CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
the _____ day of ____________________, 2004 by and between Capital Research
Group, Inc. (the "Consultant"), whose principal place of business is 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 and Health Express USA, Inc. (the "Client"),
whose principal place of business is 0000 X. Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxxx Xxxxx, XX 00000.
WHEREAS, Consultant is in the business of providing services for management
consulting, business advisory, shareholder information and public relations; and
WHEREAS, the Client deems it to be in its best interest to retain Consultant to
render to the Client such services as may be needed; and
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to Client.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. CONSULTING SERVICES. The client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts and
agrees to such retention. The services provided by the Consultant are:
disseminate a two page "Highlighter" by means of "Targeted" E-Mail and
operate an intense marketing campaign to new investors. It is acknowledged
and agreed by the Client that Consultant carries no professional licenses,
and is not rendering legal advice or performing accounting services, nor
acting as an investment advisor or brokerage/dealer within the meaning of
the applicable state and federal securities laws. The services of
Consultant shall not be Exclusive nor shall Consultant be required to
render any specific number of hours or assign specific personnel to the
Client or its projects.
2. INDEPENDENT CONTRACTOR. Consultant agrees to perform its consulting duties
hereto as an independent contractor. Nothing contained herein shall be
considered to as creating an employer-employee relationship between the
parties to this Agreement. The Client shall not make social security,
worker's compensation or unemployment insurance payments on behalf of
Consultant. The parties hereto acknowledge and agree that Consultant
cannot guarantee the results or effectiveness of any of the services
rendered
Consulting Agreement for Health Express USA, Inc. (OTCBB: HEXS) (Revised
06/10/04) Page 1 of 6
or to be rendered by Consultant. Rather, Consultant shall conduct its
operations and provide its services in a professional manner and in
accordance with good industry practice. Consultant will use its best
efforts and does not promise results.
3. TIME, PLACE AND MANNER OF PERFORMANCE. The Consultant shall be available
for advice and counsel to the officers and directors of the Client as such
reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the
services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined at the sole
discretion of the Consultant.
4. TERM OF AGREEMENT. The term of this Agreement shall be three (3) months,
commencing on the completion of the registration statement required to
make the 500,000 shares of restricted stock as described below free
trading, subject to prior termination as hereinafter provided.
5. COMPENSATION. In providing the foregoing services, Consultant shall be
responsible for all costs incurred except the Client will be responsible
for mailing out due diligence requests. Client shall pay Consultant for
its services hereunder as follows: to transfer 500,000 shares of Client's
restricted stock to Consultant upon signing of this agreement; Client
agrees to register the above shares in its next registration statement.
All fees may also be paid in cash by the Client referring to the price of
the offer or ask the day payment is due. For purposes of this paragraph,
the dollar value of any shares given for compensation shall be the closing
price of the Client's common stock as traded in the over-the-counter
market and quoted on the OTC Bulletin Board on the trading day immediately
preceding the compensation due date. Any shares shall be unrestricted as
to transferability and the Certificates shall not bear any legends or
restrictions. The client warrants, represents and agrees that the shares
were not issued under SEC Form S-8, that the third party is not an
affiliate of the Client, i.e. one who, through stock ownership, a position
as director, officer or employee or by other means, has the power to
control, directly or indirectly, the management of the Client and, if the
third party's stock was issued in a private placement, that the
requirements for the exemption for private placement stock were complied
with and the third party has held the stock for the prescribed period
necessary to permit the shares to be sold without registration.
6. LATE PAYMENT. In the event of late payment of any compensation due under
this Agreement, and in addition to the rights granted the Consultant under
paragraph 8 "Termination" of this Agreement, Consultant may immediately
remove Client's company from xxxxxxxxx.xxx website until any arrears in
compensation are brought current.
7. CLIENT'S REPRESENTATIONS. The Client represents that it is in compliance
with all applicable Securities and Exchange Commission reporting and
accounting requirements and all applicable requirements of the NASD or any
stock exchange. The Client further
Consulting Agreement for Health Express USA, Inc. (OTCBB: HEXS) (Revised
06/10/04) Page 2 of 6
represents that it has not been and is not the subject of any enforcement
proceeding or injunction by the Securities and Exchange Commission or any
state securities agency.
8. TERMINATION.
(a) Consultant's relationship with the Client hereunder may be
terminated for any reason whatsoever, at any time, by either party,
upon 3 days written prior notice.
(b) This Agreement shall automatically terminate upon the dissolution,
bankruptcy or insolvency of the Client or Consultant.
(c) This Agreement may be terminated by either party upon giving written
notice to the other party if the other party is in default hereunder
and such default is not cured within fifteen (15) days of receipt of
written notice of such default.
(d) Consultant and Client shall have the right and discretion to
terminate this Agreement should the other party in performing their
duties hereunder, violate any law, ordinance, permit or regulation
of any governmental entity, except for violations which either
singularly or in the aggregate do not have or will not have a
material adverse effect on the operations of the Client.
(e) In the event of any termination hereunder all shares or funds paid
to the Consultant through the date of termination shall be fully
earned and non- refundable and the parties shall have no further
responsibilities to each other except that the Client shall be
responsible to make any and all payments if any, due to the
Consultant through the date of the termination and the Consultant
shall be responsible to comply with the provisions of section 10
hereof.
9. WORK PRODUCT. It is agreed that all information and materials produced for
the Client shall be the property of the Consultant, free and clear of all
claims thereto by the Client, and the Client shall retain no claim of
authorship therein.
10. CONFIDENTIALITY. The Consultant recognizes and acknowledges that it has
and will have access to certain confidential information of the Client and
its affiliates that are valuable, special and unique assets and property
of the Client and such affiliates. The Consultant will not, during the
term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any of such information to any person, for
any reason or purpose whatsoever. In this regard, the Client agrees that
such authorization or consent to disclose may be conditioned upon the
disclosure being made pursuant to a secrecy agreement, protective order,
provision of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the hands of the
person to whom the information is to be disclosed or in compliance with
the terms of a judicial order or administrative process.
Consulting Agreement for Health Express USA, Inc. (OTCBB: HEXS) (Revised
06/10/04) Page 3 of 6
ANTI DILUTION. Client shall also arrange for one or more third parties
11. to transfer 10% of any newly registered or issued securities of the
clients company within the term of this agreement in the form of fully
paid non-assessable free trading registered shares within 5 business days
of registration or issuance. Any shares shall be unrestricted as to
transferability and the Certificates shall not bear any legends or
restrictions and all shares will bear the same requirements as noted in
section five (5) herein.
12. CONFLICT OF INTEREST. The Consultant shall be free to perform services for
other persons. The Consultant will notify the Client of its performance of
consultant services for any other person, which could conflict with its
obligations under the Agreement. Upon receiving such notice, the Client
may terminate this Agreement or consent to the Consultant's outside
consulting activities; failure to terminate, this Agreement within seven
(7) business days of receipt of written notice of conflict shall
constitute the Client's ongoing consent to the Consultant's outside
consulting services.
13. DISCLAIMER OF RESPONSIBILITY FOR ACT OF THE CLIENT. In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. Consultant shall under no circumstances be
liable for any expense incurred or loss suffered by the Client as a
consequence of such decisions, made by the Client or any affiliates or
subsidiaries of the Client.
14. INDEMNIFICATION.
(a) The client shall protect, defend, indemnify and hold Consultant and
its assigns and attorneys, accountants, employees, officers and
director harmless from and against all losses, liabilities, damages,
judgments, claims, counterclaims, demands, actions, proceedings,
costs and expenses (including reasonable attorneys' fees) of every
kind and character resulting from, relating to or arising out of (a)
the inaccuracy, non-fulfillment or breach of any representation,
warranty, covenant or agreement made by the Client herein, or (b)
negligent or willful misconduct, occurring during the term thereof
with respect to any of the decisions made by the Client (c) a
violation of state or federal securities laws.
(b) The Consultant shall protect, defend, indemnify and hold Client and
its assigns and attorneys, accountants, employees, officers and
director harmless from and against all losses, liabilities, damages,
judgments, claims, counterclaims, demands, actions, proceedings,
costs and expenses (including reasonable attorneys' fees) of every
kind and character resulting from, relating to or arising out of (a)
the inaccuracy, non-fulfillment or breach of any representation,
warranty, covenant or agreement made by the Consultant herein, or
(b) negligent or willful misconduct, occurring during the term
thereof with respect to any of the decisions made by the Consultant
(c) a violation of state or federal securities laws.
Consulting Agreement for Health Express USA, Inc. (OTCBB: HEXS) (Revised
06/10/04) Page 4 of 6
15. NOTICES. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by
registered or certified mail, or by Federal Express or other recognized
overnight courier to the principal office of each party.
16. WAIVER OF BREACH. Any waiver by either party or a breach of any provision
of this Agreement by the other party shall not operate or be construed as
a waiver of any subsequent breach by any party.
17. ASSIGNMENT. This Agreement and the right and obligations of the Consultant
hereunder shall not be assignable without the written consent of the
Client.
18. APPLICABLE LAW. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and under and
pursuant to the laws of the State of Florida and that in any action,
special proceeding or other proceedings that may be brought arising out
of, in connection with or by reason of this Agreement, the law of the
State of Florida shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction on which
any action or special proceeding may be instituted.
19. SEVERABILITY. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
20. ENTIRE AGREEMENT. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all
other or prior understandings, agreements and negotiations between the
parties.
21. WAIVER AND MODIFICATION. Any waiver, alteration, or modification of any of
the provisions of this Agreement shall be valid only if made in writing
and signed by the parties hereto. Each party hereto, may waive any of its
rights hereunder without affecting a waiver with respect to any subsequent
occurrences or transactions hereof.
22. BINDING ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The arbitration
shall be conducted in Miami-Dade County, Florida.
23. COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of
Consulting Agreement for Health Express USA, Inc. (OTCBB: HEXS) (Revised
06/10/04) Page 5 of 6
this Agreement by such party. Such facsimile copies shall constitute
enforceable original documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, effective as of the date set forth above.
CONSULTANT:
CAPITAL RESEARCH GROUP, INC.
By: DATE:
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Xxxxxxx X. Xxxxxxxxxx, President/CEO
CLIENT:
HEALTH EXPRESS USA, INC.
By: DATE:
-----------------------------------
Xxxx Xxxxx, President/CEO
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06/10/04) Page 6 of 6
