CONSULTING AGREEMENT
This
Consulting Agreement (the “Agreement’) is dated as of May 8, 2008 (the
“Effective Date”) by and between Applied Wellness Corporation (the “Company”),
and Xxxx Xxxxxxxx (“Consultant”).
RECITALS:
WHEREAS,
the
Company desires to engage the services of the Consultant for the purpose of
performing consulting services on behalf of the Company, and the Consultant
agrees to perform such services, subject to the terms and conditions contained
herein.
NOW,
THEREFORE,
in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Company and the Consultant hereby agree as follows:
1.
Services.
Company
hereby engages and Consultant agrees to serve the Company as an independent
contractor providing business development, financial consulting, strategic
planning, and other valuable services to the Company. Notwithstanding anything
to the contrary in this Agreement, the parties agree that such services shall
not include services related to capital-raising transactions or the direct
or
indirect maintenance or promotion of a market for the Company’s securities. At
all times the method of performing the specific duties designated by the Company
or otherwise required or permitted hereunder shall be within the control of
the
Consultant. Consultant acknowledges and agrees that he shall be an independent
contractor and shall not be an “employee” of the Company for any purpose.
Consultant acknowledges that he shall provide his on welfare benefits and that
the Company shall not provide any welfare benefits to Consultant. Consultant
shall be solely responsible for the payment of all foreign, federal, state
and
local sales taxes, use taxes, value added tax, withholding taxes, income tax,
unemployment and workers’ compensation insurance premiums, and similar taxes and
charges of any kind with respect to his compensation and the services provided
under this Agreement.
2. Term
and Termination.
The
term of this Agreement shall begin on the Effective Date and terminate one
year
after the Effective Date; provided, however, that this Agreement may be
terminated at any time by either party upon thirty days’ written notice to the
other party.
3.
Compensation.
In
consideration of the services to be rendered by the Consultant during the term
hereof, the Company shall issue to Consultant, 100,000 restricted
shares
of the Company’s common stock, as soon as practicable following the Effective
Date and 100,000 shares of the Company’s unrestricted
common
stock as soon as practicable, which the Company expects to be around June 23,
2008.
4.
Certain
Federal Securities Law Matters.
Consultant acknowledges that he is aware that the federal securities laws
prohibit any person who has received from an issuer material, non-public
information concerning the issuer from purchasing or selling securities of
such
issuer or from communicating such information to any other person hider
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities. Consultant acknowledges receipt of and
agrees to abide by the Company’s xxxxxxx xxxxxxx policy.
5. Nondisclosure
of Proprietary Information.
Consultant acknowledges that he has received or may receive information relating
to the Company’s and any of its affiliates’ assets, operations, clients, and
past, present, and future businesses, including without limitation developments,
technical data, intellectual property, specifications, designs, ideas, product
plans, research and development, personal information, financial information,
customer lists, business methods and operations, strategic plans. marketing
plans and pricing information, all of which are proprietary to the Company
and
involve trade secrets, know-how, techniques, and combinations of known
information of a character regarded by the Company as confidential, as well
as
other information that the Company has indicated to be confidential or which,
by
the nature of the information or the circumstances of its disclosure, Consultant
ought reasonably to consider confidential (all of the foregoing, collectively,
the “Proprietary Information”). The Proprietary Information does not include
information which (i) at the time it is disclosed by the Consultant was already
in the public domain; (ii) is subsequently published or publicly disclosed
by
persons other than Consultant through no fault of Consultant; (iii) is
subsequently acquired by Consultant from a third party having no obligation
of
confidentiality toward the Company with respect to such information; or (iv)
is
known to Consultant at the time of disclosure, provided that Consultant shall
have the burden of establishing such prior knowledge by competent written proof.
If Consultant is compelled by law to disclose Confidential Information, he
shall
use his best efforts to give the Company ten (10) days prior written notice
of
compelled disclosure and shall limit such disclosure to the extent legally
possible.
Consultant
agrees that Consultant will not disclose, either during the term of this
Agreement or at any time after termination of this Agreement, any Proprietary
Information to any person or entity, except in the course of Consultant’s duties
on behalf of the Company or with the Company’s consent, and that, similarly,
without the Company’s consent, will not use such information for the benefit of
any person or entity other than the Company at any time. Consultant agrees
that
upon termination of this Agreement, Consultant will deposit with or return
to
the Company all copies (in any media, including, without limitation, electronic
storage media) of documents, records, notebooks or any other information or
documentation of the Company’s Proprietary Information, and all derivatives
thereof, whether the Proprietary Information or documentation was developed
or
prepared by Consultant or by others. Consultant acknowledges that this covenant
of nondisclosure is an integral term of this Agreement and is given in
consideration of the engagement of Consultant and the other consideration
granted in this Agreement.
6.
Company’s
Representations.
Company
represents and warrants that it is free to enter into this Agreement and to
perform each of its terms and covenants. Company represents and warrants that
it
is not restricted or prohibited, contractually or otherwise, from entering
into
and performing this Agreement and that its execution and performance of this
Agreement is not a violation or breach of any other agreements between Company
and any other person or entity. The Company represents and warrants that this
Agreement is a legal, valid and binding agreement of the Company, enforceable
in
accordance with its terms.
7. Consultant
Representations.
Consultant represents and warrants that he is free to enter into this Agreement
and to perform each of its terms and covenants. Consultant represents and
warrants that he is not restricted or prohibited, contractually or otherwise,
from entering into and performing this Agreement, and that his execution and
performance of this Agreement is not a violation or breach of any other
agreement between Consultant and any other person or entity. The Consultant
represents and warrants that this Agreement is a legal, valid and binding
agreement of the Consultant, enforceable in accordance with its
terms.
8.
Multiple Counterparts.
This
Agreement may be executed in counterparts, each of which for all purposes is
to
be deemed an original, and all of which constitute, collectively, one
agreement.
9. Severability
and Savings Clause.
If any
one or more of the provisions contained in this Agreement is for any reason
(i)
objected to, contested or challenged by any court, government authority, agency,
department, commission or instrumentality of the United States or any state
or
political subdivision thereof, or any securities industry self-regulatory
organization (collectively, “Governmental Authority”), or (ii) held to be
invalid, illegal or unenforceable in any respect, the parties hereto agree
to
negotiate in good faith to modify such objected to, contested, challenged,
invalid, illegal or unenforceable provision. It is the intention of the parties
that there shall be substituted for such objected to, contested, challenged,
invalid, illegal or unenforceable provision a provision as similar to such
provision as may be possible and yet be acceptable to any objecting Governmental
Authority and be valid, legal and enforceable. Further, should any provisions
of
this Agreement ever be reformed or rewritten by a judicial body, those
provisions as rewritten will be binding, but only in that jurisdiction, on
Consultant and the Company as if contained in the original Agreement. The
invalidity, illegality or unenforceability of any one or more provisions hereof
will not affect the validity and enforceability of any other provisions
hereof.
10. Successors;
Assignment.
This
Agreement and the rights and obligations under this Agreement shall be binding
upon and inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns. Neither this Agreement nor any
rights or benefits under this Agreement may be assigned by either party to
this
Agreement without the other party’s prior written consent.
11.
Entire
Agreement; Amendment.
This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties with respect to the engagement of the Consultant by the
Company (including any previously executed agreement that has not been fully
performed by both parties), and contains all of the covenants and agreements
between the parties with respect thereto. This Agreement can only be amended
by
the parties in writing, executed by the party against whom enforcement of any
modifications may be sought.
12.
Governing Law.
This
Agreement will be governed by and construed in accordance with the substantive
laws of the State of California without regard to conflict of law
provisions.
13.
Notices.
All
notices or other communications which are required or permitted hereunder shall
be in writing and sufficient if (i) personally delivered, (ii) sent by
nationally- recognized overnight carrier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
addresses set forth below each party’s name on the signature page hereto, or to
such other address as the party to whom notice is to be given may have furnished
to each other party in accordance herewith. Any such communication shall be
deemed to have been given (i) when delivered, if personally delivered, (ii)
on
the first Business Day (as hereinafter defined) after dispatch, if sent by
nationally recognized overnight courier and (iii) on the third Business Day
following the date on which the piece of nail containing such communication
is
posted, if sent by mail. As used herein, “Business Day” means a day that is not
a Saturday, Sunday or a day on which banking institutions in the city to which
the notice or communication is to be sent are not required to be
open.
14.
Third
Party Beneficiary.
No
person, firm, group or corporation is a third party beneficiary of this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed the Agreement as of the date
first mentioned above.
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APPLIED
WELLNESS CORPORATION
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By:
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Name:
Dr. Xxxxxxx Xxx
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Title:
CEO
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CONSULTANT:
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