EXHIBIT 10.7 AGREEMENT WITH X. XXXXXX & COMPANY, INC.
AGREEMENT
This Agreement (the "Agreement") is made this 21st day of February , 2003
between X. Xxxxxx & Company, Inc. a California Corporation (herein referred to
as "the Consultant") and World Health Alternatives, Inc., a Florida Corporation
(the "Company").
WITNESSETH:
WHEREAS, the Consultant has extensive experience in publishing, public
relations, and direct marketing in various industries;
WHEREAS, the Company desires to retain the services of the Consultant to perform
services; and
NOW THEREFORE, IN EXCHANGE FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF
WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
1. Appointment
The Company hereby appoints and engages Consultant as its advisor and hereby
retains and employs Consultant on the terms and conditions of this Consulting
Agreement. Consultant accepts such appointment and agrees to perform the
services upon the terms and conditions of said Consulting Agreement.
2. Term and Commencement Period. The services of Consultant described in
paragraph 3 below shall commence within fifteen days after the Company provides
written notification to the Consultant that services are to commence (the
"Commencement Date"). Consultant shall provide services for a period of twelve
(12) months after the date commencement period begins.
3. Services. The Consultant agrees to perform, as requested by the Company, the
following services for the Company. These services include, but are not limited
to:
(a) Assist the Company in developing, creating and providing factual information
and in developing and implementing a strong market awareness for the Company and
its business operations;
(b) Prepare a comprehensive analytical report that highlights the Company's
industry, opportunities, trends and potential;
(c) Develop and create a public relations campaign for the Company's business;
(d) Aid, advise and assist the Company in establishing a means of securing local
and nationwide media interest and coverage of the Company;
(e) Aid, consult, prepare and deliver "due diligence" packages requested by and
furnished to registered broker/dealers and/or other institutional and/or fund
managers as requested by the Company;
4. Where Services Shall be Performed. Consultant's services shall be performed
at the main office location of the Consultant.
5. Limitations of Services. The Consultant's activities pursuant to this
Agreement or as contemplated by this Agreement do not constitute and shall not
constitute acting as a securities broker or dealer under Federal or State
securities laws. Further, the Consultant shall not receive any compensation of
any form for introducing or locating a potential investor or members of the
financial community to the Company. The Consultant recognizes that certain
responsibilities and obligations are imposed by Federal and State securities
laws and by the applicable rules and regulations of stock exchanges, the
National Association of Securities Dealers, in-house "due diligence" or
"compliance" departments of brokerage houses, etc. Accordingly, the Consultant
agrees as follows:
a. The Consultant shall not release any financial or other information or data
about the Company or the services to be provided hereunder without the written
consent and approval of the Company.
b. The Consultant shall not conduct any meetings with financial analysts without
informing the Company in advance of any proposed meeting, the format or agenda
of such meeting and the Company may elect to attend such meeting.
c. The Consultant shall not release any information or data about the Company to
any selected or limited person(s), entity, or group if the Consultant is aware
that such information or data has not been generally released or promulgated.
d. The Consultant shall comply with Section 17(b) of the Securities Act of 1933
regarding any publication, notice, circular, advertisement, newspaper, article,
letter, investment service, or communication describing the Company or its
securities which is disseminated, released, circulated, or published by the
Consultant by use of any means or instruments of transportation or communication
in interstate commerce or by the use of the mails by the Consultant. The
Consultant shall comply with Section 17(b) of the Securities Act of 1933 by
disclosing in any such publication: (a) the type consideration, including cash,
common stock, preferred stock, or any other form of security the Consultant has
received or will receive; (b) the amount of the consideration; and (c) whether
such consideration has been received or will be received. Further, the
Consultant will disclose (a) - (b) whether or not such consideration was
received or will be received directly or indirectly from the Company, an
underwriter or dealer.
6. Non-exclusive Relationship and Time Commitment. The Consultant shall use its
best efforts in the performance of its services described herein. Nothing in
this Agreement shall be construed as limiting the Consultant's right to
represent any other person or entity other than the Company.
7. Fees. The Company shall pay to the Consultant for Consultant's services a
total fee of 1,750,000 shares of the Company's common stock ("the shares"). The
shares shall be delivered to Consultant upon execution of this Agreement.
The shares upon issuance shall bear the following restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED WITHOUT EITHER: i)
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS, OR ii) SUBMISSION TO THE CORPORATION OF AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION THAT SAID SHARES AND THE TRANSFER THEREOF ARE
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS."
8. Costs. All fees shall be inclusive of costs and the services of the
Consultant shall include all costs of providing services hereunder.
9. Indemnity. In connection with the Consultant's engagement hereunder, the
Consultant agrees that it will indemnify, hold harmless and defend the Company
and its affiliates, any director, officer, agent or employee of the Company or
any of its affiliates and each other person, if any, controlling the Company or
any of its affiliates and each of their successors and assigns (collectively,
the "Company Group") against and in respect of any and all losses, damages,
claims, obligations, demands, actions, suits, proceedings, assessments,
liabilities, judgments, recoveries and deficiencies, costs and expenses
(including, without limitation, reasonable attorneys' fees and costs and
expenses incurred in investigating, preparing, defending against or prosecuting
any litigation, claim, proceeding or demand), all on an after-tax basis, less
any amounts actually paid as insurance reimbursement, of any kind or character
(collectively, a "Company Loss"), (i) related to, arising out of or result from
(A) oral or written information provided by or disseminated by the Consultant,
the Consultant's employees or its other agents, for use by the Consultant
without the Company's consent; (B) other action or failure to act by the
Consultant, its employees or its other agents of the Consultant; or (C) any
breach of, or failure by the Consultant to fully perform, or any inaccuracy in,
any of the representations, warranties, covenants or agreements of the
Consultant in this Agreement. The Indemnity obligations under this Agreement
shall survive the termination of this Agreement for a period of one (1) years.
10. Acknowledgments and Representations.
(a) The Company recognizes and confirms that in performing its duties pursuant
to this Agreement, the Consultant will be using and relying upon data, material
and other information furnished by the Company, its employees and
representatives (the "Information"). The Company hereby agrees and represents
that all Information furnished to the Consultant in connection with this
Agreement shall be materially accurate and complete at the time furnished, and
that if the Company is aware that such information, in whole or part, becomes
materially inaccurate, misleading or incomplete during the term of the
Consultant's engagement hereunder, the Company shall so advise the Consultant
and the Consultant shall correct any such inaccuracy or omission. To the extent
consistent with legal requirements, all Information, unless publicly available
or otherwise available to the Consultant without restriction or breach of any
confidentiality agreement, will be held by the Consultant in confidence and will
not be disclosed to anyone other than the Consultant's agents and advisors
without the Company's prior written approval or used for any purpose other than
those referred to in this Agreement.
11. Termination of Agreement
This Consulting Agreement may be terminated as follows:
a. Upon the bankruptcy or liquidation of the other party; whether voluntary or
involuntary;
b. Upon the other party taking the benefit of any insolvency law;
c. Upon the breach by either party of the terms of this agreement; and
d. Upon the other party having or applying for a receiver appointed for either
party.
12. Attorneys Fees
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default including all costs, reasonable
attorney fees, expenses and court costs through trial, appeal and to final
disposition.
13. Non-waiver
The failure of either party, at any time, to require any such performance by any
other party shall not be construed as a waiver of such right to require such
performance, and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require full performance hereunder.
14. Ownership of Materials
All right, titles and interest in and to materials to be produced by the
Consultant in connection with this Consulting Agreement and other services to be
rendered under said Consulting Agreement shall be and remain the sole and
exclusive property of the Company.
15. Notices. All notices, requests, consents and other communications under this
Agreement shall be in writing and shall be delivered by hand or fax or mailed by
overnight courier or first class certified or registered mail, return receipt
requested, postage prepaid and properly addressed as follows:
If to the Consultant:
Attn: Xxxx Xxxxxx
X. Xxxxxx & Company
000 Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
If to the Company:
World Health Alternatives, Inc.
000 Xxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Any party may change its address for purposes of this provision by giving the
other party written notice of the new address in the manner set forth above.
Notice will be conclusively deemed to have been given when personally delivered,
or if given by mail, on the second day after being sent by overnight courier or
on the third day after being sent by first class, registered or certified mail,
or if given by fax, when confirmation of transmission is indicated by the
sender's fax machine.
15. Independent Contractor. The Consultant shall provide said services as an
independent contractor, and not as an employee or of any company affiliated with
the Company.
16. Arbitration. All controversies, disputes or claims arising out of or
relating to this Agreement shall be resolved by binding arbitration. The
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. All arbitrators shall possess
such experience in, and knowledge of, the subject area of the controversy or
claim so as to qualify as an "expert" with respect to such subject matter. The
governing law for the purposes of any arbitration arising hereunder shall be in
Pennsylvania. The prevailing party shall be entitled to receive its reasonable
attorney's fees and all costs relating to the arbitration. Any award rendered by
arbitration shall be final and binding on the parties, and judgment thereon may
be entered in any court of competent jurisdiction.
17. Successors. This Agreement and all rights and obligations thereunder shall
be binding upon and inure to the benefit of each party's successors, but may not
be assigned without the prior written consent of the other party, which shall
not be unreasonably withheld or delayed.
18. Severability. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed severable.
19. Authorization. The Company represents and warrants that it has all requisite
power and authority, and has received all necessary authorizations, to enter
into and carry out the terms and provisions of this Agreement.
20. Entire Agreement.
This agreement constitutes the entire agreement between the parties and replaces
any prior agreements written or oral. This agreement may only be modified in
writing.
Agreed and accepted as of the date above.
World Health Alternatives, Inc.
By: _________________________
Xxxxxxx XxXxxxxx, Chief Executive Officer
X. Xxxxxx and Company, Inc.
By: ________________________
Xxxx Xxxxxx, Chief Executive Officer
