Exhibit 10.1
CONSULTING AGREEMENT
THIS AGREEMENT (The "Agreement"), is made and
entered into as of this 21st day of October 2002, by and
between Xxxxxxxxxxxxxx.xxx Inc with offices at 000 Xxx
Xxxxxx, Xxx Xxxx 00000 ("the "Consultant"), and CareDecision
Corporation, with offices at 0 Xxxx Xxxxx 00xx Xxxxx, Xxxxx
0000-00 Xxx Xxxx, XX (the "Company") (together the
"Parties"). CareDecision Corporation trades on the OTCBB
under the symbol CDED.
WHEREAS, the parties desire to set forth the terms
and conditions under which Consultant shall provide
Consulting services to the Company;
NOW, THEREFORE, in consideration of the mutual
promises and covenants herein contained, and other valid
consideration, receipt of which is hereby acknowledged, the
parties agree as follows;
Term of Agreement
The agreement shall remain in effect from the date
hereof through the expiration of a period of 120 days from
the date hereof (the "Term"), and thereafter may be renewed
upon the mutual consent of the parties.
Nature of Services to be Rendered.
During the term and any renewal thereof, Consultant
shall provide the Company with corporate consulting services
in connection with mergers and acquisitions, corporate
finance, corporate finance relations, introductions to other
financial relations companies and other financial services
(collectively, the "Services"). Dailyfinancial shall also
use its best efforts to locate and identify to the Company
private and/or public companies for potential merger with or
acquisition by the Company.
Disclosure of Information
Consultant agrees as follows:
The Consultant shall NOT disclose to any third party
any material non-public information or data
received from the Company without the consent and
approval of the Company other than: (i) to its
agents or representatives that have a need to know
in connection with the services hereunder; (ii) as
may be required by applicable law; and (iii) such
information as becomes publicly known through no
action of the Consultant.
Following receipt of written notice from the Company
of a filing in connection with a proposed public
offering of the securities of the Company, and
until the Company informs the Consultant that such
offering has been completed or has terminated, the
Consultant shall not engage in any public
relations efforts on behalf of the Company without
approval of counsel for the Company and counsel
for the underwriter(s) if any.
Compensation.
The following represents the compensation to be received
by the Consultant in connection with rendering the Services
hereunder:
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Upon the execution of this agreement, the Company shall
deliver immediately to the Consultant 2,000,000 shares
of the Company's restricted common stock and 500,000
warrants, each warrant allowing Consultant to purchase
one share of Company's common stock at $.045. The
shares so issued shall be "restricted" and cannot be
resold without registration or compliance with the
terms of Rule 144 promulgated by the Securities and
Exchange Commission pursuant to the Securities Act of
1933. At the time of the execution of this agreement,
pursuant to the terms of Rule 144, Consultant would
have to hold any such restricted shares he acquired for
a period of twelve (12) months. Consultant is granted
piggyback registration rights, said rights compelling
Company to register Consultant's shares and warrants in
the next registration statement filed by Company, from
the date of execution of this agreement. CareDecision
Corporation shall be responsible for all costs, filing
fees, legal fees, and expenses associated with
registering the restricted shares in order to insure
compliance with any and all securities regulations,
rules, laws and acts.
In connection with the location and identification
of potential candidates for corporate mergers
and/or acquisitions (the "M&A Service"), the
Consultant shall be entitled to receive
compensation in an amount equal to:
(i) ten percent (10%) of the value of the
total price paid (up to $300,000.00)
by the Company for any completed
merger or acquisition with any entity
located and/or identified by the
Consultant (the "Transaction"); or
seven and one-half percent (7.5%) of the
value of the total price paid
(between $300,001.00 and $750,000.00)
by the Company for any complete
transaction; or
five percent (5%) of the value of the
total price paid (greater than
$750,000.00) by the Company for any
complete transaction.
Fifty percent (50%) of the Consultant's fees for the M&A
Service shall be paid in cash and the remaining fifty
percent (50%) of the Consultant's fee for M&A Service shall
be paid in shares of the Company's Restricted stock (the
"M&A Restricted Stock"), with "piggyback" registration
rights as described in paragraph #9 of this agreement. In
the event no cash is paid in the transaction, then the
entire M&A service fee shall be payable in shares of the
Company's restricted stock; should the transaction involve
all cash, then the entire M&A service fee shall be payable
to the Consultant in cash. For the purposes hereof, the term
"price" shall include any and all consideration received or
given in connection with the transaction, including without
limitation any debt assumed by either party thereto.
Representations and Warranties of the Consultant.
In order to induce the Company to enter into this
Agreement, the Consultant hereby makes the following
unconditional representations and warranties:
In connection with its execution of and performance
under this Agreement, the Consultant has not
taken and will not take any action that will
cause it to become required to make any filings
with or to register in any capacity with the
Securities and Exchange Commission (the "SEC"),
the National Association of Securities Dealers,
Inc. (the "NASD"), the securities commissioner
or department of any state, or any other
regulatory or
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governmental body or agency.
Neither the Consultant nor any of its principals is
subject to any sanction or restriction imposed
by the SEC, the NASD, any state securities
commission or department, or any other
regulatory or governmental body or agency,
which would prohibit, limit or curtail the
Consultant's execution of this Agreement or the
performance of its obligation hereunder.
The Consultant's purchase of shares pursuant to the
option agreements enumerated herein are deemed
to be investments made for its own account.
The Consultant is permitted to provide consulting
services to any corporation or entity engaged
in a business identical or similar to the
Company's.
6. Duties of the Company.
The Company shall supply Consultant, on a regular
and timely basis with all approved data and
information about the Company, its management,
its products, and its operations and Company
shall be responsible for advising Consultant of
any facts, which would affect the accuracy of
any prior data and information previously
supplied to Consultant so that the Consultant
may take corrective action.
The Company shall promptly supply Consultant; with
full and complete copies of all filings with
all federal and state securities agencies; with
full and complete copies of all shareholder
reports and communications whether or not
prepared with the assistance of Consultant;
with all data and information supplied to any
analyst, broker-dealer, market maker, or other
member of the financial community and with all
product/services brochures, sales materials,
etc. Company shall supply to Consultant, within
15 days of execution of this Agreement, with a
list of all stockbrokers and market makers
active in the stock of Company, and a complete
list of all shareholders.
The Company's counsel must, within five (5)
business days of receiving written notice from
the Consultant, provide an opinion letter to
the Consultant and the Transfer Agent for the
Company's Restricted Stock and the M&A
Restricted Stock addressing the permissible
resale of the Restricted Stock and the M&A
Restricted Stock (pursuant to Rule 144 of the
Securities Act of 1933, as amended (the "1933
Act")) transferred to the Consultant under this
Agreement.
(i)Company will notify Consultant in writing a
minimum of thirty (30) days prior to making
any private or public offering of
securities, including but not limited to an
offering registered on form S-8 or made
pursuant to Regulation S or Regulation D.
Company will notify Consultant within 5 business
days regarding any "insider" selling of
Company's stock.
Company will not utilize any of Consultant's
reports in connection with
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any offering (public or private) of securities
without the prior written consent of
Consultant.
The Company acknowledges that the Consultant relies
on information provided by the Company in
connection with the provision of Services
hereunder and represents that said information
is neither false or misleading, and agrees to
hold harmless and indemnify the Consultant for
any breach of such representations and for any
claims relating to the purchase and/or sale of
the Company's securities occurring out of or in
connection with the Consultant's relationship
with the Company including, without limitation,
reasonable attorney's fees and other costs
arising out of any such claims.
7. Representations and Warranties of the Company.
In order to induce the Consultant to enter
into this Agreement, the Company hereby
makes the following unconditional
representations and warranties:
The Company is not subject to any restriction
imposed by the SEC
or by operation of the 1933 Act, the Exchange
Act of 1934, as amended (the "1934 Act") or
any of the rules and regulations promulgated
under the 1933 Act or the 1934 Act which
prohibit its execution of this Agreement or
the performance of its obligations to the
Consultant set forth herein.
The Company has not been sanctioned by the
SEC, the NASD or
any state securities commissioner or
department in connection with any
issuance of its securities.
(c)All payments required to be made on time
and in accordance with the payment terms
and conditions set forth herein.
(d) The Company acknowledges that the Consultant does not
guarantee
its ability to cause the consummation of
any contract or merger or acquisition with
any corporate candidate.
8. Issuance of Shares to Consultant
Upon receipt of the Consultant's check in
payment of full purchase price for the option
shares together with the Investment Letter,
the Company will cause to be issued to the
Consultant a validly endorsed stock
certificate bearing the facsimile signatures
of its President and Secretary containing a
legend indicating that the resale of these
securities is conditioned upon their
registration or the Consultant's compliance
with the terms of Rule 144.
Such Shares shall be issued as fully-paid and
non-assessable securities. The Company shall
take all corporate action necessary for the
Share issuance to be legally valid and
irrevocable, including obtaining the prior
unanimous written consent of its Board of
Directors.
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9. Registration Obligations.
At any time following the signing of the
Agreement if the Company files a registration
statement with the SEC registering an amount
of securities equal to at least $1,000,000
(the "Registration Statement"), the Company
must provide ten (10) day prior written
notice of the Registration Statement to the
Consultant and any subsequent holder of the
Restricted Stock and the M&A Restricted Stock
at the written request and direction of the
Consultant and/or subsequent holders in the
Registration Statement.
10. Waiver of Registration Obligations.
In the event an NASD- registered broker-
dealer executes a letter of intent to conduct
a firm commitment underwriting of the
Company's securities, with anticipated gross
proceeds of at least one million
($1,000,000.00) dollars, and requiring all of
the Company's shareholders to waive
registration rights, the Consultant will
provide a written waiver of its registration
rights herein provided.
11. Expense Reimbursement.
Consultant shall be entitled to receive cash
reimbursement, and the Company shall provide
cash reimbursement, of all cash expenses paid
by the Consultant on behalf of the Company in
performance of its own duties hereunder. Such
expenses shall include, without limitation,
expenses for communications, deliveries and
travel. In no event, however, will the
Consultant incur on behalf of the Company an
expense in excess of five hundred ($500.00)
dollars without the prior written consent of
the Company.
12. Indemnification of Consultant by the Company.
The Company shall indemnify and hold harmless
the Consultant and its principals from and
against any and all liabilities and damages
in connection with the Company's ownership
and operation and, without limiting the
foregoing, shall pay the Consultant's legal
fees and expenses if the Company is named as
a defendant in any proceedings brought in
connection with the Company or its activities
unless such liabilities and damages are the
direct result of Consultant's misfeasance or
malfeasance of his responsibilities.
13. Indemnification of the Company by the Consultant.
The Consultant shall indemnify and hold
harmless the Company and its principals from
and against any and all liabilities and
damages arising out of the consultant's
actions and/or any intentional breach of its
representations, warranties, and agreements
made hereunder.
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14. Arbitration.
Any and all conflicts, disputes and disagreements arising
out of or in connection with any aspect of the Agreement
shall be subject to arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association that are then in effect. Written Notice of
Dispute shall be served by either Party upon the other Party
at its address set forth herein or such other address as it
shall have provided in writing for that purpose. The dispute
shall be submitted to the American Arbitration Association.
The parties designate the Supreme Court in Nevada, as the
court in which any arbitration award shall be subject to
confirmation, and will abide by such confirmation.
15. Attorney Fees.
In any legal action or arbitration that is
commenced by a Party to the agreement
alleging a default in the terms and/or
conditions of the Agreement, the prevailing
party as determined by the arbitrators/court,
shall be entitled to recover all costs
incurred as a result of prosecuting/defending
such action including reasonable attorney
fees, expenses and court costs through trial,
appeal and to final disposition.
16. Entire Understanding/Incorporation of other Documents.
The Agreement contains the entire
understanding of the parties with regard to
the subject matter hereof, superseding any
and all prior agreements or understandings
whether oral or written, and no further or
additional agreements, promises,
representations or covenants may be inferred
or construed to exist between the parties.
17. No Assignment or Delegation Without Prior Approval.
No portion of the Agreement or any of its
provisions may be assigned, nor obligations
delegated, to any other person or party
without the prior written consent of the
Parties except by operation of law or as
otherwise set forth herein.
18. Survival of Agreement.
The Agreement and all of its terms shall
inure to the benefit of any permitted
assignees of or lawful successors to either
Party.
19. No Amendment Except In Writing.
Neither the Agreement nor any of its
provisions may be altered or amended except
in a dated writing signed by the Parties.
20. Waiver of Breach.
No waiver of any breach of any provision
thereof shall be deemed to constitute a
continuing waiver or a waiver of any other
portion of the
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Agreement.
Severability of the Agreement.
Except as otherwise provided herein, if any
provision hereof is deemed by arbitration or a
court of competent jurisdiction to be legally
unenforceable or void, such provision shall be
stricken from the Agreement and the remainder
hereof shall remain in full force and effect.
Termination of the Agreement.
Either party may terminate the Agreement with
penalty by providing a thirty (30) day written
notification to the other party. The Agreement
will terminate thirty (30) days following the
date of receipt of the written notification by
the non-terminating party ("Date of
Termination"). In the event of termination of
the Agreement by either Party, the Consu1tant
shall pro-rate the compensation due under his
or her contract and return any compensation
advanced that is attributed to the cancelled
portion of the contract. This will include any
Company stock or other compensation it received
from the Company under the Agreement prior to
the Date of Termination. In the event of
termination of the Agreement of either party,
the Consultant shall retain its right to
purchase stock from the Company under this
agreement and the Company must deliver to the
Consu1tant, the Shares pursuant to the terms of
this Agreement.
Governing Law.
The Agreement and its provisions shall be construed in
accordance with and pursuant to, and governed by, the laws
of the State of Nevada, as applicable to agreements to be
performed solely within the State Nevada, without regard to
its conflict-of-laws provisions then in effect.
No Construction Against Drafter.
The Agreement shall be construed without regard
to any presumption or other requiring
construction against the Party causing the
drafting hereof.
IN WITNESS WHEREOF, the parties have executed
the Agreement
as of the date first above written.
CareDecision Corp. Xxxxxxxxxxxxxx.xxx
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxx, CEO Xxxxxx Xxxx, CEO
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