CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into this 25th day
of September, 1997, by and between The Hayden Group Inc., of 00 X.X. 0xx Xxx.
Xxxxxx Xxxxx, Xxxxxxx 00000, hereinafter referred to as "the Consultant" and
China Food and Beverage Company, 0 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX
00000, hereafter referred to as the "Company"
WHEREAS, the Consultant is desirous of being engaged by the Company, and the
Company has agreed to engage the Consultant upon certain terms and conditions
contained in this Agreement, one of which is the execution of the Agreement by
both parties;
WHEREAS, the Consultant, by virtue of the Consultant's relationship with the
Company has become familiar with the Company's business pursuant to the
Non-Circumvention and Non Disclosure Agreement, executed on September 25th,
1997, which document is part of this Agreement and is included as Attachment I;
WHEREAS, the Company requires financial public relations services and desires to
employ Consultant to provide such services as an independent consultant.
9. ENGAGEMENT. The Company hereby engages the Consultant to provide
public relations assistance to the Company and the Consultant hereby
accepts such engagement, upon the terms and conditions hereinafter set
forth.
10. TERM. The term of this Agreement shall begin upon execution and
continue for a period of one year. The Agreement shall be extended
automatically upon the mutual consent of the parties. Non-renewal will
require written notice sixty (60) days prior to the anniversary date
of the Agreement or upon the anniversary date of any renewals. Changes
in terms and conditions (if any) shall be submitted in writing at
least thirty (30) days prior to any renewal. Mutual agreement must be
reached in writing before any such changes will be binding upon the
parties.
11. COMPENSATION. The Company shall compensate the Consultant according to
the following:
a) The Company hereby grants to Consultant option (the "Options") to
purchase a total of Six Hundred Thousand (600,000) fully paid and
nonassessable shares of its common stock (the "Option Shares") at
the following rate. One Hundred and Fifty Thousand shares
(150,000) at Fifteen cents per share ($.15) for a period of Three
(3) years from option registration. One Hundred and Fifty
Thousand shares (150,000) at Thirty Cents per share ($.30) for a
period of Three (3) Years from option registration One Hundred
and Fifty Thousand shares (150,000) at Fifty Cents per share
($.50) for a period of Three (3) Years from option registration.
One Hundred and Fifty Thousand shares (150,000) at Ninety Cents
per share ($.90) for a period of Three (3) Years from option
registration. The Option grant provides that if, prior to the
Expiration Time, the number of outstanding shares of the
Company's Common Stock are increased or decreased through a stock
split, stock dividend, stock consolidation, or otherwise, without
consideration to the Company, an appropriate and proportionate
adjustment must be made in the number and kind of shares as to
which the Option Shares may be exercised. By way of example, if
the Company should make a two-for-one stock split of its
outstanding shares of common stock, the number Shares for which
the Consultants options may be exercised would thereupon increase
from 100,000 to 200,000 shares, with a corresponding change in
the exercise price applicable to the Consultant's Options, and
b) The Company agrees that it will, at its own cost and expense,
file to register the Consultant's common stock, warrants, or
options within 30 days from the signing of the Consulting
Agreement. If the Company for any reason defaults in this
responsibility, the Consultant shall have the right to hire its
own legal counsel to complete the appropriate filings. Fees and
expenses will be borne by the Company.
12. SERVICES OF THE CONSULTANT. The Consultant shall provide consulting services
in any or all of the following areas:
a) Technical and analytical consulting concerning management,
marketing, corporate organization and structure and expansion of
services.
b) Acting as a liaison between the Company and broker-dealers to
establish broker-dealer awareness
c) Acting as liaison with respect to existing and potential market
makers
d) Preparation and fax distribution of Company profile to
broker-dealers
e) Introduction to Internet stock investment groups
13. LIMITATIONS ON SERVICES. The parties recognize that certain
responsibilities and obligations are imposed by federal and states
securities laws and by the applicable rules and regulations of stock
exchanges, the National Association of Securities Dealers, inc.
in-house "due diligence" or "compliance" departments of brokerage
houses, etc. Accordingly, Consultant agrees.
a) Consultant shall not release any financial or other information
or data about the Company without the advance written consent and
approval of the Company
b) Consultant shall not conduct any meeting with financial analysts
without informing the Company in advance of the proposed meeting
and the format or agenda of such meeting and the Company may
elect to have a representative of the Company attend such
meetings.
c) Consultant shall not release any information or data about the
Company to any selected or limited person(s), entity, or group if
Consultant is aware that such information or data has not been
generally released or promulgated.
d) Consultant acknowledges that non-public information plans of
operations and potential acquisitions or mergers prior to public
announcement are confidential and proprietary to the Company.
Consultant covenants and agrees that it will not disclose any
confidential information to any person, firm or entity without
the express advance written consent of Company, and that any
unauthorized disclosure or use of confidential information by
consultant constitutes misappropriation of trade secrets and
confidential information. Consultant further agrees that
proprietary rights to the confidential information shall be
retained by Company and that Consultant shall claim no right of
ownership therein. The terms and conditions of the
Non-Circumvention and Non-Disclosure /Agreement (if any) are
applicable and remain in effect for the entire term of said
Agreement.
14. ACTIONS OF COMPANY. The Company accepts responsibility for the following
activities:
a) Company shall supply Consultant on a regular and timely basis all
approved data and information about the Company, its management,
its products, and its operations, and Company shall be
responsible for advising Consultant of any facts which would
affect the accuracy of any prior data and information previously
supplied to Consultant so that Consultant may take corrective
action.
b) Company shall promptly supply Consultant with full and compete
copies of all and any filings 30 days prior to registration. Such
filings would include but not be limited to, Xxxxxxxxxx X, XX-0,
X-0 and Preferred Stock with all federal and state agencies; full
and complete copies of all shareholder reports and
communications, whether or not prepared with Consultant's
assistance; with all data and information supplied to any
analyst, broker-dealer, market maker, other member of the
financial community, and with all products/services brochures,
sales materials, etc.
c) Company shall promptly notify Consultant of the filing of any
registration statement 5 days prior to the sale of securities and
of any other event which triggers any restrictions on publicity.
d) Company shall contemporaneously notify Consultant if any
information or data being supplied to Consultant has not been
generally released or promulgated.
15. REPRESENTATION AND INDEMNIFICATION.
a) The Company shall be deemed to make a continuing representation
of the accuracy of and any and all material facts, material
information, and data which it supplies to Consultant, and the
Company acknowledges its awareness that Consultant will rely on
such continuing representation in disseminating such information
and otherwise performing its public relations functions.
b) Consultant in the absence of notice in writing from the Company
will rely on continuing accuracy of material, information, and
data supplied by the Company.
8. TIME AND EFFORT. The Consultant shall devote time and effort in performing
services hereunder as is reasonably required and at reasonable times.
9 TERMINATION. This Agreement may not be terminated by either party prior to the
expiration of the term except as follows:
a) upon the bankruptcy of either party
b) upon either party having applied or applying for a receiver
appointed for all or a substantial part of such party's assets or
business;
c) upon a material breach by either party;
d) upon the assignment of this agreement by either party.
10. SELECTION OF ENTITIES. The Consultant in its sole and absolute
discretion shall hire, retain or employ such individuals,
corporations, partnerships or other entities to perform services as
Consultant deems necessary. Consultant shall hold Company harmless and
indemnify Company from any and all claims relating to said parties.
11. COSTS AND EXPENSES. All costs and expenses that the Consultant shall
incur as a result of the aforementioned services on behalf of the
Company shall be the sole responsibility of the Consultant unless
otherwise provided herein.
Expenses to be reimbursed by the Company to the Consultant include
those costs and expenses included in the Lead Generation Program,
which will be submitted to, approved, and paid in advance by the
Company prior to expenses being incurred. Attachment II is an overview
of the components of a Lead Generation Program. A Lead Generation
Program specific to the needs of the Company will be developed and
submitted upon execution of this Agreement.
12. RELATIONSHIP OF THE PARTIES. The Consultant shall not by reason of
this agreement or the performance of duties hereunder unless otherwise
agreed between the parties, be or be deemed to be, an employee, agent,
partner, co-venturer, or controlling person of the Company. The
Consultant shall have no power to enter into any agreement on behalf
of or otherwise bind the Company. The Consultant shall not have or be
deemed to have, any fiduciary obligation or duties to the Company and
is not an agent to the Company except as set forth herein. Neither
party to this agreement is intended to have any interest in the
business or property of the other. Consultant shall be deemed to be an
Independent Contractor.
13. ASSIGNABILITY. This contract is not assignable by the Consultant but
shall be assignable by the Company in connection with the sale,
transfer of other disposition of its business, to any of the Company's
affiliates controlled by or under common control with the Company.
14. HOLD HARMLESS. In the event that any of the signatories become
involved in any action, proceeding or investigation in connection with
the matters referred to in this agreement, each of the undersigned
signatories will indemnify, defend, save and hold harmless the other
undersigned signatories and their affiliated partners, officers,
employees, agents, control persons and associates against any and all
losses, claims damages or liabilities, to the full extent lawful,
including reasonable attorney fees of counsel chosen by the
undersigned signatories and the cost of any investigation and
preparation incurred in connection therewith such losses, claims,
etc., hereafter referred to as "damages", provided however, each of
the undersigned signatories, its agents, or severally, their other
associates shall not be entitled to indemnification by the other
undersigned signatories thereunder with respect to any damages arising
out of, or based upon, the gross negligence of any of the undersigned
signatories as determined by a court of competent jurisdiction.
15. SEVERABILITY. If any part of this agreement is adjudged invalid,
illegal, or unenforceable, the remaining parts shall be enforceable.
16. PARAGRAPH HEADINGS. The headings of the paragraphs contained in this
agreement are for convenience only.
17. LAW. Any dispute between the consultant and the Company involving the
interpretation of application of any provision of this contract shall
be governed by the laws of the State of Florida. Venue will be in Palm
Beach County, Florida.
18. ATTORNEY'S FEES, COSTS. Should any litigation, including breach,
enforcement, or interpretation, arise of this contract, the prevailing
party in such litigation shall be entitled to recover reasonable
attorney's fees, costs and expenses.
19. OTHER AGREEMENTS. The parties represent that no other agreement, oral
or written, exists between them. This Agreement sets forth the entire
Agreement between the parties hereto and cannot be modified or
supplemented orally. The Non-Circumvention and Non-Disclosure
Agreement is included As Attachment I of this Agreement.
20. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by certified
mail, return receipt requests, to the President of each entity at the
entity's principal office.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute but one Agreement. Any counterpart must contain
an original signature of each signatory to be considered an original
Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this agreement this 25th day of September.
CHINA FOOD AND BEVERAGE, COMPANY
/s/Xxxxx Xxxxxx
By: Xxxxx Xxxxxx, President
THE HAYDEN GROUP, INC.
/s/ Xxxxxx Xxxxxxxx /s/Xxxxx X. Xxxxxxxxxxx
By: Xxxxxx Xxxxxxxx, Principal By: Xxxxx X. Xxxxxxxxxxx, Principal
