AMENDED AND RESTATED CONSULTING SERVICES AGREEMENT
EXHIBIT
10.7
AMENDED
AND RESTATED CONSULTING SERVICES AGREEMENT
This
Amended and Restated Consulting Services Agreement (this “Agreement”), is made
as of the 1st
day of
February, 2005, by and between Medi-Hut Co., Inc., a Nevada corporation having
a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000
(“Medi-Hut”), and Century Capital Associates LLC, a Delaware limited liability
company having a principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxx
Xxxx,
Xxx Xxxxxx 00000 (“Century Capital”).
Recitals
WHEREAS,
Medi-Hut and Century Capital entered into a Consulting Services Agreement
on
February 21, 2003 (the “Original Agreement”), pursuant to which Century Capital
provided to Medi-Hut a full range of consulting services, including, without
limitation, strategic review and analysis of operations, products, systems,
controls, management and personnel, general corporate advisory services,
management services, operations support, business development and financial
advisory services;
WHEREAS,
the
initial term of the Original Agreement ended on January 31, 2005;
and
WHEREAS,
Medi-Hut desires to continue to retain Century Capital to provide the consulting
services offered by Century Capital in accordance with and pursuant to the
terms
and conditions set forth in this Agreement.
NOW,
THEREFORE,
in
consideration of the promises, representations and obligations contained
in this
Agreement, and for other good and valuable consideration as set forth in
this
Agreement, Medi-Hut and Century Capital agree as follows:
| 1. |
Term
and Termination
|
| 1.1. |
Term.
This Agreement shall be deemed to have commenced as of February 1,
2005
(the “Effective Date”) and will continue for a term of one (1) year,
ending on January 31, 2006 (the “Initial Term”). At the end of the Initial
Term, this Agreement will thereafter automatically continue in full
force
and effect until terminated as provided
below.
|
| 1.2. |
Termination.
|
| (a) |
Termination
after Initial Term.
After the conclusion of the Initial Term either party shall have
the right
to terminate this Agreement by providing written notice to the other
party
at least sixty (60) days prior to the proposed termination
date.
|
| (i) |
Termination
by Medi-Hut.
In the event this Agreement is terminated by Medi-Hut after the Initial
Term, Century Capital shall be entitled to receive payment from Medi-Hut
on the termination date of a lump-sum amount equal to the sum of
(A) all
monthly fees, including any deferred fees under this Agreement and/or
the
Original Agreement, which are due and payable and which were required
to
be paid prior to and as of the termination date, plus (B) all reimbursable
expenses incurred under this Agreement and/or the Original Agreement
but
unpaid as of the termination date, plus (C) the amount of any unpaid
annual bonus earned by Century Capital during the period this Agreement
and the Original Agreement remained in full force and
effect.
|
| (ii) |
Termination
by Century Capital.
In the event this Agreement is terminated by Century Capital after
the
Initial Term, Medi-Hut shall pay Century Capital on the termination
date a
lump sum amount equal to the sum of (A) all monthly fees, including
any
deferred fees under this Agreement and/or the Original Agreement,
which
are due and payable and which were required to be paid prior to and
as of
the termination date, plus (B) all reimbursable expenses incurred
under
this Agreement and/or the Original Agreement but unpaid as of the
termination date, plus (C) the amount of any unpaid annual bonus
earned by
Century Capital during the period this Agreement and the Original
Agreement remained in full force and
effect.
|
| (b) |
Termination
for Cause by Medi-Hut.
Medi-Hut can terminate this Agreement for cause if Century Capital
fails
to materially perform the consulting services to be provided pursuant
to
this Agreement; provided
that (i) the determination of material nonperformance of service
is made
by a majority of the independent members of the Medi-Hut Board of
Directors (i.e., those directors with no affiliation with Medi-Hut
other
than in their capacity as directors), (ii) the material nonperformance
is
particularly described in a written notice to be issued by the Medi-Hut
Board of Directors and delivered to Century Capital, (iii) Century
Capital
has sixty (60) days from receipt of the written notice to cure the
material nonperformance, and (iv) the determination that Century
Capital
has not cured its material nonperformance is made by a majority of
the
independent members of the Medi-Hut Board of Directors.
|
Upon
termination for cause by Medi-Hut, Century Capital is entitled to be paid
all
monthly fees, including any deferred fees under this Agreement and/or the
Original Agreement, which are due and payable and which were required to
be paid
prior to and as of the termination date, and is entitled to be reimbursed
for
all expenses incurred under this Agreement and/or the Original Agreement
but
unpaid as of the termination date.
| (c) |
Termination
for Cause by Century Capital.
Century Capital can terminate this Agreement for cause upon (i) any
breach
of this Agreement by Medi-Hut which is not cured within thirty (30)
days
of receipt of written notice from Century Capital which identifies
the
incident(s) of breach, (ii) the breach by Medi-Hut of any other agreement
by and between Medi-Hut and Century Capital, or the breach of any
instrument or note issued by Medi-Hut to Century Capital, (iii) the
failure of Medi-Hut to pay in full any compensatory fee or bonus,
reimburse any expense, or pay any other amount to Century Capital,
when
such amount is due and payable, unless the payment of such amount
owed is
deferred at the sole option of Century Capital, (iv) the removal
of Xxxxx
X. XxXxxxx as President and Chief Executive Officer of Medi-Hut without
the prior written approval of Century Capital, (v) the removal of
Xxxxxx
X. Xxxxxxx as Executive Vice President, Chief Financial Officer
(Treasurer) and Secretary of Medi-Hut, without the prior written
approval
of Century Capital (vi) the removal of or failure to elect Xxxxx
X.
XxXxxxx and Xxxxxx X. Xxxxxxx as members of the Medi-Hut Board of
Directors without the prior written approval of Century Capital,
or (vii)
Medi-Hut suspending or discontinuing its business, making an assignment
for the benefit of creditors, not paying its debts as such debts
become
due, voluntarily filing a petition in bankruptcy, being the subject
of an
involuntary bankruptcy filing if such filing is not dismissed within
forty-five (45) days; or having a receiver appointed for its
assets.
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-2-
In
the
event Century Capital consents to or recommends, in writing, any of the events
set forth above which could trigger a for cause termination by Century Capital
of this Agreement, such event shall not give rise to a for cause termination
of
this Agreement. In addition, in the event Century Capital waives, in writing,
its right to declare a for cause termination upon the happening of one of
the
events set forth above, such event shall not give rise to a for cause
termination of this Agreement. Further, this Agreement cannot be terminated
for
cause by Century Capital pursuant to any subpart above, if any such event
was
caused by the actions or inaction of Century Capital.
In
the
event this Agreement is terminated by Century Capital for cause, Century
Capital
shall be entitled to receive payment from Medi-Hut on the termination date
of a
lump sum amount equal to the sum of (A) all monthly fees, including any deferred
fees under this Agreement and/or the Original Agreement, which are due and
payable and which were required to be paid prior to and as of the termination
date, plus (B) all reimbursable expenses incurred under this Agreement and/or
the Original Agreement but unpaid as of the termination date, plus (C) an
amount
equal to the product of Century Capital’s monthly fee ($50,000 or such greater
amount as may be agreed to by the parties) multiplied by the greater of (I)
six
(6) months and (II) the number of full months remaining in the Initial Term
if
termination for cause occurs in the Initial Term, plus (d) the full amount
of
the bonus target established for the year of termination. In addition, all
warrants held by Century Capital shall vest and be immediately
exercisable.
| 2. |
Independent
Contractor
|
| 2.1. |
Independent
Contractor Relationship.
At all times the relationship between Medi-Hut and Century Capital
and
Century Capital’s principals, employees, members, administrators,
contractors, agents and other representatives who render services
on its
behalf to Medi-Hut, shall be that of an independent contractor and
not as
an employee, agent, or partner of Medi-Hut. Nothing in this Agreement
shall be construed or interpreted as creating or establishing the
relationship of employer and employee by and between Medi-Hut and
Century
Capital or by and between Medi-Hut and any principal, employee, member,
administrator, contractor, agent or other representative of Century
Capital. During the term of this Agreement, Century Capital and its
principals, employees, members, administrators, contractors, agents
and
other representatives, in particular, Xxxxx X. XxXxxxx and Xxxxxx
X.
Xxxxxxx, retain the right to provide consulting services to other
parties
provided
that such services do not materially interfere with the services
to be
rendered pursuant to this Agreement.
|
| 2.2. |
Compensation
of Century Capital Personnel.
Century Capital agrees that it is responsible for the payment of
compensation for services rendered to Medi-Hut under this Agreement
by
Century Capital’s principals, employees, members, contractors,
administrators, agents and other representatives, as well as responsible
for withholding, paying and remitting all applicable federal, state
and
local withholding and payroll taxes. In addition, all other employment
related benefits made available to the principals, employees, members,
administrators, contractors, agents or other representatives of Century
Capital, if any, including, without limitation, health insurance,
shall be
provided by Century Capital.
|
| 2.3. |
Compliance
of Personnel with this Agreement.
Century Capital shall be responsible for ensuring that its principals,
employees, members, administrators, contractors, agents and other
representatives comply with all provisions of this
Agreement.
|
| 3. |
Services
to be Performed
|
| 3.1. |
Nature
of Consulting Services.
Medi-Hut hereby engages Century Capital to provide the services of
Xx.
XxXxxxx and Xx. Xxxxxxx to act as the Company’s corporate officers as
designated herein.
|
| 3.2. |
Reporting.
Century Capital, Xx. XxXxxxx and Xx. Xxxxxxx shall report directly
to and
take direction from a committee of the Board of Directors comprised
solely
of independent members of the Board of Directors (the
"Committee").
|
| 3.3. |
Location
of Work.
In its sole discretion, Century Capital and its personnel will perform
the
consulting services hereunder at Medi-Hut’s principal business offices in
Spring Lake, New Jersey and Century Capital’s principal offices located in
Spring Lake, New Jersey and Raleigh, North Carolina, or at any other
location deemed necessary by Century Capital. To the extent services
will
be performed at Medi-Hut’s principal business offices, Medi-Hut agrees to
provide work space and facilities, and any other services and materials
Century Capital or its personnel may reasonably request in order
to
perform their services. With respect to Xx. XxXxxxx and Xx. Xxxxxxx,
Medi-Hut shall provide each with an office at its principal business
offices that is commensurate with office space made available to
the
executive officers of Medi-Hut.
|
-3-
| 3.4. |
Position
and Title.
Xx. XxXxxxx will continue in his position as President and Chief
Executive
Officer of Medi-Hut and Xx. Xxxxxxx will continue in his position
as
Executive Vice President, Chief Financial Officer (Treasurer) and
Secretary of Medi-Hut. The continued appointment to such positions
will
not affect the compensation due and payable to Century Capital, nor
the
manner in which such compensation is paid, under this Agreement,
and Xx.
XxXxxxx and Xx. Xxxxxxx will continue to be treated as independent
contractors with respect to Medi-Hut for purposes of compensation.
In
other words, no additional compensation will be paid to Xx. XxXxxxx
and
Xx. Xxxxxxx for holding executive officer positions at Medi-Hut,
other
than the compensation provided for herein. Medi-Hut represents and
warrants to Century Capital that it will maintain a Directors and
Officers
Liability Insurance Policy with coverage of not less than $2 million
(the
“D&O Policy”) in full force and effect during the time that Xx.
XxXxxxx and Xx. Xxxxxxx serve as officers or directors of Medi-Hut
and for
a period of two (2) years following the date that neither Xx. XxXxxxx
nor
Xx. Xxxxxxx serves as an officer or director of Medi-Hut. During
this two
(2) year period, each of Xx. XxXxxxx and Xx. Xxxxxxx is entitled
to
receive an endorsement or other customary form of confirmation from
the
carrier of the D&O Policy that he is covered as a former officer and
director of Medi-Hut.
|
| 4. |
Compensation
|
| 4.1. |
Monthly
Fee.
Century Capital is entitled to receive a monthly consulting fee in
the
amount of Fifty Thousand Dollars ($50,000), payable on the first
business
day of each month during the period that this Agreement remains in
effect.
The payment of any portion of the monthly consulting fee may be deferred
until a later date at the sole option of Century Capital. The basis
for
any such deferment would be related to potential cash flow issues.
|
| 4.2. |
Expenses.
Medi-Hut shall promptly reimburse Century Capital and its personnel,
for
all reasonable and customary out-of-pocket expenses, including, without
limitation, travel, hotel, meal and other business related expenses
associated with the services provided pursuant to this Agreement.
These
expenses shall include all reasonable and customary travel related
expenses, including, without limitation, airfare, rental car and
hotel,
for travel by Xx. XxXxxxx between North Carolina and New Jersey in
connection with providing services pursuant to this Agreement. In
addition, all reasonable legal fees and expenses incurred by any
of
Century Capital, Xx. Xxxxxxx and Xx. XxXxxxx in connection with the
preparation and performance of this Agreement and any other matter
concerning Medi-Hut, will be paid by
Medi-Hut.
|
| 4.3. |
Bonuses.
Century Capital shall, at the discretion of the Committee, be paid
an
annual bonus in an amount not less than one hundred twenty-five thousand
dollars ($125,000) upon the successful completion of the objectives
established by the Committee and Century Capital. The annual bonus
shall
be based on the performance of the Consultants for each one year
period
commencing February 1 and ending January 31 during the period this
Agreement remains in effect. The payment of the entire amount of
the
annual bonus or a portion thereof may be deferred at the sole discretion
of Century Capital. In the event that this Agreement terminates prior
to
the conclusion of the then current one year period, the annual bonus
will
be pro rated. Century Capital and Medi-Hut agree to negotiate and
agree in
good faith on the annual bonus criteria.
|
-4-
During
the period that this Agreement is in effect, and for a period of twenty-four
(24) months after the effective termination date of this Agreement, Century
Capital is entitled to receive from Medi-Hut a transaction bonus in cash
which
shall be not less than two and one-half percent (2.5%) of (i) the aggregate
consideration to be paid in connection with a sale or acquisition of Medi-Hut,
whether Medi-Hut is the surviving entity, and whether by stock purchase,
tender
offer, merger, consolidation, combination, reorganization, recapitalization
or
other corporate transaction or business combination, or in connection with
a
sale of all or substantially all of Medi-Hut’s assets, and (ii) the aggregate
consideration to be paid in connection with a Change in Control (as hereinafter
defined) of Medi-Hut. If any transaction described in subparts (i) or (ii)
above
commences prior to, but is not completed until after, the end of the twenty
four
month period following the effective termination date of this Agreement,
Century
Capital’s right to receive and Medi-Hut’s obligation to pay the transaction fee
under this Section 4.3 shall be extended until the completion of the
transaction. For purposes of this Agreement, “Change in Control” shall mean any
transaction which is effected in such a way that holders of more than fifty
percent (50%) of the shares of Medi-Hut common stock then outstanding are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets (including cash) of another person with respect to or
in
exchange for Medi-Hut common stock.
The
obligation of Medi-Hut to pay the annual or transaction bonus or any other
compensation or expense hereunder shall survive termination of this Agreement.
| 4.4. |
Warrants.
Upon execution of this Agreement, Medi-Hut will issue to Century
Capital a
non-cancelable warrant to purchase five hundred thousand (500,000)
shares
of Medi-Hut common stock at a purchase price of $.03 per share. The
warrant shall vest as follows: (a) 250,000 of the shares underlying
the
warrant will be eligible for purchase on the Effective Date, (b)
an
additional 20,833 of the shares underlying the warrant shall become
eligible for purchase on and after the last day of each month commencing
February 28, 2005 and ending December 31, 2005, and (c) 20,837 of
the
shares underlying the warrant shall become eligible for purchase
on and
after January 31, 2006. The
warrant will have a ten (10) year life and will have such other customary
terms and provisions as agreed to by Medi-Hut and Century
Capital.
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Century
Capital represents that it is acquiring the warrant for its own account,
for
investment and not with a view to the distribution thereof, nor with any
present
intention of selling or otherwise disposing of the warrants or the underlying
shares of common stock, and will not sell or otherwise transfer the warrants
or
the underlying shares of common stock except in accordance with applicable
federal and state securities laws, and acknowledges that the warrant
certificates and stock certificates evidencing the warrants and underlying
shares of common stock shall bear a legend restricting the transfer thereof.
Moreover, Century Capital understands that the warrants and underlying shares
of
common stock have not been registered under the Securities Act of 1933, as
amended, or the securities laws of any state, and, therefore, are subject
to
substantial restrictions on transfer.
| 4.5. |
Deferred
Fees.
Pursuant to the terms of the Original Agreement, Century Capital
is
entitled to receive deferred fees in the amount of Three Hundred
Thirty
Three Thousand Five Hundred Sixty Three Dollars ($333,563) (the “Deferred
Fees”) which shall be paid as follows:
|
| (a) |
One
Hundred and Ten Thousand Dollars ($110,000) of the Deferred Fees
shall be
paid in common stock on February 1, 2005 at a conversion price of
ten
cents ($.10) per share. This conversion price shall be subject to
adjustment so that it equates to the same purchase price as paid
in any
PIPE investment obtained by Medi-Hut in the event such PIPE investment
is
obtained on or before July 31, 2005.
|
| (b) |
The
remaining balance of the Deferred Fees shall continued to be deferred
and
will become payable when Century Capital requests payment and the
financial condition of Medi-Hut will support such payment or the
Deferred
Fees are otherwise due under this
Agreement.
|
| 4.6. |
Employment
Taxes.
As previously stated in this Agreement, no part of the compensation
payable to Century Capital will be subject to withholding by Medi-Hut
for
the payment of any federal, state or local withholding or
employer/employee payroll taxes.
|
-5-
| 5. |
Confidentiality;
Public Disclosure.
Century Capital and Medi-Hut shall maintain in strict confidence
all
information of a confidential or proprietary nature of the other
party
that is exchanged in connection with the services rendered under
this
Agreement, including the terms of this Agreement. Century Capital
and
Medi-Hut agree that each shall use such proprietary information only
for
the purposes of performing its obligations under this Agreement.
Century
Capital and Medi-Hut agree that each shall disclose such proprietary
information only (a) to the extent consented to by the other party,
(b) to
the extent required by any law or regulation, or by the Securities
and
Exchange Commission or any exchange or automated quotation system
on which
Medi-Hut stock is listed; and (c) to its personnel who have a need
to know
such proprietary information for the purposes of this Agreement.
Century
Capital and Medi-Hut shall ensure that each of its employees comply
with
the provisions in this Section. Proprietary information shall not
include:
(i) information rightfully known by a party prior to the Effective
Date of
this Agreement, (ii) information that is now or hereafter become
generally
available to the public other than as a result of a disclosure in
breach
of this Agreement; (iii) information independently developed or acquired
by a party or its personnel without reliance on or reference to,
in any
way, proprietary information of the other party; or (iv) information
which
becomes available to a party from a third party source; provided
that such third party source is not known to be bound by a confidentiality
agreement with respect to such information or known to otherwise
be
prohibited from transmitting the information by a contractual, legal
or
fiduciary obligation.
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Medi-Hut
shall not disclose any proprietary or other information, including the terms
of
this Agreement, to the public or any federal or state agency, without first
reviewing such disclosure with Century Capital. Such disclosures shall include,
but are not limited to, press releases and reports filed with the Securities
and
Exchange Commission.
| 6. |
Non-Solicitation
of Personnel
|
During
the term of this Agreement and for a period of twelve (12) months after the
effective termination date of this Agreement, neither party shall directly
or
indirectly solicit, recruit or hire any personnel of the other party who
are or
have been directly involved with the performance of services under this
Agreement, unless such party receives the prior written consent of the other
party.
| 7. |
Indemnification;
Limitation of Liability
|
| 7.1. |
Indemnification.
To the extent permitted by law, Medi-Hut covenants and agrees to
defend,
indemnify and hold harmless Century Capital and each of its principals,
employees, members, administrators, contractors, agents and other
representatives, including, without limitation, Xx. XxXxxxx and Xx.
Xxxxxxx (each, a “Century Capital Indemnitee” and collectively, the
“Century Capital Indemnitees”), from and against, and pay or reimburse the
Century Capital Indemnitees for, any and all claims, demands, liabilities,
obligations, losses, fines, costs, expenses, royalties, litigation,
deficiencies or damages, including interest and penalties with respect
thereto and out-of-pocket expenses and reasonable attorneys’ and
accountants’ fees and expenses incurred in the investigation or defense of
any of the same or in asserting, preserving or enforcing any of their
respective rights under this Agreement, relating to, resulting from
or
arising out of (a) any failure of Medi-Hut to perform any covenant
or
agreement hereunder or any related agreement, instrument or note,
or
fulfill any other obligation in respect hereof or thereof, (b) any
threatened, pending or completed action, suit or proceeding, whether
brought by or in the right of Medi-Hut or otherwise and whether of
a
civil, criminal, administrative or investigative nature (each a
“Proceeding”), involving Century Capital or any Century Capital Indemnitee
by reason of the services rendered pursuant to this Agreement, or
by
reason of their relationship with Medi-Hut, or by reason of any Century
Capital Indemnitee having been a corporate agent of Medi-Hut, including
as
an officer or director of Medi-Hut.
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Promptly
after receipt by a Century Capital Indemnitee of notice of the commencement
of
any Proceeding, such Century Capital Indemnitee shall, if a claim in respect
thereof is to be made against Medi-Hut under this Section 7.1, deliver to
Medi-Hut a written notice of the commencement thereof, and Medi-Hut shall
have
the right to participate in, and, to the extent Medi-Hut so desires, to assume
control of the defense thereof with counsel satisfactory to the Century Capital
Indemnitee; provided,
however,
that a
Century Capital Indemnitee shall have the right to retain its, his or her
own
counsel, with the fees and expenses to be paid by Medi-Hut, if, in the
reasonable opinion of counsel for the Century Capital Indemnitee, representation
of such party by the counsel retained by Medi-Hut would be inappropriate
due to
actual or potential differing interests between the Century Capital Indemnitee
and any other party represented by such counsel in such proceeding. Medi-Hut
shall pay for only one legal counsel for the Century Capital Indemnitee and
any
other Century Capital Indemnitee related thereto; such legal counsel shall
be
selected by the Century Capital Indemnitee subject to Medi-Hut’s approval which
shall not be unreasonably withheld. The failure to deliver written notice
to
Medi-Hut within a reasonable time of the commencement of any such action
shall
not relieve Medi-Hut of any liability to another under this Section 7.1,
except
to the extent that such failure to notify results in the forfeiture by Medi-Hut
of substantive rights or defenses. The indemnification required by this Section
7.1 shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as such expense, loss, damage or liability
is
incurred and is due and payable.
-6-
Notwithstanding
the foregoing, in the event a Century Capital Indemnitee is requested or
authorized by Medi-Hut or is required by government regulation, subpoena
or
other legal process to produce any documents or personnel as witnesses with
respect to Century Capital's engagement by Medi-Hut, Medi-Hut will reimburse
the
Century Capital Indemnitee for his, her or its reasonable professional costs
and
expenses, as well as the reasonable fees and expenses of his, her or its
counsel, incurred in responding to such requests.
| 7.2. |
Limitation
of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW NEITHER CENTURY CAPITAL NOR
ANY OF
ITS PERSONNEL SHALL BE LIABLE TO MEDI-HUT FOR ANY CONSEQUENTIAL,
INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES IN CONNECTION WITH THE SERVICES
RENDERED BY IT OR ITS PERSONNEL UNDER THIS
AGREEMENT.
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| 7.3. |
Survival.
The obligations of Medi-Hut set forth in this Section 7 shall survive
the
termination of this Agreement.
|
| 8. |
General
Provisions
|
| 8.1. |
Insurance.
To the extent permitted by the policy, Medi-Hut shall add Century
Capital
and its personnel as additional insured parties under any business
insurance policy issued to Medi-Hut.
|
| 8.2. |
Governing
Law.
This Agreement will be governed and construed in accordance with
the laws
of the State of New Jersey (exclusive of its conflict of laws provisions).
Any judicial proceeding brought against any of the parties to this
Agreement on account of any dispute arising out of this Agreement,
or any
matter related thereto, shall be brought in a court of competent
jurisdiction in Monmouth County, New Jersey or in the United States
District Court for the District of New Jersey, and by execution and
delivery of this Agreement, the parties hereby consent to the exclusive
jurisdiction of any such applicable court and waive any deference
or
opposition to such jurisdiction.
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| 8.3. |
Notices.
All notices and other communications pertaining to this Agreement
shall be
in writing and shall be sent either by certified or registered mail,
reputable commercial overnight carrier, or hand delivery, addressed
as
follows:
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To
Medi-Hut:
Medi-Hut
Co., Inc.
000
Xxxxxx Xxxxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
Board of Directors
To
Century Capital:
Century
Capital Associates LLC
000
Xxxxxx Xxxxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
Xxxxx X. XxXxxxx or Xxxxxx X. Xxxxxxx
Notice
shall be deemed to have been given by a party hereto (i) when personally
delivered, (ii) three (3) days after having been deposited by certified or
registered first class mail, return receipt requested, or (iii) one (1) business
day after having been sent by commercial overnight courier with written
verification of receipt. Either party may change its address from time to
time
by giving notice to that effect as provided herein.
| 8.4. |
Binding
Effect; Assignment.
This Agreement and the rights and obligations of each party hereunder
shall be binding upon and shall inure to the benefit of the parties
and
their successors and assigns. Neither this Agreement nor any of the
rights
or obligations of Century Capital or Medi-Hut arising under this
Agreement
may be assigned or transferred without the other party’s prior written
consent.
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-7-
| 8.5. |
Waivers.
Failure or delay on the part of either party to exercise any right,
power
or privilege or remedy hereunder shall not constitute a waiver thereof.
No
waiver of default shall operate as a waiver of any other default
or of the
same type of default on future occasions.
|
| 8.6. |
Counterparts.
This Agreement may be executed in two (2) or more counterparts, each
of
which shall be deemed an original and all of which taken together
shall
constitute one (1) and the same Agreement.
|
| 8.7. |
Severability.
In the event that any provision contained in this Agreement should
be held
to be unenforceable, such unenforceability shall not affect any of
the
other provisions herein.
|
| 8.8. |
Headings.
The section and paragraph headings are contained herein for ease
of use,
and are not intended to either broaden or limit the scope of the
terms
hereof.
|
| 8.9. |
Legal
Fees.
All reasonable legal fees incurred by Century Capital in connection
with
the representation of Century Capital with respect to this Agreement
and
any related agreement, instrument or note shall be paid by Medi-Hut.
If
any proceeding arises between the parties with respect to a dispute
under
this Agreement, the prevailing party in such proceeding shall be
entitled
to receive its reasonable attorney’ fees, expert witness fees and
out-of-pocket costs incurred in connection with such proceeding,
in
addition to any relief it may be awarded.
|
| 8.10. |
Entire
Agreement.
This Agreement is intended to be the sole and complete statement
of the
obligations of the parties as to the services to be performed and
supersedes as of the Effective Date all previous understandings,
negotiations and proposals, including the Original Agreement, and
may not
be altered, amended or modified, except in writing, signed by the
duly
authorized representatives of the
parties.
|
| 8.11. |
Construction.
This Agreement is the product of negotiations between the parties
and no
provision hereof shall be construed to the disadvantage of any party
as
having been the author of such provision.
|
| 8.12. |
Approval
of Medi-Hut Board of Directors.
In connection with the execution and delivery of this Agreement by
Medi-Hut, Medi-Hut shall deliver to Century Capital resolutions of
the
Medi-Hut Board of Directors approving and adopting this Agreement
and the
authorization of the execution hereof.
|
-8-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered in duplicate by their duly authorized representatives all as of
the
effective date first written above.
|
MEDI-HUT
CO., INC.
|
|
|
/s/
Xxxxx X. XxXxxxx
|
|
|
Authorized
Signature
|
|
|
Xxxxx
X. XxXxxxx
|
|
|
Name
|
|
|
President
and Chief Executive Officer
|
|
|
Title
|
|
|
CENTURY
CAPITAL ASSOCIATES LLC
|
|
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Authorized
Signature
|
|
|
Xxxxxx
X. Xxxxxxx
|
|
|
Name
|
|
|
Vice
President
|
|
|
Title
|
|
-9-
