CONSULTING AGREEMENT
Exhibit 10.1
This
Consulting Agreement (this “Agreement”), effective as of April 9, 2008, is
entered by and between Theater Xtreme Entertainment Group, Inc, a Florida
corporation (the “Company”), and Draco Financial LLC, a Florida limited
liability company (“Consultant”) (together the “Parties”).
RECITALS
WHEREAS,
Consultant has experience in the area of corporate finance, investor
communications, and financial and investor public relations;
WHEREAS,
Consultant has been providing services to the Company since March 4, 2008 (the
“Service Commencement Date”) without a written agreement; and
WHEREAS,
the Company desires to formalize its existing business relationship with the
consultant and to enter an agreement to further engage the services of
Consultant to assist and consult with the Company in matters concerning
corporate finance, investor communications and public relations with existing
shareholders, brokers, dealers, and other investment professionals as to the
company’s current and proposed activities;
NOW
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein set forth, and intending to be legally bound, the Company and
Consultant agree as follows:
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1.
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Term of
Consultancy. The Company engages Consultant to act in a consulting
capacity to the Company, and the Consultant agrees to continue providing
services to the Company until December 31, 2008 (the “term of this
Agreement.”)
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2.
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Duties of
Consultant. The Consultant will generally provide the following
specified consulting services (the “Services”) through its officers and
employees during the term of this
Agreement:
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A.
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Advise
and assist the Company in developing and implementing appropriate plans
and material for presenting the Company and its business plans, strategy
and personnel to the financial community, and creating the foundations for
subsequent financial public relations
efforts;
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B.
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Introduce
the Company to the financial
community;
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C.
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With
the cooperation of the Company, maintain an awareness during the term of
this Agreement of the Company’s plans, strategy, and personnel, as they
may evolve during such period, and advise and assist the Company in
communicating appropriate information regarding such plans, and personnel
to the financial community;
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D.
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Assist
and advise the Company with respect to its (i) stockholder and investor
relations, (ii) relations with broker dealers, analysts and other
investment professionals, and (iii) financial and media public relations
generally;
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E.
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Perform
the functions generally assigned to investor/stockholder relations
departments in major corporations, including responding to telephone and
written inquiries (which may be referred to the Consultant by the
Company); assisting in the preparation of press releases for the Company
with the Company’s involvement and approval for reviewing press releases,
reports and other communications with or to shareholders, the investment
community, and the general public; advising with respect to the timing,
form, distribution, and other matters related to such releases, reports
communications, and consulting with respect to corporate symbols, logos,
names, the presentation of such symbols, logos, and names, and other
matter relating to corporate image.
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F.
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Upon
receipt of the Company’s approval, disseminate information (media kit)
regarding the Company to shareholders, broker’s dealers and other
investment community professionals and the general investing
public.
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G.
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Upon
receipt of the Company’s approval, conduct meetings in person or by
telephone, with brokers, dealers, analysts, other investment professionals
and the general investing public.
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H.
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At
the Company’s request, review business plans, strategies, mission
statements, budgets, proposed transactions and other plans for the purpose
of advising the Company of the investment community implications thereof;
and
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I.
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Otherwise
perform as the Company’s financial relations and public relations
consultant.
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3.
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Allocation of Time and
Energies. The Consultant will perform the Services in a
professional manner in accordance with accepted industry standards and in
compliance with applicable securities laws and regulations. Although no
specific hour-per-day requirement will be required, the parties
acknowledge and agree that a disproportionately large amount of the effort
to be extended and the costs to be incurred by the Consultant and the
benefits to be received by the Company are to be expected to occur upon
and shortly after, and in any event, within two months of the
effectiveness of this Agreement. It is explicitly understood that
Consultants performance of its duties hereunder will in no way be measured
by the price of the Company’s common stock, nor the trading volume of the
Company’s common stock.
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4.
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Remuneration.
As full and complete compensation for the Consultant’s agreement to
perform the Services, the Company shall compensate the Consultant as
follows:
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A.
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For
undertaking this engagement and in full consideration of the services to
be provided by the Consultant hereunder and the services provided since
the Service Commencement Date, the Company agrees to issue and deliver to
the Consultant a “Commencement Bonus” payable in the form of 500,000
shares of restricted Common Stock of the Company. This Commencement Bonus
shall be issued to the Consultant immediately following execution of the
Agreement and shall, when issued to the Consultant be fully paid and non
assessable. The Company understands and agrees that engagement and the
Company derives substantial benefit from the execution of this Agreement
and the ability to establish its relationship with the Consultant. The
consideration issued as a Commencement Bonus, therefore, constitutes
payment for Consultant’s agreement to continue consulting with the Company
in accordance with the terms
hereof.
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B.
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All
Common Stock issued pursuant to this Agreement shall be issued in the name
of Consultant.
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5.
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Expenses.
Consultant agrees to pay for all its expenses (phone, labor, etc.), other
than extraordinary items for which the Company will reimburse Consultant.
Such extraordinary items include travel and entertainment required by/or
specifically requested by the Company, luncheons or dinners for large
groups of investment professional, mass faxing to a sizable percentage of
the Company’s constituents, investor conference call, print advertisement
in publications and like expenses approved by the Company prior to its
incurring an obligation for
reimbursement.
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6.
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Indemnification.
The Company agrees to indemnify and hold Consultant harmless from and
against any losses, damages, or liabilities related to or arising out of
Consultant’s engagement, and will reimburse Consultant for all reasonable
expenses (including reasonable counsel fees) as they are incurred by
Consultant in connection with investigating, preparing for, or defending
any action or claim related thereto, whether or not in connection with
pending or threatened litigation in which Consultant is a party. The
Company will not, however, be responsible for any actions, claims,
liabilities, losses, damages, liabilities related to, and other equitable
considerations; provided, however, that in no event shall the amount to be
contributed by the Consultant exceed the amounts actually received by
Consultant. The foregoing shall be in addition to any rights that
Consultant may have at common law or otherwise and shall extend upon the
same terms to inure to the benefit or and director, officer, employee,
agent or controlling person
Consultant.
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7.
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Representations and
Warranties.
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A.
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The
Company warrants and represents that all oral communications, written
documents or materials furnished to Consultant are accurate, and the
Consultant warrants and represents that all communications by Consultant
with the public
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| with respect to the financial affairs, operations, profitability, and strategic planning of the Company will be in accordance with information provided to it by the Company. Consultant represents that it is not required to maintain any licenses and registrations under federal or any state regulations necessary to perform the services set forth herein. Consultant acknowledges that to the best of its knowledge. Consultant and its officers and directors are not the subject of any investigation, claim decree, or judgment involving any violations of the SEC or securities laws. |
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B.
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Consultant
represents and warrants to the Company that (i) Consultant is an
“accredited investor” as that term is defined in Rule 501 of Regulation D
under the Securities Act of 1933, as amended (the “Securities Act”), (ii)
Consultant has reviewed the reports and other information filed by the
Company since June 30, 2006 with the Securities and Exchange Commission
(the “SEC”), which are available for review at xxx.xxx.xxx,
and (iii) Consultant understands that the Commencement Bonus shares have
not been registered with the SEC and therefore constitute restricted
securities which may not be resold without registration under the
Securities Act or an exemption therefrom, and (iv) Consultant did not
learn of the opportunity to acquire the Commencement Bonus shares through
any form of general solicitation or general
advertising.
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8.
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Statues as Independent
Contractor. Consultant’s engagement pursuant to this Agreement
shall be as independent contractor, and not as employee, officer or other
agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant
further acknowledges the consideration provided herein above is a gross
amount of consideration and that the Company will not withhold from such
consideration any amount for payment of income taxes and such payments
shall be made or provided for by Consultant and the Company shall have no
responsibility or duties regarding such matters. Neither the Company nor
the Consultant possesses the authority to bind each other in any
agreements without the express written consent on the entity to be
bound.
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9.
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Waiver. The
waiver by either party of a breach of any provision of this agreement by
the other party shall not operate or be construed as a waiver of any
subsequent breach by such other
party.
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10.
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Notices. All
notices, requests, and other communications hereunder shall be deemed to
be duly given if sent by U.S. mail, postage, prepaid, addressed to the
other party at the address set forth herein
below:
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Draco
Financial
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Theater
Xtreme Entertainment Group
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0000
X. Xxxx Xxxxxxx Xx.
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000
Xxxxxxxxx Xxxx
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Xxxxx
000
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Xxxxx
X
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Xxxxxxxx,
XX 00000
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Xxxxxx,
XX 00000
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Attn:
CFO
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Either
party may change address to which notices for it shall be addressed by providing
notice of such change to other party in the manner set forth in this
paragraph.
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11.
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Choice of Law,
Jurisdiction, and Venue. This Agreement shall be governed by,
construed, and enforced in accordance with the internal laws of the State
of Florida, without giving effect to its conflict of laws choice of law
principals.
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12.
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The
parties agree that all disputes between them of any nature whatsoever
shall be resolved in Orlando, FL via binding arbitrations before either
the American Arbitration Association (xxx.xxx.xxx) or
JAMS (xxx.xxxxxxx.xxx),
whichever the Company prefers. The arbitrator shall have the power to
decide all matter, including arbitrarily, but must decide all disputes in
accordance with Florida law. The Parties choose arbitration because it is
usually faster and less expensive than litigations, and it will allow the
Parties to resolve their disputes privately. The arbitrator shall allow
limited discovery to allow the Parties to present our respective cases,
but shall be mindful of the Parties’ desire to avoid the expense of broad
discovery typically allowed in
litigation.
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13.
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Complete
Agreement. This Agreement contains the entire agreement of the
parties relations to the subject matter hereof. This Agreement and its
terms may not be changed orally but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
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[SIGNATURE
PAGE FOLLOWS]
AGREED
TO:
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“The
Company”
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Date: 4/9/2008
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By:
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/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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Chairman
and CEO
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&
Its Duly Authorized Officer
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“Consultant”
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Draco
Financial, LLC.
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Date: 4/9/2008
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By:
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/s/ Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx, CEO
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&
Its Duly Authorized Officer
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