Exhibit 10.5
CONSULTING AGREEMENT
Consulting Agreement dated as of March 1, 2002, by and between Universal
Tanning Ventures Inc., a Delaware corporation with offices 600 B. Altamonte
Drive, unit 1050 Altamonte Springs, Florida 32701 (the "Company") and Brannon
Capital Corp., a Delaware corporation with offices at 1025 Greenwood Blvd.,
Suite 121, Lake Mary, Florida 32746 (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 twelve-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.
(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.
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. Expenses shall be paid monthly in arrears and the
first payment shall be made on April 1, 2002. The expense shall be paid until
the termination of this Agreement and all outstanding expenses shall be paid on
the date of the termination of this Agreement. Notwithstanding anything in this
Agreement to the contrary, the Consultant may require to pay, and the Company at
the direction of the Consultant will pay, any expenses, which alone or in the
aggregate may exceed US$250 directly in advance.
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.
(b) The Company shall promptly supply the Consultant with: full and
complete copies of all filings with all federal and state securities
agencies; full and complete copies of all stockholder reports and
communications, whether or not prepared with the Consultants' assistance;
all data and information supplied to any analyst, broker-dealer, market
maker or other member of the financial community; and all product/services
brochures, sales materials, etc.
(c) The Company shall contemporaneously notify the Consultant if any
information or data being supplied to the Consultant has not been generally
released or promulgated.
6. Representation and Indemnification by Company.
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(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 Consultant 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.
(d) The Company hereby agrees to indemnify the Consultant against,
and to hold the Consultant harmless from, 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 Consultant's
ability to promulgate such information.
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
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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:
If to the Company: Universal Tanning Ventures, Inc.
600 East Altamonte Drive, Unit 1050
Altamonte Springs, Florida 32701
Tel: 407-260-9206
If to the Consultant: Brannon Capital Corp.
1025 Greenwood Blvd.
Suite 121
Lake Mary, Florida 32746
Tel: (407) 333-1003
Facsimile: (407) 333-1711
Attention: 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.
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(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 State of Florida
without regard to the principles of conflicts of law thereof. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the United
States Federal District Court for the Middle District of Florida for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of any such
court, or that such suit, action or proceeding is improper.
(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.
(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.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written.
Brannon Capital Corp.
By: /s/ Dwain Brannon
-------------------------------------
Dwain Brannon, President
Universal Tanning Ventures, Inc.
By: /s/ Glen Woods
-------------------------------------
Authorized Signatory
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Schedule A
To the Consulting Agreement dated as of March 1, 2002
Between Universal Tanning Ventures, Inc. and Brannon Capital Corp.
1.1 Strategic Planning Services. The following strategic planning services
shall be provided to the company by the Consultant which will undertake for and
consult with the Company concerning management, marketing, consulting, strategic
planning, corporate organization and structure, financial matters in connection
with the operation of the business of the Company, expansion of services, and
shall review and advise the Company regarding its overall progress, needs and
condition. The Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) Advise the Company in the implementation of short and long term
strategic planning to fully develop and enhance the Company's
assets, resources, products and services.
(b) Advise the Company relative to the recruitment and employment of
key executives consistent with the expansion of operations of the
Company.
(c) Advise and recommend to the Company additional services relating
to the present business and services provided by the Company as
well as new products and services that may be provided by the
Company.
(d) Advise the officers and employees of the company concerning
matters relating to the management and organization of the
company, their financial policies, the terms and conditions of
employment, and generally any matter arising out of the business
affairs of the Company.
1.2 Disclaimer by Consultant. The Consultant makes no representation that
as a result of the services to be provided by it (a) the price of the Company's
publicly traded securities will increase (if applicable), (b) any person will
purchase securities in the Company as a result of the contract, or (c) any
investor will lend money to or invest in or with the Company. In addition, the
Consultant makes no representation that he is a securities attorney or
equivalent and reliance should not be made on those statements. The Company
should consult legal counsel for such decisions as deemed appropriate by the
Company.
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