CONSULTING AND NONCOMPETITION AGREEMENT
This Consulting And Noncompetition Agreement (the
"Agreement"), which shall be effective as of September 13, 1996, is by and
between M.D. Labs, Inc., a Delaware corporation ("M.D. Labs" or "Company") and
Xxxxxxx X. Steel, Jr. ("Consultant").
RECITALS
A. Consultant is qualified and experienced in the
business of consulting in connection with the Company's industry and general
business matters.
B. The Company desires to contract with Consultant to
provide the services of Consultant to the Company on an as-needed basis.
C. Consultant represents that he can perform those
services in a high-quality manner based on his qualifications and experience.
D. It is deemed to be to the mutual advantage of the
Company and Consultant to enter into this Agreement upon the terms and
conditions set forth below.
AGREEMENTS
In consideration of the mutual promises and covenants set
forth herein and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is hereby agreed as follows:
1. Engagement as a Consultant. The Company hereby
engages Consultant and Consultant hereby accepts such engagement with
the Company as a consultant in accordance with the terms and conditions
set forth herein. Consultant agrees to provide his services and will
devote his skill, knowledge, and attention to the business of the
Company and the performance of Consultant's duties under this
Agreement.
2. Term. This engagement of Consultant by the Company
shall commence on October 7, 1996, and continue until October 6, 1997.
Thereafter, this Agreement may be renewed only by a written agreement
signed by both parties.
3. Duties. Consultant agrees that he shall be available
to the Company, as may be requested by the Company, during the term of
this Agreement. Consultant shall be responsible for the following
duties during the term of this Agreement:
a. Provide consulting services in connection
with the manufacturing and operations activities and business
affairs of the Company, as may be assigned
by the Chief Executive Officer or Board of Directors of the
Company from time to time;
b. Perform such other duties as may be assigned
by the Chief Executive Officer or Board of Directors of the
Company from time to time.
Consultant agrees to serve the Company faithfully, diligently,
and to the best of his ability and to devote his working time,
attention, and energies to the Company's business as required for the
efficient and timely performance of Consultant's duties hereunder.
Consultant shall act in the best interests of the Company at all times
in performing his duties and responsibilities hereunder.
4. Compensation. Consultant shall receive as his entire
compensation from the Company for his services hereunder a warrant to
purchase 100,000 shares of the Company's common stock at $7.00 per
share, identical in substance to Exhibit "A" attached hereto.
5. Expense Reimbursement. The Company shall pay all
ordinary and reasonable expenses of Consultant, up to $1,500.00 per
month, incurred in connection with the rendering of services to the
Company as a consultant pursuant to this Agreement, upon submission of
appropriate vouchers and supporting documentation in accordance with
the Company's usual and ordinary practices, provided that such expenses
are reasonable and necessary business expenses of the Company, and
provided further that all items for which at least $250 in
reimbursement is requested must be approved in advance, in writing, by
the Company.
6. Return of the Company's Materials. Upon the
termination of this Agreement, Consultant shall promptly return to the
Company all files, credit cards, keys, instruments, equipment, and
other materials, if any, owned or provided by the Company.
7. Terms of Consulting Arrangement. Consultant will be
the sole judge of the means, manner, and method by which he will
perform the services contracted for, the times at which those services
will be performed (within the deadlines reasonably established by the
Company) and the sequence of performance of those services. Consultant
warrants that he will perform the services for which he has contracted
in a timely and workmanlike manner. Consultant acknowledges that for
the term of this Agreement, Consultant is not an employee of the
Company and that he will not be treated or regarded as the Company's
employee under the laws or regulations of any government or
governmental agency. This Agreement does not constitute a hiring by
either party. The Consultant and the Company will be and shall remain
independent contractors bound by the provisions of this Agreement.
Consultant is under the control of the Company only as to the result of
Consultant's work and not as to the means,
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manner, and methods by which such result is accomplished. Neither party
hereto shall be liable for any obligation incurred by the other except
as provided in Section 5 of this Agreement. The Company shall not
withhold from Consultant's fees any amounts for income taxes or other
similar assessments. The Company shall provide the use of its employees
as deemed suitable by the Company to assist Consultant in carrying out
his duties hereunder.
8. Non-Competition. Consultant will not, during the term
of this Agreement, directly or indirectly manage, operate, join,
control, or participate or become interested in or be connected with as
an employee, partner, officer, director, stockholder, consultant, or
investor, any corporation, partnership, or other business entity other
than the Company or its affiliates, which shall operate a business in
competition with the business conducted by the Company or its
affiliates. Nothing herein shall prohibit Consultant from owning,
solely for investment purposes, publicly-traded securities of any
company which operates a business otherwise covered by this Section 8,
provided that such ownership constitutes less than 1% of the issued and
outstanding equity or debt securities, as the case may be, of such
company.
9. Confidential Treatment of Information. Consultant
shall not, either during or after the term of this Agreement, directly
or indirectly publish or disclose to any third party any confidential
information pertaining to the business of the Company unless the
Company gives written authorization to do so. Such information shall
not be used apart from Company business without the written approval of
the Company. Such prohibition against disclosure applies to all
confidential information, such as non-public information about the
Company's finances, any trade secrets, and any other information which
is normally kept confidential by the Company.
10. Remedies. The parties further agree that the services
to be performed hereunder are of a unique, special, and extraordinary
character and that any breach or threatened breach by Consultant of any
provision of Section 8 or 9 of this Agreement shall cause the Company
irreparable harm which cannot be remedied solely by damages. Therefore,
in the event of any controversy concerning the rights or obligations
under this Agreement, such rights or obligations shall be enforceable
in a court of competent jurisdiction at law or in equity by an
injunction or a decree of specific performance or, if the Company
elects, by obtaining damages or such other relief as the Company may
elect to pursue. Such remedies, however, shall be cumulative and
nonexclusive and shall be in addition to any other remedies which the
Company may have.
11. Indemnity. The Company shall not be liable for and
Consultant shall indemnify, defend, and hold the Company harmless from
any liability, claim, or loss whatsoever for any injury to or death of
Consultant, or for any damages to Consultant's property or the property
of any of its representatives or agents unless and only to the
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extent that such loss or damage is directly caused by the negligence of
the Company or its employees. Consultant shall also indemnify, defend,
and hold the Company harmless from any liability, claim, or loss
whatsoever for any personal injury or death and for any property damage
resulting from the conduct or negligent omission of Consultant or his
representatives or agents.
12. Taxes. Consultant shall be responsible for reporting
and paying any and all taxes imposed by any government or governmental
entity whatsoever in connection with the payments to Consultant
contemplated by this Agreement, and shall indemnify and hold the
Company harmless with respect thereto.
13. Assignment. This Agreement and the respective rights,
duties, and obligations of Consultant hereunder may not be assigned and
may not be delegated by Consultant, but the respective rights, duties,
and obligations of the Company hereunder may be assigned or delegated
by the Company to a parent or affiliated corporation or entity.
14. Notice. All notices, demands, instructions, or
requests relating to this Agreement shall be in writing and, except as
otherwise provided herein, shall be deemed to have been given for all
purposes (i) upon personal delivery, (ii) one day after being sent,
when sent by professional overnight courier service from and to
locations within the Continental United States, (iii) five days after
posting when sent by United States registered or certified mail, with
return receipt requested and postage paid, or (iv) on the date of
transmission when sent by facsimile with a hard-copy confirmation; if
directed to the person or entity to which notice is to be given at his
or its address set forth in this Agreement or at any other address such
person or entity has designated by notice.
To the Company: M.D. LABS, INC.
0000 X. Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Ph: 602-437-0127
Fax: 000-000-0000
Copy to: Xxxxxxx & Xxxxx
One E. Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
Attn: P. Xxxxxx Xxxx, Esq.
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To Consultant: XXXXXXX X. STEEL, JR.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx
Ph: 312-335-5428
Fax: 000-000-0000
15. Entire Agreement. This Agreement constitutes the
final written expression of all of the agreements between the parties
(except those relating to Consultant's service as a director of the
Company), and is a complete and exclusive statement of those terms. It
supersedes all understandings and negotiations concerning the matters
specified herein. Any representations, promises, warranties, or
statements made by either party that differ in any way from the terms
of this written Agreement shall be given no force or effect. The
parties specifically represent, each to the other, that there are no
additional or supplemental agreements between them related in any way
to the matters herein contained unless specifically included or
referred to herein. No addition to or modification of any provision of
this Agreement shall be binding upon any party unless made in writing
and signed by all parties.
16. Waiver. The waiver by either party of the breach of
any covenant or provision in this Agreement shall not operate or be
construed as a waiver of any subsequent breach by either party.
17. Invalidity of Any Provision. The provisions of this
Agreement are severable, it being the intention of the parties hereto
that should any provisions hereof be invalid or unenforceable, such
invalidity or unenforceability of any provision shall not affect the
remaining provisions hereof, but the same shall remain in full force
and effect as if such invalid or unenforceable provisions were omitted.
18. Applicable Law. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the
State of Arizona, exclusive of the conflict of law provisions thereof,
and the parties agree that any litigation pertaining to this Agreement
shall be in courts located in Maricopa County, Arizona.
19. Headings. Headings in this Agreement are for
informational purposes only and shall not be used to construe the
intent of this Agreement.
20. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and
the same agreement.
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21. Binding Effect; Benefits. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, successors, executors, administrators, and
assigns. Notwithstanding anything contained in this Agreement to the
contrary, nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators, and assigns
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
22. Attorneys' Fees. If any party finds it necessary to
employ legal counsel or to bring an action at law or other proceeding
against the other party to enforce any of the terms hereof, the party
prevailing in any such action or other proceeding shall be paid by the
other party its reasonable attorneys' fees as well as court costs all
as determined by the court and not a jury.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Consulting Agreement and caused the same to be duly delivered on its behalf as
of the date first above written.
M.D. LABS, INC.
/s/ Xxxxxx Xxxxxx
------------------------------------
By: Xxxxxx Xxxxxx
Its: Chief Executive Officer
the "COMPANY"
XXXXXXX X. STEEL, JR.
/s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------
"CONSULTANT"
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