Consulting Agreement
Exhibit
10.2
This
Consulting Agreement ("Agreement")
is made effective the 12th day of
January,
2005, between
GarlandHarris (“Consultant”) and
Salon City, Inc., a Nevada corporation
(“Client”).
In
consideration of the mutual
promises, covenants and agreements contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the Client and Consultant agree as follows:
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1.
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ENGAGEMENT
OF CONSULTANT. The Client engages Consultant to
provide the consulting services described below, during the term
of this
Agreement, until this Agreement is terminated as provided
herein.
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2.
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SCOPE
OF SERVICES TO BE PROVIDED BY CONSULTANT. Consultant
agrees to provide, and the Client agrees to pay for, the following
consulting services (collectively referred to as the
“Services”): (a) assistance with public relations and
introductions to third-party public relations service providers;
(b)
marketing for the Client’s tangible products; (c) providing a list of
names identified as leads for potential accredited investors, to
be
contacted only by management; (d) training on networking, product
presentation, and public speaking skills; (e) document design assistance
for Client’s PPM document and related graphics; (f) best practices
training in functioning as CEO of a public company; (g) training
in
investor relations functions and responsibilities; (h) advice on
capital
acquisition strategies; (i) business development; (j) developing
a network
marketing group in Pennsylvania for Client’s tangible products; (k)
marketing advice and research in Pennsylvania; (l) soliciting new
advertisers and new advertising representatives; (m) increasing
brand
awareness of the Client’s brand among business people; (n) research and
background information on market development opportunities and
leads.
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provided,
however, that the Services are expressly agreed to exclude all legal
advice, accounting services, stock brokerage services or other services
requiring licenses or certification.
All
Services are to be provided on a “best efforts” basis through Consultant’s
officers, or others employed or retained under the direction of Consultant
(collectively “Consultant’s Personnel”). The foregoing services are
intended to be primarily in the areas of substantive work for the Client’s core
business and management group, not the sale of any securities, as governed
by
Rule 3a4-1 under the Securities Exchange Act of 1934.
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3.
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TERM. This
Agreement shall have an initial term of ninety days (the “Primary Term”),
starting with the date appearing at the top of this Agreement (the
“Effective Date”), and it may be renewed by written notice of renewal
signed by both parties to this Agreement. The agreement can be
terminated
by either party with 30 days prior written
notice.
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4.
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PROHIBITION
FROM PARTICIPATION IN SALES OF
SECURITIES. Pursuant to Rule 3a4-1 promulgated under
the Securities Exchange Ace of 1934, Consultant agrees not to perform,
and
Client expressly prohibits Consultant from performing, the
following: (a) making any sales of Client’s stock; (b)
discussing price of Client’s stock; (c) delivering any offering materials
for Client’s stock; (d) discussing the terms, rights, or characteristics
of Client’s stock; (e) discussing investment in the Client’s business with
anyone, except to direct people who express an interest in investing
to
talk with Client’s management for further
details.
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5.
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COMPENSATION. In
consideration of the Services contemplated by this Agreement, Client
agrees to pay Consultant the following fees for the
Services:
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A.
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Stock. Client
agrees that it will issue to Consultant One Hundred Thousand (100,000)
shares of the Client’s common stock, free-trading and without restrictive
legend, via a private transaction , exempt under sections 4(1)
and 4(2)
under the Securities Act of 1933. Such stock shall be paid 90
days from the date of this agreement, and such stock be deemed
fully paid
and non-assessable as of that date.
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B.
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Additional
Payments for Additional Services. Other duties will be
compensated on a case-by-case basis, but in no event shall any
duties
involve the sale of stock or other securities of the Client, and
no
commissions for sales of securities will be
paid.
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C.
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Fees
and Commissions for Advertising Accounts. Client shall pay
Consultant an initial retainer fee of $2,500 cash, due upon signing
of
this agreement, as an initial retainer fee to retain Consultant
and
compensate him to forego other opportunities to devote time to
Client, plus 20% of contracted advertising accounts obtained through
the
services of Consultant, plus an additional $2,500 cash due upon
the
completion of this agreement and payable only if Client, in its
sole
discretion, determines Consultant has used its best efforts on
behalf of
Client.
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6.
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TIME
AND EFFORT OF CONSULTANT. Consultant may allocate its
time and that of Consultant’s Personnel as it deems necessary to provide
the Services. Neither Consultant nor Consultant’s Personnel
shall be liable to Client or any of its shareholders for any act
or
omission connected with rendering the Services, including but not
limited
to losses due to any corporate act undertaken by Client as a result
of
advice provided by Consultant or Consultant’s
Personnel.
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7.
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BEST
EFFORTS - The Services are rendered to Client on a “best efforts”
basis, meaning that Consultant can not, and does not, guarantee
that its
efforts will have any impact on Client's business or that any subsequent
financial improvement will result from Consultant’s
efforts.
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8.
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CLIENT'S
REPRESENTATIONS - Client represents, warrants and covenants to
Consultant that each of the following are true and complete as
of the
Effective Date:
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a.
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Entity
Existence. Client is a corporation or other legal entity duly
organized, validly existing, and in good standing under the laws
of the
state of its formation, with full authority to own, lease and operate
property and carry on business as it is now being conducted. Client
is
duly qualified to do business in and is in good standing in every
jurisdiction where such qualification is
necessary.
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b.
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Client
Authority for Agreement. Client has duly authorized the execution and
delivery of this Agreement and the consummation of the transactions
contemplated herein. Client has duly executed and delivered
this Agreement; it constitutes the valid and legally binding obligation
of
Client enforceable according to its
terms.
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c.
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Nature
of Representations. No representation or warranty made by Client in
this Agreement, nor any document or information furnished or to
be
furnished by Client to the Consultant in connection with this Agreement,
contains or will contain any untrue statement of material fact,
or omits
or will omit to state any material fact necessary to make the statements
contained therein not misleading, or omits to state any material
fact
relevant to the transactions contemplated by this
Agreement.
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d.
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Independent
Legal/Financial Advice. Consultant is not a law firm or an accounting
firm. Consultant may employ lawyers and accountants to counsel
Consultant on its Services. Client has not nor will it
rely on any legal or financial representation of Consultant. Client
has
and will continue to seek independent legal and financial advice
regarding
all material aspects of the transactions contemplated by this Agreement,
including the review of all documents provided by Consultant to
Client and
all Opportunities Consultant introduces to Client. Client recognizes
that
the attorneys, accountants and other personnel employed by Consultant
represent solely the interests of Consultant, and that no representation
or warranty has been given to Client by Consultant as to any legal,
tax,
accounting, financial or other aspect of the transactions contemplated
by
this Agreement.
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e.
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No
Blank-Check Status. The Client currently has a specific
business plan. The company is not a “blank check” company
within the meaning of Rule 419 promulgated under the Securities
Act of
1933.
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9.
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CONSULTANT
IS NOT A BROKER-DEALER - Consultant has fully disclosed to Client
that it is not a broker-dealer and does not have or hold a license
to act
as such. None of the activities of Consultant are intended to
provide the services of a broker-dealer to the Client, and Client
has been
informed that a broker-dealer will need to be engaged to perform
any such
services. Client has full and free discretion in the selection
of a broker-dealer.
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10.
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NONEXCLUSIVE
SERVICES - Client acknowledge that Consultant is currently
providing services of the same or similar nature to other parties.
Client
agrees that Consultant is not barred from rendering services of
the same
or a similar nature to any other individual or
entity.
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11.
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PLACE
OF SERVICES. The Services provided by Consultant or
Consultant’s Personnel hereunder will be performed at Consultant's offices
except as otherwise mutually
agreed.
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14.
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INDEPENDENT
CONTRACTOR. Consultant, with Consultant's Personnel,
acts as an independent contractor in performing its duties under
this
Agreement. Accordingly, Consultant will be responsible for
paying all federal, state, and local taxes on compensation paid
under this
Agreement, including income and social security taxes, unemployment
insurance, any other taxes regarding Consultant’s Personnel, and any
business license fees. This Agreement neither expressly nor
impliedly creates a relationship of principal-agent, or employer-employee,
between Client and Consultant’s Personnel. Neither Consultant
nor Consultant’s Personnel are authorized to enter into any agreement on
behalf of Client. Client expressly retains the right to make
all final decisions, in its sole discretion, with respect to approving,
or
effecting a transaction with, any Opportunity located by
Consultant.
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15.
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INDEMNIFICATION. Subject
to the provisions herein, the Client and Consultant agree to indemnify,
defend and hold each other harmless from and against all demands,
claims,
actions, losses, damages, liabilities, costs and expenses, including
without limitation, interest, penalties and attorneys' fees and
expenses
asserted against or imposed or incurred by either party by reason
of or
resulting from the other party’s breach of any representation, warranty,
covenant, condition, or agreement contained in this
Agreement.
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16.
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REMEDIES. Consultant
and the Client acknowledge that in the event of a breach of this
Agreement
by either party, money damages would be inadequate and the non-breaching
party would have no adequate remedy at law. Accordingly, 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
equity by a decree of specific performance. Such remedy,
however, shall be cumulative and non-exclusive and shall be in
addition to
any other remedy to which the parties may be
entitled.
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23.
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MISCELLANEOUS.
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A.
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Amendment. This
Agreement may be amended or modified at any time or in any manner,
but
only by an instrument in writing executed by the parties
hereto.
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B.
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Entire
Agreement. This Agreement contains the entire agreement
between Consultant and Client relating to the subjects addressed
in this
Agreement. This Agreement supersedes any and all prior
agreements, arrangements, or understandings (written or oral) between
the parties. No understandings, statements, promises, or
inducements contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express or
implied, other than as set forth herein, have been made by any
party.
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C.
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Waiver. Any
failure of any party to this Agreement to comply with any of its
obligations, agreements, or conditions hereunder may be waived
in writing
by the party to whom such compliance is owed. The failure of
any party to this Agreement to enforce at any time any of the provisions
of this Agreement shall in no way be construed to be a waiver of
any such
provision or a waiver of the right of such party thereafter to
enforce
each and every such provision. No waiver of any breach of or
non-compliance with this Agreement shall be held to be a waiver
of any
other or subsequent breach or
non-compliance.
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D.
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Headings
and Captions. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect
in any
way the meaning or interpretation of this
Agreement.
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E.
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Governing
Law. The validity, interpretation, and performance of this Agreement
shall be governed by the laws of the State of California, regardless
of
its law on conflict of laws.
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F.
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Binding
Effect. This Agreement is binding on the parties hereto and
inures to the benefit of the parties, their respective heirs,
administrators, executors, successors, and
assigns.
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G.
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Attorney's
Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions
of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees, court costs, and other costs incurred
in
proceeding with the action from the other party. Should either
party be
represented by in-house counsel, all parties agree that such party
may
recover attorney's fees incurred by that in-house counsel in an
amount
equal to that attorney's normal fees for similar matters, or, should
that
attorney not normally charge a fee, by the prevailing rate charged
by
attorneys with similar background in that legal
community.
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H.
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Severability. In
the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal,
or
unenforceable in any respect, such invalidity, illegality or
un-enforceability shall not affect any other provisions of this
Agreement.
Instead, this Agreement shall be construed as if it never contained
any
such invalid, illegal or unenforceable
provisions.
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I.
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Mutual
Cooperation. The parties shall cooperate with each other to
achieve the purpose of this Agreement, and shall execute such other
documents and take such other actions as may be necessary or convenient
to
effect the transactions described
herein.
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J.
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Counterparts. A
facsimile, telecopy, or other reproduction of this Agreement may
be
executed simultaneously in two or more counterparts, each of which
shall
be deemed an original, but all of which together shall constitute
one and
the same instrument. Such executed copy may be delivered by facsimile
or
similar instantaneous electronic transmission. Such execution
and delivery shall be considered valid for all
purposes.
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K.
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No
Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the
parties
hereto and their successors, any rights or remedies under or by
reason of
this Agreement, unless this Agreement specifically states such
intent.
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L.
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Time
is of the Essence. Time is of the essence of this Agreement
and of each and every provision
hereof.
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IN
WITNESS WHEREOF, the parties have hereto affixed their signatures.
“Client”
Salon
City, Inc.
By:
/s/ Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
President
“Consultant”
Xxxxxxx
Xxxxxx
By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title: in
his individual capacity
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