EXHIBIT 9.5
CONSULTING SERVICES AGREEMENT
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This Consulting Agreement (the "Agreement") is made and entered into as
of the 1st day of October, 2004, by and between Cascade Development Partners,
LLC, doing business as Cascade Partners ("Consultant") and Xxxxxx Beaumont,
Inc., a Nevada corporation ("MBI"). The parties hereto agree as follows:
I. ENGAGEMENT
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MBI hereby engages and retains Consultant as a Business Consultant for
and on behalf of MBI, its subsidiaries and affiliated companies (the
"Affiliates") to perform the Services (as that term is hereinafter
defined) and Consultant hereby accepts such appointment on the terms
and subject to the conditions hereinafter set forth and agrees to use
its best efforts in providing such Services.
II. INDEPENDENT CONTRACTOR
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A. Consultant shall be, and in all respects be deemed to be, an
independent contractor in the performance of its duties
hereunder, any law of any jurisdiction to the contrary
notwithstanding.
B. Consultant shall not, by reason of this Agreement or the
performance of the Services, be or be deemed to be, an
employee, agent, partner, co-venturer or controlling person of
MBI, and Consultant shall have no power to enter into any
agreement on behalf of or otherwise bind MBI.
C. Consultant shall not have or be deemed to have, fiduciary
obligations or duties to MBI or its Affiliates and shall be
free to pursue, conduct and carry on for its own account (or
for the account of others) such activities, employments,
ventures, businesses and other pursuits as Consultant in its
sole, absolute and unfettered discretion, may elect.
III. SERVICES
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A. As MBI's Business Consultant, Consultant agrees to provide the
following consulting services (collectively the "Services"):
1. Assisting MBI in efforts to seek additional business
and business relationships that will be of benefit to
MBI and its Affiliates.
2. Evaluating, structuring and advising MBI and its
Affiliates in connection with potential merger and
acquisition transactions and other activities related
to maximizing shareholder value.
3. Advising MBI and its Affiliates in their negotiations
with one or more individuals, firms or entities (the
"Candidate(s)") who may have an interest in providing
investment capital in the form of bridge financing,
private placement, debt and/or equity financing, or
in pursuing a form of Business Combination with MBI
and/or its Affiliates. As used in this letter, the
term "Business Combination" shall be deemed to mean
any form of merger, acquisition, joint venture,
licensing agreement, product sales and/or marketing,
distribution, combination and/or consolidation, etc.
involving MBI and/or any of its Affiliates and any
other entity.
4. Conducting corporate-related due diligence concerning
MBI and its Affiliates in connection with the
anticipated Services to be rendered under this
Agreement.
5. Assisting MBI and its Affiliates in locating and
engaging certain professionals, including various
officer positions and additional members of their
respective Board of Directors, as well as negotiating
employment-related contracts.
6. Advising MBI regarding company operations, staffing,
strategy, and other issues related to building
shareholder value.
7. Advising MBI's management in corporate finance
matters, including structuring the nature, extent and
other parameters of any private or other offer(s) to
be made to Candidate(s).
8. Consulting MBI and its Affiliates in efforts to
establish strategic relationships with individuals
and entities of particular interest to them in
connection with their continued business development.
B. BEST EFFORTS. Consultant shall devote such time and best
effort to the affairs of MBI as is reasonable and adequate to
render the Services contemplated by this Agreement. Consultant
is not responsible for the performance of any services that
may be rendered hereunder without MBI providing the necessary
information in writing prior thereto, nor shall Consultant
include any services that constitute the rendering of any
legal opinions or performance of work that is in the ordinary
purview of the Certified Public Accountant. Consultant cannot
guarantee results on behalf of MBI, but shall pursue all
reasonable avenues available through its network of contacts.
At such time as an interest is expressed by a third party in
MBI's needs, Consultant shall notify MBI and advise it as to
the source of such interest and any terms and conditions of
such interest. The acceptance and consumption of any
transaction is subject to acceptance of the terms and
conditions by MBI. It is understood that a portion of the
compensation paid hereunder is being paid by MBI to have
Consultant remain available to advise it on transactions on an
as-needed basis.
C. MBI and Consultant hereby confirm their express written intent
that Consultant shall only be required to devote such time to
the performance of the Services as Consultant shall, in its
discretion, deem necessary and proper to discharge its
responsibilities under this Agreement.
D. In conjunction with the Services, Consultant agrees to:
1. Conduct an on-site initial evaluation of MBI and its
businesses and meet with MBI's representatives at its
Florida office headquarters on a mutually agreed date
after the execution of this Agreement.
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2. Make itself available to the officers of MBI at such
mutually agreed upon places during normal business
hours for reasonable periods of time, subject to
reasonable advance notice and mutually convenient
scheduling, for the purpose of advising MBI and its
Affiliates in the preparation of such reports,
summaries, corporate and/or transaction profiles, due
diligence packages and/or other material and
documentation ("Documentation") as shall be
necessary, in the opinion of Consultant, to properly
present them to other entities and individuals that
could be of benefit to MBI and its Affiliates.
3. Make itself available for telephone conferences with
the principal, financial, sales, and/or operating
officer(s) of MBI during normal business hours.
IV. EXPENSES
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It is expressly agreed and understood that Consultant's compensation as
provided in this Agreement does not include normal and reasonable
out-of-pocket expenses. The expenses described in this paragraph shall
be reimbursed by MBI independent of any fees described in the section
below titled, "COMPENSATION."
A. "Normal and reasonable out-of-pocket expenses" shall include
but are not limited to: accounting, long distance
communication, express mail, outside consultants, travel
(including: airfare, hotel lodging and meals, transportation,
etc.), and other costs involved in the execution of
Consultant's Services under this Agreement.
B. Consultant shall not incur any expense without MBI's prior
written consent, which consent shall not unreasonably be
withheld, except in case of legitimate emergency in which case
such expense incurred without prior approval will not exceed
two hundred fifty dollars ($250.00).
C. MBI hereby agrees to compensate Consultant promptly upon
receipt of an expense invoice from Consultant. Whenever
feasible, Consultant will request advance payment of approved
expenses. The reimbursement for expenses shall not be subject
to any maximum allocation, and shall be fully reimbursed
provided such expenses were pre-approved as provided herein.
V. COMPENSATION
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In consideration for the Services, MBI agrees that Consultant and/or
its assigns shall be entitled to compensation as follows:
A. MONTHLY ADVISORY FEES. MBI shall pay to Consultant, in
advance, a monthly fee of Eight Thousand Dollars ($8,000USD)
(the "Monthly Advisory Fees"). The Monthly Advisory Fees are
due and payable on the 1st day of each month. If this
Agreement is entered into after the 1st day of the month, a
pro rata portion of the Monthly Advisory Fees shall be paid
for the remaining days of the month in which the Agreement is
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executed. The Monthly Advisory Fees are exclusive of the other
compensation and reimbursable pre-approved expenses elsewhere
provided in this Agreement. Said Monthly Advisory Fees shall
continue for Twelve (12) months, or shall end upon proper
termination of this Agreement according to the section below
titled, "TERM AND TERMINATION".
B. STOCK OPTIONS. Consultant or its assigns will be granted
1,200,000 Options to purchase an aggregate of 1,200,000 shares
of MBI's Common Stock at a per share price of twenty cents
($0.20). The Options shall be referred to collectively as the
"Engagement Options". The Engagement Options shall expire five
(5) years after their issuance to the extent they have not
been exercised by such time. The Engagement Options will be
granted upon execution of this Agreement, but will vest and
become exercisable, provided this Agreement is in full force
and effect upon the vesting date, pursuant to the following
schedule:
1. 240,000 shares upon execution hereof;
2. 240,000 shares on December 31, 2004;
3. 240,000 shares on March 31, 2005;
4. 240,000 shares on June 30, 2005; and
5. 240,000 shares on September 30, 2005.
Consultant shall have "Piggyback Registration Rights" to
register the shares of Common Stock underlying the Engagement
Options as part of any S-8 registration filing related to
MBI's ISO Plan.
Consultant may elect to receive, without payment by Consultant
of any additional consideration, that number of shares of
Common Stock equal to the value of Consultant's Engagement
Options, or any portion thereof, by the surrender of the
applicable Option Certificate to MBI at its principal
executive office. Thereupon, MBI shall issue to Consultant
such number of fully paid and non-assessable shares of Common
Stock as is computed using the following formula:
X=Y (A-B)
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A
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WHERE:
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X= the number of shares of Common Stock to be
issued to Consultant pursuant to this
section 6;
Y= the number of shares of Common Stock covered
by the subject Option in respect of which
the net issue election is made;
A= the "fair market value" of one share of
Common Stock at the time the net issue
election is made; and
B= the purchase price in effect under the
Option at the time the net issue election is
made.
The term "fair market value" of one share of Common Stock on
any date shall mean a publicly traded price of the Option
holder's choosing, of the Common Stock during the five (5)
trading days prior to exercising the subject Option.
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
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A. EXECUTION. The execution, delivery and performance of this
Agreement, in the time and manner herein specified, will not
conflict with, result in a breach of, or constitute a default
under any existing agreement, indenture, or other instrument
to which either MBI or Consultant is a party or by which
either entity may be bound or affected.
B. NON-CIRCUMVENTION. MBI hereby irrevocably agrees not to
circumvent, avoid, bypass, or obviate, directly or indirectly,
the intent of this Agreement, including avoiding payment of
fees or other compensation to Consultant or its affiliates in
connection with any transaction involving any corporation,
partnership, individual, or other entity introduced by
Consultant to MBI and/or its Affiliates.
C. CORPORATE AUTHORITY. Both MBI and Consultant have full legal
authority to enter into this Agreement and to perform the same
in the time and manner contemplated.
D. AUTHORIZED SIGNATURES. The individuals whose signatures appear
below are authorized to sign this Agreement on behalf of their
respective corporations.
E. COOPERATION. MBI will cooperate with Consultant, and will
promptly provide Consultant with all pertinent materials and
requested information in order for Consultant to perform its
Services pursuant to this Agreement.
F. NOT A BROKER/DEALER. MBI acknowledges and understands that
Consultant is neither a broker/dealer nor a Registered
Investment Advisor.
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VII. TERM AND TERMINATION
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A. This Agreement shall be effective upon its execution and shall
remain in effect for a period of one (1) year unless otherwise
terminated as provided in this Section VII.
B. MBI shall have the right to terminate Consultant's engagement
hereunder by furnishing Consultant with thirty (30) days
advance written notice of such termination. Upon receipt of
such written notice, this Agreement will then terminate on the
last day of the next full calendar month following the receipt
of notice. Notice of termination must be received before the
end of the last day of the calendar month in order to
terminate the Agreement on the last day of the next full
calendar month following the receipt of notice.
C. Notwithstanding the foregoing, no termination of this
Agreement by MBI shall in any way affect Consultant's right to
receive:
1. reimbursement for billed, accrued and/or unbilled
disbursements and expenses which right the parties
hereby agree and consent is absolute;
2. its fees, securities and/or warrants, including the
Engagement Options and underlying Common Stock, which
have been earned by Consultant through the effective
date of termination.
3. Consultant's Monthly Advisory Fees through the
effective date of termination.
VIII. CONFIDENTIAL DATA
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A. Except for its employees, agents and independent contractors,
Consultant shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or
pertaining to the business and affairs of MBI, obtained by
Consultant as a result of its engagement hereunder, unless
authorized, in writing by MBI.
B. Except for its employees, agents and independent contractors
or as required by law or the rules of any securities exchange
or stock market, MBI shall not divulge to others, any trade
secret or confidential information, knowledge, or data
concerning or pertaining to the business and affairs of
Consultant, obtained by MBI as a result of its engagement
hereunder, unless authorized, in writing, by Consultant.
C. Consultant shall not be required in the performance of its
duties to divulge to MBI or any officer, director, agent or
employee of MBI, any secret or confidential information,
knowledge, or data concerning any other person, firm or entity
(including, but not limited to, any such persons, firm or
entity which may be a competitor or potential competitor of
MBI) which Consultant may have or be able to obtain otherwise
than as a result of the relationship established by this
Agreement.
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D. In any suit to enforce the provisions of this Article VIII,
the parties agree there shall be no adequate remedy at law and
that the parties shall be entitled to seek injunctive relief.
IX. OTHER MATERIAL TERMS AND CONDITIONS:
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A. INDEMNITY. Exhibit A hereto contains the mutual
indemnification of the parties hereto.
B. PROVISIONS. The provisions of Article VI, article VIII and
Exhibit A shall survive the termination or expiration of this
Agreement.
C. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to
time, at the request of others, execute, acknowledge and
deliver to the other party any and all further instruments
that may be reasonably required to give full effect and force
to the provisions of this Agreement.
D. ENTIRE AGREEMENT. Each of the parties hereby covenants that
this Agreement is intended to and does contain and embody
herein all of the understandings and Agreements, both written
or oral, of the parties hereby with respect to the subject
matter of this Agreement, and that there exists no oral
agreement or understanding expressed or implied liability,
whereby the absolute, final and unconditional character and
nature of this Agreement shall be in any way invalidated,
empowered or affected. There are no representations,
warranties or covenants other than those set forth herein.
E. LAWS OF THE STATE OF FLORIDA. This Agreement shall be deemed
to be made in, governed by and interpreted under and construed
in all respects in accordance with the laws of the State of
Florida, irrespective of the country or place of domicile or
residence of either party. In the event of controversy arising
out of the interpretation, construction, performance or breach
of this Agreement, the parties hereby agree and consent to the
jurisdiction and venue in the Twelfth Circuit Court in and for
Sarasota, Florida or the United States District Court for the
Middle District of Florida, as appropriate, and further agree
and consent that personal service or process in any such
action or proceeding outside of the State of Florida and
Sarasota County shall be tantamount to service in person
within Sarasota County, Florida and shall confer personal
jurisdiction and venue upon either of said Courts.
F. ASSIGNMENTS. The benefits of the Agreement shall inure to the
respective successors and assigns of the parties hereto and of
the indemnified parties hereunder and their successors and
assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto
shall be binding upon their respective successors and assigns.
G. ORIGINALS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an
original and constitute one and the same Agreement. Facsimile
copies with signatures shall be given the same legal effect as
an original.
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H. ADDRESSES OF PARTIES. Each party shall at all times keep the
other informed of its principal place of business if different
from that stated herein, and shall promptly notify the other
of any change, giving the address of the new place of business
or residence.
I. NOTICES. All notices that are required to be or may be sent
pursuant to the provision of this Agreement shall be sent by
certified mail, return receipt requested, or by overnight
package delivery service to each of the parties at the address
appearing herein, and shall count from the date of mailing or
the validated air xxxx.
J. MODIFICATION AND WAIVER. A modification or waiver of any of
the provisions of this Agreement shall be effective only if
made in writing and executed with the same formality as this
Agreement. The failure of any party to insist upon strict
performance of any of the provisions of this Agreement shall
not be construed as a waiver of any subsequent default of the
same or similar nature or of any other nature.
K. ATTORNEY'S FEES. If any arbitration, litigation, action, suit,
or other proceeding is instituted to remedy, prevent or obtain
relief from a breach of this Agreement, in relation to a
breach of this Agreement or pertaining to a declaration of
rights under this Agreement, the prevailing party will recover
all such party's attorneys' fees incurred in each and every
such action, suit or other proceeding, including any and all
appeals or petitions therefrom. As used in this Agreement,
attorneys' fees will be deemed to be the full and actual cost
of any legal services actually performed in connection with
the matters involved, including those related to any appeal or
the enforcement of any judgment calculated on the basis of the
usual fee charged by attorneys performing such services.
APPROVED AND AGREED:
XXXXXX BEAUMONT, INC.
By: _______________________________
Name:______________________________
Title:_____________________________
CASCADE DEVELOPMENT PARTNERS, LLC,
dba CASCADE PARTNERS, LTD.
By: _______________________________
Name:______________________________
Title:_____________________________
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ATTACHMENTS: EXHIBIT "A" Indemnification Agreement
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EXHIBIT A
INDEMNIFICATION PROVISIONS
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Each party hereto (the "Indemnifying Party") agrees to indemnify and hold
harmless the other party, its officers, employees and authorized agents (the
"Indemnified Party") against any and all losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and disbursements
(incurred in any and all actions, suits, proceedings and investigations in
respect thereof and any and all legal and other costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise), including without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, suit, proceeding or investigation (whether or not in connection
with any action in which the Indemnified Party is a party), directly or
indirectly, caused by, relating to, based upon, arising out of, or in connection
with Consultant's acting for MBI (other than those caused by, relating to, based
upon, arising out of, or in connection with the Indemnified Party's ordinary
negligence or willful misconduct), under the Agreement dated October 1, 2004,
between MBI and Consultant to which these indemnification provisions are
attached and form a part (the "Agreement"). This indemnification does not apply
to acts performed by the Indemnified Party which are in criminal in nature or a
violation of law.
These indemnification provisions shall be in addition to any liability which
either party may otherwise have to the other party or the persons indemnified
below in this sentence and shall extend to the following: each party, its
affiliated entities, partners, employees, legal counsel, agents and controlling
persons (within the meaning of the federal securities laws), and the officers,
directors, employees, legal counsel, agents, and controlling persons of any of
them (collectively, the "Party Affiliates"). All references to Indemnified Party
in these indemnification provisions shall be understood to include any and all
of the Party Affiliates of the Indemnified Party.
If any action, suit, proceeding or investigation is commenced, as to which any
of the either party or any of the Party Affiliates propose indemnification under
the Agreement, they shall notify the Indemnifying Party with reasonable
promptness; provided however, that any failure by the party seeking
indemnification to notify the Indemnifying Party shall not relieve the
Indemnifying Party from its obligations hereunder. The Indemnified Party and the
Party Affiliates shall have the right to retain counsel of their own choice
(which shall be reasonably acceptable to the Indemnifying Party) to represent
them, and the Indemnifying Party shall pay fees, expenses and disbursements of
such counsel; and such counsel shall, to the extent consistent with its
professional responsibilities, cooperate with the Indemnifying Party and any
counsel designated by the Indemnifying Party. The Indemnifying Party shall be
liable for any settlement of any claim against the Indemnified Party and/or the
Party Affiliates, as the case may be, made with the Indemnifying Party's written
consent, which consent shall not be unreasonably withheld. The Indemnifying
Party shall not, without the prior written consent of the party seeking
indemnification, which shall not be unreasonably withheld, settle or compromise
any claim, or permit a default or consent to the entry of any judgment in
respect thereof, unless such settlement, compromise or consent includes, as an
unconditional term thereof, the giving by the claimant to the party seeking
indemnification of an unconditional release from all liability in respect of
such claim.
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