CONSULTING AGREEMENT
THIS
AGREEMENT
made the
2nd
day of
May, 2005.
BETWEEN:
BRISTOL
INVESTOR RELATIONS, a division of
BRISTOL
CAPITAL LTD.
A
corporation incorporated pursuant to the laws
of
the
Province of Ontario.
(hereinafter
referred to as the “Consultant”)
-
and
-
BrandPartners
Group, Inc.
A
corporation incorporated pursuant to the laws
of
the
State of Delaware.
(hereinafter
referred to as the “Corporation”)
WHEREAS
the
Consultant carries on the business of investor relations including assisting
public companies in the promotion of corporate activities;
AND
WHEREAS the
Corporation is a publicly traded company;
AND
WHEREAS the
Corporation desires to retain the Consultant to provide specific services for
the Corporation as herein set forth.
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the respective covenants and agreements of the parties
(Parties”) contained herein, the sum of One Dollar ($1.00) now paid by each
party hereto to each of the other parties hereto, and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged
by
each of the parties hereto), it is hereby agreed as follows:
1. Term
The
term
of this Agreement shall be twelve
(12)
months, commencing ______,
2005
and
ending ______,
2006 subject
however, to prior termination as provided in Section 5 of this Agreement.
2. Relationship
of the Parties
The
Parties intend that the relationship between them created under this Agreement
is that of an independent contractor only. It is agreed that it is not the
intention of the parties to this agreement to create, nor is this agreement
to
be construed as creating, a partnership or agency relationship for any purpose.
The Consultant acknowledges that it is not an Agent of the Corporation, and
that
it may not commit the Corporation to any action and/or obligation, and that
any
and all agreements or arrangements that the Consultant may negotiate for or
with
the Corporation will be subject to acceptance by the Corporation through its
board of directors or authorized officers.
3. Compensation
The
Corporation shall pay to the Consultant a fee of USD $5,000.00 per month payable
at the beginning of each month of service under this agreement.
4.
Expense Reimbursement
The
Corporation agrees to promptly reimburse the Consultant for reasonable expenses
incurred by the Consultant in the course of performing its obligations upon
submission to the Corporation of appropriate documentation evidencing such
expenses. These expenses may include but are not limited to travel, lodging,
meals, vendor fees, printing fees, etc. Consultant must obtain written approval
of Corporation prior to expending in excess of $500 in expenses in any given
calendar month.
5. EARLY
TERMINATION
(1) Notwithstanding
section 1 of this Agreement, this Agreement may be terminated:
| (a) |
By
the Corporation, upon ten (10) days prior written notice to the
Consultant, in the event that:
|
| (i) |
the
Consultant requests the Corporation to perform acts or services in
violation of any law, rule, regulation, policy or order of any federal
or
state regulatory agency;
|
| (ii) |
the
Consultant distributes to the public information containing material
misrepresentations or omissions; or
|
| (iii) |
the
Consultant engages in “xxxxxxx xxxxxxx” or violates the provisions of
Articles VII.
|
| (b) |
By
the Consultant, upon ten (10) days prior written notice to the
Corporation, in the event that:
|
| (i) |
the
Corporation requests the Consultant to perform acts or services in
violation of’ any law, rule, regulation, policy or order of any federal or
state regulatory agency;
|
| (ii) |
the
Corporation distributes to the public information containing material
misrepresentations or omissions; or
|
| (iii) |
the
Corporation is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state regulatory
agency.
|
| (2) |
In
addition to any early termination rights in 5(1) above, the Corporation
may terminate this Agreement, without cause and for any reason whatsoever
any time, after three (3) months, provided that the Corporation notifies
the Consultant in writing of such termination at least one (1) week
prior
to the end of the last day of the given
month.
|
| (3) |
In
addition to any early termination rights in 5(1) above, the Consultant
may
immediately terminate all of its obligations hereunder by notice in
writing to the Corporation in the event of default by the Corporation
of
any of the compensation provisions contained in section 3 hereof remaining
uncured for five (5) days after notice thereof, without prejudice to
any
other rights the Consultant may have in law or equity to amounts owing
hereunder or otherwise.
|
| (4) |
In
the event of early termination of this Agreement by the Corporation
either
in accordance with 5(1)(a) or 5(2) above,
|
| (i) |
the
Corporation will still be required to deliver all compensation owed
to the
Consultant up to the date of termination,
and
|
6. Disclosure
Both
the
Consultant and the Corporation agree, during the Term of this Agreement and
for
a period of two (2) years after the Termination Date, not to disclose the
existence of this Agreement or the nature of this Agreement to any person other
than its directors, officers, employees, agents and advisors without the prior
express written consent of the other party unless compelled by an order made
by
a court of competent jurisdiction or as otherwise required by applicable
securities law. The Parties acknowledge and agree that non-compliance with
this
provision will entitle the other party to terminate the Agreement in accordance
with paragraph 5 above in addition to any other remedies available at law.
Notwithstanding the foregoing, the Corporation may disclose the existence of
and
content of this Agreement if the Corporation reasonably deems such disclosure
necessary to comply with applicable law.
7. Consultant’s
Covenants, Representations, Warranties and Obligations
The
Consultant covenants and agrees that it shall, during the Term of the
Agreement:
| (a) |
introduce
the Corporation to stock brokers, fund managers, analysts and other
professional money managers;
|
| (b) |
assist
in arranging and moderating investor conference
calls;
|
| (c) |
assist
in arranging and attending investor meetings and road show
presentations;
|
| (d) |
provide
the Corporation with a contact telephone number and contact email address
for publication of Corporation’s press releases and investment
materials;
|
| (e) |
obtain
the written consent from the Corporation prior to the release or
dissemination of any information about the Corporation that has previously
been publicly released and has subsequently been modified as to form
of
presentation or content by an individual or entity other than the
Corporation; and
|
| (f) |
provide
general consulting to the Corporation in other areas of investor
relations.
|
The
Consultant acknowledges and agrees that all such activities carried on by the
Consultant shall comply with all applicable laws and regulations.
8. Non-Exclusive
Services by Consultant
The
Consultant shall devote such of its time and effort as may be necessary to
discharge the Consultant’s duties as outlined hereunder, and shall not be
restricted from engaging in other activities during the Term of this Agreement.
The Corporation specifically acknowledges and agrees that the Consultant is
presently engaged in (and/or may in the future and during the Term of this
Agreement provide) other business activities of a similar or different nature
to
those provided for in this Agreement with other clients and that it will
continue to deliver (and/or make available) such services during the Term of
this Agreement.
9. Disclaimer
by Consultant;
(a) The
Consultant makes no representation to the Corporation or others
that:
| (i) |
its
efforts or services will result in any enhancement to
Corporation;
|
| (ii) |
the
price of the Corporation's publicly traded securities will
increase;
|
| (iii) |
any
person will purchase the Corporation's securities;
or
|
| (iv) |
any
investor will lend money and/or invest in or with the Corporation.
|
|
(b)
|
The
Consultant has advised the Corporation, and the Corporation acknowledges
and understands that the
Consultant:
|
| (i) |
is
in the business of investor/public relations and other related
business;
|
| (ii) |
in
no way claims to be an investment advisor and/or stock or securities
broker;
|
| (iii) |
is
not licensed as a stock or securities
broker;
|
| (iv) |
is
not in the business of selling such stock or securities or advising
as to
the investment viability or worth of such stocks or
securities.
|
10. Limitation
on use of Non-Public Information by Consultant
The
Corporation acknowledges and agrees that it is the responsibility of the
Corporation to comply with the disclosure obligations of companies with publicly
traded securities in the United States of America and to obtain counsel as
to
what information shall be disclosed publicly or to the Consultant. However,
the
Consultant acknowledges that in its capacity as a consultant for the
Corporation, it may obtain confidential information about the Corporation’s
business, affairs or financial condition, which the Corporation does not wish
to
make available generally to the investor public. The Consultant therefore agrees
not to include any information which is not generally available to the investor
public (whether such information is made available through press releases or
otherwise) in any materials published or disseminated by the Consultant without
first obtaining the Corporation’s prior written consent. For greater clarity,
the Consultant shall be free to disseminate and/or publish any and all
information relating to the Corporation which is generally available to the
investor public…
11. INDEMNIFICATION
FOR SECURITIES LAWS VIOLATIONS
The
Corporation agrees to indemnify and hold harmless the Consultant and each
officer, director and controlling person of the Consultant against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Consultant or such officer, director or
controlling person may become subject under the Securities Act of 1933 as
amended or the Securities Exchange Act of 1934 as amended, because of actions
of
the Corporation or its agent, the Corporation’s material publicly available to
the Consultant, or materials provided to Consultant by Corporation for use
by
Consultant in its performance under this Agreement.
The
Consultant agrees to indemnify and hold harmless the Corporation and each
officer, director and controlling person of the Corporation against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Corporation or such officer, director or
controlling person may become subject under the Securities Act of 1933 as
amended or the Securities Exchange Act of 1934 as amended, because of actions
of
the Consultant or its agent in violation of the terms of this Agreement and
applicable securities laws, provided that this indemnity shall not apply insofar
as the losses, claims, liabilities and/or expenses result from material made
publicly available by the Corporation, or materials provided to Consultant
by
Corporation for use by Consultant in its performance under this Agreement.
12.
DAMAGE LIMITATION
In
no
event shall the Consultant be liable to the Corporation, or any officer,
director or controlling person thereof, for or be required to indemnify the
Corporation, or any officer, director or controlling person thereof, for an
amount greater than the amount of the compensation earned by the Consultant
under this Agreement up to the date of the breach, except to the extent (if
any)
that the Corporation’s, or officer’s, director’s or controlling person’s losses,
costs, damages, expenses or liabilities arise from the gross negligence or
willful misconduct of the Consultant.
13. Corporation’s
Covenants, Representations, Warranties and Obligations
The
Corporation
| (a) |
agrees
to pay and/or deliver the compensation to the Consultant pursuant to
section 3 hereof;
|
| (b) |
covenants
and agrees to provide to the Consultant all information and documentation
pertaining to the Corporation that is reasonably necessary for the
Consultant to perform its services hereunder; provided that the
Corporation shall not be obligated to furnish any material non-public
information,
|
| (c) |
covenants,
represents and warrants that all information and documentation provided
to
the Consultant herein, and provided to the public generally, will be
timely, and complete and accurate to the best of the Corporation’s
information, knowledge and belief at the time it is provided. The
Corporation shall immediately notify the Consultant in the event of
any
material change in respect of such information or documentation which
has
been provided to the Consultant by the Corporation and which change
makes
or is likely to make such information misleading in any material
respect;
|
| (d) |
shall
use reasonable efforts to make its senior executives available to the
Consultant on a regular basis, and as may be required by the
Consultant;
|
| (e) |
acknowledges
and agrees that any reports and documents prepared by the Consultant
for
the Corporation shall contain a disclaimer with respect to liability
of
the Consultant to members of the public;
|
|
(d)
|
shall
make reasonable efforts to cooperate on a timely basis with the Consultant
to enable the Consultant to perform its duties and obligations under
this
Agreement;
|
|
(e)
|
warrants
and represents that to the extent necessary the execution and performance
of this Agreement by the Corporation has been duly authorized by
the Board
of Directors of Corporation in accordance with applicable law, and,
to the
extent required, by the, requisite number of shareholders of
Corporation;
|
|
(f)
|
warrants
and represents that the performance by the Corporation of this Agreement
will not violate any applicable court decree or order, law or regulation,
nor will it violate any provision of the organizational documents
and/or
bylaws of the Corporation or any existing contractual obligation
by which
Corporation is bound;
|
|
(g)
|
shall,
if required by the Consultant, review materials submitted to it by
the
Consultant in a timely manner, and shall inform the Consultant of
any
material inaccuracies contained therein within a reasonable time
prior to
the projected or known publication or dissemination
date;
|
14. Further
Assurances
Each
of
the Parties covenants that they will do all such acts and execute all such
further documents, consents and authorizations, and the like, and will cause
the
doing of all such acts and will cause the execution of all such further
documents as are within its power to cause the doing or execution of, all as
may
be reasonably required to consummate the transactions contemplated under this
Agreement, and/or as may be reasonably necessary or desirable to effect the
purpose of this Agreement and to carry out the provisions herein, and/or as
may
be reasonably required to better or more properly or fully evidence or give
effect to the transactions contemplated under this Agreement.
15. Notices
Any
notice, communication, payment or demand required or permitted to be given
or
made hereunder (hereinafter a “Notice”) shall be sufficiently given or made for
all purposes if delivered personally to the Party or to an officer of the Party
to whom the same is directed or if sent by certified first class mail within,
postage prepaid, return receipt requested, or if transmitted by
telecommunications facilities, at the addresses as set forth below,
namely:
if
to the
Consultant: Bristol
Investor Relations, a division of
Bristol
Capital Ltd.
00
Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxx X0X 0X0
Fax
No.
(000) 000-0000
Attention:
Xxxx Akselro d
if
to the
Corporation: BrandPartners
Group, Inc.
00
Xxxx
Xxxxxx
Xxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Attention:
Xxxxx Xxxxxx
All
such
Notices shall be deemed to have been received when delivered or transmitted,
or,
if mailed, on the day actually delivered.
16. Governing
Law
This
Agreement shall be construed and enforced in accordance with and governed by
the
laws of the State of New York, without giving effect to the principles of
conflict of laws .
17. Dispute
Resolution
Any
disputes between the Parties arising out of, connected to, or relating to this
Agreement and its formation, breach, performance, interpretation and application
shall be settled by arbitration in accordance with the applicable rules of
the
arbitration laws of the State of New York. Judgment on the award of the board
of
arbitrators may be entered in any court having jurisdiction thereof in
accordance with the laws of the State of New York..
18. Independent
Legal Advice
The
Parties each acknowledge having obtained their own independent legal advice
with
respect to the terms of this Agreement prior to its execution.
19. Waiver
No
waiver
by any Party of a breach of any of the covenants, conditions and provisions
herein contained shall be effective or binding upon such Party unless the same
shall be expressed in writing and any waiver so expressed shall not limit or
affect such Party's rights with respect to any other future breach. No other
course of dealing between the Parties or any delay in exercising any rights
hereunder will operate as a waiver of any rights of either Party under this
Agreement.
20. Headings
The
headings of the sections of this Agreement are inserted for convenience only
and
do not constitute part of this Agreement.
21. Successors
and Assigns
This
Agreement shall be binding upon and enure to the benefit of the Parties hereto
and their respective heirs, executors, administrators, successors and assigns.
This Agreement is not assignable by either Party without the express prior
written consent of the other Party.
22. Gender
and Number
All
words
and personal pronouns relating thereto shall be read and construed as the number
and gender of the Party or Parties referred to in each case require and the
verb
shall be construed as agreeing with the required word and pronoun.
23. Severability
If
any
covenant or provision contained herein is determined to be, in whole or in
part,
invalid or unenforceable by reason of any rule of law or public policy, such
invalidity or unenforceability shall not affect the validity or enforceability
of any other covenant or provision contained herein and, in the case of partial
invalidity or unenforceability of a covenant or provision, such partial
invalidity or unenforceability shall not affect the validity or enforceability
of the remainder of such covenant or provision, and such invalid or
unenforceable covenant or provision or portion thereof, as the case may be,
shall be severable from the remainder of this Agreement.
24. Final
Agreement and Amendments
This
Agreement expresses the final agreement among the Parties hereto with respect
to
all matters herein and no representations, inducements, promises or agreements
or otherwise among the Parties not embodied herein shall be of any force and
effect. This Agreement shall not be altered, amended or qualified except by
a
memorandum in writing, signed by all of the Parties hereto, and any alteration,
amendment or qualification thereof shall be null and void and shall not be
binding upon any such Party unless made and recorded as aforesaid.
25. Execution
in Counterparts and Fascimile
This
Agreement may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same instrument. In addition, the fully executed faxed
version of this Agreement shall be construed by all parties hereto as an
original version of the said Agreement.
IN
WITNESS WHEREOF
the
parties have affixed their respective corporate seals, attested by the hands
of
their respective officers duly authorized in that behalf as of the date first
written above.
| SIGNED, SEALED AND DELIVERED | ) | |
| In the presence of: | ) | BRISTOL INVESTOR RELATIONS, a |
| ) | division of BRISTOL CAPITAL LTD. | |
| ) | ||
| ) | ||
| [witnesses] | ) | Per: ___________________ |
| ) | Name: Xxxx Xxxxxxxx | |
| ) | Title: President | |
| ) | I have authority to bind the Corporation | |
| ) | ||
| ) | ||
| ) | BrandPartners Group, Inc. | |
| ) | ||
| ) | ||
| ) | Per: _____________________ | |
| ) | ||
| ) | Name: Xxxxx Xxxxxx | |
| ) | Title: Chief Executive Officer and Director | |
| ) | I have authority to bind the Corporation |
