Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of May 1, 2008, by and between INTERNATIONAL MONETARY ("Consultant"), a
California corporation, and SMOKEY MARKET FOODS, INC. ("Company"), a public
corporation (OTCBB: SMKY).
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained and the benefits that have and will inure to each of the parties
hereto, the parties hereto do agree as follows:
1. SERVICES. Subject to the terms and conditions of this Agreement,
Consultant agrees to perform for Company the following services:
A. Identify underwriters, funds, institutional investors
and other sources of capital for equity/debt
financing;
B. Corporate planning, strategy and negotiations with
potential strategic business
partners/alliances/investors/M&A candidates and other
general consulting needs as expressed by Company;
C. Identify and coordinate investor relations services;
D. Identify and direct affiliates who specialize in the
financial media and public relations to the
investment community;
E. Identify Analysts and/or Registered Investment
Advisors (RIA's) who have opt- in client/investor
databases whom they provide research recommendations
to;
F. Planning and organizing meetings and calls with
strategic broker/dealers and individual brokers able
to participate in "xxxxx stocks";
G. Identify and direct opt-in email micro cap investor
databases and have press releases, research, and
other Company information distributed to them;
H. Identify, coordinate, and direct telemarketing rooms
calling on stockbrokers and investors who may have an
interest in participating in the Company's stock;
I. Guidance and assistance in other available
alternatives to maximize shareholder value;
Such services are hereinafter referred to as "Services." Company agrees
that Consultant shall have ready access to Company's staff and resources as
necessary to perform the Consultant's Services provided for by this Agreement.
Company agrees that the cost of legal, accounting, investor relations and
Director services are the responsibility of the Company and not of the
Consultant. Consultant and its members, principles, employees and agents are not
officers or directors of the Company. Consultant shall have no power to bind
Company to any contract or obligation or to transact any business in Company's
name or on behalf of Company in any manner.
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It is expressly understood and agreed by Company that, in reliance upon
Company's representations, warranties and covenants contained herein,
immediately upon execution and delivery of this Agreement by Company, Consultant
is setting aside and allocating for the benefit of Company valuable resources
(including, without limitation, capital and reservation of work schedules of
employees) required to fulfill Consultant's obligations described in Item 1,
above. In doing so, Consultant agrees to forebear from undertaking other
opportunities and commitments (that would result in enrichment to Consultant) in
order to be available to provide Company the services contemplated by this
Agreement.
2. PERIOD OF PERFORMANCE. The Company shall hire Consultant for a
period of three (3) months commencing on the date hereof, unless earlier
terminated pursuant to the terms of this Agreement, see Item 6, below. The
Agreement may also be extended for additional time periods, upon agreement by
both parties, and compensation will be based upon the Company's share price (if
in Company shares) at that later date.
3. EXCLUSIVITY, PERFORMANCE AND CONFIDENTIALITY. The services of
Consultant hereunder shall not be exclusive, and Consultant and its agents may
perform similar or different services for other persons or entities whether or
not they are competitors of Company. The Consultant agrees that it will, at all
times, faithfully and in a professional manner perform all of the duties that
may be reasonably required of the Consultant pursuant to the terms of this
Agreement. Consultant shall be required to expend only such time as is necessary
to service Company in a commercially reasonable manner. The Consultant does not
guarantee that its efforts will have any impact upon the Company's business or
that there will be any specific result or improvement from the Consultant's
efforts. Consultant acknowledges and agrees that confidential and valuable
information proprietary to Company and obtained during its engagement by the
Company, shall not be, directly or indirectly, disclosed without the prior
express written consent of the Company, unless and until such information is
otherwise known to the public generally or is not otherwise secret and
confidential
4. COMPENSATION FOR SERVICES.
a) Initially, Company agrees to compensate Consultant for Services in the
amount of four hundred thousand (400,000) common shares (the "Shares")
due on the date hereof. The "restricted" Shares issued to the
Consultant on the date hereof, shall have the status of "restricted"
securities as the term is defined by Rule 144 under the Securities Act
of 1933, as amended. Company agrees to provide legal opinion of counsel
and clear certificates under rule 144 six (6) months from the effective
date of this Agreement in accordance with the appropriate laws and
rules and regulations of the Securities and Exchange Commission.
b) In addition, upon the Consultant's introduction directly or indirectly
to Company of one or more professional contacts who are underwriters,
funds, accredited investors and other sources of capital ("Contact" or
"Contacts"), who successfully arrange financing for all or a portion of
Company's financing needs, the Company agrees to compensate Consultant
in the amount of one hundred twenty thousand ($120,000) dollars for the
continued IR/PR Services in item 1 above for a period of one (1) year
from the date hereof. The additional compensation shall be paid in cash
and/or restricted securities of Company at the discretion of
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Consultant. Consultant and Company acknowledge and agree that the form
and substance of the financing shall be satisfactory to Company in its
sole judgment, and that Consultant is acting only as a "finder" of
Contacts. Consultant is not a registered broker-dealer under Section
15A of the U.S. Securities Exchange Act of 1934, or any similar state
law, and cannot, and shall not be required hereunder, to engage in the
offer or sale of securities for or on behalf of the Company. While
Consultant has preexisting relationships and contacts with various
accredited investors, registered underwriters and investment funds,
Consultant's participation in any actual or proposed offer or sale of
Company securities shall be limited to that of a "finder" for the
Company. The Company acknowledges and agrees that the solicitation and
consummation of any purchases of the Company's securities shall be
handled by the Company and one or more Contacts engaged by the Company
for such purposes.
The Shares (above), when issued as directed by Consultant, will be duly
authorized, validly issued and outstanding, fully paid and non-assessable, and
will not be subject to any liens or encumbrances. Securities shall be issued to
Consultant in accordance with a mutually acceptable plan of issuance as to
relieve securities or Consultant from restrictions upon transferability of
shares in compliance with applicable registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Company and Consultant and their advisors, Company agrees that, when received by
Consultant, the above-described consideration shall be nonrefundable regardless
of the circumstances, whether foreseen or unforeseen upon execution and delivery
of this Agreement. Company further acknowledges and agrees that said
consideration is earned by Consultant: (1) upon Company's execution and delivery
of the Agreement and prior to the provision of any service hereunder; (2) in
part, by reason of Consultant's agreement to make its resources available to
serve Company and as further described in the Preliminary Statement and
elsewhere herein; and (3) regardless of whether Company seeks to terminate this
Agreement prior to consultant's delivery of any services hereunder. If Company
takes any action to terminate this Agreement or to recover any consideration
paid or delivered by Company to Consultant other than by reason of Consultant's
gross negligence or willful misconduct, Consultant shall be entitled to all
available equitable remedies, consequential and incidental damages and
reasonable attorneys' fees and costs incurred as a result thereof, regardless of
whether suit is filed and regardless of whether Company or Consultant prevails
in any such suit.
5. EXPENSE REIMBURSEMENT: Consultant agrees that it will supply all
instrumentalities, tools, implements, appliances, and other materials needed for
the performance of Services and will bear all routine business and operational
expenses incurred to perform such Services. The Company will reimburse
Consultant for out-of-pocket expenses, so long as such expenses are pre-approved
and documented, and incurred in performing the Services. The Company shall
reimburse Consultant for the following reasonable travel expenses incurred by
Consultant directly in the performance of Services for the Company:
transportation expenses, including air fare, rental cars, gas, and taxi fare,
hotel expenses, meals, and dry cleaning expenses for trips longer than three (3)
days. Company shall pay the amounts due to Consultant upon receipt of an
invoice, which shall be sent to Company by Consultant. Company shall pay the
amount of such invoice to Consultant within ten (10) days from the date the
invoice is received by Company.
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6. TERMINATION. For the duration of the Period of Performance, this
Agreement may be terminated by either party, who may cancel this Agreement upon
ten (10) days written notice in the event the other party violates any material
provision of this Agreement and fails to cure such violation within ten (10)
days of written notification of such violation from the other party. Such
cancellation shall not excuse the breach or non-performance by the other party
or relieve the breaching party of its obligation incurred prior to the date of
cancellation, including, without limitation, the obligation of Company to pay
the nonrefundable consideration described in Item 4, above. Effective as of the
date of cancellation, Consultant's right to receive compensation hereunder shall
cease (except to the extent, as of the cancellation date, that the Company owes
the Consultant consideration).
7. REPRESENTATIONS, WARRANTS AND COVENANTS. The Company
represents, warrants and covenants to the Consultant as follows:
a. The Company has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of
this Agreement by the Company and its delivery to the
Consultant, and the consummation by it of the transactions
which are contemplated herein have been duly approved and
authorized by all necessary action by the Company's Board of
Directors and no further authorization shall be necessary on
the part of the Company for the performance and consummation
by the Company of the transactions which are contemplated by
this Agreement.
b. The business and operations of the Company have been and are
being conducted in all material respects in accordance with
all applicable laws, rules and regulations of all authorities
which affect the Company or its properties, assets, businesses
or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or
result in the imposition of any lien or encumbrance upon any
property of the Company or cause an acceleration under any
arrangement, agreement or other instrument to which the
Company is a party or by which any of its assets are bound.
The Company has performed in all respects all of its
obligations which are, as of the date of this Agreement,
required to be performed by it pursuant to the terms of any
such agreement, contract or commitment.
8. NOTICES. All notices, consents, changes of address and other
communications required or permitted to be made under the terms of this
Agreement shall be in writing and shall be (i) personally delivered by an agent
of the relevant party, or (ii) transmitted by postage prepaid, certified or
registered mail, or (iii) facsimile transmission with an original mailed by
first class mail, postage prepaid, addressed as follows:
TO COMPANY: SMOKEY MARKET FOODS, INC.
000 Xxxxxxx Xx. Xxxxx 000
Xxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx
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TO CONSULTANT: INTERNATIONAL MONETARY
000 Xxxxxxx Xxxxxx Xx, #0000
Xxxxxxx Xxxxx, XX, 00000
Fax: 000-000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
9. WAIVER OF BREACH. The waiver by any party of a breach by another
party of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by the breaching party. No waiver shall be valid
unless in writing and signed by the party sought to be bound.
10. ASSIGNMENT. Consultant acknowledges that the services to be
rendered by Consultant are unique and personal. Accordingly, Consultant may not
assign any of Consultant's rights or delegate any of Consultant's duties or
obligations under this Agreement, except to the extent amounts are payable to
Consultant hereunder after Consultant's death, in which case those benefits may
be assigned by will or the law of descent. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall be binding
upon the Company and its successors and assigns.
11. SEVERABILITY. In the event that any of these provisions shall be
held to be invalid or unenforceable, the remaining provisions hereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included therein. The parties in no way intend
to include a provision that contravenes public policy. Therefore, if any
provision of this Agreement is unlawful, against public policy, or otherwise
declared void or unenforceable, such provision shall be deemed excluded from
this Agreement, which shall in all other respects remain in effect.
12. ENTIRE AGREEMENT, MODIFICATION OR AMENDMENT. The parties hereby
agree that this Agreement contains the entire agreement and understanding by and
between the parties with respect to the subject matter hereof, and no
representations, promises, agreements, or understandings, written or oral,
relating to the subject matter hereof not contained herein shall be of any force
or effect. Consultant agrees that Consultant has actively participated in
negotiating the provisions contained in this Agreement, that these provisions
have been negotiated in good faith by all parties, and that the terms of this
Agreement should not be construed against either the Company or Consultant. This
Agreement may be amended only by written amendment signed by the parties.
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13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument. Rebut
table proof of execution of this Agreement by any party may be made by
presentation of a copy of this Agreement bearing a facsimile or photostatic copy
of the signature of the party whose execution is sought to be proved, and such
copies shall be as valid as the originals and as admissible as evidence of proof
of the execution and terms and provisions hereof as the originals.
14. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. ARBITRATION. Any and all disputes arising out of or relating to
the interpretation, application, formation, or the termination of this Contract
shall be subject to binding and final arbitration in Orange County, California,
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Any decision issued there from shall be binding upon the parties
and shall be enforceable as a judgment in any court of competent jurisdiction.
The prevailing party in such arbitration or other proceeding shall be entitled,
in addition to such other relief as many be granted, to a reasonable sum as and
for attorney's fees in such arbitration or other proceeding which may be
determined by the arbitrator or other officer in such proceeding. If collection
is required for any payment not made when due, the creditor shall collect
statutory interest and the cost of collection, including attorney's fees whether
or not court action is required for enforcement. The prevailing party in any
such proceeding shall also be entitled to reasonable attorneys' fees and costs
in connection all appeals of any judgment
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to California's rules of conflicts of law, and regardless of the place or
places of its physical execution and performance.
17. INDEPENDENT CONTRACTOR RELATIONSHIP. The parties hereto intend
that an independent contractor-owner relationship will be created by this
Agreement. Company is interested only in the result to be achieved, and the
conduct and control of the Services will lie solely with Consultant. Consultant
is not to be considered an agent or employee of Company for any purpose, and
neither Consultant nor his employees are entitled to any of the benefits that
Company may provide for its own employees. Payments to consultant hereunder
shall not be subject to withholding taxes or other employment taxes as required
with respect to compensation paid to an employee. It is understood that Company
does not agree to use Consultant exclusively. It is further understood that
Consultant is free to contract for similar or other services to be performed for
other owners while under this Agreement with Company.
18. PRELIMINARY STATEMENT. The Preliminary Statement is
incorporated herein by this reference and made a material part of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above-written.
COMPANY CONSULTANT
By:/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxx
--------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxx
Title: President/CEO Title: Managing Director
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