Exhibit 99.2
NATIONAL FINANCIAL COMMUNICATIONS CORP.
CONSULTING AGREEMENT
AGREEMENT made as of the 15th day of November, 2004 by and between
Bravo! Foods International Corp., maintaining its principal offices at 00000
XX Xxxxxxx 0, Xxxxx Xxxx Xxxxx, XX 00000, (hereinafter referred to as
"Bravo! Foods") and National Financial Communications Corp. DBA/ OTC
Financial Network, a Commonwealth of Massachusetts corporation maintaining
its principal offices at 000 Xxxxxxxx Xx, Xxxxx 000, Xxxxxxx, XX 00000
(hereinafter referred to as the "Company").
W I T N E S S E T H:
WHEREAS, Company is engaged in the business of providing and rendering
public relations and communications services and has knowledge, expertise
and personnel to render the requisite services to Bravo! Foods; and
WHEREAS, Bravo! Foods is desirous of retaining Company for the purpose
of obtaining public relations and corporate communications services so as to
better, more fully and more effectively deal and communicate with its
shareholders and the investment banking community.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, it is agreed as follows:
1. Engagement of Company. Bravo! Foods herewith engages Company and
Company agrees to render to Bravo! Foods public relations, communications,
advisory and consulting services.
1.1 The consulting services to be provided by the Company shall
include, but are not limited to, the development, implementation
and maintenance of an ongoing program to increase the investment
community's awareness of Bravo! Foods's activities and to
stimulate the investment community's interest in Bravo! Foods.
Bravo! Foods acknowledges that Company's ability to relate
information regarding Bravo! Foods's activities is directly
related to the information provided by Bravo! Foods to the
Company.
1.2 Bravo! Foods acknowledges that Company will devote such time as
is reasonably necessary to perform the services for Bravo!
Foods, having due regard for Company's commitments and
obligations to other businesses for which it performs consulting
services.
2. Compensation and Expense Reimbursement.
2.1 Bravo! Foods will pay the Company, as compensation for the
services provided for in this Agreement and as reimbursement for
expenses incurred by Company on Bravo! Foods's behalf, in the
manner set forth in Schedule A annexed to this Agreement which
Schedule is incorporated herein by reference.
3. Term and Termination. This Agreement shall be for a period of
one year commencing November 15, 2004 and terminating November 14, 2005. If
the Bravo! Foods does not cancel the contract during the term, the contract
will be automatically extended for an additional three months. Either party
hereto shall have the right to terminate this Agreement upon 15 days prior
written notice to the other party after the first 90 days.
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4. Treatment of Confidential and Inside Information.
4.1 The Company shall not disclose, without the consent of Bravo!
Foods, any financial and business information concerning the
business, affairs, plans and programs of Bravo! Foods which are
delivered by Bravo! Foods to Company in connection with
Company's services hereunder, provided such information is
plainly and prominently designated by Bravo! Foods as being
confidential (the "Confidential Information"). The Company will
not be bound by the foregoing limitation in the event (i) the
Confidential Information is otherwise disseminated and becomes
public information or (ii) the Company is required to disclose
the Confidential Informational pursuant to a subpoena or other
judicial order. The parties understand and acknowledge that: (x)
the Confidential Information received has value unique to Bravo!
Foods; (y) significant irreparable damage and harm could result
if the Confidential Information were disclosed or used in
violation of this Agreement; and (z) Bravo! Foods agrees to
provide the Confidential Information to the Company in reliance
upon the covenants of Bravo! Foods and Company contained in this
Agreement.
4.2 Furthermore, the parties agree that: (i) all of the Confidential
Information will be kept and maintained confidential; (ii) the
Confidential Information will not be disclosed to any third
person (except as described in the preceding paragraph); (iii)
the Confidential Information will under no circumstances (and
without in any manner limiting the preceding clause) be
disclosed to, or utilized in connection with, the trading in
Bravo's common stock, any supplier, customer, or competitor
(present or potential) of the party supplying the Confidential
Information; and (iv) the Confidential Information will not in
any way be used, or be permitted to be used, in a manner
detrimental to the business and prospects of the party supplying
the Confidential Information.
4.3 If the relationship between Bravo! Foods and Company should be
terminated, the foregoing restrictions shall nonetheless
continue and remain in effect, and each party will return to the
other all copies of Confidential Information then held
respectively by the parties, their agents and Company, or shall
certify to the other party's satisfaction that all such copies
have been destroyed and Company will not retain any of the
Confidential Information in its possession or control.
4.4 In the course of the relationship between Bravo! Foods and
Company, the parties expect that the Company will receive
information that is considered material inside information
within the meaning and intent of the federal securities laws,
rules, and regulations. Company will not disclose this
information directly or indirectly for Company or as a basis for
advice to any other party concerning any decision to buy, sell,
or otherwise deal in Bravo! Foods's securities
5. Representation by Company of other clients. Bravo! Foods
acknowledges and consents to Company rendering public relations, consulting
and/or communications services to other clients of the Company engaged in
the same or similar business as that of Bravo! Foods.
6. Indemnification by Bravo! Foods as to Information Provided to
Company. Bravo! Foods acknowledges that Company, in the performance of its
duties, will be required to rely upon the accuracy and completeness of
information supplied to it by Bravo! Foods's officers, directors, agents
and/or employees. Bravo! Foods agrees to indemnify, hold harmless and defend
Company, its officers, agents and/or employees from any proceeding or suit
which arises out of or is due to
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the inaccuracy or incompleteness of any material or information supplied by
Bravo! Foods to Company.
7. Independent Contractor. It is expressly agreed that Company is
acting as an independent contractor in performing its services hereunder.
Bravo! Foods shall carry no workers compensation insurance or any health or
accident insurance on Company or consultant's employees. Bravo! Foods shall
not pay any contributions to social security, unemployment insurance,
Federal or state withholding taxes nor provide any other contributions or
benefits which might be customary in an employer-employee relationship.
Company has no power or authority to act for, represent, or bind Bravo!
Foods or any company affiliated with Bravo! Foods in any manner.
7. Non-Assignment. This Agreement shall not be assigned by either
party without the written consent of the other party.
8. Notices. Any notice to be given by either party to the other
hereunder shall be sufficient if in writing and sent by registered or
certified mail, return receipt requested, addressed to such party at the
address specified on the first page of this Agreement or such other address
as either party may have given to the other in writing.
9. Entire Agreement. The within agreement contains the entire
agreement and understanding between the parties and supersedes all prior
negotiations, agreements and discussions concerning the subject matter
hereof.
10. Modification and Waiver. This Agreement may not be altered or
modified except by writing signed by each of the respective parties hereof.
No breach or violation of this Agreement shall be waived except in writing
executed by the party granting such waiver.
11. Law to Govern; Forum for Disputes. This Agreement shall be
governed by the laws of the Commonwealth of Massachusetts without giving
effect to the principle of conflict of laws. Each party acknowledges to the
other that courts within the City of Boston, Massachusetts shall be the sole
and exclusive forum to adjudicate any disputes arising under this agreement.
In the event of delinquent fees owed to the Company, Bravo! Foods will be
responsible for pay for all fees associated with the collection of these
fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
National Financial Communications Corp.
By:
/s/Xxxxxxxx Xxxxx, President November 15, 2004
Bravo! Foods International Corp
By:
/s/Xxx X. Xxxxxx, Xx. November 15, 2004
Vice President, General Counsel
SCHEDULE A-1 PAYMENT FOR SERVICES AND REIMBURSEMENT OF EXPENSES.
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SCHEDULE A-2 GRANT OF OPTIONS TO NATIONAL FINANCIAL COMMUNICATIONS CORP.
IN ADVANCE OF SERVICES RENDERED
SCHEDULE A-1
PAYMENT FOR SERVICES
AND REIMBURSEMENT OF EXPENSES
A. For the services to be rendered and performed by Company during
the term of the Agreement, Bravo! Foods shall pay to Company the sum of
$5,000 per month payable in cash and/or shares. Bravo! Foods will add 20% to
all fees for paying in shares rather than cash. If Bravo! Foods decides
to pay for the entire base fee with 100% shares vs. cash, Bravo! Foods
must also issue three months worth of base fees at the signing of this
agreement in those shares. The amount of shares will be determined by the
bid price at the date of this contract. The Company will keep an accounting
of the sales of stock and deduct those net proceeds from the base fee per
month owed. If those net proceeds exceed the monthly fee, the excess amount
will be credited to the next month's monthly fee. If there are not enough
dollars to cover the monthly fee, the Bravo! Foods will either pay
additional shares or cover the deficit or the Bravo! Foods will pay the
deficit in cash for that particular month.
X. Xxxxx! Foods shall also reimburse Company for all reasonable and
necessary out-of-pocket expenses incurred in the performance of its duties
for Bravo! Foods upon presentation of statements setting forth in reasonable
detail the amount of such expenses. Company shall not incur any expense for
any single item in excess of $250 either verbally or written except upon the
prior approval of the Bravo! Foods. Company agrees that any travel,
entertainment or other expense which it may incur and which may be referable
to more than one of its clients (including Bravo! Foods) will be prorated
among the clients for whom such expense has been incurred. Shares will be
accepted for payment of expenses in the same manner as the base fee per
month in Paragraph A above.
National Financial Communications Corp.
By:
/s/Xxxxxxxx Xxxxx, President November 15, 2004
Bravo! Foods International Corp
By:
/s/Xxx X. Xxxxxx, Xx. November 15, 2004
Vice President, General Counsel
SCHEDULE A-2
GRANT OF OPTIONS TO NATIONAL FINANCIAL COMMUNICATIONS CORP.
X. Xxxxx of Options and Option Exercise Price. As compensation for
the services to be rendered by Company hereunder, Bravo! Foods herewith
issues and grants to Company stock options (the "Options") to purchase an
aggregate of 1,000,000 shares of Bravo! Foods's Common Stock at an exercise
price of $.25 per share. The Options are exercisable upon and subject to the
terms and conditions contained herein. The Options are exercisable during
the period commencing on the date hereof and ending three years subsequent
to the termination date of this Agreement. These restricted shares will be
issued to the Company as follows: (i) Options for
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250,000 shares upon the execution of this Agreement, and (ii) beyond the
first ninety (90) days, 750,000 shares on a pro rata quarterly basis,
conditioned upon the continuation of the Agreement.
B. Manner of Exercise. Exercise of any of the Options by Company
shall be by written notice to Bravo! Foods accompanied by Company's
certified or bank check for the purchase price of the shares being
purchased. Upon receipt of such notice and payment, Bravo! Foods shall
promptly cause to be issued, without transfer or issue tax to the option
holder or other person entitled to exercise the option, the number of shares
for which the Option has been exercised, registered in the name of Company.
Such shares, when issued, shall be fully paid and non-assessable.
C. Option Shares. Company acknowledges that any shares which it may
acquire from Bravo! Foods pursuant to the exercise of the Options provided
for herein will not have been registered pursuant to the Securities Act of
1933, as amended (the "Securities Act"), and therefore may not be sold or
transferred by Company except in the event that such shares are the subject
of a registration statement or any future sale or transfer is, in the
opinion of counsel for Bravo! Foods, exempt from such registration
provisions. Company acknowledges that any shares which it may acquire
pursuant to the exercise of the Options will be for its own account and for
investment purposes only and not with a view to the resale or redistribution
of same. Company further consents that the following legend be placed upon
all certificates for shares of Common Stock which may be issued to Company
upon the exercise of the Options:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED."
Company further consents that no stop transfer instructions being placed
against all certificates may not be issued to it upon the exercise of the
Options.
(i) If the Bravo! Foods executes a Registration during the term of
the contract, then the Company's shares will be added to this Registration
at no cost to the Company. The Bravo! Foods shall bear all costs and
expenses attributable to such registration, excluding fees and expenses of
Company's counsel and any underwriting or selling commission. Bravo! Foods
shall maintain the effectiveness of such registration throughout the term of
this Agreement and for a 120 day period thereafter.
(ii) Notwithstanding the foregoing, if the Shares issuable upon
exercise of the Options are not otherwise registered under the Securities
Act and the Bravo! Foods shall at any time after the date hereof propose to
file a registration statement under the Securities Act, which registration
statement shall include shares of Common Stock of Bravo! Foods or any
selling shareholder, Bravo! Foods shall give written notice to Company of
such proposed registration and will permit Company to include in such
registration all Shares which it has acquired as of the date of such notice.
The Bravo! Foods shall bear all costs and expenses attributable to such
registration, excluding fees and expenses of Company's counsel and any
underwriting or selling commission.
D. Adjustments in Option Shares.
(i) In the event that Bravo! Foods shall at any time sub-
divide its outstanding shares of Common Stock into a greater number of
shares, the Option purchase price in effect prior
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to such sub-division shall be proportionately reduced and the number of
shares of Common Stock purchasable shall be proportionately increased. In
case the outstanding shares of Common Stock of Bravo! Foods shall be
combined into a smaller number of shares, the Option purchase price in
effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable shall be
proportionately reduced.
(ii) In case of any reclassification or change of outstanding
shares of Common Stock issuable upon exercise of this Option (other than
change in par value, or from par value to no par value, or from no par value
to par value, or as a result or a subdivision or combination), or in case of
any consolidation or merger of the Bravo! Foods with or into another
corporation (other than a merger in which the Bravo! Foods is the continuing
corporation and which does not result in any reclassification or change of
outstanding shares of Common Stock, other than a change in number of the
shares issuable upon exercise of the Option) or in case of any sale or
conveyance to another corporation of the property of the Bravo! Foods as an
entirety or substantially as an entirety, the Holder of this Option shall
have the right thereafter to exercise this Option into the kind and amount
of shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock of the Bravo! Foods for which
the Option might have been exercised immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. The
above provisions shall similarly apply to successive reclassifications and
changes of shares of Common Stock and to successive consolidations, mergers,
sales or conveyances.
(iii) The Company reserves the right to assign these options to
a third party at its own discretion.
National Financial Communications Corp.
By:
/s/Xxxxxxxx Xxxxx, President November 15, 2004
Bravo! Foods International Corp
By:
/s/Xxx X. Xxxxxx, Xx. November 15, 2004
Vice President, General Counsel
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