CONSULTING AGREEMENT
Consulting Agreement (the "Agreement") dated March 31, 2006 by and among
Ckrush, Inc., a Delaware corporation, formerly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Promotions, Inc. (the "Company"), both having an address at 1414 Avenue of the
Americas, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Gotham Boxing, Inc., a New
York corporation ("Gotham"), having an address at 1414 Avenue of the Americas,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, contemporaneously herewith, the Company, Big Content, Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") have executed and delivered to each other a certain
Settlement Agreement of even date (the "Settlement Agreement") which provides
for, among other things, the execution and delivery of this Agreement;
NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
1. Consulting Agreement.
a. The Company, based upon an assignment from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Promotions, Ltd., a wholly-owned subsidiary of the Company that has been
dissolved by proclamation ("LTD"), serves as the promoter of ▇▇▇▇▇ ▇▇▇ ("Tua")
pursuant to the Sports Tech Agreement (as hereinafter defined). Gotham agrees to
assist the Company as a consultant in this promotion by acting as a liaison with
Tua, managing events, presenting budgets and advising the Company with regard to
entering into transactions concerning Tua as contemplated by the Sports Tech
Agreement. Notwithstanding anything contained herein, the parties acknowledge
and agree that Gotham shall provide such consulting services on a "part-time"
basis, as determined by Gotham (in its sole discretion, which shall be final,
conclusive and binding) and that such services may, in Gotham's sole discretion
(which shall be final, conclusive and binding) be provided via telephone and/or
email. Subject to the immediately preceding sentence, Gotham will devote
sufficient time to its consulting so that the Company can fulfill its
obligations under the Sports Tech Agreement. Gotham will provide services
exclusively through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ personally or through others supervised by
him. All decisions regarding Tua under the Sports Tech Agreement, such as but
not limited to scheduling events and advancing expenses, shall require the
written approval of both the Company and Gotham, and neither Gotham nor ▇▇▇▇▇▇▇
shall have any liability for any expense unless Gotham of them has so consented.
The parties shall meet promptly following each bout contemplated by the Sports
Tech Agreement, cooperate with each other in determining amounts owed to each
other within fourteen (14) days following each such bout, and pay any amounts
owed by the Company to Gotham and vice versa within five (5) business days
following receipt of payment.
b. In consideration for the performance of such services, the Company
shall pay to Gotham an amount equal to fifty percent (50%) of all Proceeds (as
hereinafter defined) received, directly or indirectly, by and/or on behalf of
the Company. For purposes of this Agreement, "Proceeds" means any and all
amounts paid directly or indirectly to, for the benefit of and/or at the
direction of, the Company under, and/or relating in any way to, that certain
Exclusive Promotional Agreement dated December 1, 2002 between Sports Tech
Limited ("Sports Tech") and Tua, which was assigned to LTD pursuant to that
certain Purchase and Sale Agreement, dated December 24, 2002, among Sports Tech,
LTD and Zenascent (as hereinafter defined)as amended by that certain
Acknowledgment and Agreement, dated December 8, 2004 among Tua, LTD and the
Company which has been consented to by Tua and Tuaman, Inc. ("Tuaman") pursuant
to that certain Consent and Agreement, dated December 24, 2002 among LTD, Tua
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and Tuaman (collectively, the "Sports Tech Agreement"), and any and all now or
hereafter existing renewals, extensions, modifications, amendments,
terminations, assignments and the like with respect thereto (collectively,
"Modifications"), including, but not limited to, the Company's share of "Net
Revenue" (as defined in the Sports Tech Agreement), less (i) up to an aggregate
Four Hundred Thousand Dollars ($400,000) payable by the Company to certain
investors (the "Tua Investors") as more fully described on Schedule A attached
hereto and made a part hereof as contemplated by the agreements more fully
described on Schedule A (the "Tua Investor Agreements") and (ii) the approved
expenses incurred by the Company or Gotham (or on behalf of Gotham) related
directly to Tua or the Sports Tech Agreement, it being understood that the
Company and Gotham shall share equally all agreed upon losses incurred under the
Sports Tech Agreement, determined in a manner consistent with the manner for
calculating amounts due as set forth above. The Company will not agree to any
Modification of, or terminate or assign the Sports Tech Agreement without the
prior written consent of Gotham, not to be unreasonably withheld or delayed.
Notwithstanding anything contained herein or in the Sports Tech Agreement, there
shall be no charge, accrual, deduction, expense or cost included in the
calculation of Proceeds for the Company's or any other person's or entity's
direct or indirect overhead, administrative or similar expenses.
c. Gotham shall have the right, not more than two (2) times each and
every year, to review the Company's books and records and accounting records
related to the Sports Tech Agreement at its expense. Any such review may be
conducted only through a regional or larger accounting firm reasonably
acceptable to the Company that signs a confidentiality and non-disclosure
agreement reasonably acceptable to the Company. In the event of any dispute
between the parties regarding the amounts due related to the Sports Tech
Agreement, the issue shall be submitted to binding arbitration before an
accountant mutually acceptable to the parties.
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d. It is understood that Gotham is not assuming any liability and/or
obligation of any party, including, but not limited to the Company under the
Sports Tech Agreement pursuant to this Section 1 or otherwise. As long as the
Company and/or any of its affiliates, directly or indirectly, or Gotham
maintains any legal relationship related to boxing with Tua, the Company and
Gotham will share the net proceeds of that relationship equally. Without
limitation of the foregoing, the Company will not (and will not cause or permit
any of its affiliates to) and Gotham will not, directly or indirectly, enter
into any new agreement related to boxing with or with respect to Tua without
offering to the other party the right to participate in such agreement on an
equal basis with the first party (a "New Tua Transaction"). The foregoing shall
apply regardless of any Modification of the Sports Tech Agreement. The foregoing
sharing arrangement shall also apply to any fighter for whom the Company (or any
affiliate, directly or indirectly, or Gotham serves as a promoter if such
service results from an option held on any boxer who is a challenger to Tua,
should Tua be declared a world champion by any sanctioning body such as the WBC,
WBA, IBF, or IBA. Upon receipt of written notice from the Company to Gotham, or
Gotham to the Company, indicating that such party is offering the receiving
party or parties the opportunity to participate in a New Tua Transaction as
contemplated hereby, the receiving party shall have seven (7) days to accept
such offer by written notice thereof to the offering party. Failure of the
receiving party to accept within such seven (7) day period shall leave the
notifying party free to pursue the New Tua Transaction with out further
liability or obligation with respect to such offer to the receiving party.
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2. Representations by Gotham. Gotham hereby represents and warrants to
the Company as follows:
a. Gotham is a corporation duly incorporated under the laws of the
State of New York and has all requisite power, authority and capacity to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly executed and delivered by Gotham. This Agreement is a
legal, valid and binding obligation of Gotham, enforceable against Gotham in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting the enforcement of creditors' rights generally and subject to general
principles of equity, regardless of whether enforcement is sought in a
proceeding of law or in equity.
b. Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated by this Agreement will conflict
with or result in the breach of any term or provision of, require consent or
violate or constitute a default under, or give any third party the right to
terminate or accelerate any obligation under any contract, agreement, permit,
license or law to which Gotham is a party or by which Gotham is in any way bound
or obligated.
c. No consent, or approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental or quasi-governmental agency, authority, commission, board or other
body is required on the part of Gotham in order to enter into or consummate the
transactions contemplated by this Agreement.
3. Incorporation By Reference. The Company hereby represents and warrants
to, and covenants and agrees with, each of the Indemnified ▇▇▇▇▇▇▇ Parties (as
defined in the Settlement Agreement) that the representations, warranties,
indemnifications, covenants and agreements of the Company set forth in this
Agreement are hereby incorporated as if set forth at length in (i) the
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Settlement Agreement and that each of the Indemnified ▇▇▇▇▇▇▇ Parties are each
intended third party beneficiaries thereof with full and unfettered rights to
enforce same, (ii) that certain Lease and Library Agreement of even date among
the Company and Media and that ▇▇▇▇▇▇▇ and Media are each intended third party
beneficiaries thereof with full and unfettered rights to enforce same. The
Company hereby represents and warrants to, and covenants and agrees with, Gotham
that the representations, warranties, indemnifications, covenants and agreements
of the Company set forth in the Settlement Agreement and Library Agreement, as
the case may be, are hereby incorporated as if set forth at length herein and
that ▇▇▇▇▇▇▇ and Gotham are intended third party beneficiaries thereof with full
and unfettered rights to enforce same. Without limiting the foregoing, the
Company represents that it is the promoter of Tua pursuant to the Sports Tech
Agreement.
4. Severability. Should any provisions of this Agreement be held to be
illegal, void or unenforceable, such provision shall be of no force and effect.
However, the illegality or unenforceability of any such provision shall have no
effect upon, and shall not impair the enforceability of, any other provision of
this Agreement.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding its conflicts of
laws provisions.
6. Integration. This Agreement contains the complete understanding among
the parties hereto relating to the subject matter hereof, and no other promises
or agreements shall be binding unless signed by both. In signing this Agreement,
the parties are not relying on any fact, statement or assumption not set forth
in this Agreement.
7. Amendments. This Agreement may only be changed or amended by a written
agreement signed by all of the parties hereto.
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8. Knowledge and Consent. By signing below, the parties indicate that they
have carefully read and understood the terms of this Agreement, enter into the
Agreement knowingly, voluntarily and of their own free will, understand its
terms and significance and intend to abide by its provisions without exception.
9. Binding Effect. This Agreement is binding upon, inures to the benefit of
and is enforceable by the parties, the heirs, personal representatives,
successors and assigns of the parties. This Agreement is not assignable by a
party without the prior written consent of each other party.
10. Further Assurances. Subject to the terms and conditions of this
Agreement, the parties hereto will use commercially reasonable efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transaction contemplated by this Agreement.
Neither of the parties hereto will, without prior written consent of the other
party, take any action which would reasonably be expected to prevent or
materially impede, interfere with or delay the transactions contemplated by this
Agreement.
IN WITNESS WHEREOF, this Agreement has been signed as of the date first set
forth above. GOTHAM BOXING, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
CKRUSH, INC.
(f/k/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PROMOTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, President
