CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement') is made effective this 16th day of May.
1995 by and between BRIA Communications Corp. a New Jersey corporation with
offices at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, XX 00000 ("Client")
and Canton Financial Services Corporation, a Nevada corporation with principal
offices at 000 Xxxx 000 Xxxxx Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000
("Consultant").
PREMISES
WHEREAS, Client wishes to obtain financial consulting services.
WHEREAS, Consultant, is in the business of providing consulting and other
services to firms who desire to make complex financial and structural changes to
their firms.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is hereby expressly acknowledged, Client and
Consultant agree as follows:
Section I- Engagement of Consultant and Term of Agreement.
A. Client retains Consultant to assist Client in general business
consulting, including locating or forming a public company for a potential
merger or acquisition ("Target Company"), assisting in a restructuring of
Client's common stock, if necessary, the issuance of new shares, and arranging
for a public offering, and assisting Client in the preparation of agreements,
documents, filings and other material necessary to effectuate the above services
("Consulting Services").
B. The term of this Agreement ("Term") shall, subject to earlier
termination as described herein, be one (i) year from the execution of this
Agreement and shall automatically and continually be extended thereafter on a
month-to-month basis, unless a party to this Agreement, in writing, services
notice of its decision to terminate this Agreement no later than thirty (30)
days before the expiration of the Term of this Agreement or expiration of any
extension hereof.
Section 2 - Compensation
Client shall compensate Consultant in the following manner:
A. Before each issuance of stock, or exchange of stock owed pursuant to
this Agreement, Consultant shall provide Client with a list of
designees ("List of Designees") specifying which designees will provide
or have provided service under this Agreement, and the amount of stock
each is to be compensated. All shares issued pursuant to this Agreement
shall be issued in compliance with either Form S-8 or Form 701,
whichever is applicable, if such exemptions:, are available. If Form S-
8' and Form 701 are not available as to any shares owed pursuant to
this Agreement, those shares shall be issued in compliance with Rule
144, with registration rights, as more specifically described herein.
B. Client agrees to pay Consultant a monthly consulting fee which shall be
the greater of: (a) Twenty thousand dollars ($20,000) or (b) actual fee
for services provided by Consultant's professional staff, which fee
shall be calculated by multiplying the number of hours worked by
Consultant's professional staff with that hourly fee as Set forth in
Exhibit "A", attached hereto and incorporated herein by this reference,
and which may be amended from time to time by Consultant Consultant
shall xxxx Client on a monthly basis, and payment shall be due upon
receipt of the xxxx, payable in either, at client's option, cash or in
Client's Class A Common Stock ("Common Stock"). Upon execution of this
Agreement, Client shall deposit $20,000 in cash or Common Stock as a
retainer to be used against the first month's billing. For purposes of
this paragraph, Common Stock shall be valued at the average of the bid
and ask prices for the month during which services were provided. If
Client elects to pay in shares of its Class A common stock, Client and
Consultant agrees that such shares will be valued at $0.50 per share.
C. If Consultant~assists Client in merging with or acquiring a Target
Company, either by introducing the Target Company to Client or by
providing any other Services in connection with the merger and
acquisition, Consultant shall be compensated, in addition to the rights
and shares specified above, an amount of shares of Capital Stock
sufficient so that upon such issuance; Consultant owns nine and
nine-tenths percent (9.9%) of the total issued and outstanding shares
of the corporate entity created from the merger with or acquisition of
the Target Company by Client ("New Entity"). New Entity shares shall be
issued within five (5) days of Client's receipt of the List of
Designees. If New Entity is not a public company ("Public Company")
(defined as a company registered under section 12 of the Exchange Act
or a reporting company subject to the reporting requirements of Section
15(d) of the Exchange Act) then, at Consultant's option, in lieu of
receiving New Entity shares, an amount equal to nine and nine-tenths
percent (9.9%) of the total issued and outstanding shares of Client's
Capital Stock shall be issued to Consultant. Shares shall be issued
within five (5) days of Client's receipt of the List of Designees.
Consultant may introduce a company to Client in writing, verbally, by
facsimile or by telephone conversation or conference.
D. If Client, or any of its successors, utilizes Consultant's services to
conduct an initial public offering, secondary offering, private
placement, foreign offering, or obtain a loan, line or letters of
credit, or other funds, Consultant shall receive a finder's fee in the
amount of nine and nine-tenths percent (9.9%) of any funds raised.
E. Upon Client entering into a transaction involving a business
opportunity which Consultant introduces to Client, including but not
limited to a joint venture, licensing agreement, or other contract or
asset, Consultant shall receive a finder's fee in the amount of nine
and nine-tenth percent (9.9%) of the market value of the assets
received by Client in connection with such transaction. Unless
otherwise mutually agreed upon by Client and Consultant, compensation
shall be payable in either cash, or in "like kind", but only "like
kind" if Consultant determines that the "like kind" asset is easily
divisible and liquidable. Consultant may introduce a business
opportunity to Client in writing, verbally, by facsimile or by
telephone conversation or conference.
F Client shall reimburse Consultant for expenses incurred during and in
relation to Consultant's performance under this Agreement. Such
expenses include, but are not limited to, travel, lodging, filing fees,
printing, postage, delivery, shipping, copying, telephone calls,
overnight packages, facsimiles, and all other out-of-pocket expenses.
G In addition to the foregoing, Consultant shall be compensated at a
variable rate for services provided by Consultant's professional staff
during the Term of this Agreement and all extensions thereto.
Consultant shall xxxx Client on a monthly basis, and payment shall be
due upon receipt of the xxxx, payable in either cash or in Consultant's
choice of Client's or New Entity's Capital Stock. If New Entity does
not exist, then all shares issued pursuant to this provision, upon the
creation of New Entity, shall be exchanged, at the option of
Consultant, on the same basis as shares of Client's Capital Stock are
exchanged, for shares of New Entity. The exchange shall occur upon the
merger or acquisition event which creates New Entity. Stock shall be
valued at book value, or if freely trading at one-half (1/2) the bid
price of the stock over the prior ten (10) trading days.
H. In the event that Client hires one of Consultant's personnel, Client
agrees to pay Consultant three (3) times that person's annual salary
within 30 days after the commencement of that employment.
I. All shares of stock that are issued to Consultant under this Agreement
shall, when issued, be validly issued, validly issued, fully paid and
nonassessable.
Section 3 - Registration Rights.
Client agrees to register all shares issued, exchanged or otherwise
transferred to Consultant pursuant to this Agreement ("Payment Shares") as
follows:
A. If, at any time commencing after the termination of this Agreement and
for a period of three (3) years thereafter, Client, New Entity, or any
of their successors, proposes to file a registration statement for the
public sale of shares of its common stock, written notice of such
proposal, will be given to Consultant at least 60 days prior to the
filing of such registration statement. The term "Registration
Statement" as used in this Section shall be deemed to include any form
which may be used to register a distribution of Securities to the
public, a post-effective amendment to a registration statement, or a
Notification and Offering Circular pursuant to a Regulation A Offering
when necessary to perfect an exemption thereunder. Client, New Entity,
or any of their successors, agree that on written notice received from
Consultant, within 20 days after Consultant's receipt of the notice to
file a registration statement, Client shall afford the holders of
Payment Shares the opportunity to have the Payment Shares included in
such Registration Statement. Notwithstanding the provision of this
section, Client shall have the right, at anytime after it shall give
written notice pursuant to this subsection to elect not to file any
proposed Registration Statement, or to withdraw the same after the
filing but prior to the effective date thereof. Notwithstanding any
provision to the contrary contained herein, Client Shall not be
required to include any of the Payment Shares transferred hereunder in
any Registration Statement with respect to shares offered in any
underwriting:
(i) unless Consultant agrees to offer such shares, on the same
terms and conditions as Client shares are being offered, and
to sign an underwriting agreement in the form to be signed by
the other offerors; or
(ii) if in the good faith and reasonable opinion of the
managing underwriter of the offering, the sale of the Payment
Shares to be included would be materially detrimental to the
remainder of the offerors.
In such an event the amount of Payment Shares and the amount of shares
to be registered, if any, by the remainder of the offerors (other than Client),
shall be proportionally reduced to a level acceptable to the managing
underwriter of the Offering, who may reasonably refuse to have any shares
registered.
B. The shareholders desiring to sell shares of Common Stock pursuant to
the registration rights granted herein shall provide Client with all
reasonable information relating to such sale and on which Client shall
be entitled to rely and to include such information in any such
Registration Statement.
All sales pursuant to any such Registration Statement shall be made in
accordance with the provision of the Securities Act of 1933, as amended
(the "Securities Act") and the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") and Client shall not be required to
include any such Payment Shares in any registration until it has
received written assurances reasonably satisfactory in form and
substance to Client from the shareholders offering such Payment Shares
that such sales shall be so conducted. All expenses incurred by Client
in complying with the registration requirements hereof (except fees and
disbursements of counsel for any shareholder and underwriting
discounts, commissions, or similar expenses to he incurred in
connection with the sale of Payment Shares) shall be borne by Client.
On notice to any shareholder offering Payment Shares covered by a
Registration Statement that such Registration Statement or prospectus
relating thereto requires revision, such holder will immediately cease
to make offers or sales pursuant to such Registration Statement and
return all such Registration Statements and prospectus to Client. All
registration rights granted herein may apply only to shares of Common
Stock issued by Client. Client is under no obligation to maintain the
effectiveness of any Registration Statement for more than an aggregate
of 90 days.
C. In connection with the filing of any Registration Statement or offering
statement under this section, Client covenants and agrees that it will
take all necessary action which may be required in qualifying or
registering the Payment Shares included in a Registration Statement or
offering statement for the offer and sale under the Securities or blue
sky laws of such states as may be reasonably requested by the holders
of the Payment Shares; provided, that Client shall not be obligated to
execute or file any general consent to service of process or to qualify
as a foreign corporation to do business under the laws of any such
jurisdiction.
D. In the event that the Payment Shares are the subject of or are included
in any Registration Statement or offering statement which is filed and
becomes effective, Client agrees to utilize its best efforts to keep
the same, including blue sky filings, for an effective period of not
less than 90 days. The holders of the Payment Shares shall cooperate
with Client and shall furnish such information as Client may reasonably
request in connection with any such registration or offering statement
hereunder, on which Client shall be entitled to rely.
E. Client further agrees that in the event that counsel to Consultant is
of the reasonable opinion that the Payment Shares may be transferred
and/or sold in full compliance with the provisions of the Act, without
the need for filing a Registration Statement, Client will fully
cooperate in connection with such transfer and/or sale at Client's sole
expense.
F. Client further agrees and represents that while any of the Payment
Shares are outstanding and held by Consultant or Consultant's
affiliates, Client will timely file all reports and documents required
under the Exchange Act and the Securities Act as well as such
additional information as is necessary in order to allow the holder of
the Payment Shares to rely upon the provisions of Rule 144 promulgated
under the Securities Act with respect to the current public information
requirements contained in Rule 144(c).
In the event of any registration of any Client common stock under the
Securities Act pursuant to this Section 5, Client shall indemnify and
hold harmless Consultant or any subsequent transferee of the Payment
Shares against any losses, claims, damages or liabilities, joint or
several, to which such holder may become subject under the Securities
Act or any other statute or at common law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any alleged untrue statement of any material
fact contained, on the effective date thereof, in any Registration
Statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained therein, or any amendment required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse such holder for any legal or any other expenses reasonably
incurred by such holder in connection with investigating or defending
any such loss, claim, damage, liability or action; provided. however,
that Client shall not be liable any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
any alleged untrue statement or alleged omission made in such
Registration Statement, preliminary prospectus, prospectus or amendment
or supplement in reliance upon and in conformity with written
information furnished to Client by such holder specifically for use
therein. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder and
shall survive the transfer of such Securities by such holder and
consummation of the transactions contemplated by this Agreement.
Section 4 - Clients Representations
Client represents, warrants and covenants to Consultant that each of
the following are true and complete as of the date of this Agreement:
A. Corporate Existence. Client is a corporation duly organized, validly
existing, and in good standing under the laws of the State of New
Jersey, with full corporate power and authority and all necessary
governmental authorizations to own, lease and operate property and
carry on its business as it is now being conducted.
B. Disclosure Documents. Client has or will cause to be delivered,
concurrent with the execution of this Agreement, copies of its
certificate of incorporation and bylaws, each as amended and as in
effect on the date hereof, and any documents that may be required to
effectuate any transaction contemplated herein.
C. Client's Capitalization. The authorized capitol stock of Client
consists of 200 million shares of common stock, par value $0.00l per
share, of which _________ shares are issued and outstanding. Client has
no treasury stock. All of the shares to be issued hereunder have been,
or will be at the time of issuance, duly authorized and validly issued,
are fully paid and nonassessable and will be issued to the Consultant
free and clear of any liens, charges, encumbrances, security interests,
options, rights or claims of others with respect thereto. There are no
preemptive or similar rights on the part of any holder of any class of
securities of Client. The shares are not subject to any contractual
restrictions relating to their disposition. All voting rights are
vested exclusively in the Common Stock of Client.
D. Subsidiaries. Client does not own, either beneficially or of record,
any material amounts of voting Securities of any corporation. Client
owns no interest in any other business entity.
E. Client's Authority for Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by the Client. This Agreement has been duly
executed and delivered by Client and constitutes the valid and legally
binding obligation of Client enforceable in accordance with its terms,
except to the extent that enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditor's rights generally. The execution and delivery
of this Agreement and the consummation the transactions contemplated
herein will not conflict with or result in any violation of any
provision of the Certificate of Incorporation or Bylaws of Client. To
the best of Client's knowledge, after due inquiry, the execution and
delivery of this agreement and the consummation of the transaction
contemplated herein will not conflict with any mortgage, indenture,
lease, contract, commitment, agreement, or other instrument, permit,
concession, grant, franchise, license, judgement, order, decree,
statute, law, ordinance, rule or regulation applicable to Client or any
of its properties or assets.
F Consents and Authorizations No consent, approval, order or
authorization of, or registration, declaration, compliance with or
filing with, any governmental or regulatory authority is required in
connection with the execution and delivery of this Agreement to permit
the consummation by Client of the transactions contemplated herein or
to prevent the termination of any material right, privilege, license or
agreement of Client or to prevent any material loss to Client or the
Clients business, by reason of the transactions contemplated herein.
G. Compliance with Law. To the best of Client's knowledge, after due
inquiry, Client is not in violation of or default under any statute,
law, ordinance, rule, regulation, judgment, order, decree, permit,
concession, grant, franchise, license or other governmental
authorization or approval applicable to it or any of its properties or
business. There are no proceedings pending or threatened which may
result in the revocation, cancellation, suspension, or any adverse
modification of any permit, concession, grant, franchise, license or
other governmental authorization or approval necessary for the conduct
of Client's business or which question the validity of this Agreement
or of any action taken or to be taken in connection herewith or the
consummation of the transactions contemplated hereby. Client has all
franchise, licenses, permits and other governmental approvals necessary
to enable it to carry on its business as presently conducted, except
where the failure to have such franchises, licenses or permits or other
governmental approvals would not have, individually or in the
aggregate, a material and adverse affect on Client's business.
H. Litigation. There are no judicial or administrative actions, suits,
proceedings or investigations pending or, to the knowledge of Client,
threatened which may result in any liability on the part of Client ,
aside from which consultant has full knowledge.
I. Nature of Representations No representation or warranty made by Client
in this Agreement, nor any document or information furnished or to be
furnished by Client to the Consultant in connection with this
Agreement, contains or will contain any untrue statement of material
fact, or omits or will omit to state any material fact necessary to
make the Statements contained therein not misleading, or omits to state
any material fact relevant to the transactions contemplated by this
Agreement.
J Independent legal and Financial Advice. Consultant is not a law firm,
neither is it an accounting firm. Consultant does however employ
professionals in those capacities to better allow Consultant to provide
quality consulting services. Client represents that it has not nor will
it rely upon any legal or financial representation made by Consultant,
and that Client has and will continue to seek the independent advice of
legal and financial counsel regarding all material aspects of the
transactions contemplated by this Agreement, including the review of
all documents by Consultant to Client and all opportunities Consultant
introduces to Client. Client acknowledges that the attorneys,
accountants and other advisors employed by Consultant represent the
interests of Consultant solely, and that no representation or warranty
has been give to Client by Consultant as to any legal, tax, accounting,
financial or other aspect of the transactions contemplated by this
Agreement.
Section 5 - Non-Circumvention
Client agrees that Client will not enter into any merger with or
acquisition of a Target Company, raise any funds for which Consultant provided
services, or enter into any transaction involving a business opportunity or
asset introduced to Client by Consultant, without compensating Consultant
pursuant to this Agreement. Neither will Client terminate this Agreement solely
as a means to avoid paying Consultant compensation earned or to be earned, or in
any other way attempt to circumvent Consultant.
Section 6 - Termination of Agreement by Consultant and by Client
I. Consultant may terminate this Agreement if the following occurs:
A. Payments due under this 'Agreement are not timely made?
B. In the judgment of the board of directors of Consultant, Client's
actions or conduct make it unreasonable for Consultant to perform under
this Agreement. Such acts include, and are or may be perceived as being
in the nature of dishonesty, illegal activities, activities harmful to
the reputation of the Consultant and activities which may create civil
or criminal liability for the Consultant;
C. Consultant makes a bona fide decision to terminate its business and
liquidate its assets:
D. Client misrepresents its corporate standing, power to enter and bind
itself to this Agreement, misrepresentation of its Section 3
guarantees, or any other concealed or misrepresented material fact
which would decrease the binding effect of this Agreement on Client;
E. If after conduct of a due diligence investigation, Consultant concludes
that an intended merger with or acquisition of a Target Company, public
offering, or other action contemplated under this Agreement (the
"Transaction"), is not viable, Consultant may give ten (10) days
written notice to Client, stating in particular why the Transaction is
not viable, and if after ten (10) days of receipt of the written
notice, Client insists that Consultant continue performance on the
Transaction, Consultant may then terminate the Agreement;
F. An unanticipated material change in either the market, Client or
Consultant makes continued. performance under this Agreement
unreasonable;
G. Breach of any provision of this Agreement; or
H. Notwithstanding the termination of this Agreement, Consultant shall be
entitled to receipt of all compensation owed pursuant to Sections
2(B)-2(G) up to the time of termination of this Agreement. Consultant
shall also be entitled to any fees owed pursuant to Sections 2(B), (D)
and (E) should Client, subsequent to the termination of this Agreement,
enter into any transaction contemplated pursuant to Sections 2(C), (D)
and (E). Pursuant to Sections 2(F) and (G), Consultant shall also be
entitled to reimbursement of any expenses incurred, up to the time of
termination of this Agreement along with any expenses incurred as a
result of the termination.
II. Client may terminate this Agreement under the following conditions:
A. Consultant fails to follow Client's reasonable instructions. Client
must advise Consultant that his actions or inactions are unacceptable
and give Consultant thirty (30) days for which to comply. If Consultant
fails to comply within thirty (30) days, Consultant may be terminated
hereunder by Client's service of notice of termination to Consulta0nt;
B. If, in the judgment of the board of directors of Client, Consultant's
actions or conduct would make it unreasonable to require Client to
retain Consultant. Such acts include, and are in the nature of,
dishonesty, illegal activities, activities harmful to the reputation of
the Client, and activities which create civil or criminal liability for
the Client; or
C. Notwithstanding the termination of this Agreement, Consultant shall be
entitled to receipt of all compensation owed pursuant to Sections
2(B)-2(G) up to the time of termination of this Agreement. Consultant
shall also be entitled to any fees owed pursuant to Sections 2(B), (D)
and (E) should Client, subsequently to the termination of this
Agreement, enter into any transaction contemplated pursuant to Sections
2(C), (D)and (E). Pursuant to Sections 2(F) and (G), Consultant shall
also be entitled to reimbursement of any expenses incurred, up to the
time of termination of this Agreement, along with any expenses incurred
as a result of the termination.
Section 7 - Utilization of Attorneys
Consultant utilizes attorneys to assist it in preparing the
documentation required to effectuate the transactions contemplated by this
Agreement. The attorneys utilized by Consultant represent only Consultant, and
Consultant's interest in providing consulting services and do not in anyway
represent the interests of any party to this Agreement other than Consultant.
Client is advised, and has represented, that he will seek independent legal
counsel to review all documentation provided to Client by Consultant.
Section 8 - Nondisclosure of Confidential Information
I. In consideration for the Client entering into this Agreement, Consultant
agrees that the following items used in the Client's business are secret,
confidential, unique, and valuable, were developed by Client at great cost and
over a long period of time, and disclosure of any of the items to anyone other
than client's officers, agents, or authorized employees will cause Client
irreparable injury;
A. Non-public financial information, accounting information, plans of
operations, possible mergers or acquisitions prior to a public
announcement;
B. Customer lists, call lists, and other confidential customer data;
C. Memoranda, notes, records concerning the technical and creative
processes conducted by Client;
D. Sketches, plans, drawings and other confidential research and
development data; or
E. Manufacturing processes, chemical formulae, and the composition of
Client's products.
II. Consultant shall have no liability to the Client with respect to the use or
disclosure to others not party Agreement, of such information as Consultant can
establish to:
A. have been publicly known;
B. have become publicly known, without fault on the Part of Consultant,
subsequent to disclosure by Client of such information to Consultant;
C. have been otherwise known by Consultant prior to communication by the
Client to Consultant of such information; or
D. have been received by Consultant at any time from a source other than
Client lawfully having possession of such information.
Section 9 - Best Efforts
Consultant agrees that it will at all times faithfully and to the best
of its experience, ability and talents, perform all the duties that may be
required of and from Consultant pursuant to the terms of this Agreement.
Consultant does not guarantee that its efforts xxxx have any impact on Client's
business or that any subsequent financial improvement will result from
Consultant's efforts.
Section 10 - Client's Right to Approve Transaction
Client expressly retains the right to approve, in its sole discretion,
each and every transaction introduced by Consultant that involves Client as a
party to any agreement. Consultant and Client mutually agree that Consultant is
not authorized to enter into agreements on behalf of Client.
Section 11 - Client Under No Duty or Obligation to Accept or Close on any
Transactions.
It is mutually understood and agreed that Client is not obligated to
accept or close any transaction submitted by Consultant.
Section 12 - Place of Services.
The Consulting Services contemplated to be performed by Consultant will
be performed through Consultant's offices; however it is understood and expected
that Consultant may make contacts with persons and entities in any other place
deemed appropriate by Consultant.
Section 13 - Nonexclusive Services.
Client acknowledges that Consultant is currently providing services of
the same or similar nature to other parties and Client agrees that Consultant is
not prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity.
Section 14- All Prior Agreements Terminated
This Agreement comprises the entire agreement and understanding between
the parties hereto at the date of this Agreement as to the subject matter hereof
and supersedes and replaces all proposals, prior negotiations and agreements,
whether oral or written, between the parties hereto in connection with the
subject matter hereof. None of the parties hereto shall be bound by any
conditions, definitions, warranties or representations with respect to the
subject matter of this Agreement other than as expressly provided in this
Agreement unless the parties hereto subsequently agree to vary this Agreement in
writing, duly signed by authorized representatives of the parties hereto.
Section 15 - Consultant is not an Agent or Employee of Client
Consultant's obligations under this agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be considered
to act as the employee or agent of Client or otherwise represent or bind Client.
For the purposes of this Agreement, Consultant is an independent contractor. All
final decisions with respect to acts of Client or its affiliates whether or not
made pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of Client or such affiliates and Consultant, its
employees or agents shall under no circumstances be liable for any expense
incurred or loss suffered by Client as a consequence of such action or
decisions.
Section 17 - Continue Operations in Substantially Same Manner
Client will not transfer, sell or hypothecate, assign or distribute any
of the assets currently in its possession except upon the written agreement of
the parties to this Agreement, and will continue operations in substantially the
same manner as it is presently functioning, until the closing of the
transactions mutually acceptable to the parties are entered into and this
agreement has been consummated.
Section 18 - Miscellaneous
A. Authority. The execution and performance of this Agreement have been
duly authorized by all requisite corporate action. This Agreement
constitutes a valid and binding obligation of the parties hereto.
B. Amendment. This Agreement may be amended or modified at any time and in
any manner only by an instrument in writing executed by the parties
hereto.
C. Waiver. No term of this Agreement shall be considered waived and no
breach excused by either party unless made in writing. No consent,
waiver or excuse by either party, express or implied, shall constitute
a subsequent consent, waiver or excuse.
D. Assignment
(i) The rights and obligations of the Consultant under this Agreement
shall inure to the benefit of and shall be binding upon its successors
and assigns. There shall be no rights of transfer or assignment of this
Agreement by Client except with the prior written consent of the
Consultant.
(ii) Nothing in this Agreement, expressed or implied, is intended to
confer upon any person, other than the parties and their successors,
any rights or remedies under this Agreement.
E. Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party, when
deposited in the Unites States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public
telegraph company for transmittal or when sent by facsimile
transmission, charges prepaid provided that the communication is
addressed:
(I) In the case of Consultant to:
Canton Financial Services Corp.
Attn: Xxxxxxx Xxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
(000)000-0000
(000) 000-0000 (fax)
(ii) In the Case of Client to:
BRIA Communications Corp.
Attn: Xxxxxxx Xxxxxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
or to such other person or address designated by Client in writing to receive
notice.
F. Headings and Captions. The headings of paragraphs are included solely
for convenience. If a conflict exists between any heading and the text
of this Agreement, the text shall control.
G. Entire Agreement. This instrument and the exhibits to this instrument
contain the entire Agreement between the parties with respect to the
transaction contemplated by the Agreement. It may be executed in any
number of counterparts but the aggregate of the counterpart together
constitute only one and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or un-enforceability shall not affect any other provisions
of this Agreement, but this Agreement shall be constructed as if it
never contained any such invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance of this
Agreement shall be governed by the laws of the State of Utah, without
regard to its law on the conflict of laws. Any dispute arising out of
this Agreement shall be brought in a court of competent jurisdiction in
Salt Lake County, Utah. The parties exclude any and all statutes, laws
and treaties which would allow or require any dispute to be decided in
another forum or by other rules of decision than provided in this
Agreement.
J. Attorney's Fees. if any action at law or in equity, including an action
for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to
recover actual attorney's fees, court costs, and other costs incurred
in proceeding with the action from the other party The attorney's fees,
court costs or other costs, may be ordered by the court in its decision
of any action described in this paragraph or may be enforced in a
separate action brought for determining attorney's fees, court costs,
or other costs. Should either party be represented by in house counsel,
all parties agree that party may recover attorney's fees incurred by
that in-house counsel in an amount equal to that attorney's normal fees
for similar matters, or, should that attorney not normally charge a
fee, by the prevailing rate charged by attorneys with similar
background in that legal community.
K. Time is of the Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
L. Mutual Cooperation. The parties hereto shall cooperate with each other
to achieve the purpose of this Agreements and shall execute such other
and further documents and take such other and further actions as may be
necessary or convenient to effect the transactions described herein.
M. Indemnification. Client and Consultant agree to indemnify, hold
harmless and, at the party seeking indemnification's sole option,
defend the other from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties, court fees, and attorneys' fees and expenses
asserted against or imposed or incurred by either party by reason of or
resulting from a breach of any representation, warranty, covenant
condition or agreement of the other party to this Agreement. Neither
party shall be responsible to the other party for any consequential or
punitive damages.
0. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties
hereto and their successors, any rights or remedies under or by reason
of this Agreement, unless this Agreement specifically states such
intent.
P. Facsimile Counterparts. If a party signs this Agreement and transmits
an electronic facsimile of the signature page to the other party, the
party who receives the transmission may rely upon the electronic
facsimile as a signed original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date herein
above written.
Canton Financial Services Corp.
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, President
BRIA Communications Corp.
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx, President
