Exhibit 10.16
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 29th day of January, 2004,
between Bidville, 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:
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 twelve-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
panics 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 or
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) $20,000 (the "Retainer"), which represents the first and
last month's payment under the Agreement and 32,000 restricted shares of
the Company's fully-paid non-assessable, common stock. In addition, the
Company shall pay Consultant $10,000 on or before the 29th day of each
month during the term of the program, excluding the final month of the
Agreement. The Company shall also pay Consultant expenses as outlined in
Section 4 upon presentation of invoices. Company agrees to give Consultant
registration rights on 32,000 restricted shares after any secondary
registration offering is completed. These rights are "NOT PIGGY BACK
REGISTRATION RIGHTS OR DEMAND REGISTRATION RIGHTS"
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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 hereafter
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.
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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 tote Company, addressed to it at__________________________
or if to the Consultant, addressed to it at CEOcast, Inc., 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Administrator, facsimile number: (000) 000-0000, or to such address as
many 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.
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d) This Agreement and all rights, liabilities and obligations hereunder
shall be binding upon and inure to the benefit of each party's
successors by 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.
BIDVILLE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Chairman
CEOCAST, INC.
By:/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
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