AGREEMENT
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THIS AGREEMENT ("AGREEMENT") is made and entered into effective as of the
31st day of March, 2003 by and between X. XXXXXXX & COMPANY, INC., a Florida
corporation, D/B/A X. XXXXXXX & COMPANY, INC., (hereinafter referred to as "X.
XXXXXXX & COMPANY" or the "COMPANY") and HEALTH EXPRESS USA, INC., a Florida
Corporation, (hereinafter referred to as "HEALTH EXPRESS").
BACKGROUND
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WHEREAS, X. Xxxxxxx & Company will begin to provide services only upon
the effectiveness (the "Effective Date") of the Company's Form SB-2 Registration
Statement (the "REGISTRATION Statement").
WHEREAS, X. Xxxxxxx & Company provides public relations services as
well as Internet informational service through its XxxxXxxxxXX.xxx web site, and
also provides other Internet related services through which publicly traded
companies can disseminate information to the public; and
WHEREAS, HEALTH EXPRESS wishes to utilize the services provided by the
X. Xxxxxxx & Company in the manner described in this Agreement;
NOW, THEREFORE, in consideration of the agreements hereinafter
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. X. XXXXXXX & COMPANY SERVICES. X. Xxxxxxx & Company hereby agrees to
use its best efforts at all times and provide the following services to HEALTH
EXPRESS for a period of twelve (12) months commencing on the Effective Date: a)
Assistance in disseminating information and creating market awareness, about
HEALTH EXPRESS to the financial media, financial publications, broker dealers,
investment advisors and other members of the financial community; b)
Distribution of corporate press releases and other informational items about the
company in the X. Xxxxxxx & Company web site (xxx.xxxxxxxxxx.xxx or
xxx.xxxxxxxxxxx.xxx), including within that web sites corporate and news
sections; and c) Inclusion in the X. Xxxxxxx & Company stock news database; d)
Become the investor relations contact as needed by the Company.
2. PAYMENT. Subject to Section 4 hereof, HEALTH EXPRESS agrees to pay
to X. Xxxxxxx & Company one hundred two thousand (102,000) shares of the
Company's common stock. These shares shall be issued upon execution of this
Agreement and held in escrow by Xxxxxxxxxxx & Xxxxxxxx LLP, who shall delivered
the shares to X. Xxxxxxx & Company in twelve monthly installments of eight
thousand five hundred (8,500) shares per month beginning 5 days after the
Effective Date. Such shares shall be included for registration in the
Registration Statement.
Subject to Section 4 hereof, X. Xxxxxxx & Company will also be
paid one hundred twenty thousand (120,000) restricted shares of the Company's
common stock. The shares will be paid in equal installments of thirty thousand
(30,000) shares on every third (3rd) month after the Effective Date of the
Registration Statement, and shall not be registered in the Registration
Statement.
3. OBLIGATIONS OF HEALTH EXPRESS. All information to be disseminated in
any way by X. Xxxxxxx & Company on HEALTH EXPRESS's behalf or included in the X.
Xxxxxxx & Company web site shall be provided to X. Xxxxxxx & Company by HEALTH
EXPRESS. HEALTH EXPRESS hereby acknowledges that it shall be solely and
exclusively responsible for the content of all information to be disseminated,
and that all information provided to X. Xxxxxxx & Company shall be true,
accurate and complete. HEALTH EXPRESS further recognizes and acknowledges that
the information to be disseminated by X. Xxxxxxx & Company on its behalf is
primarily intended for circulation to the investment community, and that all
information provided to X. Xxxxxxx & Company for distribution shall contain no
material misrepresentation of fact, or material omissions of fact, and shall
comply in all manner with all applicable federal or state securities laws.
4. DURATION AND TERMINATION. This Agreement shall be effective upon its
execution by X. Xxxxxxx & Company and HEALTH EXPRESS and shall continue for a
period of twelve (12) months commencing on the Effective Date.
X. X. Xxxxxxx & Company shall have the right, at its option,
to terminate this Agreement, effective immediately upon the occurrence of any of
the following:
i. The failure of HEALTH EXPRESS to deliver the
required shares and pay its regular monthly
payments as required by paragraph 2 of this
Agreement when due, and if such arrears
remain due for a period of thirty (30) days
or more; or
ii. The failure of HEALTH EXPRESS to provide
true and accurate information as required by
paragraph 3 of this Agreement; or
iii. The breach by HEALTH EXPRESS of any of the
terms and conditions hereof after written
notice and thirty (30) days opportunity to
cure; or
iv. Six (6) months after the execution of this
Agreement, X. Xxxxxxx & Company may choose
to terminate the balance of the term at X.
Xxxxxxx & Company's discretion. A thirty
(30) day notice must be given to Health
Express if X. Xxxxxxx & Company plans to
terminate the balance of the term. All
compensation paid through the first six (6)
months of this Agreement shall be retained
by X. Xxxxxxx & Company, but no further
compensation will be due and Xxxxxxxxxxx &
Xxxxxxxx LLP shall return any undelivered
shares to HEALTH EXPRESS.
B. HEALTH EXPRESS shall have the right, at its option, to terminate
this Agreement, effective immediately upon the failure of X. Xxxxxxx & Company
to provide the services provided for in paragraph 1 of this Agreement, provided
that HEALTH EXPRESS has given X. Xxxxxxx & Company notice in writing of the
services it claims are not being provided, and affords X. Xxxxxxx & Company a
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period of thirty (30) days in which to cure any alleged failure. After a
termination, Xxxxxxxxxxx & Xxxxxxxx LLP shall return any undelivered shares to
HEALTH EXPRESS;
C. Six (6) months after the execution of this Agreement, Health Express
may choose to terminate the balance of the term at Health Express' discretion.
A thirty (30) day notice must be given to X. Xxxxxxx & Company if Health
Express plans to terminate the balance of the term. All compensation paid
through the first six (6) months of this Agreement shall be retained by X.
Xxxxxxx & Company, but no further compensation will be due and Xxxxxxxxxxx &
Xxxxxxxx LLP shall return any undelivered shares to HEALTH EXPRESS.
D. If the Registration Statement is not declared effective by the
Securities and Exchange Commission, or HEALTH EXPRESS withdraws the
Registration Statement, this Agreement shall automatically be terminated
without any further action.
5. CONSEQUENCES OF TERMINATION. Should this Agreement be terminated by
either X. Xxxxxxx & Company or HEALTH EXPRESS pursuant to the terms of paragraph
4, X. Xxxxxxx & Company shall be entitled to retain the full amount of shares
provided for in paragraph 2 of this Agreement and all monthly fees then due and
owing through the date of termination. Except as to the retention of the shares
of HEALTH EXPRESS common stock and all accrued monthly fees, this Agreement
shall be of no further force and effect, without any liability or further
obligations on the part of any of the parties hereto and no additional monthly
payments shall be due from HEALTH EXPRESS to X. Xxxxxxx & Company and
Xxxxxxxxxxx & Xxxxxxxx LLP shall return any undelivered shares to HEALTH
EXPRESS.
6. REPRESENTATIONS AND WARRANTIES OF HEALTH EXPRESS. HEALTH EXPRESS
hereby represents and warrants that:
A. It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and has the full corporate
power and authority and legal right to enter into this Agreement, to issue the
stock provided for under this Agreement and to perform the transactions
contemplated hereby.
B. This Agreement has been duly authorized by it and duly
executed and delivered by it and constitutes, and each document or instrument
executed by it pursuant to the terms hereof constitutes, a valid and binding
obligation of it enforceable in accordance with its terms.
7. REPRESENTATIONS AND WARRANTIES OF X. XXXXXXX & COMPANY. X. Xxxxxxx &
Company hereby represents and warrants that:
A. It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and has the full corporate
power and authority and legal right to enter into this Agreement, to issue the
stock provided for under this Agreement and to perform the transactions
contemplated hereby.
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B. This Agreement has been duly authorized by it and duly
executed and delivered by it and constitutes, and each document or instrument
executed by it pursuant to the terms hereof constitutes, a valid and binding
obligation of it enforceable in accordance with its terms.
8. INDEMNITY.
A. HEALTH EXPRESS shall defend, indemnify and hold harmless X.
Xxxxxxx & Company and any and all of its past, present and future officers,
employees, stockholders, parent corporations, subsidiaries, directors and agents
from and against any and all loss, liability, charge, claim, cost, demand
damage, expense and obligation, including counsel and attorney's fees, which may
arise by reason of, or as a consequence of the breach of any of the terms,
covenants, conditions, representations or warranties contained in this
Agreement, including the failure by HEALTH EXPRESS to provide full, complete and
accurate information as required by paragraph 3 of this Agreement.
X. X. Xxxxxxx & Company, Inc. shall defend, indemnify and hold
harmless HEALTH EXPRESS and any and all of its past, present and future offices,
employees, stockholders, parent corporations, subsidiaries, directors and agents
from and against any and all loss, liability, charge, claim cost, demand damage,
expense and obligation, including reasonable counsel and attorney's fees, which
may arise by reason of, or as a consequence of the breach of any of the terms,
covenants, conditions, representations or warranties contained in this
Agreement.
9. RELATIONSHIP OF THE PARTIES. It is understood and agreed by the
parties hereto that this Agreement does not create a fiduciary relationship
between them and that X. Xxxxxxx & Company's relationship to HEALTH EXPRESS
shall be as an independent contractor. Nothing in this Agreement is intended to
make either party a general or special agent, legal representative, subsidiary,
joint venturer, partner, employee or servant of the other for any purpose or to
confer upon either party the right of a third party beneficiary. X. Xxxxxxx &
Company shall conspicuously identify itself on its web site, and in all dealings
with employees, customers, clients, public officials and others as an
independent contractor acting as a distributor of information provided to it by
HEALTH EXPRESS, and shall state that X. Xxxxxxx & Company makes no
representation or warranty as to the accuracy or completeness of the
information.
10. GOVERNING LAW AND EXCLUSIVE JURISDICTION. This Agreement shall be
governed by, and construed in accordance with the laws of the State of Florida
applicable to agreements made and to be performed entirely within that State,
excluding the choice of law rules thereof. The parties agree that the United
States District Court for the Middle District of Florida, or any Florida State
court of competent jurisdiction, shall have sole and exclusive jurisdiction to
adjudicate any dispute that may arise out of or in connection with this
Agreement, and the parties hereto agree to submit to the exclusive jurisdiction
of said courts and to comply with all requirements necessary to give said courts
jurisdiction.
11. NOTICES.
A. All notices, requests, demands and other communications
under this Agreement or in connection therewith shall be given and to be made
upon the respective parties hereto at the following addresses:
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To: X. Xxxxxxx & Company
Attention: Xx. Xxxxx X. Xxxxxxx
000 Xxxxx Xxxx Xxx. 000
Xxxxxxx Xxxxx, XX 00000
To: Health Express USA, Inc.
Attention: Xx. Xxxxxxx Xxxxx
0000 X. Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx Xxxxx, XX 00000
B. All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall be in
writing, shall be forwarded by registered or certified mail, return receipt
requested, and, unless otherwise expressly provided herein to the contrary,
shall be deemed to have been given when deposited postage prepaid, addressed as
specified in the preceding paragraph.
12. CONSTRUCTION.
A. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their legal representatives, successors and
permitted assigns.
B. For purposes of this Agreement, words of the masculine
gender shall, where applicable, mean and include the correlative words of the
feminine or neuter genders, and words importing the plural number shall, where
applicable, mean and include the singular number and vice versa.
13. NO WAIVER. The failure by either of the parties hereto to object to
or take affirmative action with respect to any conduct of any of the other
parties hereto which constitutes a breach or other violation of this Agreement
shall not constitute, nor be construed as, a waiver thereof, or of any future
breach, violation or subsequent wrongful conduct.
14. CAPTIONS. All paragraph headings used herein are for convenience of
reference purposes only and shall be given no significance in the interpretation
of the provisions, terms and conditions hereof.
15. MULTIPLE COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original hereof, but
all of which shall constitute one and the same instrument.
16. FURTHER ASSURANCES. The parties shall each perform such acts,
execute and deliver such instruments and documents, and do all such other things
as may be reasonably necessary to accomplish the transactions contemplated in
this Agreement.
17. ENTIRE AGREEMENT AND MODIFICATIONS. This Agreement sets forth the
entire understanding and supersedes all prior and contemporaneous agreements
between the parties relating to the subject matter of this Agreement and merges
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all prior and contemporaneous discussions between them, and neither party shall
be bound by any definition, condition, representation, warranty, covenant or
provision other than as expressly stated in or contemplated by this Agreement.
No amendment or modification of this Agreement shall be valid or binding upon
the parties unless made in writing, signed on behalf of each of the parties by
their respective proper officers thereunto duly authorized.
IN WITNESS WHEREOF, the respective duly authorized representatives of
the parties have caused this Agreement to be executed as of the date first above
written.
X. XXXXXXX & COMPANY, INC.
By:________________________________________
Xxxxx X. Xxxxxxx, President
HEALTH EXPRESS USA, INC.
By:________________________________________
Xxxxxxx Xxxxx, Chief Executive Officer
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