EXHIBIT 10.3
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of August 26, 2002 (this "Agreement") by and
between NetCare Health Group, Inc., a Delaware corporation having its principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual (the "Consultant").
W I T N E S S E T H
WHEREAS, the Company wishes to retain Consultant to provide the Company
with certain consulting services and consultant is willing to provide such
consulting services, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, the parties hereby agree
as follows:
Section 1. Retention of the Consultant. The Company hereby retains and
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engages the Consultant, and the Consultant hereby accepts such engagement, in
each case subject to the terms and conditions of this Agreement.
Section 2. Services.
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(a) On the terms and subject to the conditions herein contained,
the Company hereby engages Consultant as a consultant, and Consultant hereby
accepts such engagement.
(b) With regard to operations, strategic planning and business
development, the Consultant shall consult with the Company regarding:
(i) developing new sources of business;
(ii) identifying and analyzing possible strategic alliances with assisted
living community centers, nursing homes and others;
(iii) evaluation and analysis of the Company's marketing plans and new
products and services;
(iv) review of the business plans for the Company, including the review of
budgets and projections;
(v) a detailed evaluation of the Company's competition in new and existing
markets;
(vi) analysis of information on a periodic basis concerning the financial
performance of the Company and the markets in which it operates;
(vii) identification of suitable merger and acquisition candidates; and
(viii) such other aspects of the business of the Company as Consultant and
the Company may agree from time to time.
(c) In connection with any proposal made by the Consultant
pursuant to this Agreement, the Company and the Consultant acknowledge that the
Company shall not be obligated to accept such proposal or further obligate
itself hereunder. Any arrangement or agreement between the Company and a third
party shall be evidenced by an agreement duly authorized and executed by the
Company.
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Section 3. Compensation. The Company agrees to pay to the Consultant
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$212,500 as compensation for the services specified in Section 2 hereof. The
Company acknowledges that it does not currently have the financial ability to
pay for the Consultant's services in cash. Therefore, in lieu of such cash
payment and in consideration of the services to be rendered by the Consultant,
pursuant to this Agreement, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged by the Company, the
Company, concurrently with the execution hereof, shall issue to the Consultant
eight million five hundred thousand (8,500,000) shares (the "Shares") of the
Company's common stock, par value $0.001 per share (the "Common Stock"), which
includes payment by the Consultant to the Company of the par value of the
Shares. The Shares shall be issued in full upon acceptance of this agreement.
Such shares shall be registered with the SEC on a Form S-8 Registration
Statement within 90 days from the date of this Agreement.
Section 4. Confidentiality; Non-Competition. The Consultant
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acknowledges that in the course of her engagement, she will become familiar with
trade secrets and other confidential information (collectively, "Confidential
Information") concerning the Company. The Consultant agrees that she shall
retain the Confidential Information in strict confidence and not disclose to any
third party any or all of the Confidential Information without the express
written prior consent of the Company. Furthermore, the Consultant agrees that
during the Term (as defined below) and for a period of one year thereafter
neither she nor any affiliate or family member shall directly or indirectly, for
their account or on behalf of any other party, whether as an employer, employee,
consultant, manager, member, agent, broker, contractor, stockholder, director,
officer, investor, owner, lender, partner, joint venturer, franchisor,
franchisee, licensor, licensee, sales representative, distributor or otherwise,
or through any business entity or vehicle whatsoever: (i) conduct, advise or
render services to any business activity in competition with the Company or (ii)
solicit, hire or retain any employee or consultant of the Company or its
affiliates, or persuade or entice any employee or consultant of the Company to
leave the employ of the Company or its affiliates.
The Consultant agrees and acknowledges that, in the event of a threatened
breach or default, or a breach or default, by the Consultant of the terms and
conditions of this Section 4 of this Agreement, the Company would be irreparably
harmed and thus will not have an adequate remedy at law. In the event of any
such breach or default the Company shall be entitled to institute and prosecute
proceedings in any federal or state court of competent jurisdiction to enforce
the specific performance of the terms and conditions of this Section 4 and to
enjoin further violations of the provisions of this Agreement. Such remedies
shall however be cumulative and not exclusive and shall be in addition to any
other remedies to which the Company may have.
Section 5. Term. This Agreement shall be for a term of one year
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commencing on the date hereof (the "Term").
Section 6. Representations and Warranties of the Consultant.
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(a) The Consultant represents and warrants to the Company that she is
not acquiring the Shares with a view to, or for resale in connection with, any
distribution in violation of the Securities Act.
(b) The Consultant represents and warrants to the Company that:
(i) she is a natural person;
(ii) she shall provide bonafide services to the Company pursuant to this
Agreement; and
(iii) the services to be provided pursuant to this Agreement are not in
connection with the offer or sale of securities and do not directly or
indirectly promote or maintain a market for the Company's securities.
Section 7. Indemnification.
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The Company agrees to indemnify and hold harmless the Consultant and her
affiliates against any and all losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses and disbursements (and all
actions, suits, proceedings and investigations in respect thereof and any and
all legal or other costs, expenses and disbursements in giving testimony or
furnishing documents in response to a subpoena or otherwise), including, without
limitation, the costs, expenses, and disbursements, as and when incurred, of
investigating, preparing or defending any such action, proceeding or
investigation (whether or not in connection with litigation to which the
Consultant is a party), directly or indirectly, caused by, relating to, based
upon, arising out of or in connection with information provided by the Company
which contains a material misrepresentation or material omission in connection
with the provision of services by the Consultant under this Agreement; provided,
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however, such indemnity agreement shall not apply to any portion of any such
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loss, claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement to the extent it is found by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Consultant. The Company also agrees that the Consultant shall not have any
liability (whether direct or indirect in contract or tort or otherwise) to the
Company or to any person (including, without limitation, Company shareholders)
claiming through the Company for or in connection with the engagement of the
Consultant, except to the extent that any such liability results from the
Consultant's gross negligence or willful misconduct. This indemnification shall
survive the termination of this Agreement.
Each party entitled to indemnification under this Agreement (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
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Indemnifying Party of its obligations under this Section 7. Each Indemnified
Party shall furnish such information regarding itself or the claim in question
as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and any litigation
resulting therefrom.
Section 8. Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of New York without regard
to the conflict of law principles thereof.
Section 9. Entire Agreement; Amendments. This Agreement contains the
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entire agreement and understanding between the parties and supersedes and
preempts any prior understanding or agreements, whether written or oral. The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and the Consultant.
Section 10. Successors and Assigns; No Assignment. This Agreement
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shall be binding upon, inure to the benefit of, and shall be enforceable by the
Consultant and the Company and their respective successors and permitted
assigns. The Consultant acknowledges that the services to be rendered by her
under this Agreement are unique and personal. Accordingly, the Consultant shall
not assign any of her rights or delegate any of her duties or obligations under
this Agreement.
Section 11. Notices. All notices and other communications under this
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Agreement shall be in writing and shall be deemed effective and given upon
actual delivery if presented personally, one business day after the date sent if
sent by prepaid telegram, overnight courier service, telex or facsimile
transmission or five business days if sent by registered or certified mail,
return receipt requested, postage prepaid which shall be addressed to the
following addresses:
If to the Company: NetCare Health Group, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Consultant:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o Mintz & Fraade
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 12. Severability. If any provision of this Agreement or the
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application of any provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
Section 13. Section and Other Headings. The section headings contained
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in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 14. Counterparts. This Agreement may be executed in any number
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of counterparts and by facsimile, each of which when so executed and delivered
shall be deemed to be an original and all of which together shall be deemed to
be one and the same Agreement.
Section 15. Independent Contractor. The Consultant agrees and
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acknowledges that she is solely responsible to pay all of her own taxes with
respect to the issuance of the Shares to the Consultant hereunder. The
Consultant shall not be entitled to receive, and shall not receive, any other
benefits of employment from the Company, including, without limitation,
disability insurance, worker's compensation or any other benefits incidental to
any employer-employee relationship; it being the intention and agreement of the
parties hereto that the Consultant's relationship with the Company is that of an
independent contractor. Furthermore, this Agreement shall not be construed to
create between the Company and the Consultant the relationship of principal or
agent, joint venturers, co-partners or employer and employee, the existence of
which is hereby expressly denied by the Company and the Consultant. The
Consultant shall not be an agent of the Company for any purposes whatsoever and
the Consultant shall have any right or authority to bind the Company or create
any obligations, express or implied, on behalf of or in the name of the Company.
Section 16. No Conflicting Agreements. The Consultant represents that she
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is not a party to any other agreement or arrangement which would conflict with
or interfere with the performance of her duties or obligations under this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
NETCARE HEALTH GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
___________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Consultant