Exhibit 99.9
CONSULTING AGREEMENT
AGREEMENT made as of the 1st 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 Xxxxxxxx Xxxxx maintaining his principal offices at 000 Xxxxxx
Xx. Xxxxx, XX 00000 (hereinafter referred as "Xx. Xxxxx").
WITNESSETH:
WHEREAS, Xx. Xxxxx is engaged in the business of financial consulting
services and has knowledge, expertise and personnel to render the requisite
services to Bravo! Foods; and
WHEREAS, Bravo! Foods is desirous of retaining Xx. Xxxxx for the purpose of
obtaining these services so as to better, more fully and more effectively
deal with the financial services community.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Engagement of Xx. Xxxx. Bravo! Foods herewith engages Xx. Xxxxx
and Xx. Xxxxx agrees to render to Bravo! Foods financial consulting
services which would include evaluating various business strategies and
recommending changes where appropriate and also critically evaluate Bravo!
Foods' performance in view of its corporate planning and business
objectives. This would also include evaluation of upper management.
a. The consulting services to be provided by the Xx. Xxxxx
shall include, but are nor limited to, the development,
implementation and maintenance of a sound financial advisory
strategy which would include:
i. Corporate Planning(a) develop an in-depth
familiarization with Bravo! Foods' business objectives
and bring to its attention potential or actual
opportunities which meet those objectives or logical
extensions thereof, (b) alert Bravo! Foods to new or
emerging high potential forms of production and
distribution which could either be acquired or developed
internally, (c) comment on Bravo! Foods' corporate
development including such factors as position in
competitive environment, financial performances vs.
competition, strategies, operational viability, etc., and
d) identify prospective suitable merger or acquisition
candidates for Bravo! Foods, perform appropriate
diligence investigations with respect thereto, advise
Bravo! Foods with respect to the desirability of pursuing
such candidates and assist Bravo! Foods in any
negotiations which may ensue therefrom.
b. The services to be rendered by Xx. Xxxxx to Bravo! Foods
shall under NO circumstances include the following:
i. Any activities which could be deemed by the
Securities and Exchange Commission to constitute
investment banking or any other activities required by
Xx. Xxxxx to be registered as a broker-dealer under the
Securities Act of 1934.
ii. Any activities which could be deemed to be in
connection with the offer or sale of securities in a
capital-raising transaction.
x. Xxxxx! Foods acknowledges that Xx. Xxxxx will devote such
time as is reasonably necessary to perform the services for
Bravo! Foods, having due regard for Xx. Xxxxx'x commitments and
obligations to other businesses for which he performs
consulting services.
2. Compensation and Expense Reimbursement. Bravo! Foods will pay
Xx. Xxxxx, as compensation for the services provided for in this Agreement
and as reimbursement for expenses incurred by Xx. Xxxxx on Bravo! Foods'
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 1, 2004 and terminating October 31, 2005. If
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 30 days
prior written notice to the other party after the first 90 days.
4. Treatment of Confidential Information.
a. Xx. Xxxxx 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 Xx. Xxxxx in connection with
his services hereunder, provided such information is plainly
and prominently designated by Bravo! Foods as being
confidential (the "Confidential Information"). Xx. Xxxxx will
not be bound by the foregoing limitation in the event (i) the
Confidential Information is otherwise disseminated and becomes
public information or (ii) Xx. Xxxxx 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 Xx. Xxxxx in reliance
upon the covenants of Bravo! Foods and Company contained in
this Agreement.
b. 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.
c. If the relationship between Bravo! Foods and Xx. Xxxxx
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 Xx. Xxxxx,
or shall certify to the other party's satisfaction that all
such copies have been destroyed and Xx. Xxxxx will not retain
any of the Confidential Information in his possession or
control.
d. In the course of the relationship between Bravo! Foods
and Xx. Xxxxx, the parties expect that Xx. Xxxxx will receive
information that is considered material inside information
within the meaning and intent of the federal securities laws,
rules, and regulations. Xx. Xxxxx will not disclose this
information directly or indirectly for Xx. Xxxxx or as a basis
for advice to any other party concerning any decision to buy,
sell, or otherwise deal in Bravo! Foods' securities.
5. Representation by Xx. Xxxxx of other clients. Bravo! Foods
acknowledges and consents to Xx. Xxxxx rendering consulting services to
other clients engaged in the same or similar business as that of Bravo!
Foods.
6. Indemnification by Bravo! Foods as to Information Provided to
Xx. Xxxxx. Bravo! Foods acknowledges that Xx. Xxxxx, in the performance of
his duties, will be required to rely upon the accuracy and completeness of
information supplied to him by Bravo! Foods' officers, directors, agents
and/or employees. Bravo! Foods agrees to indemnify, hold harmless and
defend Xx. Xxxxx, his agents and/or employees from any proceeding or suit
which arises out of or is due to the inaccuracy or incompleteness of any
material or information supplied by Bravo! Foods to Xx. Xxxxx.
7. Independent Contractor. The Parties expressly agree that Xx.
Xxxxx is acting as an independent contractor in performing his services
hereunder. Bravo! Foods shall carry no workers compensation insurance or
any health or accident insurance on Xx. Xxxxx 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
employeremployee relationship. Xx. Xxxxx has no power or authority to act
for, represent, or bind Bravo! Foods or any company affiliated with Bravo!
Foods in any manner.
8. Non-Assignment. This Agreement shall not be assigned by either
party without the written consent of the other party.
9. 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.
10. 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.
11. 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.
12. 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 Xx. Xxxxx, 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.
/s/ Xxxxxxxx Xxxxx November 1, 2004_______
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Xxxxxxxx Xxxxx Date
Bravo! Foods International Corp
By: /s/ Xxx X. Xxxxxx November 1, 2004
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Xxx X. Xxxxxx, CEO Date
SCHEDULE A
PAYMENT FOR SERVICES
AND REIMBURSEMENT OF EXPENSES
A. For the services to be rendered and performed by Xx. Xxxxx during
the term of the Agreement, Bravo! Foods shall pay to Xx. Xxxxx the sum of
1,500,000 shares of Bravo Foods' common stock, to be registered under Form
S-8.
X. Xxxxx! Foods shall also reimburse Xx. Xxxxx for all reasonable
and necessary outof pocket expenses incurred in the performance of his
duties for Bravo! Foods upon presentation of statements setting forth in
reasonable detail the amount of such expenses. Xx. Xxxxx shall not incur
any expense for any single item in excess of $250 except upon the verbally
or written prior approval of Bravo! Foods. Xx. Xxxxx agrees that any
travel, entertainment or other expense which he may incur and which may be
referable to more than one of his 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
compensation set forth in Paragraph A above.
/s/ Xxxxxxxx Xxxxx November 1, 2004
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Xxxxxxxx Xxxxx Date
Bravo! Foods International Corp
By: /s/ Xxx G, Xxxxxx November 1, 2004
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Xxx X. Xxxxxx, CEO Date
