CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into this 4th day of
August 1995, but made effective as of the 1st day of March 1995 by and between
BRIA Communications Corporation, a New Jersey corporation (and its designees)
(collectively referred to as "Client") with principal offices at 000 Xxxx 000
Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000, and East-West Trading Corporation
("Consultant").
PREMISES
WHEREAS, Consultant is familiar with business conditions and contacts
in BRIA's industry in China and Europe.
WHEREAS, Client desires to secure the services of Consultant and to
protect its interest in obtaining comprehensive covenants from Consultant not to
compete with Client nor to divulge Client's confidential information.
WHEREAS, Consultant desires to enter into a written agreement to serve
as a consultant to Client for the purpose of introducing Client to persons and
entities for potential acquisitions, joint venture partnerships, or other
business alliances in China and Europe.
AGREEMENT
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual covenants
and agreements contained herein, and in reliance on the representations and
warranties set forth in this Agreement, the benefits to be derived herein and
for other valuable consideration, the receipt and adequacy of which is hereby
expressly acknowledged, Client and Consultant agree as follows:
Section 1- Engagement of Consultant and Term of Agreement.
A. Client retains Consultant to assist Client in general business
consulting, including the introduction in China and Europe of
Client to persons and entities that will enhance the value of
Client's stock by establishing and maintaining the stock quote
on the bulletin board market system and developing a market
and market makers, as well locating potential acquisition
candidates in China or Europe and performing other services
that Client's board of directors reasonably requests from time
to time ("Consulting Services").
B. The term of this Agreement ("Term") shall, subject to earlier
termination as described herein, be one (1) year from the
execution of this Agreement, unless Consultant provides Client
at least 30 days or Client provides to Consultant at least 14
days written notice of its decision to terminate this
Agreement.
Section 2 - Compensation
Client shall compensate Consultant in the following manner:
A. Client shall compensate Consultant one hundred twenty thousand
(120,000) post-reverse shares of Client's common stock, par
value $0.02 per share ("Common Stock") pursuant to Regulation
S of the Securities Act of 1933. Payment of shares shall be
made immediately with the formal of this Agreement.
B. Consultant shall be granted an option to purchase two hundred
fifty thousand (250,000) post-reverse shares of Client's
common stock at the exercise price $0.50 per share. The
options under this paragraph 2(B) are to be exercise, if at
all, within one (1) year of the execution of this Agreement
(Requisite Option Agreement and Notice of Exercise are
attached as Annex A hereto and incorporated herein by this
reference) and issued pursuant to Regulation S of the
Securities Act of 1933.
C. All shares of stock that are issued to Consultant under this
Agreement shall, when issued, be validly issued, fully paid
and nonassessable. Section 3 - Client's Representations
Section 3 - Client's Representations
Client represents, warrants and covenants to Consultant that each of
the following is true and complete as of the date of this Agreement:
A. Client's Authority for Agreement. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by
the Client. This Agreement has been duly executed and
delivered by Client and constitutes the valid and legally
binding obligation of Client enforceable in accordance with
its terms, except to the extent that enforceability may be
subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally. To the best of Client's
knowledge, after due inquiry, the execution and delivery of
this agreement and the consummation of the transaction
contemplated herein will not conflict with any mortgage,
indenture, lease, contract, commitment, agreement, or other
instrument, permit, concession, grant, franchise, license,
judgement, order, decree, statute, law, ordinance, rule or
regulation applicable to Client or any of its properties or
assets.
B. Consents and Authorizations. No consent, approval, order or
authorization of, or registration, declaration, compliance
with or filing with, any governmental or regulatory authority
is required in connection with the execution and delivery of
this Agreement to permit the consummation by Client of the
transactions contemplated herein or to prevent the termination
of any material right, privilege, license or agreement of
Client or to prevent any material loss to Client or the
Client's business, by reason of the transactions contemplated
herein.
Section 4 - Non-Circumvention
Client agrees that Client will not enter into any merger with or
acquisition of a Target Company, raise any funds for which Consultant
provided services, or enter into any transaction involving a business
opportunity or asset introduced to Client by Consultant, without
compensating Consultant pursuant to this Agreement. Neither will Client
terminate this Agreement solely as a means to avoid paying Consultant
compensation earned or to be earned, or in any other way attempt to
circumvent Consultant.
Section 5 - Termination of Agreement by Consultant and by Client
Consultant may terminate this Agreement if the following occurs:
A. Payments due under this Agreement are not timely made.
B. Consultant makes a bona fide decision to terminate its
business and liquidate its assets.
C. An unanticipated material change in either the market, Client
or Consultant makes continued performance under this Agreement
unreasonable.
D. Breach of any provision of this Agreement.
E. Notwithstanding the termination of this Agreement, Consultant
shall be entitled to receipt of all compensation owed pursuant
to Sections 2(A)-2(D) up to the time of termination of this
Agreement.
Client may terminate this Agreement under the following conditions:
A. Consultant fails to follow Client's reasonable instructions.
Client must advise Consultant that his actions or inactions
are unacceptable and give Consultant thirty (30) days for
which to comply. If Consultant fails to comply within thirty
(30) days, Consultant may be terminated hereunder by Client's
service of notice of termination to Consultant.
B. If, in the judgment of the Board of Directors of Client,
Consultant's actions or conduct would make it unreasonable to
require Client to retain Consultant. Such acts include, and
are in the nature of, dishonesty, illegal activities,
activities harmful to the reputation of the Client, and
activities which create civil or criminal liability for the
Client.
C. Notwithstanding the termination of this Agreement, Consultant
shall be entitled to receipt of all compensation owed pursuant
to Sections 2(A)-2(D) up to the time of termination of this
Agreement.
Section 6 -Nondisclosure of Confidential Information
In consideration for the Client entering into this Agreement,
Consultant agrees that the following items used in the Client's
business are secret, confidential, unique, and valuable, were developed
by Client at great cost and over a long period of time, and disclosure
of any of the items to anyone other than Client's officers, agents, or
authorized employees will cause Client irreparable injury.
A. Non-public financial information, accounting information,
plans of operations, possible mergers or acquisitions
prior to the public announcement.
B. Customer lists, call lists, and other confidential
customer data;
C. Memoranda, notes, records concerning the technical and
creative processes conducted by Client;
D. Sketches, plans, drawings and other confidential research
and development data or;
E. Manufacturing processes, chemical formulae, and the
composition of Client's products.
Consultant shall have no liability to the Client with respect to the
use or disclosure to others not party to this Agreement, of such
information as Consultant can establish to:
A. have been publicly known;
B. have become known, without fault on the part of
Consultant, subsequent to disclosure by Client of such
information to Consultant;
C. have been otherwise known by Consultant prior to
communication by the Client to Consultant of such
information, or
D. have been received by Consultant at any time from a source
other than Client lawfully having possession of such
information.
Section 7 - Best Efforts
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 and from Consultant pursuant to the terms of this
Agreement. Consultant does not guarantee that its efforts will have any
impact on Client's business or that any subsequent financial
improvement will result from Consultant's efforts.
Section 8 - Client's Right to Approve Transaction
Client expressly retains the right to approve, in its sole discretion,
each and every transaction introduced by Consultant that involves
Client as a party to any agreement. Consultant and Client mutually
agree that Consultant is not authorized to enter into agreements on
behalf of Client.
Section 9 - Client Under No Duty or Obligation to Accept or Close on any
Transactions
It is mutually understood and agreed that Client is not obligated to
accept or close any transaction submitted by Consultant.
Section 10 - All Prior Agreements Terminated
This Agreement comprises the entire agreement and understanding between
the parties hereto at the date of this Agreement as to the subject
matter hereof and supersedes and replaces all proposals, prior
negotiations and agreements, whether oral or written, between the
parties hereto in connection with the subject matter hereof. None of
the parties hereto shall be bound by any conditions, definitions,
warranties or representations with respect to the subject matter of
this Agreement other than as expressly provided in this Agreement
unless the parties hereto subsequently agree to vary this Agreement in
writing, duly signed by authorized representatives of the parties
hereto.
Section 11 - Consultant is not an Agent or Employee of Client
Consultant's obligations under this agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be
considered to act as the employee or agent of Client or otherwise
represent or bind Client. For the purposes of this Agreement,
Consultant is an independent contractor. All final decisions with
respect to acts of Client or its affiliates, whether or not made
pursuant to or in reliance on information or advice furnished by
Consultant hereunder, shall be those of Client or such affiliates and
Consultant, its employees or agents shall under no circumstances be
liable for any expense incurred or loss suffered by Client as a
consequence of such action or decisions.
Section 12 - Miscellaneous
A. Authority. The execution and performance of this Agreement
have been duly authorized by all requisite corporate action.
This Agreement constitutes a valid and binding obligation of
the parties hereto.
B. Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
C. Waiver. No term of this Agreement shall be considered waived
and no breach excused by either party unless made in writing.
No consent, waiver or excuse by either party, express or
implied, shall constitute a subsequent consent, waiver or
excuse.
D. Assignment:
(i) The rights and obligations of the Consultant under this
Agreement shall inure to the benefit of and shall be
binding upon its successors and assigns. There shall be no
rights of transfer or assignment of this Agreement by
Client except with the prior written consent of the
Consultant.
(ii)Nothing in this Agreement, expressed or implied, is
intended to confer upon any person, other than the parties
and their successors, any rights or remedies under this
Agreement.
E. Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the Unites
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal or when sent by facsimile
transmission, charges prepaid provided that the communication
is addressed:
(i) In the case of Consultant to:
East-West Trading Corporation
National Bank Building, Memorial Square
Charleston, Nevis, West Indies
(ii) In the case of Client to:
BRIA Communications Corporation
ATTN: Xxxxxxx Xxxxxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
(000) 000-0000
or to such other person or address designated by Client in
writing to receive notice.
F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any
heading and the text of this Agreement, the text shall
control.
G. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties
with respect to the transaction contemplated by the Agreement.
It may be executed in any number of counterparts but the
aggregate of the counterparts together constitute only one and
the same instrument.
H. Effect of Partial Invalidity. In the event that any one or
more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, but
this Agreement shall be constructed as if it never contained
any such invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance
of this Agreement shall be governed by the laws of the State
of Utah, without regard to its law on the conflict of laws.
Any dispute arising out of this Agreement shall be brought in
a court of competent jurisdiction in Salt Lake County, Utah.
The parties exclude any and all statutes, laws and treaties
which would allow or require any dispute to be decided in
another forum or by other rules of decision than provided in
this Agreement.
J. Attorneys' Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing
party shall be entitled to recover actual attorneys' fees,
court costs, and other costs incurred in proceeding with the
action from the other party. The attorney's fees, court costs
or other costs, may be ordered by the court in its decision of
any action described in this paragraph or may be enforced in a
separate action brought for determining attorneys' fees, court
costs, or other costs. Should either party be represented by
in-house counsel, all parties agree that that party may
recover attorneys' fees incurred by that in-house counsel in
an amount equal to that attorney's normal fees for similar
matters, or, should that attorney not normally charge a fee,
by the prevailing rate charged by attorneys with similar
background in that legal community.
K. Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
L. Mutual Cooperation. The parties hereto shall cooperate with
each other to achieve the purpose of this Agreement, and shall
execute such other and further documents and take such other
and further actions as may be necessary or convenient to
effect the transactions described herein.
M. Indemnification. Client and Consultant agree to indemnify,
hold harmless and, at the party seeking indemnification's sole
option, defend the other from and against all demands, claims,
actions, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties, court fees,
and attorneys' fees and expenses asserted against or imposed
or incurred by either party by reason of or resulting from a
breach of any representation, warranty, covenant condition or
agreement of the other party to this Agreement. Neither party
shall be responsible to the other party for any consequential
or punitive damages.
0. No Third Party Beneficiary. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person,
other than the parties hereto and their successors, any rights
or remedies under or by reason of this Agreement, unless this
Agreement specifically states such intent.
P. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission may rely
upon the electronic facsimile as a signed original of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date herein above written.
BRIA Communications Corporation East-West Trading Corporation
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxx, President First Directors, Limited, President
Represented by: Xxxxxx Xxxxxxxx
EXHIBIT A
SUITABILITY LETTER
TO: BRIA Communications Corp.
c/o Xxxxxxx Xxxxxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
East-West Trading Corporation ("East-West") makes the following
representations with the intent that they may be relied on by BRIA
Communications Corp. (the "Company"), in determining East West's suitability as
a purchaser of securities of the Company (the "Shares").
1. East-West has received and read the Company's quarterly report on
Form 10-QSB for September 30, 1994 and the annual report on Form 10-KSB for the
year ended December 31, 1993, and any amendments to such reports (the "Annual
and Quarterly reports") and East-West is familiar with all terms and provisions
thereof.
2. East-West has adequate means of providing for its current needs and
possible contingencies and have no need in the foreseeable future for liquidity
of any investment in the Company.
3. For Foreign Investors Only:
(a) Offshore Transaction. East-West confirms that the offer and
sale of the Shares occurred in an "offshore transaction" in that:
(i) East-West [ ]is [ ]is not a "person" in the United
States.
(ii) At the time the Subscription Agreements were entered
into, East-West was outside the United States. [ ] Yes [ ] No
(b) Non "U.S. Person." East-West is not a U.S. Person, as defined
below. For purposes of the above representation, "U.S. Person" means:
(i) any natural person resident in the United States;
(ii) any partnership or corporation organized or
incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a
U.S. Person;
(iv) any trust of which any trustee is a U.S. Person;
(v) any agency or branch of a foreign entity located in the
United States;
(vi) any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the
United States; and
(vii) any partnership or corporation if: (A) organized or
incorporated under the laws of any foreign jurisdiction;and (B)
formed by a U.S. person principally for the purpose of investing
in securities not registered under the Securities Act, unless it
is organized or incorporated, and owned, by accredited investors
(as defined in Rule 501(a) under the Securities Act) who are not
natural persons, estates or trusts.
4. East-West has previously been advised that East-West would have an
opportunity to review all the pertinent facts concerning the Company, and to
obtain any additional information which East-West might request, to the extent
possible or obtainable, without unreasonable effort and expense, in order to
verify the accuracy of the information contained in the Annual and Quarterly
Reports.
5. East-West has personally communicated or been offered the
opportunity to communicate with executive officers of the Company to discuss the
business and financial affairs of the Company, its products and activities, and
its plans for the future. East-West acknowledges that if it would like to
further avail itself of the opportunity to ask additional questions of the
Company, the Company will make arrangements for such an opportunity on request.
6. East-West has been advised that no accountant or attorney engaged by
the Company is acting as East-West representative, accountant, or attorney.
7. East-West is a bona fide resident of Nevis, West Indies with its
principal offices in the National Bank Building, Memorial Square, Charleston,
Nevis, West Indies. The address below is the true and correct principal place of
business.
DATED this 4th day of August 1995.
East-West Trading Corporation
/s/ Xxxxxx Xxxxxxxx
First Directors Limited, President
Represented by Xxxxxx Xxxxxxxx
East-West Trading Corporation
National Bank Building, Memorial Square
Charleston, Nevis, West Indies
NOTICE OF EXERCISE
[To be signed only upon exercise of Option]
TO: BRIA Communications Corp.
The undersigned, the owner of the Attached Option, hereby irrevocably
elects to exercise the rights to purchase thereunder ______________ shares of
Common Stock of BRIA Communications Corp. and herewith pays for the shares in
the manner specified in the Option. The undersigned requests that the
certificates for such shares be delivered as per instructions indicated below.
If such shares are not all of the shares available under the Option, the
undersigned further requests that a new option certificate be issued and
delivered to the undersigned for the remaining shares purchasable under the
Option.
DATED this 4th day of August 1995.
By: /s/ Xxxxxx Xxxxxxxx
Instructions for delivery: