Exhibit 10.1
CONSULTING AGREEMENT
AGREEMENT dated as of February 6, 2003 by and between Blue Moon Group, Inc., a
Delaware corporation, trading as Blue Moon Group, Inc. (OTC BB: BMOO) with
offices located at 000-00 00xx Xx., Xxxxxx Xxxxx, XX 00000, (the "Company") and
Xxxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxx, individuals, with offices located at 0000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 (the "Consultants").
WITNESSETH
WHEREAS, the Consultants are engaged in the business of providing business
and financial consulting services, with particular expertise in advising
businesses in areas of business development, strategic alliances and general
business matters; and
WHEREAS, the Company desires to engage Consultants to render consulting
services to the Company; and
WHEREAS, the Company and the Consultants desire to set forth the terms and
conditions of this Agreement with respect to the Company's engagement of
Consultants.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
which are hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
IT IS AGREED:
1. Recitals Adopted. The parties hereto adopt as part of this
Agreement each of the recitals contained above in the WHEREAS clauses, and
agree that such recitals shall be binding upon the parties hereto by way of
contract and not merely by way of recital or inducement; and such clauses
are hereby confirmed and ratified as being true and accurate by each party
as to itself.
2. Engagement.
A. Upon the terms and conditions which are hereinafter set forth,
the Company hereby retains the Consultants as a business and financial
consultant to render advice, consultation, information and services to
the Company and its officers and directors regarding general financial
and business matters (the "Consulting Services") including, but not
limited to, the following:
i. Marketing strategy, strategies for increasing market
share;
ii. Product promotion;
iii. Business development and business advertising;
iv. Strategic alliances;
v. Fiscal controls, strategies for achieving operational
efficiency, improving cash flow, and asset based debt
financing;
vi. Banking methods and systems; and
vii. Such other matters as Company shall from time to time
request.
B. The Consultants shall not be required to devote any minimum
number of weeks, days, or hours to the affairs of the Company during
the term of this Agreement; provided, however that the Consultants
devote such time, attention and energies to the business of the
Company, as the Company reasonably determines.
3. Term.
A. The term of this Agreement shall commence as of February 6,
2003 and shall continue for a period of twelve (12) months until
February 6, 2004 (the "Term"). The Company shall have the right to
terminate the Consultants for Cause as defined in Article "10" of this
Agreement.
B. This Agreement may be extended upon agreement by the mutual
agreement of the parties, unless or until the Agreement is previously
terminated.
4. Compensation.
A. As compensation for its services pursuant to this Agreement,
the Consultants shall receive an engagement fee of fifty five thousand
(55,000) shares of free trading shares of common stock payable as
follows:
Xxxxxxx Xxxxxxxxx will receive twenty seven thousand five hundred
(27,500) shares.
Xxxxxxxx Xxxxxx will receive twenty-seven thousand five hundred
(27,500) shares.
Securities shall be issued to Consultant in accordance with a
mutually acceptable plan of issuance as to relieve securities or
Consultant from restrictions upon transferability of shares in
compliance with applicable registration provisions or exemptions.
B. The Company covenants and agrees to file a Registration
Statement under an S-8 registration covering the shares of Common
Stock that are issued pursuant to this Agreement. The Company shall
use its best reasonable efforts to register such shares. All expenses
in connection with preparing and filing any registration statement
under this Article "4" (and any registration or qualification under
the securities or "Blue Sky" laws of states in which the offering will
be made under such registration statement) shall be borne in full by
the Company.
5. Costs and Expenses. The Consultants shall be responsible for all
expenses that the Consultants may incur in performing the Consulting Services
pursuant to this Agreement including, but not limited to, travel expenses, third
party expenses, copy and mailing expenses unless otherwise pre-approved in
writing by Company.
6. Due Diligence. The Company shall supply and deliver to the Consultants
all information relating to the Company's business as may be reasonably
requested by the Consultants to enable the Consultants to make an assessment of
the Company and its business prospects and provide the Consulting Services.
7. Best Efforts Basis. The Consultants agree that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of, and from, the Consultants pursuant to the terms of this
Agreement. The Consultants does not guarantee that its efforts will have any
impact upon the Company's business or that there will be any specific result or
improvement from the Consultants efforts.
8. Company's Right to Approve Transactions.
A. The Company expressly retains the right to approve, in its sole
discretion, each and every transaction introduced by the Consultants that
involves the Company as a party to any agreement. The Consultants and the
Company mutually agree that the Consultants are not authorized to enter
into agreements on behalf of the Company. It is mutually understood and
agreed that the Company is not obligated to accept any recommendations or
close any transactions submitted by the Consultants.
B. The Consultants agree to provide the Company for approval, in its
sole and absolute discretion, a reasonable time in advance, any documents
which are intended to be utilized by the Consultants with respect to its
services pursuant to this Agreement, or otherwise. Company will carefully
and thoroughly review all such material including without limitation
material provided by Company to Consultants and intended to be used by
Consultants, as to the accuracy of the contents thereof and will promptly
notify Consultants in writing of any inaccuracies or changes to be made
with respect thereto.
9. Non-Exclusive Services. The Company acknowledges that the
Consultants are currently providing services of the same or similar nature
to other parties and the Company agrees that the Consultants are not
prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity. The Consultants understands and
agree that the Company shall not be prevented or barred from retaining
other persons or entities to provide services of the same or similar nature
as those provided by the Consultants. The Consultants will take reasonable
steps to determine and to advise the Company of its position with respect
to any activity, employment, business arrangement or potential conflict of
interest which may be relevant to this Agreement, but Consultants shall not
be obligated to conduct an exhaustive review of its activities or those of
its clients to determine whether or not such a conflict exists.
10. Cause. For purposes of this Agreement, the term "Cause" shall be
limited to: (i) willful malfeasance or gross negligence; (ii) the
Consultants fraud, misappropriation or embezzlement; (iii) the Consultants
failure to perform such duties which are reasonably assigned by the Board
of Directors of the Company, provided such duties are customary and
appropriate for its consulting obligations to the Company; or (iv) the
Consultants default, violation of, or failure to perform any provision of
this Agreement; provided however that any termination shall be subject to
receipt of written notice to the Consultants from the Company specifying
the failure or default and the Consultants failing to cure such default
within ten (10) days after receipt of such notice. Such termination of the
Consultants shall not constitute a breach of this Agreement by the Company
and the Company's sole obligation to the Consultants shall be to pay the
Consultants the amount of any compensation then due to the Consultants
through the date of termination including, but not limited to, any Common
Stock due pursuant to Article "4" of this Agreement.
11. Representations,Warrants and Covenants of the Consultants. The
Consultants represents, warrants and covenants to the Company as follows:
A. The Consultants has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein.
B. The business and operations of the Consultants have been and
are being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which affect
the Consultants or its properties, assets, businesses or prospects.
The performance of this Agreement shall not result in any breach of,
or constitute a default under, or result in the imposition of any lien
or encumbrance upon any property of the Consultants or cause an
acceleration under any arrangement, agreement or other instrument to
which the Consultants are parties or by which any of its assets are
bound. The Consultants has performed in all respects all of its
obligations which are, as of the date of this Agreement, required to
be performed by it pursuant to the terms of any such agreement,
contract or commitment.
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C. The execution, delivery and performance of this Agreement: (i)
does not violate any agreement or undertaking to which the Consultants
are parties or by which the Consultants may be bound and (ii) shall
not result in the imposition of any restrictions or obligations upon
the Consultants other than the restrictions and obligations imposed by
this Agreement.
D. The execution and delivery by the Consultants of this
Agreement and the performance by the Consultants of its obligations
hereunder and thereunder will not violate any provision of law, any
order of any court or other agency of government, and will not result
in a material breach of or constitute (with due notice or lapse of
time or both) a material default under any provision of any agreement
or other instrument to which the Consultants, or any of its properties
or assets, is bound.
E. The Consultants has not entered into and are not subject to
any agreement, including, but not limited, to any employment,
noncompete, confidentiality or work product agreement which would (i)
prohibit the execution of this Agreement, (ii) prohibit its engagement
as a Consultants by the Company, or (iii) affect any of the provisions
of, or its obligations pursuant to this Agreement.
F. If, during the Term, any event occurs or any event known to
the Consultants relating to or affecting the Consultant shall occur as
a result of which (i) any provision of this Article "11" of this
Agreement at that time shall include an untrue statement of a fact, or
(ii) this Article "11" of this Agreement shall omit to state any fact
necessary to make the statements herein, in light of the circumstances
under which they were made, not misleading, the Consultants will
immediately notify the Company pursuant to Paragraph "C" of Article
"20" of this Agreement.
G. The receipt of the Common Stock by the Consultants are for the
Consultants own account, is for investment purposes only, and is not
view to, nor for offer or sale in connection with, the distribution
the Common Stock. The Consultants are not participating and does not
have a participation in any such distribution or the underwriting of
any such distribution.
H. The Consultants has no present intention of creating a market
or participating or assisting in the creation of a market or in the
promotion of a market for any securities of the Company.
I. The Consultants has no present intention of selling or
otherwise disposing of the Common Stock in violation of applicable
securities laws.
J. The Consultants are aware that no federal or state
governmental authority has made any finding or determination as to the
fairness of an investment in the Common Stock, or any recommendation
or endorsement with respect thereto.
K. The Consultants are able to bear the economic risk of the
investment in the Common Stock for an indefinite period of time,
including the risk of total loss of such investment and Consultants
recognize that an investment in the Common Stock involves a high
degree of risk. Consultants understand that the Common Stock has not
been registered under the Securities Act of 1933, as amended (the
"Securities Act") or the securities laws of any state and, therefore,
cannot be sold unless they subsequently are registered under the
Securities Act and any applicable state securities laws or exemptions
from registration thereunder are available. The Consultants further
understand that only the Company can take action to register the
Common Stock.
L. The Consultants are an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
M. The Consultants has such knowledge and experience in
financial, investing and business matters as to be capable of
evaluating the risks and merits of an investment in the Common Stock
and protecting the Consultants interests in connection with an
investment in the Common Stock.
N. The Consultants were not contacted by the Company or its
representatives for the purpose of investing in any securities of the
Company issued hereby through any advertisement, article, mass
mailing, cold call, notice or any other communication published in any
newspaper, magazine, or similar media or broadcast over television or
radio, or any seminar or meeting whose attendees were invited by any
general advertising.
O. The Consultants has had access to and an opportunity to
inspect all relevant information relating to the Company sufficient to
enable the Consultants to evaluate the merits and risks of its receipt
of the Common Stock hereunder. The Consultants also has had the
opportunity to ask questions of officers of the Company and has
received satisfactory answers respecting, and has obtained such
additional information as the Consultants has desired regarding, the
business, financial condition and affairs of the Company.
P. It shall not be a defense to a suit for damages for any
misrepresentation or breach of covenant or warranty that the Company
knew or had reason to know that any representation, warranty or
covenant in this Agreement or furnished or to be furnished to the
Company contained untrue statements.
Q. No representation or warranty of the Consultants which is
contained in this Agreement, or in a writing furnished or to be
furnished pursuant to this Agreement, contains or shall contain any
untrue statement of a material fact, omits or shall omit to state any
material fact which is required to make the statements which are
contained herein or therein, in light of the circumstances pursuant to
which they were made, not misleading.
R. All representations, warranties and covenants made in or in
connection with this Agreement shall continue in full force and effect
during and after the Term of this Agreement, it being agreed and
understood that each of such representations, warranties and covenants
is of the essence of this Agreement and the same shall be binding upon
the Consultants and inure to the Consultants, its successors and
assigns.
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12. Representations, Warrants and Covenants of the Company. The
Company represents, warrants and covenants to the Consultants as follows:
A. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with all
requisite power and authority to carry on its business as presently
conducted in all jurisdictions where presently conducted, to enter
into this Agreement and to the transactions which are contemplated
herein.
B. The Company has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of this
Agreement by the Company and its delivery to the Consultants, and the
consummation by it of the transactions which are contemplated herein
have been duly approved and authorized by all necessary action by the
Company's Board of Directors and no further authorization shall be
necessary on the part of the Company for the performance and
consummation by the Company of the transactions which are contemplated
by this Agreement.
C. The business and operations of the Company have been and are
being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which affect
the Company or its properties, assets, businesses or prospects. The
performance of this Agreement shall not result in any breach of, or
constitute a default under, or result in the imposition of any lien or
encumbrance upon any property of the Company or cause an acceleration
under any arrangement, agreement or other instrument to which the
Company is a party or by which any of its assets are bound. The
Company has performed in all respects all of its obligations which
are, as of the date of this Agreement, required to be performed by it
pursuant to the terms of any such agreement, contract or commitment.
D. The execution, delivery and performance of this Agreement: (i)
does not violate any agreement or undertaking to which the Company is
a party or by which the Company may be bound and (ii) shall not result
in the imposition of any restrictions or obligations upon the Company
other than the restrictions and obligations imposed by this Agreement.
E. It shall not be a defense to a suit for damages for any
misrepresentation or breach of covenant or warranty that the
Consultants knew or had reason to know that any representation,
warranty or covenant in this Agreement or furnished or to be furnished
to the Consultants contained untrue statements.
F. No representation or warranty of the Company which is
contained in this Agreement, or in a writing furnished or to be
furnished pursuant to this Agreement, contains or shall contain any
untrue statement of a material fact, omits or shall omit to state any
material fact which is required to make the statements which are
contained herein or therein, in light of the circumstances pursuant to
which they were made, not misleading.
G. All representations, warranties and covenants made in or in
connection with this Agreement shall continue in full force and effect
during and after the Term of this Agreement, it being agreed and
understood that each of such representations, warranties and covenants
is of the essence of this Agreement and the same shall be binding upon
the Company and inure to the Consultants, its successors and assigns.
13. Nondisclosure of Confidential Information.
A. As used in this Agreement, "Confidential Information" means
information which is presented to the Consultants by the Company or
developed, conceived or created by the Company, or disclosed to the
Consultants or known by or conceived or created by the Consultants
during the Term, with respect to the Company, its business or any of
its products, processes, and other services relating thereto relating
to the past, present or future business of the Company or any plans
therefore, or relating to the past, present or future business of a
third party or plans therefore which are disclosed to the Consultants.
Confidential Information includes, but is not limited to, all
documentation, hardware and software relating thereto, and information
and data in written, graphic and/or machine readable form, products,
processes and services, whether or not patentable, trademarkable or
copyrightable or otherwise protectable, including, but not limited to,
information with respect to discoveries; know-how; ideas; computer
programs, source codes and object codes; designs; algorithms;
processes and structures; product information; marketing information;
price lists; cost information; product contents and formulae;
manufacturing and production techniques and methods; research and
development information; lists of clients and vendors and other
information relating thereto; financial data and information; business
plans and processes; documentation with respect to any of the
foregoing; and any other information of the Company that the Company
informs the Consultants or the Consultants should know, by virtue of
its position or the circumstances in which the Consultants learned
such other information, is to be kept confidential including, but not
limited to, any information acquired by the Consultants from any
sources prior to the commencement of the Consultants becoming
consultants to the Company. Confidential Information also includes
similar information obtained by the Company in confidence from its
vendors, licensors, licensees, customers and/or clients. Confidential
Information may or may not be labeled as confidential.
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B. Except as required in the performance of the Consultants
duties as consultants, the Consultants will not, during or after the
Term, directly or indirectly, use any Confidential Information or
disseminate or disclose any Confidential Information to any person,
firm, corporation, association or other entity. The Consultants shall
take all reasonable measures and efforts to protect Confidential
Information from any accidental, unauthorized or premature use,
disclosure or destruction. The use of such measures and efforts shall
not constitute a defense if any of the Confidential Information is not
kept confidential in accordance with the terms of this Agreement. The
foregoing prohibition shall not apply to any Confidential Information
which: (i) was generally available to the public prior to such
disclosure; (ii) becomes publicly available through no act or omission
of the Consultants (iii) are disclosed as reasonably required in a
proceeding to enforce the Consultants rights under this Agreement or
(iv) is disclosed as required by court order or applicable law.
C. Upon termination of the Consultants for any reason, or at any
time upon request of the Company, the Consultants agree to deliver to
the Company all materials of any nature which are in the Consultant's
possession or control and which are or contain Confidential
Information, Work Product or Work Products (hereinafter defined), or
which are otherwise the property of the Company or any vendor,
licensor, licensee, customer or client of the Company, including, but
not limited to writings, designs, documents, records, data, memoranda,
tapes and disks containing software, computer source code listings,
routines, file layouts, record layouts, system design information,
models, manuals, documentation and notes.
D. All copyrights, logos and other advertising materials,
conceived by the Consultants specifically in connection with the
consulting services rendered by Consultants for Company under this
Agreement (alone or with others) during the Term ("Work Product")
shall be the exclusive property of and assigned to the Company or as
the Company may direct without compensation to the Consultants other
than the compensation provided for herein. Any records with respect to
the foregoing shall be the sole and exclusive property of the Company
and the Consultants shall surrender possession of such records to the
Company upon any suspension or termination of the Consultants. Any
Work Product shall be deemed incorporated in the definition of
Confidential Information for all purposes hereunder.
E. The Consultants will not assert any rights with respect to the
Company, its business, or any of its products, processes and other
services relating thereto, Work Product or any Confidential
Information as having been acquired or known by the Consultants prior
to the commencement of the Consultants engagement by the Company
unless such rights are asserted in good faith and verified.
14. Work Product
A. The Consultants represents and warrant to the Company that all
work that the Consultants perform, for or on behalf of the Company and
its clients, and all work product that the Consultants produces,
including, but not limited to, software, documentation, memoranda,
ideas, designs, inventions, processes, algorithms, etc. (also "Work
Product") will not knowingly infringe upon or violate any patent,
copyright, trade secret or other property right of any other third
party. Further, the Consultants will not disclose to the Company or
use in any of the Consultants Work Product any confidential or
proprietary information belonging to others, unless both the owner
thereof and the Company have consented to such disclosure and usage.
B. The Consultants will promptly disclose to the Company all Work
Products developed by the Consultants within the scope of the
Consultants acting as consultants to the Company or which relate
directly to, or involve the use of, any Confidential Information
including, but not limited to, all software, concepts, ideas and
designs, and all documentation, manuals, letters, pamphlets, drafts,
memoranda and other documents, writings or tangible things of any
kind.
C. The Consultants acknowledges and agree that all copyrightable
Work Products prepared by the Consultants within the scope of the
Consultants acting as consultants to the Company are "works made for
hire" and, consequently, that the Company owns all copyrights thereto
subject to Company fulfilling the compensation obligations to
Consultants as provided in this Agreement.
D. The Consultants hereby assign, transfer and convey to the
Company, without additional consideration, all of the Consultants
other rights, title and interest (including, but not limited to, all
patent, copyright and trade secret rights) in and to all Work Products
prepared by the Consultant, whether patentable or not, made or
conceived, in whole or in part, by the Consultants within the scope of
the Consultants acting as consultants to the Company, or that relate
directly to, or involve the use of, Confidential Information, subject
to Company fulfilling its compensation obligations to Consultants as
provided in this Agreement.
E. The Consultants will, without additional compensation, execute
all assignments, oaths, declarations and other documents requested by
the Company to effect and further evidence the foregoing assignment,
transfer and conveyance, and agree to provide all reasonable
assistance to the Company (at the Company's expense) to provide all
information, documentation and assistance to the Company in
perfecting, enforcing, defending or protecting any or all of the
Company's rights in all Work Product subject to Company fulfilling its
compensation obligations to Consultants as provided in this Agreement
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15. Indemnification by the Consultants.
A. The Consultants shall indemnify, protect, defend and save and
hold harmless the Company from and against any loss resulting to them
from:
(i) All liabilities of the Consultants, whether accrued,
absolute, contingent, or otherwise existing on the date of
this Agreement;
(ii) Any and all losses, liabilities, costs, damages, or expenses
which Company may suffer, sustain or incur arising out of or
due to a breach by the Consultants of any covenant,
representation or warranty made in this Agreement or from
any misrepresentation and/or omission pursuant to this
Agreement; and
(iii) Any and all claims or actions against the Company, and any
and all costs, expenses, losses, including but not limited
to, arbitration awards, civil judgments, reasonable attorney
fees and costs, and court or arbitration fees and costs,
arising out of any act, or any omission of Consultants in
the performance of any duties or services, regardless of
whether said claim or action against the Consultants are
individually dismissed, prior to, or at the arbitration
hearing or court proceeding. The Company, in its sole and
absolute discretion, without the prior approval of the
Consultants, may settle or compromise any claim at any time.
In the event the Consultants wishes to disagree with such
settlement, it may do so by filing a bond/or depositing into
an escrow account for the benefit of the Company the amount
of general damages alleged by the plaintiff or claimant
against Company. In such event, the Company shall agree not
to settle the claim without the consent of the Consultants.
(iv) Any and all losses, claims, damages or liabilities to which
the Company may become subject under the Securities Act of
1933, as amended, (the "Act") or otherwise insofar as such
losses, claims damages or liabilities (or actions in respect
thereof) arise out of or are based upon violations of the
Act, the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder and upon any untrue
statement or alleged untrue statement or the alleged
omission to state therein a material fact required to be
stated in any statements written or and made by the
Consultants in performing any of the Consulting Services
pursuant to this Agreement, subject to Company's obligations
as set forth in Paragraph 8 above.
B. The indemnification, which is set forth in this Article "15"
of this Agreement shall be deemed to include not only the specific
liabilities or obligations with respect to which such indemnity is
provided, but also all reasonable costs, expenses, counsel fees, and
expenses of settlement relating thereto, whether or not any such
liability or obligation shall have been reduced to judgment.
C. If any demand, claim, action or cause of action, suit,
proceeding or investigation is brought against the Company and/or the
Consultants to which the Company is entitled to indemnification by the
Consultants pursuant to this Article "15" of this Agreement, the
Company shall give prompt notice thereof to the Consultants in
accordance with Paragraph "C" of Article "20" of this Agreement which
notice shall contain a reasonably thorough description of the nature
and amount of the claim of indemnification. Upon receipt of such
notice, the Consultants shall use all reasonable efforts to assist in
the vigorous defense of any such matter. The failure of the Company to
notify the Consultants of any such demand, claim, action or cause of
action, suit, proceeding or investigation shall not relieve the
Consultants from any liability which he/she may have under this
Article "17" of this Agreement except to the extent such failure to
notify the Consultants prejudice the Consultants.
16. Time Periods Not Limited. Any period of time set forth in this
Agreement shall not be construed to permit the Consultants to engage in any
of the prohibited acts set forth in this Agreement after such period if
such acts would otherwise be prohibited by any applicable statute or legal
precedent.
17. Company. As used in this Agreement, "Company" shall mean Blue Moon
Group, Inc. , its successors and assigns, and any of its present or future
subsidiaries or organizations controlled by it.
18. Assignment. The rights granted hereunder to the Consultants are
personal in nature. Any purported transfer of any such rights, by operation
of law or otherwise, not specifically authorized pursuant to this Agreement
shall be void and shall also constitute a breach of this Agreement.
19. Relationship. Except as provided for in this Agreement, neither
party is the legal representative or agent of, or has the power to obligate
the other for any purpose whatsoever; and no partnership, joint venture,
agent, fiduciary, or employment relationship is intended or created by
reason of this Agreement. It is the intent of the parties hereto that the
Consultants shall be an independent contractor of the Company and not an
employee of the Company.
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20. Miscellaneous.
A. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
B. Enforceability. If any provision which is contained in this
Agreement should, for any reason, be held to be invalid or
unenforceable in any respect under the laws of any State of the United
States, such invalidity or unenforceability shall not affect any other
provision of this Agreement. Instead, this Agreement shall be
construed as if such invalid or unenforceable provisions had not been
contained herein.
C. Notices. Any notice or other communication required or
permitted hereunder must be in writing and sent by either (i)
certified mail, postage prepaid, return receipt requested and First
Class mail, (ii) overnight delivery with confirmation of delivery, or
(iii) facsimile transmission with an original mailed by first class
mail, postage prepaid, addressed as follows:
If to the Company:
Blue Moon Group, Inc.
Attention: ____________________
000-00 00xx Xx.
Xxxxxx Xxxxx, XX 00000
Facsimile No.: ______________________
With a copy to:
Xxxx Xxxxxx
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Faccimile No.: 000-000-0000
If to Consultants:
Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Xxxxxxxx Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall
have last been furnished by like notice. If mailing is impossible due
to an absence of postal service, and the other methods of sending
notice set forth in this Paragraph "C" of this Article "20"of this
Agreement are not otherwise available, notice shall be hand-delivered
to the aforesaid addresses. Each notice or communication shall be
deemed to have been given as of the date so mailed or delivered, as
the case may be; provided, however, that any notice sent by facsimile
shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date
sent by facsimile; if the date of mailing is not the same as the date
of sending by facsimile, then the date of mailing by first class mail
shall be deemed to be the date upon which notice given.
D. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed
by, the laws of the State of California applicable thereto and the
parties submit to the jurisdiction of the courts of the State of
California.
E. Entire Agreement. The parties have not made any
representations, warranties or covenants with respect to the subject
matter hereof which is not set forth herein, and this Agreement
constitutes the entire agreement between them with respect to the
subject matter hereof. All understandings and agreements heretofore
had between the parties with respect to the subject matter hereof are
merged in this Agreement which alone fully and completely expresses
their agreement. This Agreement may not be changed, modified,
extended, terminated or discharged orally, but only by an Agreement in
writing, which is signed by all of the parties to this Agreement.
F. Further Assurances. The parties agree to execute any and all
such other further instruments and documents, and to take any and all
such further actions which are reasonably required to consummate,
evidence, confirm or effectuate this Agreement and the intents and
purposes hereof.
G. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, personal representatives, successors and assigns.
H. Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement
shall be deemed to have been made unless expressly in writing and
signed by the party against whom such waiver is charged; and (i) the
failure of any party to insist in any one or more cases upon the
performance of any of the provisions, covenants or conditions of this
Agreement or to exercise any option herein contained shall not be
construed as a waiver or relinquishment for the future of any such
provisions, covenants or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed
with knowledge of the breach or failure of a covenant, condition or
provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another
party shall be construed as a waiver with respect to any other breach
of this Agreement.
I. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
J. Separate Counsel. The Consultants acknowledge having had
separate counsel of its own selection acting on its behalf in
connection with the negotiation, execution and consummation of this
Agreement, and covenants that it alone shall be liable and responsible
for and shall not look to the Company in connection with the fees and
expenses of such separate counsel.
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IN WITNESS WHEREOF, the parties to this Agreement have set their hands and
seals or caused these presents to be signed of the day and year first written
above.
BLUE MOON GROUP, INC.
[Seal]
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx, PRESIDENT AND CEO
XXXXXXX XXXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx, Consultant
XXXXXXXX XXXXXX
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Xxxxxxxx Xxxxxx, Consultant
8
