EXHIBIT 10.1
LEGAL CONSULTING AGREEMENT
LEGAL CONSULTING AGREEMENT dated as of August 28, 2002 (this "Agreement")
by and between NetCare Health Group, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxx ("Xxxxx" or the "Legal Consultant").
W I T N E S S E T H
WHEREAS, the Company requires significant legal counseling, advice and
expertise;
WHEREAS, the Legal Consultant has significant experience and expertise in
the respective legal areas that will be of benefit to the Company in its
on-going business, plans and objectives;
WHEREAS, the Company desires to retain Legal Consultant to assist the
Company in providing those services and advice (the "Legal Services");
WHEREAS, the Legal Consultant has in the past rendered legal services to
the Company and has agreed to continue to provide such services to the Company
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, the parties hereby agree
as follows:
Section 1. Retention of Xxxxx. The Company hereby retains and engages
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the Legal Consultant to perform the Legal Services for the benefit of the
Company and the Legal Consultant hereby accepts such appointment on the terms
and conditions of this Agreement.
Section 2. Services.
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(a) During the term of this Agreement, the Legal Consultant shall
devote sufficient time, attention and ability to the business of the Company as
is reasonably necessary for the proper performance of the Legal Services
pursuant to this Agreement. Nothing contained herein shall be deemed to require
the Legal Consultant to devote his exclusive time, attention and ability to the
business of the Company. During the term of this Agreement, the Legal Consultant
shall, and shall cause each of his agents assigned to the performance of the
Legal Services on behalf of the Legal Consultant, to (i) at all times perform
the Legal Services professionally, faithfully, diligently, to the best of his
abilities and in the best interests in the Company and (ii) devote such of his
time, labor and attention to the business of the Company as is necessary for the
proper performance of the Legal Services hereunder.
(b) The Legal Consultant shall have no right or authority, express
or implied, to commit or otherwise obligate the Company in any manner whatsoever
except as specifically authorized in writing by a duly authorized officer of the
Company.
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Section 3. Compensation. In consideration for the performance of Legal
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Services previously rendered by the Legal Consultant to the Company and in
consideration of services to be rendered hereunder, the Company hereby agrees to
pay to Legal Consultant the aggregate sum of 1,500,000 shares of the Company's
common stock as full compensation for the term of this Agreement. Such shares
shall be registered with the SEC on a Form S-8 Registration Statement within 90
days from the date of this Agreement. The Company hereby agrees to pay on a
pre-approval basis reasonable expenses incurred by Legal Consultant or his
agents in connection with the services rendered hereunder. Legal Consultant
may, from time to time, deem it to be in the best interests of the Company to
retain additional counsel in connection with certain specific transactions or
other matters. In such event, the Company hereby agrees to pay any and all fees
and expenses of such counsel.
Section 4. Other Activities. The Legal Consultant shall not be
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precluded from acting in a function similar to that contemplated under this
Agreement for any other person, firm or company.
Section 5. Term. This Agreement shall become effective on June 1, 2002
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and shall continue for a period of one year or until terminated by either party
in their sole and absolute discretion.
Section 6. Representations and Warranties of Xxxxx.
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(a) Xxxxx represents and warrants to the Company that he is not
acquiring the Shares with a view to, or for resale in connection with, any
distribution in violation of the Securities Act of 1933, as amended.
(b) Xxxxx represents and warrants to the Company that:
(i) he is a natural person;
(ii) he shall provide bonafide services to the Company pursuant to this
Agreement; and
(iii)the services to be provided pursuant to this Agreement are not in
connection with the offer or sale of securities and do not directly or
indirectly promote or maintain a market for the Company's securities.
Section 7. Indemnification.
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The Company agrees to indemnify and hold harmless Xxxxx and his agents,
representatives and affiliates against any and all losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (and all actions, suits, proceedings and investigations in respect
thereof and any and all legal or other costs, expenses and disbursements in
giving testimony or furnishing documents in response to a subpoena or
otherwise), including, without limitation, the costs, expenses, and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, proceeding or investigation (whether or not in connection with
litigation to which Xxxxx is a party), directly or indirectly, caused by,
relating to, based upon, arising out of or in connection with information
provided by the Company, with Xxxxx'x role as counsel to the Company or any
other related matter. The Company also agrees that Xxxxx shall not have any
liability (whether direct or indirect in contract or tort or otherwise) to the
Company or to any person (including, without limitation, Company shareholders)
claiming through the Company for or in connection with the engagement of Xxxxx.
This indemnification shall survive the termination of this Agreement.
Each party entitled to indemnification under this Agreement (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 7. Each Indemnified
Party shall furnish such information regarding itself or the claim in question
as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and any litigation
resulting therefrom.
Section 8. Governing Law; Jurisdiction. This Agreement shall be
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governed by, and construed in accordance with, the laws of the State of New York
without regard to the conflict of law principles thereof. Each of the parties
hereto irrevocably submit to the exclusive jurisdiction of any New York State or
United States Federal court sitting in Manhattan county over any action or
proceeding arising out of or relating to this Agreement, and the parties hereto
hereby irrevocably agree that all claims in respect of such action or proceeding
may be heard and determined in such New York State or Federal court. The
parties hereto agree that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The parties hereto further
waive any objection to venue in the State of New York and any objection to an
action or proceeding in the State of New York on the basis of forum non
conveniens.
Section 9. Entire Agreement; Amendments. This Agreement contains the
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entire agreement and understanding between the parties and supersedes and
preempts any prior understanding or agreements, whether written or oral. The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Xxxxx.
Section 10. Successors and Assigns; No Assignment. This Agreement
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shall be binding upon, inure to the benefit of, and shall be enforceable by
Xxxxx and his heirs and legal representatives and the Company and its successors
and permitted assigns.
Section 11. Notices. All notices and other communications under this
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Agreement shall be in writing and shall be deemed effective and given upon
actual delivery if presented personally, one business day after the date sent if
sent by prepaid telegram, overnight courier service, telex or facsimile
transmission or five business days if sent by registered or certified mail,
return receipt requested, postage prepaid which shall be addressed to the
following addresses:
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If to the Company: NetCare Health Group, Inc.
000 Xxxxxxxxxx Xxxx, Xxxx 0
Xxxxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
If to Xxxxx: Xxxxx Xxxxx
c/x Xxxxxxxxxx Xxxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 12. Severability. If any provision of this Agreement or the
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application of any provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
Section 13. Section and Other Headings. The section headings contained
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in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 14. Counterparts. This Agreement may be executed in any number
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of counterparts and by facsimile, each of which when so executed and delivered
shall be deemed to be an original and all of which together shall be deemed to
be one and the same Agreement.
Section 15. Independent Contractor. The Legal Consultant agrees and
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acknowledges that he is solely responsible to pay all of his own taxes with
respect to the issuance of the Shares to the Legal Consultant hereunder. The
Legal Consultant shall not be entitled to receive, and shall not receive, any
benefits of employment from the Company, including, without limitation,
disability insurance, worker's compensation or any other benefits incidental to
any employer-employee relationship; it being the intention and agreement of the
parties hereto that the Legal Consultant's relationship with the Company is that
of an independent contractor. Furthermore, this Agreement shall not be construed
to create between the Company and the Legal Consultant the relationship of
principal or agent, joint venturers, co-partners or employer and employee, the
existence of which is hereby expressly denied by the Company and the Legal
Consultant. The Legal Consultant shall not be an agent of the Company for any
purposes whatsoever and the Legal Consultant shall have any right or authority
to bind the Company or create any obligations, express or implied, on behalf of
or in the name of the Company.
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Section 16. Further Assurances. The Company agrees from time to time
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after the execution hereof to make, do, execute or cause or permit to be made,
done or executed all such further and other lawful acts, deeds, things and
assurances whatsoever may be required to carry out the intention and to give
full force and effect to this Agreement.
Section 17. Third Parties. Nothing herein expressed or implied is
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intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their permitted successors and assigns and
legal representatives, any rights or remedies under or by reason of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
NETCARE HEALTH GROUP, INC.
By: /s/ Xxxxxxx Xxxx
________________________
Name: Xxxxxxx Xxxx
Title: President
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
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