Attached files
| file | filename |
|---|---|
| 8-K - AFH HOLDING II, INC. | v194634_8k.htm |
| EX-10.4 - AFH HOLDING II, INC. | v194634_ex10-4.htm |
| EX-10.3 - AFH HOLDING II, INC. | v194634_ex10-3.htm |
| EX-10.2 - AFH HOLDING II, INC. | v194634_ex10-2.htm |
Exhibit
10.1
CONSULTING
AGREEMENT
THIS CONSULTING AGREEMENT
(this “Agreement”) is made and entered into as of August 16, 2010 by and between
FIRST BLUSH BRANDS, INC., a Delaware corporation (“First Blush”), and ROSE HILL
GARDENS LLC, a California limited liability company (“RHG”).
RECITAL
WHEREAS, RHG has provided and
continues to provide certain services to First Blush and its subsidiaries
(collectively, the “Company”); and
WHEREAS, the RHG and First
Blush wish to formalize their arrangement in writing on the terms and conditions
set forth herein.
NOW, THEREFORE, in
consideration of the mutual covenants and obligations set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as set forth below.
Section
1. Services. At
the request of the Company from time to time during the term hereof, RHG shall
provide to the Company the services listed in Schedule A hereto
(collectively, the “Services”). Schedule A may be
changed from time to time during the term hereof to add or reduce Services as
agreed to by the Company and RHG. RHG shall provide the Services
through its employees and/or agents, including Christopher Bagdasarian. RHG
shall determine from time to time, which of its employees shall provide the
Services. RHG shall provide the Services in accordance with the terms
of this Agreement, at a level of service substantially consistent with past
practice in a commercially reasonable manner using the same degree of care that
RHG uses in the operation of its own business.
Section
2. Fees; Termination of
Services. The Company shall pay RHG a fee for the Services
equal to ten thousand dollars ($10,000) per month. At any time, First
Blush may deliver written notice to RHG to reduce the scope of any Service or
terminate all of the Services. To the extent that the scope of the
Services is increased or reduced or terminated, upon the mutual agreement of
First Blush and RHG, the fee for the Services may be changed
accordingly.
Section
3. No Guaranty of
Services. The ability of RHG to provide Services as provided
herein is dependent upon the continued employment of its employees and the needs
of the Company under this Agreement. RHG shall use its commercially
reasonable efforts to retain the employment of persons necessary to provide the
Services.
Section
4. Payment. Payment
for the Services shall be made on a monthly basis, in arrears. At the
election of First Blush, payment for the Services may be made through an
increase in the principal amount outstanding under that certain Promissory Note
from First Blush, Inc. in favor of RHG dated December 31, 2008.
Section
5. Disputes.
(a) First
Blush shall not withhold any payments to RHG under this Agreement (other than
any required withholding for taxes) and such payments shall be made without any
other set-off or deduction, notwithstanding any dispute that may be pending
between them, whether under this Agreement or otherwise (any required adjustment
being made on subsequent invoices).
(b) If
the Company shall dispute or shall in any way object to the manner in which any
of the Services are provided or otherwise allege that the Services are not being
provided in a timely manner and in accordance with this Agreement, then prior to
taking any other action, the Company shall promptly notify RHG in writing of the
objection and/or claim. Each party shall promptly investigate the
objection and/or claim and use their reasonable best efforts to obtain the
relevant facts and if possible, resolve and/or correct the objection or
claim. If and to the extent possible, the parties shall execute a
writing evidencing the resolution of such matter and the parties shall be bound
thereby. It is the intention of the parties to amicably resolve their
disputes in rendering the Services hereunder.
Section
6. Disclaimer; Limited
Liability.
(a) RHG
makes no express or implied representations, warranties, or guarantees relating
to the Services to be performed under this Agreement, including, without
limitation, any warranty of merchantability or fitness for a particular purpose,
except that RHG agrees that it shall provide the Services under this Agreement
in a manner substantially consistent with past practice in a commercially
reasonable manner using the same degree of care that RHG uses in the operation
of its own business.
(b) No
party hereto or any of its Affiliates shall be liable, whether in negligence,
breach of contract or otherwise, for any indirect, special, punitive, exemplary,
incidental or consequential expenses, claims, losses or damages of any kind,
including, without limitation, loss of profits or business interruption, arising
out of or in connection with the rendering of any service hereunder or any
failure to provide such service.
Section
7. Term. Except
as otherwise set forth herein with respect to specific services, the term of
this Agreement shall commence as of the date hereof and shall end twelve (12)
months from the date hereof
Section
8. Independent
Contractor. RHG shall stand in relationship to the Company
with respect to the Services as an independent contractor retained by the
Company to discharge certain responsibilities as set forth
herein. The Services shall not constitute or be construed as (i) a
joint venture, partnership or lease between RHG and the Company with respect to
each other’s business nor (ii) an equity interest of either party in the other’s
business. Employees of RHG who perform Services hereunder shall not
be deemed employees of the Company.
2
Section
9. Confidentiality.
(a) All
trade secrets, confidential information and know-how (including but not limited
to ideas, formulae, compositions, processes, procedures and techniques, research
and development information, computer program code, performance specifications,
support documentation, drawings, specifications, designs, business and marketing
plans, and customer and supplier lists and related information) and any other
non public information of or about the Company and its financial condition,
business, assets and/or prospects furnished by the Company or its
Representatives (as defined below), whether furnished before or after the date
hereof, and regardless of the manner in which it is furnished, is referred to in
this Agreement as “Confidential
Information.” Confidential Information does not include,
however, information which (a) is or becomes generally available to the public
other than as a result of a disclosure by RHG or its Representatives, (b) was
available to RHG on a nonconfidential basis prior to its disclosure to RHG by
the Company or its Representatives, or (c) becomes available to RHG on a
nonconfidential basis from a person, other than the Company or any of its
Representatives, who is not bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation to the Company. As used in
this Agreement, the term “Representative”
means, as to any person, such person's affiliates and its and their directors,
officers, employees, agents, advisors (including, without limitation, financial
advisors, counsel and accountants) and controlling persons. As used
in this letter agreement, the term "person" shall be broadly interpreted to
include, without limitation, any corporation, company, partnership, other entity
or individual.
(b) RHG
shall keep strictly confidential all Confidential Information and will not,
without express written authorization signed by an authorized officer of First
Blush, use, sell, market or disclose any Confidential Information to any person
for any purpose. RHG shall be responsible for any breach of this
Agreement by any of its Representatives and shall, at its sole expense, take all
reasonable measures (including but not limited to court proceedings) to restrain
its Representatives from prohibited or unauthorized disclosure of use of the
Confidential Information. RHG shall immediately notify First Blush of any
unauthorized disclosure and, without affecting First Blush’s rights as a result
thereof, take all steps necessary to prevent further disclosure.
(c) In
the event that RHG is required by, law, regulation, legal process or regulatory
authority to disclose any Confidential Information or any other information
concerning the Company, RHG shall provide First Blush with prompt written notice
of such request or requirement (to the extent not prohibited by law or legal
process) in order to enable First Blush to seek an appropriate protective order
or other remedy, to not object to First Blush's taking steps (at its sole
expense) to resist or narrow the scope of such request or legal process, or to
waive compliance, in whole or in part, with the terms of this
Agreement. If, in the absence of a protective order or other remedy
or waiver of the terms of this letter agreement, RHG determines upon the opinion
of its legal counsel that RHG or any Representative is required by, law,
regulation, legal process or regulatory authority to disclose any Confidential
Information or other information concerning the Company, RHG or such
Representative may disclose only such Confidential Information or other
information as must be disclosed by law, regulation, legal process or regulatory
authority and shall exercise reasonable efforts to obtain assurances that such
Confidential Information or other information will be accorded confidential
treatment.
3
Section
10. Force
Majeure. The obligations of RHG to provide the Services shall
be suspended during the period and to the extent that RHG is prevented from
complying therewith by any of the following causes beyond its reasonable
control: (a) acts of God, (b) weather, fire or explosion, (c) war,
invasion, riot or other civil unrest, (d) governmental laws, orders or
restrictions, (e) actions, embargoes or blockades in effect on or after the date
of this Agreement, (f) action by any regulatory authority, (g) national or
regional emergency, (h) strikes, labor stoppages or slowdowns or other
industrial disturbances, or (i) national or international acts of
terrorism. In such event, RHG shall, within forty-eight (48) hours
after learning of such event and ascertaining that it has affected or will
affect its performance hereunder, notify First Blush in writing stating the date
and extent of such suspension and the cause thereof. RHG shall use
commercially reasonable efforts to cure or remedy such cause of non-performance
in a timely manner and shall resume the performance of such obligations as soon
as reasonably practicable after the removal of the cause.
Section
11. Applicable Law; Waiver of
Jury Trial. This Agreement shall be governed by and construed
under the laws of the State of California (without regard to the conflict of law
principles thereof). Each of the parties hereto hereby (a)
irrevocably submits with regard to any such action or proceeding to the
exclusive personal jurisdiction of the aforesaid courts in the event any dispute
arises out of this Agreement or any transaction contemplated hereby and (b)
agrees that it shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court or that such action is
brought in an inconvenient forum. Each of the parties hereby waives
trial by jury in any action to which they are parties involving, directly or
indirectly, any matter in any way arising out of, related to or connected with
this Transition Services Agreement and the transactions contemplated hereby and
thereby.
Section
12. Execution in
Counterparts. This Agreement may be executed in two (2) or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one (1) and the same agreement. Any
counterpart may be executed by facsimile signature and such facsimile signature
shall be deemed an original.
Section
13. Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, (iv) if given by an
internationally recognized overnight air courier, then such notice shall be
deemed given one Business Day after delivery to such carrier and (v) if given by
electronic mail, then upon transmission thereof. All notices shall be
addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days’ advance written notice to
the other party:
If to First Blush:
First Blush Brands, Inc.
9595 Wilshire Boulevard, Suite
900
Beverly Hills, CA 90212
Attn: Barrett Carrere,
Chief Financial Officer
Fax: (310) 861-
0840
4
With a copy to:
Blank
Rome LLP
405
Lexington Ave.
New York,
NY 10174
Attn:
Pamela E. Flaherty, Esq.
Fax:
(212) 885-5000
If to RHG:
Rose Hill Gardens LLC
P.O. Box 5490
Santa Barbara,
CA 93150
Attn: Victoria Briggs,
Manager
Fax: (805) 969-8709
With a copy to:
[_______]
Section
14. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
Section
15. Third Party
Beneficiaries. Nothing contained in this Agreement, express or
implied, shall confer unto any person other than the parties hereto or their
respective successors and assigns any right, obligation, remedy or benefit
hereunder.
Section
16. Amendments, Supplements,
Etc. This Agreement may be amended or supplemented at any time
by additional written agreements as may mutually be determined by First Blush
and RHG to be necessary, desirable or expedient to further the purposes of this
Transition Services Agreement or to clarify the intention of the parties
hereto.
Section
17. Titles and
Headings. Titles and headings to sections herein are inserted
for convenience of reference only, and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
5
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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FIRST
BLUSH BRANDS, INC.
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By:
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/s/
Barrett Carrere
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Name:
Barrett Carrere
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Title:
Chief Financial Officer
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ROSE
HILL GARDENS LLC
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By:
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/s/
Victoria Briggs
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Name: Victoria
Briggs
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Title: Manager
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6
Exhibit
10.1
Schedule
A
Services
RHG shall
provide to the Company the following services:
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1.
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Sales
and marketing support
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2.
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Fulfillment
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3.
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Production
management
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4.
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Customer
Service
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5.
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Strategic
Planning
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6.
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Acquisition
targeting
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7.
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Advice
concerning structure and negotiations of acquisitions and financing
transactions
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