Exhibit 10.1
Xxxxxxxxxx Investor Relations, Inc.
October 25, 2005
Xxxxxx Xxxxxx
Chairman
B&D Food Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxxx:
This letter agreement (the "Agreement") will confirm our understanding whereby
B&D Food Corporation (the "Company") retains Xxxxxxxxxx Investor Relations, Inc.
("RIR") as its investor relations consultant with respect to matters concerning
the financial and investment communities.
1. Term.
A. The Company retains RIR as its investor relations consultant on a month
to month basis beginning on November 1, 2005.
B. The term of this Agreement will automatically renew on a monthly basis,
unless either the Company or RIR terminates this Agreement in writing upon 30
days notice to the other party.
2. Services. As part of the investor relations services that RIR will provide
to the Company, RIR will:
(a) Provide the Company with investor relations counsel and guidance to
enhance the Company's visibility in the financial markets; (b) arrange
appointments for the Company with asset managers, broker dealers and analysts;
and (c) advise the Company on communications strategies as it relates to its
board of directors and stockholders.
3. Fees and Expenses.
A. The Company will pay RIR a monthly fee of $7,500 for RIR's investor
relations services. RIR will xxxx the Company for all fees and expenses every
month. The Company will pay each invoice within 15 days after receiving it. In
addition to the monthly fee, the Company will deliver a compensation package in
the form of a warrant evidencing the right to purchase during a five-year period
from the date of execution of this agreement, 200,000 shares of its common stock
at an exercise price equivalent to the closing price of the common stock at the
date of the execution of this agreement (the "Warrant"). The Warrant will
contain so called "Cashless Exercise" provisions, and the standard piggyback
registration rights and mechanical anti-dilution protection.
B. The Company will pay all of RIR's out-of-pocket expenses. These
out-of-pocket expenses may include postage, copier charges, telephone,
messengers, photography, printing, and other similar expense. RIR will not
charge a markup, surcharge, handling or administrative fee on such expenses.
C. RIR will obtain prior approval from the Company for any individual
out-of-pocket expense that is greater than $150.00. If RIR's total out-of-pocket
expenses are greater than $100.00 per month, then RIR will provide the Company
with copies of invoices and other receipts to support the amount of
out-of-pocket expenses, if the Company requests RIR to do so.
D. The Company understands that, depending on the nature of the expenses
that RIR incurs on the Company's behalf, RIR may not receive the bills from
vendors who provide certain services and/or products until after this Agreement
has terminated. In such case, the Company will reimburse RIR for such expenses
promptly after RIR notifies the Company of the amount due.
E. All invoices for out of pocket expenses and services rendered shall be
binding upon the Company and shall not be subject to objection for any reason
unless such objection is made in writing, states the basis for such objection in
detail and is delivered to RIR in connection with fees - within 30 days of the
completion of the relevant billing cycle or in connection with expenses within
30 days of the related invoice for such expenses.
F. Upon termination of this Agreement, RIR shall deliver an invoice for
any outstanding amounts due, including fees and expenses. The amount of such
invoice shall be due and payable within thirty (30) days of such invoice. The
Company will be charged a late fee of 1.0% per month of the unpaid balance due
on such invoice until paid.
G. In addition to the fees and expenses payable by the Company to RIR
pursuant to the tents of this Agreement, the Company hereby agrees to pay to RIR
all costs and expenses, including all reasonable attorneys' fees and
disbursements, incurred by RIR in collection of its fees and expenses payable
pursuant to the terms of this Agreement.
4. Indemnification.
A. The Company understands that RIR cannot undertake to verify the
accuracy of information that the Company (or someone on behalf of the Company)
provides to RIR, or information included in material that has been prepared by
RIR and approved by the Company.
B. The Company agrees to indemnify and hold harmless RIR, and its
officers, directors, employees, shareholders, representatives and agents from
and against any and all losses, liabilities, claims, damages, deficiencies,
costs and expenses (including reasonable attorney's fees, disbursements and
other charges) based upon or arising out of the performance of any services
provided under this Agreement, or any materials, releases, reports or
information that the Company (or someone on the Company's behalf) supplies to
RIR or prepared by RIR, except to the extent that such losses are due to the
gross negligence or willful misconduct of RIR. The Company's agreement to
indemnify will survive the expiration or termination of this Agreement.
C. The Company agrees that all information that it or its employees,
officers, directors or affiliates (or any person on the Company's behalf)
provides to RIR for dissemination will comply with any and all federal and state
securities laws and the rules and regulations of any applicable self regulating
securities association and securities exchange. All such information will be
accurate and will fairly represent the Company's situation. All such information
will not omit any information which would make the information that was provided
materially misleading.
5. Non-Solicitation. The Company agrees that during the term of this
Agreement and for two years after this Agreement terminates, neither the
Company nor any of its affiliates will directly or indirectly, (a) solicit
the employment of any employee of RIR or any of its affiliates, (b)
introduce any employee of RIR or any of its affiliates to any other
potential employer that wishes to employ any employee of RIR or any of its
affiliates, or (c) otherwise interfere with the employment relationship
between RIR or any of its affiliates and any of their employees.
6. Independent Contractor. RIR and the Company understand and agree that RIR
is an independent contractor and is not authorized to obligate or commit
the Company in any manner.
7. Confidentiality. RIR agrees to use reasonable commercial efforts to
preserve the confidentiality of any proprietary or confidential
information disclosed to RIR by the Company, Such obligation shall
terminate upon the earlier to occur of: (i) RIR is required to disclose
such information to a third party pursuant to any applicable law or the
order of any court or tribunal of competent jurisdiction, provided that
RIR provides prior written notice to the Company so as to enable the
Company to seek a protective order or such other protection as Company is
lawfully entitled; (ii) such information is in the public domain by
publication or otherwise, other than by breach of this Agreement by RIR or
(iii) the third anniversary of the termination of this Agreement.
8. Gift Policy. RIR's employees may not accept any type of gift or gratuity
(including stock or rights to acquire stock), regardless of value, from
any of RIR's clients, except for (i) unsolicited promotional materials of
nominal value such as pens and calendars and (ii) unsolicited consumable
items such as cakes and cookies that a client may choose to send to RIR
during the holidays.
9. Entire Agreement. This Agreement constitutes the entire agreement between
RIR and the Company with respect to investor relations services. This
Agreement supersedes all prior agreements or understandings between RIR
and the Company.
10. Amendments. RIR and the Company may amend, supersede or modify this
Agreement only in writing signed by each of RIR and the Company.
11. Governing Law. This Agreement will be governed and construed in accordance
with the laws of the State of New York without regard to any principles of
conflicts of laws.
12. Counterparts. RIR and the Company may execute this Agreement in two
counterparts, each of which will be considered an original but all of
which together will constitute one and the same instrument.
If this Agreement correctly describes our understanding, please sign the
enclosed copy of this letter where indicated. Please return the signed Agreement
to us together with the initial monthly fee of $7,500. We look forward to a long
and mutually productive relationship.
Sincerely yours,
XXXXXXXXXX INVESTOR RELATIONS, INC.
By: /s/
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
Agreed and Accepted as of the date first written above:
B&D FOOD CORPORATION
By: /s/
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
