CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into on November 15,
2002 between Critical Home Care, Inc, a Nevada Corporation (the "Company"), and
Rockwell Partners, LLC (the "Consultant").
WHEREAS, the Company desires to obtain the benefit of Consultant's knowledge and
experience by retaining the Consultant, and the Consultant desires to accept
such position, for the term and upon the other conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
Company and Consultant hereby agree as follows:
1. EFFECTIVE DATE AND CONSULTING TERM: This agreement shall be effective on
the date first written above (the "Effective Date"). The Consultant shall
commence rendering his consulting services hereunder on November 15, 2002 and
shall continue to render such services for a three-year term expiring on
November 14, 2005 (the "Consulting Term") unless the Consulting Term shall be
earlier terminated in accordance with Section 7 or 8 below. Each twelve month
period during the Consulting Term that commences on November 15, 2002 and ends
on November 14, 2005 of the following year shall be referred to herein as a
"Year".
2. POSITIONS AND DUTIES: During the Consulting Term, the Consultant shall,
at the request of the Company's Chairman of the Board, Chief Executive Officer
or Board of Directors, render consulting services to the Company relating to
strategic planning, product development and general business and financial
matters. During the First Year of the Consulting Term, the Consultant shall not
be required to devote more than 125 hours to the rendering of his services
hereunder, and in the Second Year of the Consulting Term, the Consultant shall
not be required to devote more than 110 hours to the rendering of his consulting
services hereunder. During the Third Year of the Consulting Term, the Consultant
shall not be required to cause the Consultant to devote more than 100 hours to
the rendering of consulting services hereunder.
3. LOCATION: The Consultant's consulting services shall be rendered at the
Consultant's principal executive offices or at any mutually agreeable location.
The Company shall not be required to provide the Consultant with office space or
secretarial or other support services in connection with his consulting services
hereunder.
4. COMPENSATION: The Consultant shall be compensated by the Company as
follows:
a. Consulting Fees: During the First Year of the Consulting Term, the
Consultant will be paid the sum of $30,000. During the Second Year of the
Consulting Term, the Consultant will be paid the sum of $32,000. During the
Third Year of the Consulting Term, the Consultant's fees shall be payable
in monthly installments, regardless of the actual number of hours devoted
by the Consultant to the rendering of services hereunder during any month
in the Consulting Term.
b. Expenses: During the Consulting Term, the Company shall reimburse
the Consultant for all business expenses reasonably incurred by the
Consultant in the performance of his consulting services hereunder as
requested by the Chairman of the Board, Chief Executive Officer or Board of
Directors, upon submission to the Company of appropriate documentation in
respect of such expenses and approval by the Chief Executive Officer.
c. Benefits: During the Consulting Term, the Consultant shall not be
entitled to any employee benefits (e.g. group health insurance, vacation,
sick leave, severance or 401(k) participation from the Company.
d. Stock Options: Any Company stock options previously granted to the
Consultant by the Company shall, subject to the terms of the applicable
plan and agreement pursuant to which they are granted, continue to vest and
remain exerciseable.
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5. INDEPENDENT CONTRACTOR: During the Consulting Term, the Consultant shall
be an independent contractor and not an employee of the Company. Accordingly,
the Consultant shall be responsible for payment of all taxes for remuneration
received under this Agreement, including Federal and State Income tax, Social
Security tax, Unemployment Insurance tax, and any other taxes or business
license fees as required.
6. EFFORTS: The consultant shall devote reasonable efforts and attention in
rendering his services hereunder.
7. VOLUNTARY TERMINATION; The consultant may voluntarily terminate his
consultant for any reason upon providing 30 days prior written notice. In the
event Consultant voluntarily terminated his consultancy with the Company, the
Consultant shall be entitled to no compensation from the Company other than in
respect of (x) any monthly installment of consulting fees earned but not yet
paid as of the effective date of his termination and (y) the reimbursement of
his expenses in accordance with Section 4(b).
8. OTHER TERMINATION: Consultant's consultancy may be terminated by the
Company in the event of the death or disability (as defined below) or for cause
(as defined below). Upon termination under this Section 8, the Consultant shall
be entitled to no compensation from the Company other than in respect of (x) any
monthly installment of consulting fees earned but not yet paid as of the
effective date of his termination and (y) the reimbursement of his expenses in
accordance with Section 4(b) above. For purposes of this Agreement, (a)
"disability" means the Consultant's inability to perform services for any
consecutive 120-day period as a result of a physical and/or mental impairment
and (b) "for cause" means a termination of the Consultant's consultancy by the
Company for any of the following reasons: (i) any action taken by the Consultant
which has a material and detrimental effect on the Company, its shareholders,
its reputation or its business; (ii) the Consultant's willful and continued
refusal to perform any duty reasonably assigned to him assigned to him in
accordance with the provisions of this Agreement; (iii) any breach of this
Agreement by the Consultant, which if curable, is not cured within 10 days
following written notice from the Company to the Consultant of such breach; (iv)
the Consultant's conviction (including any plea of guilty or nolo contendere)
for any criminal act which impairs the Consultant's ability to perform his
duties under the Agreement; or (v) the Consultant becoming an officer, director,
employee or agent of, or a consultant to, a corporation, person, firm or entity,
which in the reasonable determination of a majority of the full membership of
the Company's Board of Directors results in, or is likely to result in, a
conflict of interest with the Consultant's position as a consultant to the
Company.
9. NON-SOLICITATION: During the period from the Effective Date through the
end of the Consulting Term and for a twelve month period thereafter, the
Consultant will not, directly or indirectly, recruit, induce or otherwise
attempt to persuade any person who is now, or who subsequently becomes an
employee, sales representative or consultant to the Company.
10. CONFIDENTIALITY: The Consultant shall not, commencing on the Effective
Date and at all times thereafter, directly or indirectly communicate or divulge
to, or use for the Consultant's own benefit or for the benefit of any other
person, or entity, any of the Company's trade secrets, proprietary data and
confidential information (including, without limitation, non-public information
pertaining to or derived from (i) meetings or deliberations of the Company's
Board of Directors (or any committee thereof) and (ii) discussions with any
officer or employee or former officer or employee of the Company, member or
former member of the Company's Board of Directors or any current or former agent
or attorney of the Company communicated to or otherwise learned or acquired by
the Consultant in the course of his service hereunder or in the course of his
service on the Company's Board of Directors.
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11. MUTUAL RELEASE The Consultant on behalf of himself and his successors,
assigns and heirs and on behalf of each person or entity claiming through any of
them, and the Company, on behalf of itself and its affiliated their respective
successors and assigns and each person or entity claiming through any of them,
hereby forever relieves, releases and discharges the other (and, as applicable,
any released party's successors, predecessors, assigns, heirs, agents,
directors, officers and employees) from any and all claims, debts, liabilities,
demands, obligations, actions, or causes of action, whether arising out of acts
or omissions occurring before the execution of this Agreement, whether known or
unknown, apparent or concealed; provided, however, that nothing herein shall be
deemed to release (i) the Company or the Consultant in connection with their
respective rights and obligations under this Agreement, (ii) the Consultant's
rights to indemnification or reimbursement under the Company's by-laws, articles
of incorporation, director's and officer's liability insurance policies or
indemnification agreements, and (iii) the Consultant's rights to reimbursement
of expenses incurred in respect of his service on the Company's Board of
Directors.
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
The Consultant and the Company waive any rights to the full extent that
they may lawfully waive such rights pertaining to this release, and affirm that
they are releasing all known and unknown claims that they have or may have
against any of the parties referred to in the Section 11.
12. DISPUTE RESOLUTION: In the event of any dispute or claim relating to or
arising out of the Consultant's relationship with the Company for any reason
(including, but not limited to, any claims of breach of contract, wrongful
termination or age, disability or other discrimination), any dispute shall be
fully, finally and exclusively resolved by binding arbitration conducted by the
American Arbitration Association in Manhattan, New York. The Consultant and the
Company hereby knowingly and willingly waive their respective rights to have any
such disputes or claims tried by a judge or jury. Notwithstanding the foregoing,
this arbitration provision shall not apply to any disputes or claims relating to
or arising out of (i) the actual or alleged misuse or misappropriation of the
Company's property, including, but no limited to, its trade secrets or
proprietary information or (ii) the Consultant's actual or alleged breach of
Sections 9 and 10 above.
13. SEVERABILITY: The invalidity or unenforceability of any provision or
provisions of this agreement shall not effect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
14. ASSIGNMENT: This Agreement may not be assigned by either party hereto
without the prior written consent of the other party, except that the Company
may assign this agreement to a Company succeeding to substantially all the
assets or business of the Company whether by merger, consolidation, acquisition
or otherwise.
15. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
between the Consultant and the Company regarding the terms and conditions
hereof, and supercedes all prior negotiations, representations or agreements
between Consultant and the Company regarding the Consultant's consultancy,
whether written or oral.
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16. MODIFICATION: This Agreement can only be modified or amended by a
supplemental written agreement signed by Consultant and an authorized officer of
the Company.
17. COMPANY: The term "Company" as used in this Agreement means and
includes not only Critical Home Care, Inc. but also any subsidiary, parent or
affiliated corporation of Critical Home Care, Inc.
18. EACH PARTY THE DRAFTER: This Agreement and the provisions contained in
it shall not be construed or interpreted for or against any party to this
Agreement because that party drafted or caused that party's legal representative
to draft any of its provisions.
19. GOVERNING LAW: This agreement shall interpreted in accordance with and
governed by the laws of the State of New York without reference to the conflict
of laws, principles thereof or of any other jurisdiction.
20. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
Critical Home Care, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, CEO
Rockwell Capital Partners, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
Managing Partner
