EXHIBIT 10.8
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 10th day of October, 2005
between Peak Entertainment Holdings, Inc. and CEOcast, Inc. (the "Consultant")
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby employs the Consultant during the Term (as
defined below) to render Investor Relations services to the Company, upon
the terms and conditions as set forth herein.
2. Term. This Agreement shall be effective for a six-month period (the
"Term") commencing on the date hereof.
3. Duties of Consultant. During the term of this Agreement, the Consultant
shall provide to the Company those services outlined in Exhibit A.
Notwithstanding the foregoing, it is understood and acknowledged by the
parties that the Consultant: (a) shall perform its analysis and reach its
conclusions about the Company independently, and that the Company shall
have no involvement therein; and (b) shall not render advice and/or
services to the Company in any manner, directly or indirectly, that is in
connection with the offer or sale of securities in a capital raising
transaction or that could result in market making.
4. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable
out-of-pocket expenses incurred by it in connection with services
requested by the Company, including, but not limited to, all charges for
travel, printing costs and other expenses spent on the Company's behalf.
The Company shall immediately pay such expenses upon the presentation of
invoices. Consultant shall not incur more than $500 in expenses without
the express consent of the Company.
5. Compensation. For services to be rendered by the Consultant hereunder, the
Consultant shall receive from the Company upon the signing of the
Agreement: (a) 200,000 shares of fully-paid, non-assessable common stock
(the "Common Stock") as the Retainer, which shall represent the stock
component under the Agreement. The Common Stock shall be issued to
Consultant or its designee. Company agrees to register the Common Stock,
at Company's expense, in connection with the next registration of its
securities. In addition, the Company shall pay Consultant $7,500 per month
on or before the 10th day of January, February and March, 2006, plus
expenses outlined in Section 4. Company also agrees to provide Consultant
with an opinion, at Company's expense, permitting Consultant or its
designee to sell its Common Stock under Rule 144 after one year, provided
Rule 144 is applicable. Company also agrees to issue Consultant 182,000
shares of Common Stock, upon the signing of this Agreement, to cover the
outstanding past due balance under a previous agreement. Such shares shall
contain the same registration provisions as the Common Stock under this
Agreement.
6. Further Agreements. Because of the nature of the services being provided
by Consultant hereunder, Consultant acknowledges that if it may receive
access to Confidential Information (as defined in Section 6 hereof ) and
that, as a consultant to the Company, it will attempt to provide advice
that serves the best interest of the Company. Because of the uniqueness of
this relationship, the Consultant covenants and agrees that, with respect
to the Common Stock that it receives. Consultant shall, at all times that
it is the beneficial owner of such shares, vote such shares on all matters
coming before it as a stockholder of the Company in the same manner as the
majority of the Board of Directors of the Company shall recommend.
7. Confidentiality. Consultant acknowledges that as a consequence of its
relationship with the Company, it may be given access to confidential
information which may include the following types of information;
financial statements and related financial information with respect to the
Company and its subsidiaries (the "Confidential Financial Information"),
trade secrets, products, product development, product packaging, future
marketing materials, business plans, certain methods of operations,
procedures, improvements, systems, customer lists, supplier lists and
specifications, and other private and confidential materials concerning
the Company's business (collectively, "Confidential Information").
Consultant covenants and agrees to hold such Confidential
Information strictly confidential and shall only use such information
solely to perform its duties under this Agreement, and Consultant shall
refrain from allowing such information to be used in any way for its own
private or commercial purposes. Consultant shall also refrain from
disclosing any such Confidential Information to any third parties.
Consultant further agrees that upon termination or expiration of this
Agreement, it will return all Confidential Information and copies thereof
to the Company and will destroy all notes, reports and other material
prepared by or for it containing Confidential Information. Consultant
understands and agrees that the Company might be irreparably harmed by
violation of this Agreement and that monetary damages may be inadequate to
compensate the Company. Accordingly, the Consultant agrees that, in
addition to any other remedies available to it at law or in equity, the
Company shall be entitled to injunctive relief to enforce the terms of
this Agreement.
Notwithstanding the foregoing, nothing herein shall be construed as
prohibiting Consultant from disclosing any Confidential Information (a)
which at the time of disclosure. Consultant can demonstrate either was in
the public domain and generally available to the public or thereafter
becomes a part of the public domain and is generally available to the
public by publication or otherwise through no act of the Consultant; (b)
which Consultant can establish was independently developed by a third
party who developed it without the use of the Confidential Information and
who did not acquire it directly or indirectly from Consultant under an
obligation of confidence; (c) which Consultant can show was received by it
after the termination of this Agreement from a third party who did not
acquire it directly or indirectly from the Company under an obligation of
confidence; or (d) to the extent that the Consultant can reasonably
demonstrate such disclosure is required by law or in any legal proceeding,
governmental investigation, or other similar proceeding.
Severability. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby
and, to this extent, the provisions of this Agreement shall be deemed to
be severable.
8. Governing Law; Venue; Jurisdiction. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of New
York, without reference to principles of conflicts or choice of law
thereof. Each of the parties consents to the jurisdiction of the U.S.
District Court in the Southern District of New York in connection with any
dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on
forum non conveniens. to the bringing of any such proceeding in such
jurisdictions. Each party hereby agrees that if another party to this
Agreement obtains a judgment against it in such a proceeding, the party
which obtained such judgment may enforce same by summary judgment in the
courts of any country having jurisdiction over the party against whom such
judgment was obtained, and each party hereby waives any defenses available
to it under local law and agrees to the enforcement of such a judgment.
Each party to this Agreement irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such party at it address
set forth herein. Nothing herein shall affect the right of
any party to serve process in any other manner permitted by law. Each
party waives its right to a trial by jury.
9. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, if to the Company, addressed to it at Xxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx, XX or if to the Consultant, addressed to it at CEOcast, Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Administrator,
facsimile number: (000) 000-0000, or to such address as may hereafter be
designated in writing by one party to the other. Any notice or other
communication hereunder shall be deemed given three days after deposit in
the mail if mailed by certified mail, return receipt requested, or on the
day after deposit with an overnight courier service for next day delivery,
or on the date delivered by hand or by facsimile with accurate
confirmation generated by the transmitting facsimile machine, at the
address or number designated above (if delivered on a business day during
normal business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be
received).
(b) This Agreement embodies the entire Agreement and understanding between the
Company and the Consultant and supersedes any and all negotiations, prior
discussions and preliminary and prior arrangements and understandings
related to the central subject matter hereof.
(c) This Agreement has been duly authorized, executed and delivered by and on
behalf of the Company and the Consultant.
(d) This Agreement and all rights, liabilities and obligations hereunder shall
be binding upon and inure to the benefit of each party's successors but
may not be assigned without the prior written approval of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
PEAK ENTERTAINMENT HOLDINGS INC.
By: /s/ Wilf Shorrocks
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CEOCAST, INC.
By: /s/
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1. Interviews on xxxxxxx.xxx that will be distributed to over 275,000 opt-in
entertainment investors registered on the CEOcast Internet site.
2. Company featured on the Home Page of CEOcast Internet site for one week each
quarter.
3. The writing and distribution of press releases to over 275,000 opt-in
entertainment investors.
4. Company covered in CEOcast weekly newsletter.
5. Calls to 100 brokers on each news release. These brokers can buy small-cap
securities in particular.
6. Meetings with small-cap brokerage firms and brokers to develop support for
the company's stock.
7. Dedicated investor line to handle call volume.
8. Strategic advice and other customary IR services.
9. Meetings with micro-cap institutional investors.
