisory services to the Company (collectively, "Consulting Services"): (i)
marketing and promotion of the Company and its products and services; (ii)
support for the Company's marketing and related activities; (iii) consultation
and advise with respect to the Company's marketing strategies, product
development, business development and opportunities, joint ventures, strategic
partnerships and alliances, and general corporate and marketing matters; and
(iv) such other services as the Company and Consultant may agree upon.
Consultant shall comply with reasonable requests by the Company for the
Consulting Services and shall devote reasonable time and reasonable best
efforts, skill and attention to the performance of the Consulting Services,
including travel reasonably required in the performance of the Consulting
Services. Consultant shall be solely responsible for determining the method,
details and means of performing the marketing and advisory services. Consultant
shall be responsible for all out-of-pocket expenses incurred in the performance
of the Consulting Services. Consultant shall report solely to the Chief
Executive Officer of the Company or such other person as the Chief Executive
Officer shall designate.
4. Compensation.
(a) Securities. In consideration of Consultant agreeing to provide the
Consulting Services to the Company, the Company hereby agrees to issue
Consultant 600,000 shares (the "Shares") of its common stock, par value $.001
per share ("Common Stock"), Class A warrants ("Class A warrants") exercisable
into 600,000 shares of Common Stock, and Class B warrants ("Class B warrants";
together with the Class A warrants, the "Warrants") exercisable into 600,000
shares of Common Stock. Each Class A warrant shall be exercisable into one share
of Common Stock at an exercise price of $.60 per share during a period of 18
months beginning on the date the registration statement described below in
Section 4(b) is declared effective by the Securities and Exchange Commission
("SEC") and shall expire on December 31, 2007. Each Class B warrant shall be
exercisable into one share of Common Stock at an exercise price of $.80 per
share during a period of three years beginning on the date the registration
statement described below in Section 4(b) is declared effective by the SEC and
shall expire on December 31, 2008.
(b) Registration Rights. The Company shall prepare and file with the
SEC, by June 30, 2005, a registration statement under the Securities Act of
1933, as amended (the "Act"), which shall include all of the Shares and all of
the shares of Common Stock issuable upon exercise of the Warrants (collectively,
"Restricted Stock"). Consultant shall furnish such information as may be
reasonably requested by the Company in order to include such Restricted Stock in
such registration statement. If Consultant decides not to include all of its
Restricted Stock in any registration statement thereafter filed by the Company,
Consultant shall nevertheless continue to have the right to include any
Restricted Stock in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein. In the event the
registration pursuant to this Section 4(b) is terminated or withdrawn, the
Company shall use its reasonable best efforts to prepare and file with the SEC,
within 180 days thereafter, a registration statement under the Act to permit the
public sale of the Restricted Stock purchased hereby.
5. Termination. This Agreement may be terminated by the Company at any time for
any reason or by mutual consent of the Company and Consultant, and shall
terminate on the date of Consultant's death. The Consultant's estate will not be
entitled to any other compensation under this Agreement.
6. Business Opportunities. Consultant agrees that during the Consulting Term,
Consultant will not take personal advantage of any business opportunities that
are similar or substantially similar to the business of the Company. In
addition, all material facts regarding any such business opportunities must be
promptly and fully disclosed by Consultant to the Chief Executive Officer of the
Company as soon as the Consultant becomes aware of such opportunity, and in no
event later than forty-eight (48) hours after learning of such opportunity.
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7. Company Property. All records, files, lists, including computer generated
lists, drawings, documents, software, documents, equipment, models, binaries,
object modules, libraries, source code and similar items, customer lists, health
care provider lists, lists of prospective customers, and contracts relating to
the Company's business that Consultant shall prepare or receive from the Company
and all Confidential Information (as defined below) shall remain the Company's
sole and exclusive property ("Company Business Property"). Upon termination of
this Agreement, Consultant shall promptly return to the Company all property of
the Company in Consultant's possession, including Company Business Property.
Consultant further represents that Consultant will not copy or cause to be
copied, print out, or cause to be printed out any Company Business Property
other than as specifically authorized and required in the performance of
Consultant's duties hereunder. Consultant additionally represents that, upon
termination of this Agreement, Consultant will not retain in Consultant's
possession any such Company Business Property.
8. Protection of Confidential Information of the Company. Consultant understands
that Consultant's consulting arrangement with the Company creates a relationship
of trust and confidence between Consultant and the Company. Consultant will not
use or disclose or allow anyone else to use or disclose any Confidential
Information (as defined below) relating to the Company, its products, services,
suppliers or customers except as may be necessary in the performance of
Consultant's work for the Company or as may be specifically authorized in
advance by appropriate officers of the Company. "Confidential Information" shall
include, but not be limited to, information consisting of research and
development, patents, trademarks and copyrights and applications thereto,
technical information, computer programs, software, methodologies, innovations,
software tools, know-how, knowledge, designs, drawings, specifications,
concepts, data, reports, processes, techniques, documentation, pricing,
marketing plans, customer and prospect lists, trade secrets, financial
information, salaries, business affairs, suppliers, profits, markets, sales
strategies, forecasts, and any other information not available to the general
public, whether written or oral, that Consultant knows or has reason to know the
Company would like to treat as confidential for any purpose, such as maintaining
a competitive advantage or avoiding undesirable publicity. Consultant will keep
Confidential Information secret and will not allow any unauthorized use of the
same, whether or not any document containing it is marked as confidential. These
restrictions, however, will not apply to Confidential Information that has
become known to the public generally through no fault or breach of Consultant or
that the Company regularly gives to third parties without restriction on use or
disclosure.
9. Notices. All notices, requests, demands, and other communications hereunder
must be in writing and shall be deemed to have been duly given if delivered by
hand or mailed within the continental United States by first class, registered
mail, return receipt requested, postage and registry fees prepaid, to the
applicable party and addressed as follows:
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If to the Company:
National Health Partners, Inc.
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
If to the Consultant:
To the address specified for Consultant in the Company's
records.
10. Miscellaneous.
(a) Breach. The parties agree that in the event one party breaches any
part or parts of this Agreement, legal proceedings may be instituted against
that party for breach of contract. The nonprevailing party in such legal
proceedings shall reimburse the prevailing party for the reasonable costs and
expenses, including attorneys, fees, incurred. If the Company reasonably
determines that Consultant has materially violated any of Consultant's
obligations under any of Sections 6, 7 or 8 hereof, then, in addition to any
other remedies at law or in equity it may have, the Company may immediately
terminate all fees and compensation to be paid to Consultant hereunder, and
shall have no further obligation to provide such pay to Consultant.
(b) Non-Disparagement. The Company and Consultant shall not engage in
any conduct or make any statement that would disparage the other or their
respective business interests in any way.
(c) Injunctive Relief. Consultant hereby agrees and acknowledges that
in the event of a breach or threatened breach of this Agreement by Consultant,
the Company may suffer irreparable harm and monetary damages alone would not
adequately compensate the Company. Accordingly, the Company will therefore be
entitled to injunctive relief to enforce this Agreement.
(d) Survival. Notwithstanding any termination of this Agreement,
Consultant's obligations under Sections 6, 7 and 8 shall survive and remain in
full force and effect in accordance with their respective terms.
(e) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania. Any action arising
out of or relating to any of the provisions of this Agreement may be brought and
prosecuted only in the courts of, or located in, the Commonwealth of
Pennsylvania, and in the event of such election the parties hereto consent to
the jurisdiction and venue of said courts.
(f) Captions. Captions herein are inserted for convenience, do not
constitute a part of this Agreement, and shall not be admissible for the purpose
of proving the intent of the parties.
(g) Counterparts. This Agreement may be executed in counterparts and
delivered via fax, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
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(h) Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto respecting any and all
marketing, advisory or other services to be performed by Consultant for the
Company, and supersedes and cancels all previous negotiations, agreements,
commitments, and writings regarding such services. Neither of the parties hereto
has relied upon any representations made by or on behalf of the other party and
the same are not enforceable except to the extent set forth in writing in this
Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may not be
amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the Company and Consultant. Any waiver or consent
from the Company with respect to any term or provision of this Agreement or any
other aspect of Consultant's conduct shall be effective only in the specific
instance and for the specific purpose for which given and shall not be deemed,
regardless of frequency given, to be a further or continuing waiver or consent.
(j) Successors and Assigns. Neither this Agreement, nor any of
Consultant's rights, powers, duties or obligations hereunder, may be assigned by
Consultant. This Agreement shall be binding upon and inure to the benefit of
Consultant and Consultant's heirs and legal representatives and the Company and
its successors.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
/s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx
NATIONAL HEALTH PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
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