BUSINESS CONSULTANT AND MANAGEMENT AGREEMENT
THIS BUSINESS CONSULTANT AND MANAGEMENT AGREEMENT ("Agreement") is made and
entered into in duplicate effective the 26th day of October, 2000, between Xxxx
Medical Technologies, Inc., a Nevada corporation, hereinafter referred to as the
"Corporation," and Xxxxxxx Xxxx, hereinafter referred to as the "Consultant":
RECITALS
A. The Corporation is presently in the business of developing women's health
care centers and related products and services.
B. It is the desire of the Corporation to engage the services of the Consultant
to perform for the Corporation certain functions in the management and operation
of the Corporation and to consult with the Board of Directors and the officers
of the Corporation and with the administrative staff concerning problems arising
in the fields of the Corporation management; fiscal policies; personnel
policies; purchases of equipment, supplies, and services; and other problems
which may arise, from time to time, in the operation of the Corporation.
C. It is the desire of the Consultant to consult with the Board of Directors,
the officers of the Corporation, and the administrative staff, and to undertake,
for the Corporation, the direction of certain functions in the management of the
Corporation.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
1. Term of Agreement. The respective duties and obligations of the parties
to this Agreement shall commence on the date specified in the preamble of this
Agreement.
2. Consultations. The Consultant shall make himself available to consult
with the Board of Directors, the officers of the Corporation, and the department
heads of the administrative staff, at reasonable times, concerning matters
pertaining to the organization of the administrative staff, the fiscal policy of
the Corporation, the relationship of the Corporation with its employees or with
any organization representing its employees, and in general, concerning any
problem of importance concerning the business affairs of the Corporation. The
Consultant shall devote a minimum of 20 hours per month to the affairs of the
Corporation and, any provision of this Agreement to the contrary
notwithstanding, the Consultant shall devote only so much time, in excess of 20
hours, to the affairs of the Corporation as the Consultant, in the Consultant's
sole discretion, determines to be necessary or appropriate; and the Consultant
may be employed by, represent, or perform services for,
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any additional persons as the Consultant, in the Consultant's sole discretion,
determines to be necessary or appropriate.
3. Management Authority of Consultant. In addition to the consultation
provided for in Paragraph 2 of this Agreement, the Consultant shall provide
management of the administrative staff of the Corporation. The administrative
staff of the Corporation shall include all the employees of the Corporation
directly or indirectly engaged in the affairs of the Corporation other than the
Board of Directors of the Corporation, the president, vice president, secretary,
and treasurer of the Corporation.
4. Management Power of Consultant. The business affairs of the Corporation
which affect, directly or indirectly, the daily operation of the Corporation's
business activities and which arise in the ordinary course of business, shall be
conducted by the administrative staff. All the members of the administrative
staff shall be employees of the Corporation; however, the Consultant shall have
the management authority, subject to the directions of the Corporation's Board
of Directors, president, and vice president, over the administrative staff, and
shall have the authority to employ (on such terms and for such compensation as
he deems proper), discharge, direct, supervise, and control each and every
member of the administrative staff. It is the intention of the Corporation to
confer on the Consultant all the powers of direction, management, supervision,
and control of the administrative staff that the Consultant would have if the
members of the administrative staff were direct employees of the Consultant.
5. Business Manager. The Consultant, in his sole discretion, may employ, in
the name of the Corporation, a business manager. If such a business manager is
employed, he or she shall act as an administrative assistant to the Consultant
and as the chief administrative officer of the administrative staff. The
business manager shall be under the direct control and supervision of the
Consultant. The Consultant may, from time to time, delegate to the business
manager so much of the Consultant's authority as he deems proper with respect to
the employment, discharge, direction, control, and supervision of the
administrative staff, and the Consultant may withdraw from said business
manager, at any time the Consultant deems it expedient or proper so to do, any
portion or all of the authority theretofore conferred on the business manager.
6. Consultant to Act as Agent. From time to time, the Corporation may deem
it advisable to enter into various agreements relating to the business of the
Corporation. With regard to said agreements, and when directed to do so by the
president of the Corporation, the Consultant shall be the agent of the
Corporation for the purpose of negotiating the terms and conditions of the said
agreements. However, the Consultant shall not obligate the Corporation to said
agreements without first obtaining the approval of the terms of said agreements
from the Board of Directors of the Corporation.
7. Employment of Assistants. If it is reasonably necessary for the
Consultant to have the aid of assistants or the services of other persons,
companies, or firms in order to properly perform the duties and obligations
required of the Consultant under this Agreement,
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the Consultant may, from time to time, employ, engage, or retain the same. The
cost to the Consultant for said services shall be chargeable to the Consultant.
8. Right to Manage. Except as specifically provided to the contrary herein,
and to the greatest degree allowable under the General Corporation Law and other
laws of the State of Nevada, it is the intent of the Corporation to confer on
the Consultant the right to manage and direct the business affairs of the
Corporation for such periods as the Corporation's Board of Directors shall deem
appropriate. If any provision of this agreement is adjudged unlawful by any
court of competent jurisdiction, the remaining provisions of this agreement
shall remain in full force and effect.
9. Compensation. The Corporation shall issue to the Consultant 100,000
shares of the Corporation's $.001 par value common stock as compensation for
providing the services specified in this Agreement.
10. Recovery of Litigation Costs. In the event any party shall institute
any action or proceeding to enforce any provision of this Agreement to seek
relief from any violation of this Agreement, or to otherwise obtain any judgment
or order relating to or arising from the subject matter of this Agreement, each
prevailing party shall be entitled to receive from each losing party such
prevailing party's actual attorneys' fees and costs incurred to prosecute or
defend such action or proceeding, including, but not limited to, actual
attorneys' fees and costs incurred preparatory to such prosecution and defense.
Moreover, while a court of competent jurisdiction may assist in determining
whether or not the fees actually incurred are reasonable under the circumstances
then existing, that court is not to be governed by any judicially or
legislatively established fee schedule, and said fees and costs are to include
those as may be incurred on appeal of any issue and all of which fees and costs
shall be included as part of any judgment, by cost xxxx or otherwise, and where
applicable, any appellate decision rendered in or arising out of such action or
proceeding. For purposes of this Agreement, in any action or proceeding
instituted by a party, the prevailing party shall be that party in any such
action or proceeding (i) in whose favor a judgment is entered, or (ii) prior to
trial, hearing or judgment any other party shall pay all or any portion of
amounts claimed by the party seeking payment, or such other party shall
eliminate the condition, cease the act, or otherwise cure the act of commission
or omission claimed by the party initiating such action or proceeding.
11. Governmental Rules and Regulations. The provisions of this Agreement
are subject to any and all present and future orders, rules and regulations of
any duly constituted authority having jurisdiction of the relationship and
transactions contemplated by the provisions of this Agreement.
12. Entire Agreement. This Agreement is the final written expression and
the complete and exclusive statement of all the agreements, conditions,
promises, representations, warranties and covenants between the parties with
respect to the subject matter of this Agreement, and this Agreement supersedes
all prior or contemporaneous agreements, negotiations, representations,
warranties, covenants, understandings and
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discussions by and between and among the parties, their respective
representatives, and any other person with respect to the subject matter
specified in this Agreement. This Agreement may be amended only by an instrument
in writing which expressly refers to this Agreement and specifically states that
such instrument is intended to amend this Agreement and is signed by each of the
parties. Each of the parties represents, warrants and covenants that in
executing this Agreement that such party has (i) relied solely on the terms,
conditions and provisions specified in this Agreement and (ii) placed no
reliance whatsoever on any statement, representation, warranty, covenant or
promise of any other party, or any other person, not specified expressly in this
Agreement, or upon the failure of any party or any other person to make any
statement, representation, warranty, covenant or disclosure of any nature
whatsoever. The parties have included this section to preclude (i) any claim
that any party was in any manner whatsoever induced fraudulently to enter into,
execute and deliver this Agreement, and (ii) the introduction of parol evidence
to vary, interpret, supplement or contradict the terms, conditions and
provisions of this Agreement.
13. Severability. In the event any part of this Agreement, for any reason,
is declared to be invalid, such decision shall not affect the validity of any
remaining portion of this Agreement, which remaining portion shall remain in
complete force and effect as if this Agreement had been executed with the
invalid portion of this Agreement eliminated, and it is hereby declared the
intention of the parties that the parties would have executed the remaining
portion of this Agreement without including any such part, parts or portion
which, for any reason, hereafter may be declared invalid.
14. Captions and Interpretation. Captions of the sections of this Agreement
are for convenience and reference only, and the words contained in those
captions shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Agreement. The
language in all parts to this Agreement, in all cases, shall be construed in
accordance with the fair meaning of that language and as if that language was
prepared by all parties and not strictly for or against any party.
15. Further Assurances. Each party shall take any and all action necessary,
appropriate or advisable to execute and discharge such party's responsibilities
and obligations created by the provisions of this Agreement and to further
effectuate and carry out the intents and purposes of this Agreement and the
relationship contemplated by the provisions of this Agreement.
16. Number and Gender. Whenever the singular number is used in this
Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa; and the word "person" shall include corporation, firm,
trust, joint venture, trust, estate, municipality, governmental agency, sole
proprietorship, political subdivision, fraternal order, club, league, society,
organization, joint stock company, association partnership or other form of
entity.
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17. Execution in Counterparts. This Agreement shall be prepared in multiple
copies and forwarded to each of the parties for execution. All of the signatures
of the parties may be affixed to one copy or to separate copies of this
Agreement and when all such copies are received, and signed by all the parties,
those copies shall constitute one agreement which is not otherwise separable or
divisible. Counsel for Employer shall keep all of such signed copies and shall
conform one copy to show all of those signatures and the dates thereof and shall
mail a copy of such conformed copy to each of the parties within thirty (30)
days after the receipt by such counsel of the last signed copy, and shall cause
one such conformed copy to be filed in the principal office of such counsel.
18. Successors and Assigns. This Agreement shall inure to the benefit of
and obligate the undersigned parties and their respective successors and
assigns. Whenever, in this Agreement, a reference to any party is made, such
reference shall be deemed to include a reference to the successors and assigns
of such party. The provisions of this section notwithstanding, no provision of
this section shall be construed or interpreted as a consent to the assignment or
delegation by any party of such party's respective rights and obligations
created by the provisions of this Agreement.
19. Reservation of Rights. The failure of any party at any time hereafter
to require strict performance by the other party of any of the warranties,
representations, covenants, terms, conditions and provisions specified in this
Agreement shall not waive, affect or diminish any right of such party failing to
require strict performance to demand strict compliance and performance therewith
and with respect to any other provisions, warranties, terms and conditions
specified in this Agreement, and any waiver of any default shall not waive or
affect any other default, whether prior or subsequent thereto, and whether the
same or of a different type. None of the representations, warranties, covenants,
conditions, provisions and terms specified in this Agreement shall be deemed to
have been waived by any act or knowledge of either party or such party's agents,
officers or employees, and any such waiver shall be made only by an instrument
in writing, signed by the waiving party and directed to the non-waiving party
specifying such waiver. Each party reserves such party's rights to insist upon
strict compliance with the provisions of this Agreement at all times.
20. No Breach of Existing Agreements. Each party hereby represents,
warrants and covenants, upon the execution of this Agreement, such party is not
a party to any oral or written agreement which may be breached by such party's
execution of this Agreement.
21. Concurrent Remedies. No right or remedy specified in this Agreement
conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right or
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remedy which either party may have, either at law, in equity or pursuant to the
provisions of this Agreement.
22. Time. Time is of the essence of this Agreement and each and all of the
provisions of this Agreement.
23. Choice of Law and Consent to Jurisdiction. This Agreement shall be
deemed to have been entered into in the State of Nevada, and all questions
concerning the validity, interpretation or performance of any of the terms,
conditions and provisions of this Agreement or of any of the rights or
obligations of the parties, shall be governed by, and resolved in accordance
with, the laws of the State of Nevada. Any and all actions or proceedings, at
law or in equity, to enforce or interpret the provisions of this Agreement shall
be litigated in courts having situs within the State of Nevada, and each party
hereby consents to the jurisdiction of any local, state or federal court located
within the State of Nevada and consents that any service of process in such
action or proceeding may be made by personal service upon such party wherever
such party may be then located, or by certified or registered mail directed to
such party at such party's last known address.
24. Assignability. Neither party shall sell, assign, transfer, convey or
encumber this Agreement or any right or interest in this Agreement or pursuant
to this Agreement, or suffer or permit any such sale, assignment, transfer or
encumbrance to occur by operation of law without the prior written consent of
the other party. In the event of any sale, assignment, transfer or encumbrance
consented to by such other party, the transferee or such transferee's legal
representative shall agree with such other party in writing to assume
personally, perform and be obligated by the covenants, obligations, terms,
conditions and provisions specified in this Agreement.
25. Consent to Agreement. By executing this Agreement, each party, for
himself or itself, represents such party has read or caused to be read this
Agreement in all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement in duplicate
and in multiple counterparts, each of which shall have the force and effect of
an original, on the date specified in the preamble of this Agreement.
"Corporation" "Consultant"
Xxxx Medical Technologies, Inc.,
a Nevada corporation
By: /s/ Xx. Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxx
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Xx. Xxxxx Xxxxxxx Xxxxxxx Xxxx
Its: President
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