EXHIBIT 10.33
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 24th day
of June, 2005, by and between National Health Partners, an Indiana corporation
(the "Company"), and El CID IV ("Consultant").
WITNESSETH:
WHEREAS, Consultant desires to provide consulting services to the
Company and the Company desires to retain Consultant to provide such consulting
services to the Company.
NOW, THEREFORE, in consideration of the promises and conditions set
forth herein, the receipt and sufficiency of which hereby is acknowledged, and
intending to be legally bound, the Company and Consultant agree as follows:
1. Retention. The Company hereby retains Consultant to provide certain
consulting services to the Company for a term commencing on June 27, 2005 and
terminating December 30, 2005 (the "Consulting Term"), unless extended by mutual
agreement of the parties, and Consultant hereby accepts such engagement,
pursuant to the terms and conditions set forth herein.
2. Independent Contractor. Consultant and Company acknowledge and agree that the
relationship hereunder created is one of an independent contractor and not one
of employment. Consultant shall at all times during the Consulting Term act as
an independent contractor and nothing hereunder shall be construed to be
inconsistent with this relationship or status or create or imply a relationship
of employer-employee between the Company and Consultant or its employees.
Consultant shall not hold Consultant or its employees out to third parties as
employees or officers of the Company, and shall have no authority to bind or
commit the Company, legally or otherwise. Except as expressly provided herein,
neither Consultant nor its employees shall be entitled to any benefits paid by
the Company to its employees. Consultant shall be solely responsible for any tax
consequences applicable to Consultant or its employees by reason of this
Agreement and the relationship established hereunder, and the Company shall not
be responsible for the payment of any federal, state or local taxes or
contributions imposed under any employment insurance, social security, income
tax or other tax law or regulation with respect to the Consultant's performance
of consulting services hereunder. Company and Consultant shall report any and
all payments made by Company pursuant to this Agreement to the appropriate
governmental agencies in a manner consistent with Consultant's status as an
independent contractor.
3. Consulting Services. Consultant shall provide marketing and advisory services
to the Company (collectively, "Consulting Services") consisting of marketing and
promotion of the Company and its CARExpress programs, support for the Company's
marketing and related activities, consultation with respect to the Company's
marketing strategies, product development, business development, advice
regarding opportunities for the Company to engage in joint ventures,
partnerships and alliances with companies offering products or services that may
be complementary to those of the Company, and any other services agreed upon by
the parties from time to time. Consultant shall comply with reasonable requests
by the Company for the Consulting Services and shall devote reasonable time and
reasonable best efforts, skill and attention to the performance of the
Consulting Services. Consultant shall be solely responsible for determining the
method, details and means of performing the marketing and advisory services and
may, at Consultant's own expense, employ or engage the services of such other
persons as Consultant deems necessary to perform the Consulting Services.
Consultant shall be responsible for all out-of-pocket expenses incurred in the
performance of the Consulting Services.
4. Consideration. In consideration of Consultant agreeing to provide the
Consulting Services to the Company, the Company hereby agrees to issue
Consultant 480,000 shares (the "Shares") of its common stock, par value $.001
per share ("Common Stock"), and Class C warrants ("Class C warrants")
exercisable into 300,000 shares of Common Stock. Each Class C warrant shall be
exercisable into one share of Common Stock at an exercise price of $.60 per
share during a period of 180 days beginning on the date the registration
statement described in this Section 4 is declared effective by the Securities
and Exchange Commission ("SEC") and shall expire on December 31, 2006. The
Company shall prepare and file with the SEC, by June 30, 2005, a registration
statement under the Securities Act of 1933, as amended (the "Act"), which shall
include 50% of the Shares and 50% of the shares of Common Stock issuable upon
exercise of the Class C warrants (collectively, "Restricted Stock"). Consultant
shall furnish such information as may be reasonably requested by the Company in
order to include such Restricted Stock in such registration statement. If
Consultant decides not to include all of its Restricted Stock in any
registration statement thereafter filed by the Company, Consultant shall
nevertheless continue to have the right to include any Restricted Stock in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein. In the event the registration pursuant to this
Section 4 is terminated or withdrawn, the Company shall use its reasonable best
efforts to prepare and file with the SEC, within 180 days thereafter, a
registration statement under the Act to permit the public sale of the Restricted
Stock purchased hereby.
5. Termination. This Agreement may be terminated by the Company at any time for
any reason or by mutual consent of the Company and Consultant.
6. Business Opportunities. Consultant agrees that during the Consulting Term,
Consultant will not take personal advantage of any business opportunities that
are similar or substantially similar to the business of the Company. In
addition, all material facts regarding any such business opportunities must be
promptly and fully disclosed by Consultant to the Chief Executive Officer of the
Company as soon as the Consultant becomes aware of such opportunity, and in no
event later than forty-eight (48) hours after learning of such opportunity.
7. Company Property. All records, files, lists, including computer generated
lists, drawings, documents, software, documents, equipment, models, binaries,
object modules, libraries, source code and similar items, customer lists, health
care provider lists, lists of prospective customers, and contracts relating to
the Company's business that Consultant shall prepare or receive from the Company
and all Confidential Information (as defined below) shall remain the Company's
sole and exclusive property ("Company Business Property"). Upon termination of
this Agreement, Consultant shall promptly return to the Company all property of
the Company in Consultant's possession, including Company Business Property.
Consultant further represents that Consultant will not copy or cause to be
copied, print out, or cause to be printed out any Company Business Property
other than as specifically authorized and required in the performance of
Consultant's duties hereunder. Consultant additionally represents that, upon
termination of this Agreement, Consultant will not retain in Consultant's
possession any such Company Business Property.
2
8. Protection of Confidential Information of the Company. Consultant understands
that Consultant's consulting arrangement with the Company creates a relationship
of trust and confidence between Consultant and the Company. Consultant will not
use or disclose or allow anyone else to use or disclose any Confidential
Information (as defined below) relating to the Company, its products, services,
suppliers or customers except as may be necessary in the performance of
Consultant's work for the Company or as may be specifically authorized in
advance by appropriate officers of the Company. "Confidential Information" shall
include, but not be limited to, information consisting of research and
development, patents, trademarks and copyrights and applications thereto,
technical information, computer programs, software, methodologies, innovations,
software tools, know-how, knowledge, designs, drawings, specifications,
concepts, data, reports, processes, techniques, documentation, pricing,
marketing plans, customer and prospect lists, trade secrets, financial
information, salaries, business affairs, suppliers, profits, markets, sales
strategies, forecasts, and any other information not available to the general
public, whether written or oral, that Consultant knows or has reason to know the
Company would like to treat as confidential for any purpose, such as maintaining
a competitive advantage or avoiding undesirable publicity. Consultant will keep
Confidential Information secret and will not allow any unauthorized use of the
same, whether or not any document containing it is marked as confidential. These
restrictions, however, will not apply to Confidential Information that has
become known to the public generally through no fault or breach of Consultant or
that the Company regularly gives to third parties without restriction on use or
disclosure.
9. Notices. All notices, requests, demands, and other communications hereunder
must be in writing and shall be deemed to have been duly given if delivered by
hand or mailed within the continental United States by first class, registered
mail, return receipt requested, postage and registry fees prepaid, to the
applicable party and addressed as follows:
If to the Company:
National Health Partners, Inc.
120 Gibraltar Road, Suite 107
Horsham, PA 19044
Attn: Chief Executive Officer
If to the Consultant:
To the address specified for Consultant in the Company's
records.
3
10. Miscellaneous.
(a) Breach. The parties agree that in the event one party breaches any
part or parts of this Agreement, legal proceedings may be instituted against
that party for breach of contract. The nonprevailing party in such legal
proceedings shall reimburse the prevailing party for the reasonable costs and
expenses, including attorneys, fees, incurred. If the Company reasonably
determines that Consultant has materially violated any of Consultant's
obligations under any of Sections 6, 7 or 8 hereof, then, in addition to any
other remedies at law or in equity it may have, the Company may immediately
terminate all fees and compensation to be paid to Consultant hereunder, and
shall have no further obligation to provide such pay to Consultant.
(b) Non-Disparagement. The Company and Consultant shall not engage in
any conduct or make any statement that would disparage the other or their
respective business interests in any way.
(c) Injunctive Relief. Consultant hereby agrees and acknowledges that
in the event of a breach or threatened breach of this Agreement by Consultant,
the Company may suffer irreparable harm and monetary damages alone would not
adequately compensate the Company. Accordingly, the Company will therefore be
entitled to injunctive relief to enforce this Agreement.
(d) Survival. Notwithstanding any termination of this Agreement,
Consultant's obligations under Sections 6, 7 and 8 shall survive and remain in
full force and effect in accordance with their respective terms.
(e) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania. Any action arising
out of or relating to any of the provisions of this Agreement may be brought and
prosecuted only in the courts of, or located in, the Commonwealth of
Pennsylvania, and in the event of such election the parties hereto consent to
the jurisdiction and venue of said courts.
(f) Captions. Captions herein are inserted for convenience, do not
constitute a part of this Agreement, and shall not be admissible for the purpose
of proving the intent of the parties.
(g) Counterparts. This Agreement may be executed in counterparts and
delivered via fax, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto respecting any and all
marketing, advisory or other services to be performed by Consultant for the
Company, and supersedes and cancels all previous negotiations, agreements,
commitments, and writings regarding such services. Neither of the parties hereto
has relied upon any representations made by or on behalf of the other party and
the same are not enforceable except to the extent set forth in writing in this
Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may not be
amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the Company and Consultant. Any waiver or consent
from the Company with respect to any term or provision of this Agreement or any
other aspect of Consultant's conduct shall be effective only in the specific
instance and for the specific purpose for which given and shall not be deemed,
regardless of frequency given, to be a further or continuing waiver or consent.
4
(j) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, provided, however, that no party hereto may assign its rights or
delegate its obligations under this Agreement without the express prior written
consent of the other party hereto. Nothing in this Agreement is intended to
confer upon any person not a party hereto (and their successors and assigns) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement
[Remainder of page intentionally left blank]
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
EL CID IV
By: /s/ Andrea Vargas
--------------------------
Andrea Vargas
Principal
NATIONAL HEALTH PARTNERS, INC.
By: /s/ David M. Daniels
--------------------------
David M. Daniels
Chief Executive Officer
6