Exhibit 4.1
AGREEMENT FOR CONSULTING SERVICES
AGREEMENT made and entered into as of this tenth day of January, 2003 (the
"Agreement"), by and between Barrington Foods International, Inc., a Nevada
corporation (the "Company") with principal offices in Las Vegas, NV and Xxxxxxx
X. Xxxxxx, a Nevada resident ("Consultant") and supercedes any and all earlier
agreements pertaining to the Company and Consultant.
Whereas, the Consultant is in the business of providing services, advice and
management services to companies and the Company believes such experience is in
its best interest to utilize, and
Whereas, the Company formally desires to engage Consultant to continue to
provide such services in accordance with the terms and conditions hereinafter
set forth;
Now, therefore, the Company and Consultant agree as follows:
1. Engagement. The Company agrees to engage Consultant and Consultant agrees to
provide services, advice, management services to the Company. It is hereby
agreed and acknowledged that by this agreement, Consultant is not made an agent
of the Company and shall not act as an authorized agent of the Company.
2. Term. The term of this agreement shall commence on the date hereof and shall
continue for a period of six (6) months.
3. Services. Consultant shall render advice and assistance to the Company on
business related matters (the "Services") and in connection there with shall:
(a) cause its principals to attend meetings of the Company's Board of
Directors or Executive Committee (s) when so requested by the Company;
(b) cause its principals to attend meetings at the request of the Company
and review, analyze and report on proposed business opportunities;
(c) consult with the Company concerning on-going strategic corporate
planning and long term investment policies, including any revision of the
Company's business plan;
(d) consult with, advise and assist the Company in identifying, studying
and evaluating merger, acquisition, joint venture, strategic alliance,
recapitalization and restructuring proposals, including the preparation of
reports and studies thereon when advisable, and assist in negotiations and
discussions pertaining thereto;
1
(e) assist the Company in obtaining technical and advisory assistance from
other professionals where necessary or advisable, including, but not
limited to attorneys and accountants and assist such persons;
(f) assist in the preparation and distribution of press releases, whenever
appropriate, to be made available to the press in general, customers,
suppliers and selected NASD broker-dealers, financial institutions, and the
Company's shareholders;
(g) assist in the preparation and distribution of corporate brochures and
research reports to selected NASD broker-dealers, financial institutions,
and the Company's shareholders;
(h) assist the Company in implementing its financial public relations
program, including, but not limited to distribution of collateral material
to broker-dealer firms.
(i) assist in the handling of outstanding legal issues and cases regarding
the company including having full authority of the Board of Directors to
settle any such matters.
(j) provide the Company with advice related to aforementioned activities.
In connection with the Services to be rendered by Consultant, Consultant shall
report to the Board of Directors and President of the Company and shall consult
with those individuals on behalf of the Company in connection with its
obligations set forth above. Consultant agrees to make itself available to
evaluate all proposals that relate to any financing undertaken by the Company,
subject to the limitations of Section 5 and 7 hereof.
Anything to the contrary herein notwithstanding, it is agreed at the
Consultant's Services will not include any services that constitute opinions or
performance of work that is in the ordinary purview of a certified public
accountant or attorney or any work that is the ordinary purview of a registered
broker/dealer or in connection with or related to the offer or sale of
securities of the Company in a capital raising transaction.
4. Compensation.
(a) The Company shal1 cause to be issued to the Consultant, as a
non-refundable retainer for prior services rendered and for entering into
this agreement 700,000 (seven hundred thousand) shares of its Common Stock
which shall be issued pursuant to registration on Form S-8 under the
Securities Act of 1933.
(b) A11 out-of-pocket expenses incurred by the Consultant in the
performance of the Services to be incurred hereunder shall be borne by the
Company and paid upon submission of appropriate documentation thereof,
provided however, prior authorization is required for amounts in excess of
$ 250.
2
5. Best Efforts Basis. Subject to Section 7 and the last sentence of Section 5
hereof, 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 it pursuant to the terms of this Agreement. The Company specifically
acknowledges and agrees, however, that the services to be rendered by Consultant
shal1 be conducted on a "best-efforts" basis and has not, cannot and does not
guarantee that its efforts will have any impact on the Company's business or
that any subsequent financial improvement will result from its efforts.
6. Company's Right to Approve Transaction. The Company shall give final approval
to all transactions introduced by Consultant that involves the Company as a
party to those agreements.
7. Non-Exclusive Services. The Company understands that Consultant is currently
providing certain advisory and financial public relation services to other
individuals and entities and agrees that Consultant is not prevented or barred
from rendering services of the same nature or a similar nature to any other
individuals or entities and acknowledges that such Services may from time to
time conflict with the timing of and the rendering of Consultant's services. In
addition, Consultant understands and agrees 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 Consultant.
8. Information Regarding Company. Consultant represents and warrants that it has
received copies of the Company's financial statements and other disclosure
documents (collectively, the "Disclosure Documents"). Consultant represents that
it has read the Disclosure Documents and has reviewed all such information with
its legal, financial and investment advisors to an extent it deemed such review
necessary or appropriate. Because of the Company's financial condition and other
factors, the receipt of capital stock of the Company as compensation under this
Agreement involves a high degree of risk, including the risks that such stock
may substantially decrease in value. The Consultant acknowledges and accepts
that risk. Consultant further represents that it has been afforded the
opportunity to discuss the Company with its management. As a result, Consultant
is cognizant of the financial condition and operations of the Company, has
available full information concerning its affairs and has been able to evaluate
the merits and risks of being compensated in common stock of the Company.
Consultant represents and warrants to the Company that it has received from the
Company and has otherwise had access to all information necessary to verify the
accuracy of the information in the Disclosure Documents.
9. Representations and Warranties of the Company. The Company represents and
warrants to Consultant, each such representation and warranty being deemed to be
material, that:
3
(a) The Company will cooperate fully and timely with consultant to enable
Consultant to perform its obligations under this Agreement;
(b) The execution and performance of this agreement by the Company has been
duly authorized by the Board of Directors of the Company in accordance with
applicable law;
(c) The performance by the Company of this Agreement will not violate any
applicable court decree, law or regulation nor it will violate any
provision of the organizational documents of the Company or any contractual
obligation by which the Company may be bound;
(d) Because Consultant will rely upon information being supplied it by the
Company, all such information shall be true, accurate, complete and not
misleading, in all material respects;
(e) The Shares, when issued, will be duly and validly issued, fully paid
and non-assessable with no personal liability to the ownership thereof;
(f) The Company will act diligently and promptly in reviewing materials
submitted to it by Consultant to enhance timely distribution of such
materials and will inform Consultant of any inaccuracies contained therein
prior to dissemination;
(g) The services to be provided by Consultant to the Company hereunder are
not in connection with or related to the offer or sale of securities of the
Company in a capital raising transaction.
10. Representations and Warranties of Consultant. By virtue of the execution
hereof, and in order to induce the Company to enter into this Agreement,
Consultant hereby represents and warrants to the Company as follows:
(a) It has full power and authority to enter into this Agreement, to enter
into a consulting relationship with the Company and to otherwise perform
this Agreement in the time and manner contemplated;
(b) It has the requisite skill and experience to perform the services and
to carry out and fulfill its duties and obligations hereunder;
(c) The services to be provided by Consultant to the Company hereunder are
not in connection with or related to the offer or sale of securities of the
Company in a capital raising transaction,
(d) Consultant is not an affiliate of or associated with any broker-dealers
or associated with any finders which the doing or have done business with
the Company.
4
11. Liability of Consultant. In furnishing the Company with management advice
and other services as herein provided, Consultant shall not be liable to the
Company or its creditors for errors of judgment or for anything except
malfeasance or gross negligence in the performance of its duties or reckless
disregard of the obligations and duties under the terms of this Agreement. It is
further understood and agreed that Consultant may rely upon information
furnished to it reasonably believed to be accurate and reliable and that, except
as set forth herein in the first paragraph of this Section 11, Consultant shall
not be accountable for any loss suffered by the Company by reason of the
Company's action or non-action on the basis of any advice, recommendation or
approval of Consultant.
The parties further acknowledge that Consultant undertakes no responsibility for
the accuracy of any statements to be made by management contained in press
releases or other communications, including, but not limited to, filings with
the Securities and Exchange Commission and the National Association of
Securities Dealers, Inc.
12. Confidentiality. Until such time as the same may become publicly known,
Consultant agrees that any information provided it by the Company, of a
confidential nature will not be revealed or disclosed to any person or entities,
except in the performance of this Agreement, and upon completion of the term of
this Agreement and upon the written request of the Company, any original
documentation provided by the Company will be returned to it. Consultant will,
where it deems necessary, require confidentiality agreements from any associated
persons where it reasonably believes they will come in contact with confidential
material.
13. Notice. All notices, requests, demands and other communications provided for
by this Agreement shall, where practical, be m writing and shall be deemed to
have been given when mailed at any general or branch United States Post office
enclosed in a certified post-paid envelope and addressed to the address of the
respective party first above stated. Any notice of change of address shall only
be effective however, when received.
14. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors, and assigns, including, without
limitation, any corporation which may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged and Consultant and its successors and assigns.
Consultant agrees that it will not sell, assign, transfer, convey, pledge or
encumber this Agreement or his right, title or interest herein, without the
prior written consent of the Company, this Agreement being intended to secure
the personal services of Consultant.
15. Termination. Consultant agrees that the Company may terminate this Agreement
at any time providing prior written notice of termination to Consultant. Any
notice of termination shall only be effective however, when received.
5
The Company agrees that the Consultant may terminate this Agreement at any time
providing prior written notice of termination to the Company. Any notice of
termination shall only be effective however, when received.
16. Applicable Law. This Agreement shall be deemed to be a contract made under
the laws of the State of Nevada, and for all purposes shall be construed in
accordance with the laws of said state. The Company
(i) agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement shall be instituted exclusively in Nevada State
District Court, County of Xxxxx, or in the United States District Court for
the State of Nevada,
(ii) waives any objection which the Company may have now or hereafter to
the venue of any such suit, action, or proceeding, and
(iii) gives irrevocable consent to the jurisdiction of the Nevada State
District Court, County of Xxxxx, and the United States District Court for
the State of Nevada in any such suit, action or proceeding.
17. Other Agreements. This Agreement supersedes all prior understandings and
agreements between the parties It may not be amended orally, but only by a
writing signed by the parties hereto.
18. Non-Waiver. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right shall
constitutes a waiver of that or any other right.
19. Heading. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shaI1 be deemed an original but all of which together shall
constitute one and the same instrument.
In Witness Whereof, the parties hereto have executed this Agreement the day and
year first above written.
Barrington Foods International, Inc. Xxxxxxx X. Xxxxxx
By ______________________________ By ______________________________
6
AGREEMENT FOR CONSULTING SERVICES
AGREEMENT made and entered into as of this tenth day of January, 2003 (the
"Agreement"), by and between Barrington Foods International, Inc., a Nevada
corporation (the "Company") with principal offices in Las Vegas, NV and Xxxxxxx
X. Xxxxxx, a Nevada resident ("Consultant") and supercedes any and all earlier
agreements pertaining to the Company and Consultant.
Whereas, the Consultant is in the business of providing services, advice and
management services to companies and the Company believes such experience is in
its best interest to utilize, and
Whereas, the Company formally desires to engage Consultant to continue to
provide such services in accordance with the terms and conditions hereinafter
set forth;
Now, therefore, the Company and Consultant agree as follows:
1. Engagement. The Company agrees to engage Consultant and Consultant agrees to
provide services, advice, management services to the Company. It is hereby
agreed and acknowledged that by this agreement, Consultant is not made an agent
of the Company and shall not act as an authorized agent of the Company.
2. Term. The term of this agreement shall commence on the date hereof and shall
continue for a period of six (6) months.
3. Services. Consultant shall render advice and assistance to the Company on
business related matters (the "Services") and in connection there with shall:
(a) cause its principals to attend meetings of the Company's Board of
Directors or Executive Committee (s) when so requested by the Company;
(b) cause its principals to attend meetings at the request of the Company
and review, analyze and report on proposed business opportunities;
(c) consult with the Company concerning on-going strategic corporate
planning and long term investment policies, including any revision of the
Company's business plan;
(d) consult with, advise and assist the Company in identifying, studying
and evaluating merger, acquisition, joint venture, strategic alliance,
recapitalization and restructuring proposals, including the preparation of
reports and studies thereon when advisable, and assist in negotiations and
discussions pertaining thereto;
1
(e) assist the Company in obtaining technical and advisory assistance from
other professionals where necessary or advisable, including, but not
limited to attorneys and accountants and assist such persons;
(f) assist in the preparation and distribution of press releases, whenever
appropriate, to be made available to the press in general, customers,
suppliers and selected NASD broker-dealers, financial institutions, and the
Company's shareholders;
(g) assist in the preparation and distribution of corporate brochures and
research reports to selected NASD broker-dealers, financial institutions,
and the Company's shareholders;
(h) assist the Company in implementing its financial public relations
program, including, but not limited to distribution of collateral material
to broker-dealer firms.
(i) assist in the handling of outstanding legal issues and cases regarding
the company including having full authority of the Board of Directors to
settle any such matters.
(j) provide the Company with advice related to aforementioned activities.
In connection with the Services to be rendered by Consultant, Consultant shall
report to the Board of Directors and President of the Company and shall consult
with those individuals on behalf of the Company in connection with its
obligations set forth above. Consultant agrees to make itself available to
evaluate all proposals that relate to any financing undertaken by the Company,
subject to the limitations of Section 5 and 7 hereof.
Anything to the contrary herein notwithstanding, it is agreed at the
Consultant's Services will not include any services that constitute opinions or
performance of work that is in the ordinary purview of a certified public
accountant or attorney or any work that is the ordinary purview of a registered
broker/dealer or in connection with or related to the offer or sale of
securities of the Company in a capital raising transaction.
4. Compensation.
(a) The Company shal1 cause to be issued to the Consultant, as a
non-refundable retainer for prior services rendered and for entering into
this agreement 700,000 (seven hundred thousand) shares of its Common Stock
which shall be issued pursuant to registration on Form S-8 under the
Securities Act of 1933.
(b) A11 out-of-pocket expenses incurred by the Consultant in the
performance of the Services to be incurred hereunder shall be borne by the
Company and paid upon submission of appropriate documentation thereof,
provided however, prior authorization is required for amounts in excess of
$ 250.
2
5. Best Efforts Basis. Subject to Section 7 and the last sentence of Section 5
hereof, 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 it pursuant to the terms of this Agreement. The Company specifically
acknowledges and agrees, however, that the services to be rendered by Consultant
shal1 be conducted on a "best-efforts" basis and has not, cannot and does not
guarantee that its efforts will have any impact on the Company's business or
that any subsequent financial improvement will result from its efforts.
6. Company's Right to Approve Transaction. The Company shall give final approval
to all transactions introduced by Consultant that involves the Company as a
party to those agreements.
7. Non-Exclusive Services. The Company understands that Consultant is currently
providing certain advisory and financial public relation services to other
individuals and entities and agrees that Consultant is not prevented or barred
from rendering services of the same nature or a similar nature to any other
individuals or entities and acknowledges that such Services may from time to
time conflict with the timing of and the rendering of Consultant's services. In
addition, Consultant understands and agrees 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 Consultant.
8. Information Regarding Company. Consultant represents and warrants that it has
received copies of the Company's financial statements and other disclosure
documents (collectively, the "Disclosure Documents"). Consultant represents that
it has read the Disclosure Documents and has reviewed all such information with
its legal, financial and investment advisors to an extent it deemed such review
necessary or appropriate. Because of the Company's financial condition and other
factors, the receipt of capital stock of the Company as compensation under this
Agreement involves a high degree of risk, including the risks that such stock
may substantially decrease in value. The Consultant acknowledges and accepts
that risk. Consultant further represents that it has been afforded the
opportunity to discuss the Company with its management. As a result, Consultant
is cognizant of the financial condition and operations of the Company, has
available full information concerning its affairs and has been able to evaluate
the merits and risks of being compensated in common stock of the Company.
Consultant represents and warrants to the Company that it has received from the
Company and has otherwise had access to all information necessary to verify the
accuracy of the information in the Disclosure Documents.
9. Representations and Warranties of the Company. The Company represents and
warrants to Consultant, each such representation and warranty being deemed to be
material, that:
3
(a) The Company will cooperate fully and timely with consultant to enable
Consultant to perform its obligations under this Agreement;
(b) The execution and performance of this agreement by the Company has been
duly authorized by the Board of Directors of the Company in accordance with
applicable law;
(c) The performance by the Company of this Agreement will not violate any
applicable court decree, law or regulation nor it will violate any
provision of the organizational documents of the Company or any contractual
obligation by which the Company may be bound;
(d) Because Consultant will rely upon information being supplied it by the
Company, all such information shall be true, accurate, complete and not
misleading, in all material respects;
(e) The Shares, when issued, will be duly and validly issued, fully paid
and non-assessable with no personal liability to the ownership thereof;
(f) The Company will act diligently and promptly in reviewing materials
submitted to it by Consultant to enhance timely distribution of such
materials and will inform Consultant of any inaccuracies contained therein
prior to dissemination;
(g) The services to be provided by Consultant to the Company hereunder are
not in connection with or related to the offer or sale of securities of the
Company in a capital raising transaction.
10. Representations and Warranties of Consultant. By virtue of the execution
hereof, and in order to induce the Company to enter into this Agreement,
Consultant hereby represents and warrants to the Company as follows:
(a) It has full power and authority to enter into this Agreement, to enter
into a consulting relationship with the Company and to otherwise perform
this Agreement in the time and manner contemplated;
(b) It has the requisite skill and experience to perform the services and
to carry out and fulfill its duties and obligations hereunder;
(c)The services to be provided by Consultant to the Company hereunder are
not in connection with or related to the offer or sale of securities of the
Company in a capital raising transaction,
(d) Consultant is not an affiliate of or associated with any broker-dealers
or associated with any finders which the doing or have done business with
the Company.
4
11. Liability of Consultant. In furnishing the Company with management advice
and other services as herein provided, Consultant shall not be liable to the
Company or its creditors for errors of judgment or for anything except
malfeasance or gross negligence in the performance of its duties or reckless
disregard of the obligations and duties under the terms of this Agreement. It is
further understood and agreed that Consultant may rely upon information
furnished to it reasonably believed to be accurate and reliable and that, except
as set forth herein in the first paragraph of this Section 11, Consultant shall
not be accountable for any loss suffered by the Company by reason of the
Company's action or non-action on the basis of any advice, recommendation or
approval of Consultant.
The parties further acknowledge that Consultant undertakes no responsibility for
the accuracy of any statements to be made by management contained in press
releases or other communications, including, but not limited to, filings with
the Securities and Exchange Commission and the National Association of
Securities Dealers, Inc.
12. Confidentiality. Until such time as the same may become publicly known,
Consultant agrees that any information provided it by the Company, of a
confidential nature will not be revealed or disclosed to any person or entities,
except in the performance of this Agreement, and upon completion of the term of
this Agreement and upon the written request of the Company, any original
documentation provided by the Company will be returned to it. Consultant will,
where it deems necessary, require confidentiality agreements from any associated
persons where it reasonably believes they will come in contact with confidential
material.
13. Notice. All notices, requests, demands and other communications provided for
by this Agreement shall, where practical, be m writing and shall be deemed to
have been given when mailed at any general or branch United States Post office
enclosed in a certified post-paid envelope and addressed to the address of the
respective party first above stated. Any notice of change of address shall only
be effective however, when received.
14. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors, and assigns, including, without
limitation, any corporation which may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged and Consultant and its successors and assigns.
Consultant agrees that it will not sell, assign, transfer, convey, pledge or
encumber this Agreement or his right, title or interest herein, without the
prior written consent of the Company, this Agreement being intended to secure
the personal services of Consultant.
15. Termination. Consultant agrees that the Company may terminate this Agreement
at any time providing prior written notice of termination to Consultant. Any
notice of termination shall only be effective however, when received.
5
The Company agrees that the Consultant may terminate this Agreement at any time
providing prior written notice of termination to the Company. Any notice of
termination shall only be effective however, when received.
16. Applicable Law. This Agreement shall be deemed to be a contract made under
the laws of the State of Nevada, and for all purposes shall be construed in
accordance with the laws of said state. The Company
(i) agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement shall be instituted exclusively in Nevada State
District Court, County of Xxxxx, or in the United States District Court for
the State of Nevada,
(ii) waives any objection which the Company may have now or hereafter to
the venue of any such suit, action, or proceeding, and
(iii) gives irrevocable consent to the jurisdiction of the Nevada State
District Court, County of Xxxxx, and the United States District Court for
the State of Nevada in any such suit, action or proceeding.
17. Other Agreements. This Agreement supersedes all prior understandings and
agreements between the parties It may not be amended orally, but only by a
writing signed by the parties hereto.
18. Non-Waiver. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right shall
constitutes a waiver of that or any other right.
19. Heading. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shaI1 be deemed an original but all of which together shall
constitute one and the same instrument.
In Witness Whereof, the parties hereto have executed this Agreement the day and
year first above written.
Barrington Foods International, Inc. Xxxxxxx X. Xxxxxx
By ______________________________ By ______________________________
6
AGREEMENT FOR CONSULTING SERVICES
AGREEMENT made and entered into as of this tenth day of January, 2003 (the
"Agreement"), by and between Barrington Foods International, Inc., a Nevada
corporation (the "Company") with principal offices in Las Vegas, NV and Xxxxx
Xxxx, a Nevada resident ("Consultant") and supercedes any and all earlier
agreements pertaining to the Company and Consultant.
Whereas, the Consultant is in the business of providing services, advice and
management services to companies and the Company believes such experience is in
its best interest to utilize, and
Whereas, the Company formally desires to engage Consultant to continue to
provide such services in accordance with the terms and conditions hereinafter
set forth;
Now, therefore, the Company and Consultant agree as follows:
1. Engagement. The Company agrees to engage Consultant and Consultant agrees to
provide services, advice, management services to the Company. It is hereby
agreed and acknowledged that by this agreement, Consultant is not made an agent
of the Company and shall not act as an authorized agent of the Company.
2. Term. The term of this agreement shall commence on the date hereof and shall
continue for a period of six (6) months.
3. Services. Consultant shall render advice and assistance to the Company on
business related matters (the "Services") and in connection there with shall:
(a) cause its principals to attend meetings of the Company's Board of
Directors or Executive Committee (s) when so requested by the Company;
(b) cause its principals to attend meetings at the request of the Company
and review, analyze and report on proposed business opportunities;
(c) consult with the Company concerning on-going strategic corporate
planning and long term investment policies, including any revision of the
Company's business plan;
(d) consult with, advise and assist the Company in identifying, studying
and evaluating merger, acquisition, joint venture, strategic alliance,
recapitalization and restructuring proposals, including the preparation of
reports and studies thereon when advisable, and assist in negotiations and
discussions pertaining thereto;
1
(e) assist the Company in obtaining technical and advisory assistance from
other professionals where necessary or advisable, including, but not
limited to attorneys and accountants and assist such persons;
(f) assist in the preparation and distribution of press releases, whenever
appropriate, to be made available to the press in general, customers,
suppliers and selected NASD broker-dealers, financial institutions, and the
Company's shareholders;
(g) assist in the preparation and distribution of corporate brochures and
research reports to selected NASD broker-dealers, financial institutions,
and the Company's shareholders;
(h) assist the Company in implementing its financial public relations
program, including, but not limited to distribution of collateral material
to broker-dealer firms.
(i) assist in the handling of outstanding legal issues and cases regarding
the company including having full authority of the Board of Directors to
settle any such matters.
(j) provide the Company with advice related to aforementioned activities.
In connection with the Services to be rendered by Consultant, Consultant shall
report to the Board of Directors and President of the Company and shall consult
with those individuals on behalf of the Company in connection with its
obligations set forth above. Consultant agrees to make itself available to
evaluate all proposals that relate to any financing undertaken by the Company,
subject to the limitations of Section 5 and 7 hereof.
Anything to the contrary herein notwithstanding, it is agreed at the
Consultant's Services will not include any services that constitute opinions or
performance of work that is in the ordinary purview of a certified public
accountant or attorney or any work that is the ordinary purview of a registered
broker/dealer or in connection with or related to the offer or sale of
securities of the Company in a capital raising transaction.
4. Compensation.
(a) The Company shal1 cause to be issued to the Consultant, as a
non-refundable retainer for prior services rendered and for entering into
this agreement 700,000 (seven hundred thousand) shares of its Common Stock
which shall be issued pursuant to registration on Form S-8 under the
Securities Act of 1933.
(b) A11 out-of-pocket expenses incurred by the Consultant in the
performance of the Services to be incurred hereunder shall be borne by the
Company and paid upon submission of appropriate documentation thereof,
provided however, prior authorization is required for amounts in excess of
$ 250.
2
5. Best Efforts Basis. Subject to Section 7 and the last sentence of Section 5
hereof, 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 it pursuant to the terms of this Agreement. The Company specifically
acknowledges and agrees, however, that the services to be rendered by Consultant
shal1 be conducted on a "best-efforts" basis and has not, cannot and does not
guarantee that its efforts will have any impact on the Company's business or
that any subsequent financial improvement will result from its efforts.
6. Company's Right to Approve Transaction. The Company shall give final approval
to all transactions introduced by Consultant that involves the Company as a
party to those agreements.
7. Non-Exclusive Services. The Company understands that Consultant is currently
providing certain advisory and financial public relation services to other
individuals and entities and agrees that Consultant is not prevented or barred
from rendering services of the same nature or a similar nature to any other
individuals or entities and acknowledges that such Services may from time to
time conflict with the timing of and the rendering of Consultant's services. In
addition, Consultant understands and agrees 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 Consultant.
8. Information Regarding Company. Consultant represents and warrants that it has
received copies of the Company's financial statements and other disclosure
documents (collectively, the "Disclosure Documents"). Consultant represents that
it has read the Disclosure Documents and has reviewed all such information with
its legal, financial and investment advisors to an extent it deemed such review
necessary or appropriate. Because of the Company's financial condition and other
factors, the receipt of capital stock of the Company as compensation under this
Agreement involves a high degree of risk, including the risks that such stock
may substantially decrease in value. The Consultant acknowledges and accepts
that risk. Consultant further represents that it has been afforded the
opportunity to discuss the Company with its management. As a result, Consultant
is cognizant of the financial condition and operations of the Company, has
available full information concerning its affairs and has been able to evaluate
the merits and risks of being compensated in common stock of the Company.
Consultant represents and warrants to the Company that it has received from the
Company and has otherwise had access to all information necessary to verify the
accuracy of the information in the Disclosure Documents.
9. Representations and Warranties of the Company. The Company represents and
warrants to Consultant, each such representation and warranty being deemed to be
material, that:
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(a) The Company will cooperate fully and timely with consultant to enable
Consultant to perform its obligations under this Agreement;
(b) The execution and performance of this agreement by the Company has been
duly authorized by the Board of Directors of the Company in accordance with
applicable law;
(c) The performance by the Company of this Agreement will not violate any
applicable court decree, law or regulation nor it will violate any
provision of the organizational documents of the Company or any contractual
obligation by which the Company may be bound;
(d) Because Consultant will rely upon information being supplied it by the
Company, all such information shall be true, accurate, complete and not
misleading, in all material respects;
(e) The Shares, when issued, will be duly and validly issued, fully paid
and non-assessable with no personal liability to the ownership thereof;
(f) The Company will act diligently and promptly in reviewing materials
submitted to it by Consultant to enhance timely distribution of such
materials and will inform Consultant of any inaccuracies contained therein
prior to dissemination;
(g) The services to be provided by Consultant to the Company hereunder are
not in connection with or related to the offer or sale of securities of the
Company in a capital raising transaction.
10. Representations and Warranties of Consultant. By virtue of the execution
hereof, and in order to induce the Company to enter into this Agreement,
Consultant hereby represents and warrants to the Company as follows:
(a) It has full power and authority to enter into this Agreement, to enter
into a consulting relationship with the Company and to otherwise perform
this Agreement in the time and manner contemplated;
(b) It has the requisite skill and experience to perform the services and
to carry out and fulfill its duties and obligations hereunder;
(c)The services to be provided by Consultant to the Company hereunder are
not in connection with or related to the offer or sale of securities of the
Company in a capital raising transaction,
(d) Consultant is not an affiliate of or associated with any broker-dealers
or associated with any finders which the doing or have done business with
the Company.
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11. Liability of Consultant. In furnishing the Company with management advice
and other services as herein provided, Consultant shall not be liable to the
Company or its creditors for errors of judgment or for anything except
malfeasance or gross negligence in the performance of its duties or reckless
disregard of the obligations and duties under the terms of this Agreement. It is
further understood and agreed that Consultant may rely upon information
furnished to it reasonably believed to be accurate and reliable and that, except
as set forth herein in the first paragraph of this Section 11, Consultant shall
not be accountable for any loss suffered by the Company by reason of the
Company's action or non-action on the basis of any advice, recommendation or
approval of Consultant.
The parties further acknowledge that Consultant undertakes no responsibility for
the accuracy of any statements to be made by management contained in press
releases or other communications, including, but not limited to, filings with
the Securities and Exchange Commission and the National Association of
Securities Dealers, Inc.
12. Confidentiality. Until such time as the same may become publicly known,
Consultant agrees that any information provided it by the Company, of a
confidential nature will not be revealed or disclosed to any person or entities,
except in the performance of this Agreement, and upon completion of the term of
this Agreement and upon the written request of the Company, any original
documentation provided by the Company will be returned to it. Consultant will,
where it deems necessary, require confidentiality agreements from any associated
persons where it reasonably believes they will come in contact with confidential
material.
13. Notice. All notices, requests, demands and other communications provided for
by this Agreement shall, where practical, be m writing and shall be deemed to
have been given when mailed at any general or branch United States Post office
enclosed in a certified post-paid envelope and addressed to the address of the
respective party first above stated. Any notice of change of address shall only
be effective however, when received.
14. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors, and assigns, including, without
limitation, any corporation which may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged and Consultant and its successors and assigns.
Consultant agrees that it will not sell, assign, transfer, convey, pledge or
encumber this Agreement or his right, title or interest herein, without the
prior written consent of the Company, this Agreement being intended to secure
the personal services of Consultant.
15. Termination. Consultant agrees that the Company may terminate this Agreement
at any time providing prior written notice of termination to Consultant. Any
notice of termination shall only be effective however, when received.
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The Company agrees that the Company may terminate this Agreement at any time
providing prior written notice of termination to the Company. Any notice of
termination shall only be effective however, when received.
16. Applicable Law. This Agreement shall be deemed to be a contract made under
the laws of the State of Nevada, and for all purposes shall be construed in
accordance with the laws of said state. The Company
(i) agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement shall be instituted exclusively in Nevada State
District Court, County of Xxxxx, or in the United States District Court for
the State of Nevada,
(ii) waives any objection which the Company may have now or hereafter to
the venue of any such suit, action, or proceeding, and
(iii) gives irrevocable consent to the jurisdiction of the Nevada State
District Court, County of Xxxxx, and the United States District Court for
the State of Nevada in any such suit, action or proceeding.
17. Other Agreements. This Agreement supersedes all prior understandings and
agreements between the parties It may not be amended orally, but only by a
writing signed by the parties hereto.
18. Non-Waiver. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right shall
constitutes a waiver of that or any other right.
19. Heading. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shaI1 be deemed an original but all of which together shall
constitute one and the same instrument.
In Witness Whereof, the parties hereto have executed this Agreement the day and
year first above written.
Barrington Foods International, Inc. Xxxxx Xxxx
By ______________________________ By ______________________________
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