EXHIBIT 10.5
Consulting Agreement
Dated: August 29, 2002
Between: Tessa Complete Health Care, Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxx, Xxxxxxxx 00000 ("Tessa")
And: Xxxxxx X. Xxxxx
00000 X.X. Xxxxxx Xxxx
Xxxxxxx, Xxxxxx 00000 ("Xxxxx")
Recitals
(A) Consultant desires to provide certain consulting and advisory
services to Tessa;
(B) Tessa desires to retain Consultant to perform such services and
Consultant desires to accept such position, all in accordance with the
terms and conditions of this Agreement;
Now, therefore, in consideration of the mutual covenants referred to
herein, the parties agree as follows:
Agreement
1. Retention of Consultant. Tessa hereby retains Consultant to
perform and Consultant hereby agrees to perform, consulting and
advisory services for Tessa upon the terms and conditions of this
Agreement. The Consulting Agreement between Tessa and Xxxxx dated June
10, 2002, is hereby terminated.
2. Term. The term of this Agreement shall commence on the date of
this Agreement and shall continue for twelve (12) months, unless
earlier terminated as set forth herein.
3. Duties of Consultant. Consultant agrees to provide consulting and
advisory services ("Services"), more specifically described as business
planning and development. The Services shall be rendered over a period
of time and in such reasonable manner as may be mutually agreed upon
between Tessa and Consultant, consistent with Consultant's other
activities and businesses. The Services shall be rendered over a
period of time and in such reasonable manner as may be mutually agreed
upon between Tessa and Consultant consistent with Consultant's other
activities and businesses. The Services shall not be in connection with
the offer and sale of securities of Tessa in a capital raising
transaction, nor shall such services directly or indirectly promote or
maintain a market for any of Tessa's securities.
4. Compensation of Consultant. In consideration of the performance
of the Services, Consultant is hereby granted the right to purchase
from the Company shares of Common Stock ("Common Stock") at a price per
share of $0.30. The maximum amount of Common Stock that Consultant may
purchase under this Agreement shall be 15,000,000 shares. If this
Agreement is terminated by Consultant earlier than the expiration of
its term, Consultant shall be issued that number of shares of Common
Stock earned at the time of termination of this Agreement.
5. Restricted Securities. Consultant understands that the shares of
Common Stock to be issued pursuant to Section 4 herein are
characterized as "restricted securities" under the Securities Act of
1933. Consequently the transferability and resale of the Common Stock
will be limited. Consultant understands that any certificates
evidencing the shares of Common Stock to be issued hereunder will bear
a legend substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED
WITHOUT A VIEW TO DISTRIBUTION AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT AND UNDER ANY
APPLICABLE SECURITIES LAAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED AS TO SUCH SALE OR
OFFER.
6. S-8 Registration Statement. Tessa shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of its
Common Stock for delivery to Consultant pursuant to Section 4
hereunder. Within 30 days of the date of this Agreement, Tessa shall
file a registration statement on Form S-8 (or any successor forms) with
respect to the Common Stock and shall use its reasonable commercial
efforts to maintain the effectiveness of such registration statement or
registration statements for so long as any shares of Common Stock are
earned by Consultant hereunder.
7. Liability/Indemnification.
(a) Tessa agrees that Consultant shall not be liable for any
damages or injury to Tessa or any of its employees, agents or
representatives or for the loss of or damage to the property of Tessa,
in any manner based upon the performance of duties under this
Agreement, unless such injury, loss or damage is caused by the
intentional misconduct of Consultant.
(b) Tessa agrees to indemnify and hold Consultant harmless for
any claims, loss, damage or costs (including attorney fees) which are
asserted against or incurred by Consultant and which are a result of
the duties performed by Consultant for Tessa, unless caused by the
intentional misconduct of Consultant.
(c) Consultant agrees to indemnify and hold Tessa, its officers,
directors, employees, agents and representatives harmless for any
claims, loss, damage or costs (including attorney fees) which are
asserted against or incurred by Tessa and which are a result of the
duties performed by Consultant for Tessa, unless caused by the
intentional misconduct of Tessa.
8. Termination. This Agreement may be terminated only by Consultant.
Consultant may terminate this Agreement at any time without cause.
9. Notices. Any notices or communications required or permitted
hereunder shall be in writing and shall be deemed to have been given or
made when personally delivered, sent by registered or certified mail,
postage prepaid, return receipt requested, by private courier, prepaid,
by facsimile or other communications device capable of transmitting or
creating a written record.
10. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
11. Attorney Fees. In the event an action is brought to enforce,
rescind, or interpret this Agreement the prevailing party shall be
entitled to recover is reasonable attorney fees therein as may be
determined by the court.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Oregon.
13. Complete Agreement. This Agreement represents the entire
understanding and agreement of the parties hereto with respect to the
subject of this Agreement and may be amended, modified or supplemented
only by written instruments signed by both of the parties.
14. Counterparts. This Agreement may be executed in counterparts and
by facsimile, each of which will be deemed an original, but
constituting a singe agreement.
TESSA COMPLETE HEALTH CARE, INC. CONSULTANT
s/ Xxxxx Xxxxx /s/ DanielSmith
----------------------------------------- -------------------------
Xxxxx Xxxxx, President Xxxxxx Xxxxx
Title: President & Chief Executive Officer
