INDEPENDENT CONSULTING AGREEMENT
Exhibit
10.1
This
Independent Consulting Agreement (“Agreement”), effective as of February 1, 2007
(“Effective Date”) is entered into by and between White Peak Capital Group, Inc.
(herein referred to as the “Company” or “WPC”) and Xxxx
Xxxxxx
(herein
referred to as the “Consultant”).
RECITALS
WHEREAS,
the
Company is a subsidiary of a public corporation, Brampton Crest International,
Inc. (the “Parent”) interested in the services to be provided by the Consultant;
and
WHEREAS,
Company
desires to engage the services of Consultant to represent the company in the
set
and execution of the Company’s business plan;
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. Term
of Consultancy.
Company
hereby agrees to retain the Consultant to act in a consulting capacity to the
Company, and the Consultant hereby agrees to provide services to the Company
commencing immediately and ending three (3) months after the date herein.
Following the term herein, the Company and Tsvi may enter into a definitive
employment agreement.
2. Duties
of Consultant.
The
Consultant agrees that it will generally provide the following services, which
shall include but not be limited to the services listed below, through the
diligent commercial efforts during the term specified in Section 1,
above.
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Manage
WPC and serve as an officer and/or director if
requested.
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Coordinate
completion of web site by website
consultant
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Research
the finance industry in order to identify the best loans for WPC
to get
involved with.
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Conduct
due diligence on potential
borrowers
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Complete
8K for WPC
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Complete
PPM for capital raise
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Meet
with lenders to review leverage and loan requirements for
WPC
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Prepare
alternate projections for WPC assuming the availability of various
amounts
of equity and debt
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Interact
with accounting and legal professionals regarding the 8K, 10K and
PPM
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Identify
additional merger and acquisition candidates. and conduct preliminary
due
diligence
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Create
new strategic relations with other individuals and financial
institutions.
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Assist
in lining up financing possibilities in cooperation with Xxxx
Xxxxxxx.
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Assist
in filing any regulatory filing.
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Assist
any other financing requirements of BRCI and
WPC
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3.Allocation
of Time and Energies.
The
Consultant hereby promises to perform and discharge faithfully the
responsibilities which may be assigned to the Consultant from time to time
by
the officers and duly authorized representatives of the Company in connection
with the conduct of its financial and public relations and communications
activities, so long as such activities are in compliance with applicable
securities laws and regulations. Consultant and staff 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 herein above in a
diligent and professional manner. The parties acknowledge and agree that a
disproportionately large amount of the effort to be expended and the costs
to be
incurred by the Consultant and the benefits to be received by the Company are
expected to occur within or shortly after the first two months of the
effectiveness of this Agreement. It is explicitly understood that neither the
price of the Company’s common stock, nor the trading volume of the Company’s
common stock hereunder measure Consultant’s performance of its duties. It is
also understood that the Company is entering into this Agreement with
Consultant, a corporation and not any individual member or employee thereof,
and, as such, Consultant will not be deemed to have breached this Agreement
if
any member, officer or director of the Consultant leaves the firm or dies or
becomes physically unable to perform any meaningful activities during the term
of the Agreement, provided the Consultant otherwise performs its obligations
under this Agreement.
4. Remuneration.
| 4.1 |
(a)
For
undertaking this engagement, and for other good and valuable
consideration, the Company agrees to issue, or have issued, to the
Consultant an option to purchase Two hundred thousand (200,000) shares
of
the Company’s Parent Common Stock (the “Option”) at a price equal to the
offering price in the initial private placement memorandum or public
offering. The Option shall be delivered at the time the offering
of the
private placement or public offering is commenced, whichever is
sooner.
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(b) The
Company agrees to pay, for the duration of this Agreement, unless this Agreement
is terminated, $10,000, payable in increments of three payments of $3,333.33.
First payment payable at the execution date of this agreement, second payment
on
April 1st
and
third on May 1st,
2007
4.2 The
Company understands and agrees that Consultant has represented that it has
foregone significant opportunities to accept this engagement and that the
Company derives substantial benefit from the execution of this Agreement and
the
ability to announce its relationship with Consultant. Consultant
agrees and understands that if the during the term of this Agreement, Consultant
performs substantial services for any direct competitor of the Company, then
the
Options issued to Consultant hereunder will be forfeited.
4.3 In
connection with the acquisition of the Options, Consultant represents and
warrants to Company, to the best of its/his knowledge, as follows:
(a) Consultant
has 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 Options, and any additional information that the Consultant
has requested.
(b) Consultant
is an accredited investor, as that term is defined in Regulation D promulgated
under the Securities Act.
(c) Consultant
is acquiring the Options 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.
5. Non-Assignability
of Services.
Consultant’s services under this contract may be assigned by Company to any
entity with which Company merges or which acquires the Company or substantially
all of its assets wherein the Company becomes a minority constituent of the
combined Company. In the event of such merger or acquisition, all compensation
to Consultant herein under the schedules set forth herein shall remain due
and
payable, and any compensation received by the Consultant may be retained in
the
entirety by Consultant, all without any reduction or pro-rating and shall be
considered and remain fully paid and non-assessable. Notwithstanding the
non-assignability of Consultant’s services, Company shall assure that in the
event of any merger, acquisition, or similar change of form of entity, that
its
successor entity shall agree to complete all obligations to Consultant,
including the provision and transfer of all compensation herein, and the
preservation of the value thereof consistent with the rights granted to
Consultant by Company herein. Consultant shall not assign its rights or delegate
its duties hereunder without the prior written consent of Company.
6. Expenses.
Consultant agrees to pay for all its own expenses (phone, travel, mailing,
faxing, labor, etc.), but not including extraordinary items (luncheons or
dinners to large groups of investment professionals, investor conference calls,
print advertisements in publications, etc.) which extraordinary items shall
be
approved in advance by the Company in writing prior to Company
7. Indemnification.
The
Company warrants and represents that all oral communications, written documents
or materials furnished to Consultant or the public by the Company with respect
to financial affairs, operations, profitability and strategic planning of the
Company are accurate in all material respects and Consultant may rely upon
the
accuracy thereof without independent investigation. 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 excluding any
such
claims or litigation resulting from Consultant's communication or dissemination
of information not provided or authorized by the Company. Consultant warrants
and represents that all oral communications, written documents, or materials
furnished to third parties by Consultant, originating with Consultant and to
the
extent not mirroring material furnished by Company, shall be accurate in all
material respects. Consultant will protect, indemnify and hold harmless Company
against any claims or litigation including any damages, liability, cost and
reasonable attorneys fees as incurred with respect thereto resulting from any
claims or litigation resulting from Consultant’s communication or dissemination
of information not provided or authorized by the Company, or from Consultant’s
negligence or misconduct.
8. Representations.
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 is not the subject of any investigation, claim, decree or judgment
involving any violation of the SEC or securities laws.
9. Legal
Representation.
Each of
Company and Consultant represents that they have consulted with independent
legal counsel and/or tax, financial and business advisors, to the extent that
they deemed necessary.
10. 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.
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 hereinabove 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 possesses the authority to bind each other in
any
agreements without the express written consent of the entity to be
bound.
11. 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.
12. 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.
13. Notices.
All
notices, requests, and other communications hereunder shall be deemed to be
duly
given if sent by U.S. mail, postage prepaid, addressed to the other party at
the
address provided to the other party.
14.
Agreement
Not to Disclose Trade Secrets or Confidential Information.
During
the term of this Agreement and after its termination, the Consultant shall
not
disclose or utilize any trade secrets, confidential information, or other
proprietary information acquired by the Consultant during the course of his
employment with the Company, its successors or assigns, or any of its
affiliates, including the Parent (collectively, the “Company
Affiliates”).
As
used herein, “trade secret” means the whole or any portion or phase of any
formula, pattern, device, combination of devices, source-code of any proprietary
software, or compilation of any scientific, technical or commercial information,
including any design, list of suppliers, list of customers or improvement
thereof, as well as pricing information or methodology, contractual arrangements
with vendors or suppliers, business development plans or activities, or
financial information of the Company or any of the Company Affiliates that
is
for use, or is used, in the operation of the Company or any of the Company
Affiliates’ businesses that is not commonly known by or available to the public
and that derives economic value from not being generally known to, and not
being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use and is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. The Consultant
agrees to return to the Company any and all such trade secrets, confidential
information or other proprietary information immediately upon the termination
of
this Agreement.
15. Non-Solicitation
of Customers and Suppliers.
Consultant agrees that during his employment hereunder, he shall not, whether
as
an individual or sole proprietor, or as a principal, agent, officer, director,
employer, employee, consultant, independent contractor, partner or shareholder
of any firm, corporation or other entity or group or otherwise, directly or
indirectly, solicit the trade or business of, or trade, or conduct business
with, any customer, prospective customer, loan recipient or prospective loan
recipient of the Company for any purpose other than for the benefit of the
Company. Consultant further agrees that for two (2) years following termination
of his employment hereunder for any reason, Consultant shall not, directly
or
indirectly, solicit the trade or business of, or trade, or conduct business
with
any customers or suppliers, or prospective customers or suppliers, of the
Company.
16. Arbitration.
Any
controversy or claim arising out of or relating to this Agreement, or the
alleged breach thereof, or relating to activities or remuneration under this
Agreement, shall be settled by binding arbitration in Miami Dade or Broward
County, Florida, in accordance with the applicable rules of the American
Arbitration Association, Commercial Dispute Resolution Procedures, and judgment
on the award rendered by the arbitrator(s) shall be binding on the parties
and
may be entered in any court having jurisdiction.
17. Amendment.
No
provisions of this Agreement may be amended, modified, waived or discharged
unless such amendment, waiver, modification or discharge is agreed to in writing
signed by the Executive and on behalf of the Company by such officer as may
be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions
at
the same or at any prior or subsequent time.
18. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties, pertaining
to
the subject matter hereof, and supersedes all prior or contemporaneous written
or verbal agreements and understandings with the Executive in connection with
the subject matter hereof.
19. Governing
Law.
This
Agreement and the rights and obligations hereunder shall be governed by the
laws
of the State of Florida without regard to its conflicts principles and the
parties to this Agreement specifically consent to the jurisdiction of the courts
of the State of Florida over any action arising out of or related to this
Agreement.
20.
Severability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions shall, nevertheless,
continue in full force and effect without being impaired or invalidated in
any
way.
21.
Survival. All
covenants, agreements, representations and warranties made herein or otherwise
made in writing by any party pursuant hereto shall survive the termination
of
this Agreement and the employment of the Executive hereunder.
22.
Counterparts.
This
Agreement may be executed by the parties in one or more counterparts, each
of
which when so executed shall be an original and all such counterparts shall
constitute one and the same instrument. Confirmation of execution by electronic
transmission of a facsimile signature page shall be binding upon any party
so
confirming.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
AGREED
TO:
Company:
White
Peak Capital Group, Inc.
By:
________________________________
Name:
Title:
Consultant:
Xxxx
Xxxxxx
By:
________________________________
Name:
Title:
