CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of January 2 , 2001
(the "Effective Date"), is entered into by and between Access Health
Alternatives, Inc., a Florida corporation ("Access"), and Xxxxx Xxxx, an
individual (the "Consultant").
W I T N E S S E T H:
WHEREAS, Access desires to have the Consultant perform certain services and
to be assured of the Consultant's services on the terms and conditions
hereinafter set forth; and
WHEREAS, the Consultant desires to perform certain services for Access and
is willing to accept such retention by Access on those terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, Access and the Consultant hereby agree as follows:
(1) Services. The services ("Services") may include, but are not limited
to, the following:
a. Advice. The Consultant may provide Access with advice relating to,
but not limited to, corporate banking, potential mergers and acquisitions,
and/or the capital structure of Access. Such advice shall not be guaranteed
by the Consultant, but shall be provided based on certain beliefs
reasonably held by the Consultant.
b. Financial Opportunities. The Consultant may assist Access in
locating and procuring certain financial opportunities heretofore unknown
to Access. The Consultant makes no guarantees as to the availability,
successes or failures of such opportunities.
c. Marketing. The Consultant may assist Access in the marketing and
advertising of Access and its products.
d. Networking. The Consultant may provide certain professional
networking opportunities for Access. Such opportunities may include
introductions to, and the formulation and maintenance of relationships
with, key business and legal personnel in the Pacific Rim, Canadian and
U.S. markets.
e. Miscellaneous. In addition to the services set forth above in this
Section 1, the Consultant may provide additional guidance reasonably
related to the financial and corporate development of Access.
(2) Retention. Access hereby retains the Consultant to provide the Services
and the Consultant accepts such retention, upon the terms and subject to the
conditions set forth in this Agreement.
(3) Term. The term of this Agreement shall be for a period of two (2) years
from the Effective Date (the "Term").
(4) Duties. During the Term of this Agreement, the Consultant shall perform
such duties as may be assigned to him from time to time by the President and
Chief Executive Officer and/or Board of Directors of Access. Notwithstanding
anything herein to the contrary, at all times the relationship of the Consultant
to Access shall be that of independent contractors. Consultant shall not be
required to devote more than ten (10) hours per month to services on behalf of
Access and may devote time and attention to consulting services on behalf of
others, provides such others are not in direct competition with Access.
(5) Consideration. The Consultant shall receive an aggregate of 660,000
shares of Access common stock to be registered with the United States Securities
and Exchange Commission on Form S-8. Consultant's ownership of the foregoing
shares shall vest on the Effective Date.
(6) Expenses. During the Term of this Agreement, and upon submission of
proper invoices, receipts , the Consultant shall be reimbursed by Access for all
reasonable business expenses actually and necessarily incurred by the Consultant
on behalf of Access in connection with the performance of the Services under
this Agreement.
(7) Representations. The Consultant represents and warrants that he is not
a party to, or bound by, any agreements or commitments, or subject to any
restrictions, including but not limited to agreements related to previous
employment or retention containing confidentiality or non-compete covenants,
which may have a possibility of adversely affecting the performance of his
duties under this Agreement.
(8) Confidentiality. The Consultant acknowledges that as a result of the
performance of his duties under this Agreement, he has and will continue to have
knowledge of, and access to, proprietary and confidential information of Access,
including, without limitation, inventions, trade secrets, technical information,
know-how, plans, specifications, methods of operations, financial and marketing
information and the identity of customers and suppliers (collectively, the
"Confidential Information"). Accordingly, the Consultant shall not, at any time,
either during or subsequent to the term of this Agreement, use, reveal, report,
publish, transfer or otherwise disclose any of the Confidential Information to
third parties without the prior written consent of Access, except for such
information which is or becomes part of general public knowledge from authorized
sources or information that they are required to disclose by a governmental
agency or law.
(9) Limitation of Liability. IN NO EVENT SHALL CONSULTANT BE LIABLE TO
ACCESS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ACCESS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY
OF CONSULTANT TO ACCESS FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER
SHALL BE LIMITED TO THE COMPENSATION THEN PREVIOUSLY PAID TO CONSULTANT BY
ACCESS OR THE CORRECTION OF ANY ALLEGED DEFAULT UNDER THIS AGREEMENT AT THE SOLE
DISCRETION OF ACCESS.
(10) Miscellaneous.
(a) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject
matter hereof.
(b) Waivers and Modification. No modification of this Agreement or
waiver of any term or condition herein shall be effective unless it refers
to this Agreement, explicitly states that it intends to modify this
Agreement or to waive a term or condition herein, is in writing, and is
signed by both parties hereto. Terms contrary or in addition to the terms
of this Agreement in any document or correspondence shall have no effect
whatsoever unless said document or correspondence meets the aforesaid
conditions. Any waiver of any term or condition of this Agreement, or of
the breach of any covenant, representation, or warranty contained herein,
in any one instance, shall not operate or be deemed to be or construed as a
further or continuing waiver of such term, condition, or breach of
covenant, representation, or warranty, nor shall any failure to exercise,
or delay in exercising, any right, remedy, or power under this Agreement
operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power under this Agreement preclude any other or
further exercise thereof, or the exercise of any other right, remedy, or
power provided herein or by law or in equity.
(c) Successors and Assigns. Neither party shall have the right to
assign this Agreement, or any rights or obligations hereunder, without the
consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of Access to another
company, or upon the merger or consolidation of Access with another
company, this Agreement shall inure to the benefit of, and be binding upon,
the company purchasing such assets, business and goodwill, or surviving
such merger or consolidation, as the case may be, in the same manner and to
the same extent as though such other company were Access. Subject to the
foregoing, this Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their legal representatives, heirs, successors
and permitted assigns.
(d) Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the validity and
enforceability of the other provisions of this Agreement and the provision
held to be invalid or unenforceable shall be enforced as nearly as possible
according to its original terms and intent to eliminate such invalidity or
unenforceability.
(e) Continuing Obligations. Rights and obligations theretofore
accruing but not satisfied as of the termination of this Agreement shall
remain in full force and effect until satisfied in accordance with this
Agreement.
(f) Force Majeure. The Consultant shall not be in default to Access
under this Agreement for any delay or failure to perform due to causes
beyond Consultant's reasonable control.
(g) Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(h) Communications. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
to have been given at the time personally delivered or when mailed in any
United States or Canadian post office enclosed in a registered or certified
postage prepaid envelope and addressed to the addresses set forth below, or
to such other address as any party may specify by notice to the other
party; provided, however, that any notice of change of address shall be
effective only upon receipt.
To Access: Access Health Alternatives, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx, CEO
To the Consultant: Xxxxx Xxxx
00 Xxx Xxxxx Xxxxx
Xxxx, Xxxxxxx X0X 0X0
Xxxxxx
(i) Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association ("AAA") in accordance
with its Commercial Rules (including its Emergency Interim Relief
Procedures] and its supplementary procedures for Securities Arbitration,
and judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. The matter shall be heard in Orlando by
a panel of three (3) AAA arbitrators, one picked by the Investor, one
picked by the Seller, and the third agreed to by the two selected
arbitrators. The Seller and the Investor, for themselves and their
respective successors in interest, hereby irrevocably consent to such
jurisdiction, venue and binding arbitration, and hereby irrevocably waive
any claim of forum non conveniens or right to change such venue or to
litigate the underlying dispute in court.
(j) Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of Florida, without regard to the
conflicts of law principles thereof.
(k) No Third-Party Beneficiaries. Each of the provisions of this
Agreement is for the sole and exclusive benefit of the parties hereto and
shall not be deemed to be for the benefit of any other person or entity.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(m) Contra Proferentem Waived. This Agreement was drafted by the
Consultant. However, all parties to this Agreement have been or have had
the opportunity to be represented by legal counsel, and hereby waive
application of the rule of contract construction which provides that terms
shall be construed against the drafting party.
(n) Authority. By signing below, each person executing this Agreement
on behalf of a party hereby personally warrants that said person has the
express authority to so execute this Agreement and bind said party hereto.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date set forth above.
By: _____________________________ By:___________________________
Xx. Xxxxxx X. Xxxxxx Xxxxx Xxxx
Chief Executive Officer
Access Health Alternatives, Inc.
