ARCHER CAPITAL BUSINESS CONSULTING AGREEMENT
EXHIBIT 10.13
XXXXXX CAPITAL
BUSINESS CONSULTING AGREEMENT
THIS BUSINESS CONSULTING AGREEMENT ("Agreement") is made and entered into as of the 29th day of August, 2007, between Xxxxxx Capital, Inc., located at 000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX 00000, (hereinafter referred to as "XXXXXX CAPITAL") and WiFiMED Holdings, Inc., located at 0000 XxxxxXxxx Xxxx, Xxxxx XX 000X, Xxxxxxx, XX 00000 (hereinafter referred to as the "WIFIMED"). This Agreement supersedes any prior consulting agreement(s) between the parties wherein services are to be rendered by XXXXXX CAPITAL in exchange for S-8 shares.
WITNESSETH:
WHEREAS, XXXXXX CAPITAL is a consultant that specializes in providing specialized business advisory services to companies; and
WHEREAS, WIFIMED desires to have XXXXXX CAPITAL provide business advisory services; and
WHEREAS, XXXXXX CAPITAL is willing to accept WIFIMED as a client.
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is agreed:
1. ENGAGEMENT: WIFIMED hereby engages XXXXXX CAPITAL to perform business consulting services described in Section 2 of this Agreement.
2. CONSULTING SERVICES: XXXXXX CAPITAL's duties shall consist of: consulting with WIFIMED regarding its business plan, corporate acquisitions, asset purchases, and other business matters. XXXXXX CAPITAL's duties under this Agreement shall not include any activities directed at or involving raising capital. For any such services rendered, XXXXXX CAPITAL shall be separately compensated pursuant to a separate agreement.
3. TIME OF PERFORMANCE: Services to be performed under this Agreement shall commence as of August 29, 2007.
4. COMPENSATION TO BE PAID BY WIFIMED: WIFIMED agrees to pay the following:
A. One million, two hundred (1,200,000) S-8 shares of WIFIMED at $0.20 to be apportioned among the principals of XXXXXX CAPITAL as designated by XXXXXX CAPITAL;
B. All reasonable travel costs and expenses incurred by XXXXXX CAPITAL in carrying out its duties and obligations pursuant to the provisions of this Agreement, including but not limited to transportation, lodging and food expenses, when such travel is conducted on behalf of WIFIMED, provided all cost and expense items in excess of five hundred dollars ($500.00) must be approved by WIFIMED in writing prior to XXXXXX CAPITAL's incurrence of the same.
C. Twenty thousand (20,000) dollars to be paid in October 2007 and fifteen thousand (15,000) dollars to be paid in each of November 2007 and December 2007. Beginning in the year 2008, WIFIMED shall pay XXXXXX CAPITAL five thousand (5,000) dollars per month for a period of twelve months.
5. LIMITATION OF XXXXXX CAPITAL'S LIABILITY: If XXXXXX CAPITAL fails to perform its services hereunder, its entire liability to WIFIMED shall not exceed the lesser of (a) the amount of compensation XXXXXX CAPITAL has received from WIFIMED under Section 4 of this Agreement or (b) the actual damage to WIFIMED as a result of such non-performance. IN NO EVENT SHALL XXXXXX CAPITAL BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM AGAINST WIFIMED BY ANY PERSON OR ENTITY ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT. WIFIMED expressly acknowledges that (i) WIFIMED understands it must employ its own legal, accounting and tax counsel to review and approve any transactions; and (ii) XXXXXX CAPITAL is in no way providing legal, financial or tax advice upon which WIFIMED should act without consulting its own counsel. All work by XXXXXX CAPITAL is on a "best effort" basis.
6. CONFIDENTIALITY/NONDISCLOSURE/NONCIRCUMVENTION: (A) Until such time as the same may become publicly known, XXXXXX CAPITAL agrees that any information of a confidential nature will not be revealed or disclosed to any person or entity, except in the performance of this Agreement, and upon written request of WIFIMED, all materials and original documentation provided by WIFIMED will either be destroyed or returned at XXXXXX CAPITAL's option. (B) Further, WIFIMED agrees not to circumvent or interfere with or attempt to circumvent or interfere with the business relationships existing between XXXXXX CAPITAL and any entities introduced to WIFIMED by XXXXXX CAPITAL.
7. NOTICES: All notices hereunder shall be in writing and addressed to the party at the address herein set forth, or at such other address as to which notice pursuant to this section may be given, and shall be given by personal delivery, by certified mail, express mail, or by national overnight courier services. Notices will be deemed given upon the earlier of actual receipt or three (3) business days after being mailed or delivered to such courier service. Any notices to be given hereunder will be effective if executed by and sent by the attorneys for the parties giving such notice, and in connection therewith, the parties and their respective counsel agreeing that in giving such notice, such counsel may communicate directly in writing with such parties to the extent necessary to give such notice.
8. SEPARABILITY: If one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect, such provision,, to the extent invalid, illegal or unenforceable, shall be modified to the extent necessary to be legal, valid, and enforceable, and shall not affect any other provision hereof.
9. MISCELLANEOUS:
A. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Massachusetts. Venue for all litigation shall be Essex County, Massachusetts. XXXXXX CAPITAL shall be entitled to reimbursement of legal fees and costs, including attorney fees, if WIFIMED fails to pay XXXXXX CAPITAL in accordance with the terms of this Agreement and XXXXXX CAPITAL initiates legal action.
B. CURRENCY: References to dollars shall be deemed to be United States Dollars.
C. MULTIPLE/FAXED COUNTERPARTS: This Agreement may be executed in multiple counterparts, and by fax transmission, each of which shall be deemed an original. It shall be necessary that each party execute each counterpart.
D. LIMIT OF PROFESSIONAL CAPACITIES: The parties acknowledge that XXXXXX CAPITAL is not serving in an official audit capacity, nor acting as an attorney, nor in any way providing any formal tax opinions. XXXXXX CAPITAL recommends WIFIMED obtain independent legal and tax counsel to participate in the process.
E. TERMINATION: Should XXXXXX CAPITAL terminate this Agreement, other than due to a breach by WIFIMED, XXXXXX CAPITAL shall forfeit any future retainer compensation not already earned. Should WIFIMED terminate, other than as allowed herein, XXXXXX CAPITAL shall be entitled to all compensation referenced in Section 4.
F. ASSIGNMENT: XXXXXX CAPITAL shall have the right to assign any proceeds due under this Agreement.
G. NON-EXCLUSIVE NATURE: WIFIMED acknowledges that WIFIMED is not the only client being provided services by XXXXXX CAPITAL, and that XXXXXX CAPITAL is under no obligation to provide priority treatment to WIFIMED relative to other clients of XXXXXX CAPITAL.
Xxxxxx Capital, Inc. WiFiMed Holdings Company, Inc.
By: ______________________ By: _______________________
______________________ Xxxxxxx Xxxxx
Partner President and CEO
