EXHIBIT 10.1
CONSULTING SERVICES AGREEMENT
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This Consulting Services Agreement (this "Agreement"), is made as of
the 21st day of February, 2003, by and between Medi-Hut Co., Inc., a Nevada
corporation having a principal place of business at 0000 Xxxxxx Xxxxxxx, Xxxx,
Xxx Xxxxxx 00000 ("Medi-Hut"), and Century Capital Associates LLC, a Delaware
limited liability company having a principal place of business at 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("Century Capital").
Recitals
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(a) Century Capital provides a full range of consulting services,
including, without limitation, strategic review and analysis of
operations, products, systems, controls, management and personnel,
general corporate advisory services, management services, operations
support, business development, and financial advisory services, to
companies in various life science business segments, including, without
limitation, biotechnology, medical devices and pharmaceuticals.
(b) Medi-Hut is in the business of (i) wholesale distribution of
over-the-counter pharmaceutical products and medical devices provided
by various suppliers, and (ii) the design, manufacture and wholesale
distribution of medical products.
(c) Medi-Hut desires to contract with Century Capital and retain Century
Capital to provide the consulting services offered by Century Capital
in accordance with and pursuant to the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the promises, representations and
obligations contained in this Agreement, and for other good and valuable
consideration as set forth in this Agreement, Medi-Hut and Century Capital agree
as follows:
1. TERM AND TERMINATION
1.1. Term. This Agreement shall be deemed to have commenced as of
February 1, 2003 (the "Effective Date") and will continue for
a term of two (2) years, ending on January 31, 2005 (the
"Initial Term"), and will thereafter renew automatically for
additional one (1) year terms (each, a "Successive Term"),
unless terminated as provided below.
1.2. Termination.
(a) Non-Renewal. Either party shall have the right not to
renew this Agreement at the conclusion of the Initial
Term or at the conclusion of any Successive Term, upon
written notice to the other party given at least one
hundred twenty (120) days prior to the expiration of the
Initial Term or Successive Term, as the case may be.
(i) Non-Renewal by Medi-Hut. In the event this
Agreement is not renewed by Medi-Hut, Century
Capital shall be entitled to receive payment from
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Medi-Hut on the termination date of a lump-sum
amount equal to the sum of (a) all monthly fees
which are due and payable and which were required
to be paid prior to the termination date, plus (b)
all reimbursable expenses incurred on or prior to
the termination date, plus (c) an amount equal to
the product of Century Capital's monthly fee
($75,000 or such greater amount as may be agreed
to by the parties) multiplied by the number six
(6), plus (d) the amount of any unpaid annual
bonus earned by Century Capital during the period
this Agreement remained in full force and effect.
(ii) Non-Renewal by Century Capital. In the event this
Agreement is not renewed by Century Capital,
Medi-Hut shall pay Century Capital on the
termination date, all monthly fees which are due
and payable and which were required to be paid
prior to the termination date, all reimbursable
expenses incurred on or prior to the termination
date, and the amount of any unpaid annual bonus
earned by Century Capital during the period this
Agreement remained in full force and effect;
provided that the bonus shall be paid in the
ordinary course in accordance with Medi-Hut's
normal bonus payment schedule.
(b) Termination for Cause by Medi-Hut. Medi-Hut can
terminate this Agreement for cause if Century Capital
fails to materially perform the consulting services to
be provided pursuant to this Agreement; provided that
(i) the determination of material nonperformance of
service is made by a majority of the independent members
of Medi-Hut's Board of Directors (i.e., those directors
with no affiliation with Medi-Hut other than in their
capacity as directors), (ii) the material nonperformance
is particularly described in a written notice to be
issued by the Medi-Hut Board of Directors and delivered
to Century Capital, (iii) Century Capital has sixty (60)
days from receipt of the written notice to cure the
material nonperformance, and (iv) the determination that
Century Capital has not cured its material
nonperformance is made by a majority of the independent
members of the Medi-Hut Board of Directors.
Upon termination for cause by Medi-Hut, Century Capital
is entitled to be paid all monthly fees which are due
and payable and which were required to be paid prior to
the termination date and is entitled to be reimbursed
for all expenses incurred on or prior to the termination
date.
(c) Termination for Cause by Century Capital. Century
Capital can terminate this Agreement for cause upon (i)
any breach of this Agreement by Medi-Hut which is not
cured within thirty (30) days of receipt of written
notice from Century Capital which identifies the
incident(s) of breach, (ii) the breach by Medi-Hut of
any other agreement by and between Medi-Hut and Century
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Capital, or the breach of any instrument or note issued
by Medi-Hut to Century Capital, (iii) the failure of
Medi-Hut to pay in full any compensatory fee or bonus,
reimburse any expense, or pay any other amount to
Century Capital, when such amount is due and payable,
unless the payment of such amount owed is deferred at
the sole option of Century Capital, (iv) any change in
or election or appointment to the office or position of
Chief Executive Officer or Chief Financial Officer of
Medi-Hut without the prior written approval of Century
Capital, (v) the failure by Medi-Hut to adopt and
implement any material recommendation made by Century
Capital, (vi) the inability or failure of Medi-Hut to
file its Annual Report on Form 10-K for the fiscal year
ended October 31, 2002, with the Securities and Exchange
Commission ("SEC") on or before June 1, 2003, or the
inability or failure to file with the SEC on a timely
basis any subsequent periodic report pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (vii) the suspension of
trading in Medi-Hut common stock, $0.001 par value per
share, for a period of more than sixty (60) consecutive
days, or the delisting of Medi-Hut common stock by the
NASDAQ Stock Market(R), (viii) the failure of Medi-Hut
to take all necessary action required to reconstitute
the Medi-Hut Board of Directors on or before July 1,
2003, so that the reconstituted Board of Directors shall
consist of seven (7) members, at least four (4) of whom
shall qualify as "Independent Directors" under the
applicable rule of the National Association of
Securities Dealers listing standards, (ix) the
appointment or election of any member to the Medi-Hut
Board of Directors without the prior written approval of
Century Capital, or (x) Medi-Hut suspending or
discontinuing its business, making an assignment for the
benefit of creditors, not paying its debts as such debts
become due, voluntarily filing a petition in bankruptcy,
being the subject of an involuntary bankruptcy filing if
such filing is not dismissed within forty-five (45)
days; or having a receiver appointed for its assets.
In the event Century Capital consents to or recommends,
in writing, any of the events set forth above which
could trigger a for cause termination by Century Capital
of this Agreement, such event shall not give rise to a
for cause termination of this Agreement. In addition, in
the event Century Capital waives, in writing, its right
to declare a for cause termination upon the happening of
one of the events set forth above, such event shall not
give rise to a for cause termination of this Agreement.
Further, this Agreement cannot be terminated for cause
by Century Capital pursuant to subparts (vii) or (x)
above, if any such event was caused by the actions or
inaction of Century Capital.
In the event this Agreement is terminated by Century
Capital for cause, Century Capital shall be entitled to
receive payment from Medi-Hut on the termination date of
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a lump sum amount equal to the sum of (a) all monthly
fees which are due and payable and which were required
to be paid prior to the termination date, plus (b) all
reimbursable expenses incurred on or prior to the
termination date, plus (c) an amount equal to the
product of Century Capital's monthly fee ($75,000 or
such greater amount as may be agreed to by the parties)
multiplied by the number of full months remaining in the
Initial Term, if termination for cause occurs in the
Initial Term, or in a Successive Term, if termination
occurs in a Successive Term, provided that such number
shall not be less than six (6), plus (d) the full amount
of the bonus target established for the year of
termination. In addition, all warrants held by Century
Capital shall vest and be immediately exercisable.
2. INDEPENDENT CONTRACTOR
2.1. Independent Contractor Relationship. At all times the
relationship between Medi-Hut and Century Capital and Century
Capital's principals, employees, members, administrators,
contractors, agents and other representatives who render
services on its behalf to Medi-Hut, shall be that of an
independent contractor and not as an employee, agent, or
partner of Medi-Hut. Nothing in this Agreement shall be
construed or interpreted as creating or establishing the
relationship of employer and employee by and between Medi-Hut
and Century Capital or by and between Medi-Hut and any
principal, employee, member, administrator, contractor, agent
or other representative of Century Capital. During the term of
this Agreement, Century Capital and its principals, employees,
members, administrators, contractors, agents and other
representatives, in particular, Xxxxx X. XxXxxxx and Xxxxxx X.
Xxxxxxx, retain the right to provide consulting services to
other parties provided that such services do not materially
interfere with the services to be rendered pursuant to this
Agreement.
2.2. Compensation of Century Capital Personnel. Century Capital
agrees that it is responsible for the payment of compensation
for services rendered to Medi-Hut under this Agreement by
Century Capital's principals, employees, members, contractors,
administrators, agents and other representatives, as well as
responsible for withholding, paying and remitting all
applicable federal, state and local withholding and payroll
taxes. In addition, all other employment related benefits made
available to the principals, employees, members,
administrators, contractors, agents or other representatives
of Century Capital, if any, including, without limitation,
health insurance, shall be provided by Century Capital.
2.3. Compliance of Personnel with this Agreement. Century Capital
shall be responsible for ensuring that its principals,
employees, members, administrators, contractors, agents and
other representatives comply with all provisions of this
Agreement.
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3. SERVICES TO BE PERFORMED
3.1. Nature of Consulting Services. Medi-Hut hereby engages Century
Capital to provide the following consulting services:
(a) General Corporate and Business Advisory Services.
Century Capital shall undertake a "top to bottom"
strategic review and analysis of, and on an ongoing
basis shall recommend with respect to, Medi-Hut's
business operations, systems and controls, including
products and product lines, manufacturing capacity,
sales and distribution channels, marketing programs and
efforts, accounting and financial reporting systems,
inventory control, cash management, resource allocation,
regulatory compliance, corporate infrastructure,
management structure, human resources and employee
benefits.
(b) Strategic Business Advisory Services. On an ongoing
basis, Century Capital shall review, analyze, structure
and recommend with respect to strategic business issues,
matters and developments, including current and
long-term strategic business and action plans, product
and service development (including next generation
products and services), business reorganization and
restructuring strategy planning, market analysis and
strategy, business opportunities and strategic
alternatives.
(c) Financial Advisory Matters and Corporate Transactions.
On an ongoing basis, Century Capital shall consult with
Medi-Hut with respect to financial issues, matters and
developments and corporate transactions, and will assist
in sourcing, reviewing, analyzing, structuring,
negotiating and preparing current and long-term
financial projections, forecasts and budgets, financial
strategy, resource allocation, internal capital
restructuring, debt restructuring, corporate financing,
private, public and institutional capital models,
structures and opportunities, acquisitions, mergers,
combinations, alliances and other corporate transaction
activities and opportunities.
3.2. Means of Performing Services; Century Capital Personnel.
Century Capital shall determine the methods, procedures and
means of performing and accomplishing the consulting services
under this Agreement. Century Capital shall select the
individuals to perform the services under this Agreement,
provided that Xx. XxXxxxx and Xx. Xxxxxxx shall be the
principal representatives of Century Capital providing the
services hereunder. Century Capital shall have the right to
hire, on behalf or for the benefit of Medi-Hut, outside
professionals, including attorneys, accountants, and other
advisors and consultants, to assist it in connection with the
services to be rendered pursuant to this Agreement. Medi-Hut
shall directly pay all the fees and costs associated with the
services provided by the aforementioned professionals. The
Board of Directors of Medi-Hut shall be entitled to review the
progress and results of the services being rendered, including
the right to review, make suggestions or recommendations as to
the details of the services.
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3.3. Reporting. Century Capital shall report directly to and take
direction from the Medi-Hut Board of Directors. Within four
(4) months of the date of this Agreement, Medi-Hut shall form
a special committee of the Board of Directors to be comprised
solely of independent members of the Board of Directors (the
"Special Committee"). Upon the creation of the Special
Committee, Century Capital shall report to the Special
Committee instead of the Board of Directors. Century Capital
shall consult directly with the Chief Executive Officer and
Chief Financial Officer of Medi-Hut.
3.4. Location of Work. In its sole discretion, Century Capital and
its personnel will perform the consulting services hereunder
at Medi-Hut's principal business offices in Wall, New Jersey,
at Century Capital's offices located in Spring Lake, New
Jersey and Raleigh, North Carolina, or at any other location
deemed necessary by Century Capital. To the extent services
will be performed at Medi-Hut's principal business offices,
Medi-Hut agrees to provide work space and facilities, and any
other services and materials Century Capital or its personnel
may reasonably request in order to perform their services.
With respect to Xx. XxXxxxx and Xx. Xxxxxxx, Medi-Hut shall
provide each with an office at its principal business offices
that is commensurate with office space made available to the
executive officers of Medi-Hut.
3.5. Accessibility. It is recognized by both parties that the
critical nature of the work to be performed by Century Capital
and its personnel requires that Century Capital and its
personnel have complete, unfettered and unlimited access to
all aspects of the business operations of Medi-Hut, including,
without limitation, all Medi-Hut facilities, files, records,
documents, notes, instruments, agreements, officers,
directors, employees, agents, contractors and representatives.
3.6. Position and Title. From time, to time, Medi-Hut and Century
Capital will review the perception in the business and capital
markets of Century Capital's role and relationship with
Medi-Hut to determine whether it is critical for Medi-Hut to
assign an acting senior level title to a representative of
Century Capital in order for Medi-Hut to maximize the benefit
of its relationship with Century Capital. If such a mutual
determination is made, Xx. XxXxxxx will be appointed Chief
Executive Officer of Medi-Hut and Xx. Xxxxxxx will be
appointed an Executive Vice President and Chief Financial
Officer of Medi-Hut. The appointment to such positions and the
assignment of such titles will not affect the compensation due
and payable to Century Capital, nor the manner in which such
compensation is paid, under this Agreement, and Xx. XxXxxxx
and Xx. Xxxxxxx will continue to be treated as independent
contractors with respect to Medi-Hut for purposes of
compensation. In other words, no additional compensation will
be paid to Xx. XxXxxxx and Xx. Xxxxxxx for assuming executive
officer positions at Medi-Hut, other than the compensation
provided for herein. Medi-Hut represents and warrants to
Century Capital that it has obtained and been issued a $2
million primary Directors' and Officers' Liability Insurance
Policy issued by Royal Sun Alliance and a $3 million excess
coverage Directors' and Officers' Liability Insurance Policy
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issued by Xxxx & Xxxxxx (collectively, the "D&O Policy"). Upon
the making of any such appointment, Medi-Hut shall immediately
notify its carrier which has issued the D& O Policy, and each
of Xx. XxXxxxx and Xx. Xxxxxxx will be added as a covered
party under such D&O Policy. Medi-Hut will maintain such D&O
Policy in full force and effect during the time that Xx.
XxXxxxx and Xx. Xxxxxxx hold such position or any other
position as an officer or director of Medi-Hut and for a
period of two (2) years following the termination of all
positions as officers and directors of Medi-Hut. Following
termination of all positions as officers and directors of
Medi-Hut, each of Xx. XxXxxxx and Xx. Xxxxxxx is entitled to
receive an endorsement or other customary form of confirmation
from the carrier of the D&O Policy that he is covered as a
former officer and director of Medi-Hut.
4. COMPENSATION
4.1. Monthly Fee. Century Capital is entitled to receive a monthly
consulting fee in the amount of Seventy-Five Thousand Dollars
($75,000), payable on the first business day of each month
during the Initial Term and each Successive Term; provided,
however, that the monthly consulting fee for February, 2003
shall be Thirty-Seven Thousand Five Hundred Dollars ($37,500).
The payment of any portion of the monthly consulting fee may
be deferred until a later date at the sole option of Century
Capital. The basis for any such deferment would be related to
potential cash flow issues. Prior to the commencement of a
Successive Term, the Board of Directors of Medi-Hut shall
review and may increase, but shall not decrease, the amount of
the monthly fee.
4.2. Expenses. Medi-Hut shall promptly reimburse Century Capital
and its personnel, for all reasonable and customary
out-of-pocket expenses, including, without limitation, travel,
hotel, meal and other business related expenses associated
with the services provided pursuant to this Agreement. These
expenses shall include all reasonable and customary travel
related expenses, including, without limitation, airfare,
rental car and hotel, for travel by Xx. XxXxxxx between North
Carolina and New Jersey in connection with providing services
pursuant to this Agreement. In addition, all reasonable legal
fees and expenses incurred by any of Century Capital, Xx.
Xxxxxxx and Xx. XxXxxxx in connection with the preparation and
performance of this Agreement and any other matter concerning
Medi-Hut, will be paid by Medi-Hut.
4.3. Bonuses. During the Initial Term and each Successive Term,
Century Capital shall be entitled to earn an annual bonus in
an amount not less than one hundred twenty-five thousand
dollars ($125,000). The annual bonus shall be based on the
performance of the Consultants for each one year period
commencing February 1 and ending January 31 during the period
this Agreement remains in effect. In the event that this
Agreement terminates prior to the conclusion of the then
current one year period, the annual bonus will be pro rated.
Century Capital and Medi-Hut agree to negotiate and agree in
good faith on the annual bonus criteria.
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During the Initial Term and each Successive Term of this
Agreement, and for a period of twenty-four (24) months after
the effective termination date of this Agreement, Century
Capital is entitled to receive from Medi-Hut a transaction
bonus in cash which shall be not less than two and one-half
percent (2.5%) of (i) the aggregate consideration to be paid
in connection with a sale or acquisition of Medi-Hut, whether
Medi-Hut is the surviving entity, and whether by stock
purchase, tender offer, merger, consolidation, combination,
reorganization, recapitalization or other corporate
transaction or business combination, or in connection with a
sale of all or substantially all of Medi-Hut's assets, (ii)
the aggregate consideration to be paid in connection with a
Change in Control (as hereinafter defined) of Medi-Hut, and
(iii) the gross proceeds raised by Medi-Hut in each corporate
finance transaction, whether public, private or institutional
financing, whether as debt or for equity, and whether raised
in connection with or for financial restructuring,
recapitalization, capital investment, or general working
capital purposes. If any transaction described in (i), (ii) or
(iii) above commences prior to, but is not completed until
after, the end of the twenty four month period following the
effective termination date of this Agreement, Century
Capital's right to receive and Medi-Hut's obligation to pay
the transaction fee under this Section 4.3 shall be extended
until the completion of the transaction. For purposes of this
Agreement, "Change in Control" shall mean any transaction
which is effected in such a way that holders of more than
fifty percent (50%) of the shares of Medi-Hut common stock
then outstanding are entitled to receive (either directly or
upon subsequent liquidation) stock, securities or assets
(including cash) of another person with respect to or in
exchange for Medi-Hut common stock.
The obligation of Medi-Hut to pay the annual or transaction
bonus or any other compensation or expense hereunder shall
survive termination of this Agreement.
4.4. Warrants. Upon execution of this Agreement, Medi-Hut will
issue to Century Capital non-cancelable warrants to purchase
one million, five hundred thousand (1,500,000) shares of
Medi-Hut common stock at a purchase price of $1.34 a share.
The warrants shall vest as follows: (i) 375,000 warrants vest
and are exercisable on the Effective Date, and (ii) 46,875
warrants will vest and become exercisable on the last day of
each month during the Initial Term commencing with February
28, 2003 and ending on January 31, 2005. The warrants will
have a ten (10) year life and will have such other customary
terms and provisions, including, without limitation,
anti-dilution adjustments, demand and piggy-back registration
rights, acceleration of vesting upon a change in control, or
upon nonrenewal of this Agreement by Medi-Hut, or termination
of this Agreement for cause by Century Capital, and cashless
exercise of the Warrants, as set forth in a term of warrant
agreement and warrant deemed acceptable and satisfactory to
Century Capital.
Century Capital represents that it is acquiring the warrants
for its own account, for investment and not with a view to the
distribution thereof, nor with any present intention of
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selling or otherwise disposing of the warrants or the
underlying shares of common stock, and will not sell or
otherwise transfer the warrants or the underlying shares of
common stock except in accordance with applicable federal and
state securities laws, and acknowledges that the warrant
certificates and stock certificates evidencing the warrants
and underlying shares of common stock shall bear a legend
restricting the transfer thereof. Moreover, Century Capital
understands that the warrants and underlying shares of common
stock have not been registered under the Securities Act of
1933, as amended, or the securities laws of any state, and,
therefore, are subject to substantial restrictions on
transfer.
4.5. Employment Taxes. As previously stated in this Agreement, no
part of the compensation payable to Century Capital will be
subject to withholding by Medi-Hut for the payment of any
federal, state or local withholding or employer/employee
payroll taxes.
5. CONFIDENTIALITY; PUBLIC DISCLOSURE. Century Capital and Medi-Hut shall
maintain in strict confidence all information of a confidential or
proprietary nature of the other party that is exchanged in connection
with the services rendered under this Agreement, including the terms of
this Agreement. Century Capital and Medi-Hut agree that each shall use
such proprietary information only for the purposes of performing its
obligations under this Agreement. Century Capital and Medi-Hut agree
that each shall disclose such proprietary information only (i) to the
extent consented to by the other party, (ii) to the extent required by
any law or regulation, or by the SEC or any exchange or automated
quotation system on which Medi-Hut stock is listed; and (iii) to its
personnel who have a need to know such proprietary information for the
purposes of this Agreement. Century Capital and Medi-Hut shall ensure
that each of its employees comply with the provisions in this Section.
Proprietary information shall not include: (i) information rightfully
known by a party prior to the Effective Date of this Agreement, (ii)
information that is now or hereafter become generally available to the
public other than as a result of a disclosure in breach of this
Agreement; (iii) information independently developed or acquired by a
party or its personnel without reliance on or reference to, in any way,
proprietary information of the other party; or (iv) information which
becomes available to a party from a third party source; provided that
such third party source is not known to be bound by a confidentiality
agreement with respect to such information or known to otherwise be
prohibited from transmitting the information by a contractual, legal or
fiduciary obligation.
Medi-Hut shall not disclose any proprietary or other information,
including the terms of this Agreement, to the public or any federal or
state agency, without first reviewing such disclosure with Century
Capital. Such disclosures shall include, but are not limited to, press
releases and reports filed with the Securities and Exchange Commission.
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6. NON-SOLICITATION OF PERSONNEL
During the term of this Agreement and for a period of twelve (12)
months after the effective termination date of this Agreement, neither
party shall directly or indirectly solicit, recruit or hire any
personnel of the other party who are or have been directly involved
with the performance of services under this Agreement, unless such
party receives the prior written consent of the other party.
7. INDEMNIFICATION; LIMITATION OF LIABILITY
7.1. Indemnification. To the extent permitted by law, Medi-Hut
covenants and agrees to defend, indemnify and hold harmless
Century Capital and each of its principals, employees,
members, administrators, contractors, agents and other
representatives, including, without limitation, Xx. XxXxxxx
and Xx. Xxxxxxx (each, a "Century Capital Indemnitee" and
collectively, the "Century Capital Indemnitees"), from and
against, and pay or reimburse the Century Capital Indemnitees
for, any and all claims, demands, liabilities, obligations,
losses, fines, costs, expenses, royalties, litigation,
deficiencies or damages, including interest and penalties with
respect thereto and out-of-pocket expenses and reasonable
attorneys' and accountants' fees and expenses incurred in the
investigation or defense of any of the same or in asserting,
preserving or enforcing any of their respective rights under
this Agreement, relating to, resulting from or arising out of
(i) any failure of Medi-Hut to perform any covenant or
agreement hereunder or any related agreement, instrument or
note, or fulfill any other obligation in respect hereof or
thereof, (ii) any threatened, pending or completed action,
suit or proceeding, whether brought by or in the right of
Medi-Hut or otherwise and whether of a civil, criminal,
administrative or investigative nature (each a "Proceeding"),
involving Century Capital or any Century Capital Indemnitee by
reason of the services rendered pursuant to this Agreement, or
by reason of their relationship with Medi-Hut, or by reason of
any Century Capital Indemnitee having been a corporate agent
of Medi-Hut, including as an officer or director of Medi-Hut.
Promptly after receipt by a Century Capital Indemnitee of
notice of the commencement of any Proceeding, such Century
Capital Indemnitee shall, if a claim in respect thereof is to
be made against Medi-Hut under this Section 7.1, deliver to
Medi-Hut a written notice of the commencement thereof, and
Medi-Hut shall have the right to participate in, and, to the
extent Medi-Hut so desires, to assume control of the defense
thereof with counsel satisfactory to the Century Capital
Indemnitee; provided, however, that a Century Capital
Indemnitee shall have the right to retain its, his or her own
counsel, with the fees and expenses to be paid by Medi-Hut,
if, in the reasonable opinion of counsel for the Century
Capital Indemnitee, representation of such party by the
counsel retained by Medi-Hut would be inappropriate due to
actual or potential differing interests between the Century
Capital Indemnitee and any other party represented by such
counsel in such proceeding. Medi-Hut shall pay for only one
legal counsel for the Century Capital Indemnitee and any other
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Century Capital Indemnitee related thereto; such legal counsel
shall be selected by the Century Capital Indemnitee subject to
Medi-Hut's approval which shall not be unreasonably withheld.
The failure to deliver written notice to Medi-Hut within a
reasonable time of the commencement of any such action shall
not relieve Medi-Hut of any liability to another under this
Section 7.1, except to the extent that such failure to notify
results in the forfeiture by Medi-Hut of substantive rights or
defenses. The indemnification required by this Section 7.1
shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such
expense, loss, damage or liability is incurred and is due and
payable.
Notwithstanding the foregoing, in the event a Century Capital
Indemnitee is requested or authorized by Medi-Hut or is
required by government regulation, subpoena or other legal
process to produce any documents or personnel as witnesses
with respect to Century Capital's engagement by Medi-Hut,
Medi-Hut will reimburse the Century Capital Indemnitee for
his, her or its reasonable professional costs and expenses, as
well as the reasonable fees and expenses of his, her or its
counsel, incurred in responding to such requests.
7.2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY
LAW NEITHER CENTURY CAPITAL NOR ANY OF ITS PERSONNEL SHALL BE
LIABLE TO MEDI-HUT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL,
OR INDIRECT DAMAGES IN CONNECTION WITH THE SERVICES RENDERED
BY IT OR ITS PERSONNEL UNDER THIS AGREEMENT.
7.3. Survival. The obligations of Medi-Hut set forth in this
Section 7 shall survive the termination of this Agreement.
8. GENERAL PROVISIONS
8.1. Insurance. To the extent permitted by the policy, Medi-Hut
shall add Century Capital and its personnel as additional
insured parties under any business insurance policy issued to
Medi-Hut.
8.2. Governing Law. This Agreement will be governed and construed
in accordance with the laws of the State of New Jersey
(exclusive of its conflict of laws provisions). Any judicial
proceeding brought against any of the parties to this
Agreement on account of any dispute arising out of this
Agreement, or any matter related thereto, shall be brought in
a court of competent jurisdiction in Monmouth County, New
Jersey or in the United States District Court for the District
of New Jersey, and by execution and delivery of this
Agreement, the parties hereby consent to the exclusive
jurisdiction of any such applicable court and waive any
deference or opposition to such jurisdiction.
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8.3. Notices. All notices and other communications pertaining to
this Agreement shall be in writing and shall be sent either by
certified or registered mail, reputable commercial overnight
carrier, or hand delivery, addressed as follows:
To Medi-Hut:
Medi-Hut Co., Inc.
0000 Xxxxxx Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention: Chairman
To Century Capital:
Century Capital Associates LLC
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. XxXxxxx or Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
X.X. Xxx 000 Middletown, New Jersey 07748
Attention: Xxxx X. Xxxxxxx, Esq.
Notice shall be deemed to have been given by a party hereto
(i) when personally delivered, (ii) three (3) days after
having been deposited by certified or registered first class
mail, return receipt requested ,or (iii) one (1) business day
after having been sent by commercial overnight courier with
written verification of receipt. Either party may change its
address from time to time by giving notice to that effect as
provided herein.
8.4. Binding Effect; Assignment. This Agreement and the rights and
obligations of each party hereunder shall be binding upon and
shall inure to the benefit of the parties and their successors
and assigns. Neither this Agreement nor any of the rights or
obligations of Century Capital or Medi-Hut arising under this
Agreement may be assigned or transferred without the other
party's prior written consent.
8.5. Waivers. Failure or delay on the part of either party to
exercise any right, power or privilege or remedy hereunder
shall not constitute a waiver thereof. No waiver of default
shall operate as a waiver of any other default or of the same
type of default on future occasions.
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8.6. Counterparts. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original
and all of which taken together shall constitute one (1) and
the same Agreement.
8.7. Severability. In the event that any provision contained in
this Agreement should be held to be unenforceable, such
unenforceability shall not affect any of the other provisions
herein.
8.8. Headings. The section and paragraph headings are contained
herein for ease of use, and are not intended to either broaden
or limit the scope of the terms hereof.
8.9. Legal Fees. All reasonable legal fees incurred by Century
Capital in connection with the representation of Century
Capital with respect to this Agreement and any related
agreement, instrument or note shall be paid by Medi-Hut. If
any proceeding arises between the parties with respect to a
dispute under this Agreement, the prevailing party in such
proceeding shall be entitled to receive its reasonable
attorney' fees, expert witness fees and out-of-pocket costs
incurred in connection with such proceeding, in addition to
any relief it may be awarded.
8.10. Entire Agreement. This Agreement is intended to be the sole
and complete statement of the obligations of the parties as to
the services to be performed and supersedes all previous
understandings, negotiations and proposals, and may not be
altered, amended or modified, except in writing, signed by the
duly authorized representatives of the parties.
8.11. Construction. This Agreement is the product of negotiations
between the parties and no provision hereof shall be construed
to the disadvantage of any party as having been the author of
such provision.
8.12. Approval of Medi-Hut Board of Directors. Prior to the
execution and delivery of this Agreement by Medi-Hut, Medi-Hut
shall delivery to Century Capital resolutions of the Medi-Hut
Board of Directors approving and adopting this Agreement and
the authorization of the execution hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered in duplicate by their duly authorized representatives all
as of the effective date first written above.
MEDI-HUT CO., INC.
-------------------------------
Authorized Signature
-------------------------------
Name
-------------------------------
Title
CENTURY CAPITAL ASSOCIATES LLC
-------------------------------
Authorized Signature
Xxxxx X. XxXxxxx
-------------------------------
Name
President
-------------------------------
Title
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