EXHIBIT 5.1
-----------
CONSULTING AGREEMENT
--------------------
THIS CONSULTING AGREEMENT (the "Agreement"), effective as of January 1, 2005 is
entered into by and between Xxxxxx Beaumont, Inc., a Nevada corporation (the
"Company") and Xxxxx Xxxxxxxxxxxx, an individual ("Consultant").
RECITALS
--------
A. Consultant has experience in the area of Security and Compliance
related matters for State and Federal requirements with respect to MasterCard,
VISA and or Discover financial products and procedures and the electronic
transmission of information and money; and
B. The Company desires to engage the services of Consultant to act as
its advisor and to assist and consult with the Company in matters concerning
Network, Development, guide ISO17799 Security Policies Security and Compliance,
GLBA safeguards, Sarbox 404 compliance and procedures and to set up an Security
and Compliance Advisory Committee reporting to the Companies Board of Directors
and to act as Chairman for the Committee, as well as introductions to companies
and individuals for business development.
AGREEMENT
---------
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:
(a) Advise and assist the Company in developing and
implementing appropriate plans and materials for its ATM Network Development;
(b) The Development, oversight and management of ISO17799
Security Policies Security and Compliance
(c) The Development, oversight and management of GLBA
safeguards
(d) The Development, oversight and management of Sarbox 404
compliance and procedures
(e) Set up and Act as its Chairman an Advisory Committee for
Security and Compliance reporting to the Board of Directors
(f) The Introduction to banks, business opportunities and/or
strategic relationships
(g) Is available as needed by phone
(h) Is available as needed for Board of Director meetings
(i) Will meet quarterly with Company staff
-1-
ADDITIONAL DUTIES FOR ENGAGEMENT should compensation be agreed upon. This
compensation is in addition to the compensation outlined in this agreement.
o Assist in response to government regulators on matters
concerning security
o Perform GLB compliance readiness review (using a GLB auditor
checklist)
o Assist in response to potential or current customer audits,
questions or concerns.
o Provide three year road-map for security vision.
o Written set of ISO17799 compliant security policies and
procedures
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 one (1) 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 $10,000 per month for a
period of 4 months beginning January 24 2005 and due the 24th of each month,
$4,000 per month for the balance of the Term and issue to the Consultant,
options to purchase 425,000 shares of the Company's common stock at an exercise
price of $1.00 per share, which options shall vest 125,000 upon execution here
of and 100,000 at the end of each quarter for the next 3 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 $250 will be pre-approved in writing by the Company.
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.
-2-
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.
(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.
-3-
(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.
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. . 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.
15. 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.
16. 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.
-4-
17. 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, CEO
"Consultant"
--------------------------------------
Xxxxx Xxxxxxxxxxxx, an individual
-5-
