EXHIBIT 8.1.2.
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "Agreement"), effective as of October 1, 2004 is
entered into by and between Xxxxxx Beaumont, Inc., a Nevada corporation (the
"Company") and Xxxxxx Xxxxxxxx, an individual ("Consultant").
RECITALS
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A. Consultant has experience in the area of finance and of investor
communications and financial and investor public relations; and
B. The Company desires to engage the services of Consultant to act as its
non-exclusive financial advisor and to assist and consult with the Company in
matters concerning the raising of financing and of investor relations and to
represent the Company in finance and in investors communications and public
relations with existing shareholders, brokers, dealers and other investment
professionals as to the Company's current and proposed activities; and
Consultant desires to provide such services.
AGREEMENT
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NOW THEREFORE, in consideration of the promises and the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. DUTIES OF CONSULTANT. Consultant agrees that it will generally provide the
following specified consulting services ("Services") through its officers and
employees during the term specified in Section 1:
(i) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
(j) Introduce the Company to the financial community and advise and
assist the Company in raising additional financing;
(k) With the cooperation of the Company, maintain an awareness of the
Company's plans, strategy and personnel, as they may evolve during such period,
and advise and assist the Company in communicating appropriate information
regarding such plans, strategy and personnel to the financial community;
(l) Assist and advise the Company with respect to: (i) stockholder and
investor relations, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(m) Upon the Company's approval, disseminate information regarding the
Company to Consultant's key contacts in the finance and investment community;
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(n) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
advise them of the Company's plans, goals and activities, and to assist the
Company in preparing for meetings and presentations involving the media,
investment professionals and the general investment public;
(o) Prepare for the Company's review and approval, all collateral
materials and power point presentations;
(p) At the Company's request, review business plans, strategies,
mission statements, budgets, proposed transactions and other plans for the
purpose of advising the Company of the investment community implications
thereof; and,
(i) Otherwise perform as the Company's financial advisor and as its
financial relations and public relations consultant.
2. ALLOCATION OF TIME AND ENERGIES. Consultant hereby promises to perform and
discharge well and faithfully the responsibilities which may be assigned to
Consultant from time to time by the officers and duly authorized representatives
of the Company in connection with the conduct of its financial and investor
public relations and communications activities, so long as such activities are
in compliance with applicable securities laws and regulations. Consultant shall
diligently and thoroughly provide the consulting services required hereunder.
Although no specific hours-per-day requirement will be required, Consultant and
the Company agree that Consultant will perform the duties set forth hereinabove
in a diligent and professional manner.
3. TERM. The term of this Agreement (the "Term") shall be for a period of two
(2) years from the date hereof. This Agreement may be terminated on 30 days
advance written notice by either party, without cause. Upon termination, the
Company shall pay and issue to Consultant all fees and options earned through
the date of termination.
4. REMUNERATION. As compensation for Services described in this Agreement, the
Company shall pay Consultant the sum of $2,000 per month during the Term and
issue to the Consultant, options to purchase 200,000 shares of the Company's
common stock at an exercise price of $.20 per share, which options shall vest
40,000 upon execution here of and 40,000 at the end of the four calendar
quarters there after on a cliff basis and may be exercised on a cashless basis.
Consultant acknowledges that the options have not been registered under the
Securities Act of 1933 (the "Act"), and accordingly are "restricted securities"
within the meaning of Rule 144 of the Act. As such, the options may not be
resold or transferred unless the Company has received an opinion of counsel
reasonably satisfactory to the Company that such resale or transfer is exempt
from the registration requirements of that Act.
5. EXPENSES. Consultant agrees to pay for all Consultant's expenses (phone,
labor, etc.) incurred pursuant to this Agreement, other than extraordinary items
(travel required by/or specifically requested by the Company, luncheons or
dinners to large groups of investment professionals, mass faxing to a sizable
percentage of the Company's constituents, investor conference calls, print
advertisements in publications, etc.) approved by the Company prior to its
incurring an obligation for reimbursement. All expenses in excess of $500 will
be pre-approved in writing by the Company.
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6. RESTRICTIONS ON ACTIONS. Consultant shall not be authorized to bind the
Company to any obligations or commitment of any kind or nature. Consultant shall
not hold himself out as an officer or employee of the Company or as having
authority to bind the Company to any obligation or make any representations on
behalf of the Company. Consultant shall not disclose any information on or
related to the Company without the express written consent of the Company's
Chief Executive Officer or such officers designated by the Company's Board of
Directors.
7. CONFIDENTIALITY & INDEMNIFICATION. The Company will furnish Consultant with
such information as Consultant may reasonably request for Consultant's use in
connection with its Duties. The Company recognizes and confirms that (i)
Consultant will use and rely primarily on the information furnished to
Consultant by the Company and on information available to Consultant from
generally recognized public sources without having independently verified the
same and (ii) Consultant does not assume responsibility for the accuracy or
completeness of said information. The Company hereby represents and warrants the
information furnished by it to Consultant, taken as a whole, will not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not false or misleading. The Company
further agrees that it will immediately notify Consultant of the occurrence of
any event or circumstance that results in the above representation regarding
such information not continuing to be true during the entire term of
Consultant's engagement hereunder.
Consultant shall keep any information or documentation about or
received from the Company strictly confidential as between Consultant and the
Company until such time as and to the extent only that it becomes publicly
available otherwise than by a breach of this or any other confidentiality
agreement to which the Company is a party. Consultant acknowledges that breach
of this obligation will cause irreparable harm to the Company that may not be
compensable in damages and agrees that, without limitation to any other right or
remedy to which the Company may otherwise be entitled in consequence thereof,
such breach may be restrained by injunction without proof of actual damage.
The Company will protect, indemnify and hold harmless Consultant
against any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting from
Consultant's communication or dissemination of any said information, documents
or materials not designated by the Company to the Consultant as "confidential"
or "Company private", excluding any such claims or litigation resulting from
Consultant's communication or dissemination of information not provided or
authorized by the Company.
8. REPRESENTATIONS. In connection with the acquisition of Securities hereunder,
the Consultant represents and warrants to the Company as follows:
(i) Consultant acknowledges that Consultants have been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment in the
Securities, and any additional information, which Consultant has requested.
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(ii) Consultant's investment in restricted securities is reasonable in
relation to Consultant's net worth, which is in excess of ten (10) times
Consultants' cost basis in the Securities. Consultant has had experience in
investments in restricted and publicly traded securities, and Consultant has had
experience in investments in speculative securities and other investments, which
involve the risk of loss of investment. Consultant acknowledges that an
investment in the Securities is speculative and involves the risk of loss.
Consultant has the requisite knowledge to assess the relative merits and risks
of this investment without the necessity of relying upon other advisors, and
Consultant can afford the risk of loss of his entire investment in the
Securities. Consultant is an accredited investor, as that term is defined in
Regulation D promulgated under the Securities Act of 1933.
(iii) Consultant is acquiring the Securities for the Consultant's own
account for long-term investment and not with a view toward resale or
distribution thereof except in accordance with applicable securities laws.
(iv) Consultant represents that it is not required to maintain any
licenses and registrations under federal or any state regulations necessary to
perform the services set forth herein. Consultant acknowledges that, to the best
of its knowledge, the performance of the services set forth under this Agreement
will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that, to the best of its
knowledge, Consultant and its officers and directors are not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws. Consultant further acknowledges that it is not a securities
Broker Dealer or a registered investment advisor. Company acknowledges that, to
the best of its knowledge, that it has not violated any rule or provision of any
regulatory agency having jurisdiction over the Company. Company acknowledges
that, to the best of its knowledge, Company is not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws.
9. STATUS AS INDEPENDENT CONTRACTOR. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company or of the Investments. Neither party to this
Agreement shall represent or hold itself out to be the employer or employee of
the other. Consultant further acknowledges the consideration provided herein
above is a gross amount of consideration and that the Company will not withhold
from such consideration any amounts as to income taxes, social security payments
or any other payroll taxes. All such income taxes and other such payment shall
be made or provided for by Consultant and the Company shall have no
responsibility or duties regarding such matters. Neither the Company nor the
Consultant possess the authority to bind each other in any agreements without
the express written consent of the entity to be bound.
10. ATTORNEY'S FEE. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
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11. WAIVER. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
12. NOTICES. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by telefacsimile or by courier to the other
party at the address last provided to the other party.
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13. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement shall be governed by,
subject to, and construed in accordance with the laws of the State of Florida,
regardless of conflicts. The parties hereto hereby expressly consent to the
exclusive jurisdiction and venue in Sarasota, Florida.
14. COMPLETE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
18. COUNTERPARTS & TELEFACSIMILE. This agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one agreement. A telefacsimile of this Agreement may be relied
upon as full and sufficient evidence as an original.
19. BENEFIT/BURDEN. The parties agree that this Agreement shall be binding upon
and shall be for the benefit of each of their respective heirs, successors,
assigns, subsidiaries, parent companies, and related or affiliated companies.
20. SEVERABILITY. If any provision of this Agreement or any portion of any
provision of this Agreement shall be deemed to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not alter
or affect the remaining portions of this Agreement or of such provision, as such
provision of this Agreement shall be severable from all other provisions hereof.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS AGREEMENT EFFECTIVE AS OF THE
DATE FIRST WRITTEN ABOVE.
"Company"
XXXXXX BEAUMONT, INC.
By: _______________________________
Xxxxx Xxxxxx,
"Consultant"
___________________________________
XXXXXX XXXXXXXX, an individual
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