Exhibit 10.4
CONSULTING AGREEMENT
Consulting Agreement dated as of July 23, 2002, by and between Universal
Tanning Ventures Inc., a corporation with offices at 600 E. Altamonte Drive,
Suite 1050, Altamonte Springs, FL 32701 (the "Company") and Varela Consulting
Group, a Panamanian company with offices at 12/th/ Floor, World Trade Center,
Panama, Republic of Panama (the "Consultant).
W I T N E S S E T H:
The Company desires to engage the services of the Consultant for purposes
of general corporate counseling and advice and more specifically for those
services set forth on Schedule A (collectively, the "Counseling Services").
Consultant desires to perform Consulting Services on behalf of the Company
and desires to be engaged and retained by the Company for such purposes.
Accordingly, in consideration of the recitals, promises and conditions in
this Agreement, the Consultant and the Company agree as follows:
1. Consulting Services. The Company hereby retains the Consultant, and the
Consultant accepts such retention all on the terms and conditions herein
contained.
2. Term.
(a) The initial term (the "Initial Term") of this Consulting Agreement
shall be for a six-month period commencing on the date hereof.
(b) Notwithstanding paragraph 2(a), this Agreement may be terminated by
either party prior to the expiration of the initial Term as follows:
(i) Upon failure of the other party to cure a material default under,
or a breach of, this Agreement (including, but not limited to, the
Company's obligations under Section 5 hereof) within 5 days after
written notice is given as to such breach by the terminating party;
(ii) Upon the bankruptcy or liquidation of the other party, whether
voluntary or involuntary;
(iii) Upon the other party taking the benefit of any insolvency law;
and/or
(iv) Upon the other party having or applying for a receiver appointed
for all or a substantial part of such party's assets or business.
Exhibit 10.4
(c) Subject to compliance with Section 5(e) hereof, following the
expiration of the Initial Term, the Agreement will continue in full force and
effect until terminated by either party, for any reason whatsoever, upon thirty
(30) days prior written notice.
(d) Termination will not affect the right (i) of the Consultant to be
paid any fees which are payable as of the effective date of such termination or
to be reimbursed for any reimbursable expenses incurred in connection with the
Consulting Services, or (ii) of any Indemnified Person to receive
indemnification pursuant to the provision set forth in Section of the Agreement.
3. Fees. In addition to and not in mitigation of, or substitution for, the
additional fees enumerated in any of the Schedules hereto, the Company shall pay
and deliver to the Consultant, simultaneously with the execution and delivery of
this Agreement, an initial engagement fee consisting of a cash payment in the
amount of $100,000 US.
4. Expenses. The Company will reimburse the Consultant for its expenses,
reasonably incurred by the Consultants, in execution of the Consulting Services
on behalf of the Company. Any and all expected expenses will be submitted for
pre-approval by the Company prior to being incurred.
5. Duties of the Company.
(a) The Company shall supply the Consultant, on a regular and timely basis,
with all approved data and information about the Company, its management, its
products and its operations, and the Company shall be responsible for advising
the Consultant of any facts which would affect the accuracy of any prior data
and information previously supplied to the Consultant so that the Consultant may
take corrective action.
6. Representation and Indemnification by Company.
(a) The Company shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information, and data that it
supplies to the Consultant and the Company acknowledges its awareness that the
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its public relations functions.
(b) The Consultant, in the absence of notice in writing from the Company,
will rely on the continuing accuracy of material, information and data supplied
by the Company.
(c) The Company hereby agrees to indemnify the Consultants against, and to
hold the Consultant harmless from, any claims, demands, suits, loss, damages,
etc. arising out of the Consultant's reliance upon the accuracy and continuing
accuracy of such facts, material, information and data, unless the Consultant
has been negligent in fulfilling his duties and obligations hereunder.
Exhibit 10.4
(d) The Company hereby agrees to indemnify the Consultant against, and to
hold the Consultant harmless form, any claims, demands, suits, loss, damages,
etc, arising out of the Consultant's reliance on the general availability of
information supplied to The Consultant and the Consultants ability to promulgate
such information, unless the Consultant has been negligent in fulfilling his
duties and obligations hereunder.
7. Representation and Indemnification by Consultant.
(a) The Consultant agrees to provide the Consulting Services hereunder in a
good and workmanlike manner consistent with the performance standards observed
by other professionals undertaking such functions.
(b) The Consultant agrees that it will not release or disseminate any
information pertaining to the Company without providing the Company with an
advance copy thereof and obtaining authorization for such release and
dissemination.
(c) The Consultant hereby agrees to indemnify the Company against, and to
hold the Company harmless from, any claims, demands, suits, loss, damages, etc.
arising out of any inaccurate statement or misrepresentation provided that such
indemnification shall not pertain to any information provided by or attributable
to the Company.
8. Relationship of Parties. The Consultant is an independent contractor,
responsible for compensation of its agents, employees and representatives, as
well as all applicable withholding therefrom and taxes thereon (including
unemployment compensation) and all workers' compensation insurance. This
Agreement does not establish any partnership, joint venture, or other business
entity or association between the parties, and neither party is intended to have
any interest in the business or property of the other.
9. Miscellaneous.
(a) Entire Agreement Amendments. This Agreement, together with the
Schedules and Exhibits hereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters.
(b) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 4:30 p.m. (Eastern Standard
time) on a Business Date, (ii) the Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement later than 4:30 p.m. (Eastern
Standard time) on any date and earlier than 11:59 p.m. (Eastern Standard time)
on such date, (iii) the Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
Exhibit 10.4
If to the Company: Universal Tanning Ventures, Inc.
600 E. Altamonte Drive, Suite 1050
Altamonte Springs, Fl 32701
If to the Consultant: Varela Consulting Group
12/th/ Floor, World Trade Center
Panama, Republic of Panama
Attention: Angela Varela, President
or such other address as may be designated in writing hereafter, in the
same manner, by such party.
(c) Amendments; Waivers. No Provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
both the Company and the Consultant, or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
(d) Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. All words used in this Agreement will be construed
to be of such number and gender as the circumstances require.
(e) Successors and Assigns. This Agreement shall be binding upon and insure
to the benefit of the parties and their successors and permitted assigns. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assignees, and other than with respect to permitted
assignees is not for the benefit of, nor may any other person hereof enforce any
provision. Anything in the foregoing to the contrary notwithstanding, subject to
compliance with applicable securities laws, the Consultant may assign and/or
transfer all or a portion of the consideration payable by the Company hereunder.
(f) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the Country of Panama without
regard to the principles of conflicts of law thereof
(g) Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
Exhibit 10.4
(h) Remedies. In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, the Subscriber will be
entitled to specific performance or the obligations of the Company hereunder.
The Company and the Subscriber agree that monetary damages would not be adequate
compensation for any loss incurred by reason of any breach of its obligations
described in the foregoing sentence and hereby agrees to waive in any action for
specific performance of any such obligation the defense that a remedy at law
would be adequate.
Exhibit 10.4
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written.
Varela Consulting Group
By: /s/ Angela Varela
----------------------------
Angela Varela, President
Universal Tanning Ventures, mc,
By: /s/ Glen Woods
----------------------------
Authorized Signatory
Exhibit 10.4
Schedule A
To the Consulting Agreement dated as of July 23, 2002
Between Universal Tanning Ventures, Inc. and Varela Consulting Group
1.1 Business Development Services. The following Business Development
services shall be provided to the company by the Consultant.
(a) Represent the Company in regard to sales of its products and
services to business contacts and potential customers worldwide,
particularly in Central and South America.
(b) Advise the Company relative to business practices in Central and
South America and in other regions of the world in which the
Consultant has experience.
(c) Presenting the opportunity of licensing agreements relative to the
Company's products and services to individuals, corporations,
municipalities and governments worldwide, particularly in Central
and South America.
(d) Presenting the opportunity of participation for investment in the
Company to contacts of the Consultant worldwide
1.2 Disclaimer by Consultant. The Consultant makes no guaranteed
representation that as a result of the services to be provided by it (a) any
sale of the Company's products or services will occur, (b) any sale of licensing
agreements in respect to the Company's products or services will occur as a
result of the contract, or (c) any investor will lend money to or invest in or
with the Company.