Exhibit 10.6
MARKETING AGREEMENT
THIS AGREEMENT made and entered into this 5th day of January 2004, by
and between The Cervelle Group, a Delaware LLC, hereinafter referred to as
"Cervelle" and Peabodys Coffee, Inc. hereinafter referred to as "Company".
WITNESSETH:
For and in consideration of the mutual promises and covenants contained
herein the parties hereto agree as follows:
1. ENGAGEMENT. Company hereby hires and engages Cervelle as an
independent contractor on a non-exclusive basis; and, Cervelle does hereby
accept engagement as an independent contractor by the Company upon the terms and
conditions hereinafter set forth.
2. TERM. The term of this Agreement shall be from the January 5th 2004,
to the 180th day from the effective date of this Agreement.
3. DUTIES AND OBLIGATIONS OF CERVELLE. Cervelle shall have the
following duties and obligations under this Agreement:
3.1. Establish financial public relations methodology designed
to increase awareness of the Company within the investment community.
3.2. Assist the Company in the implementation of its business
plan and in accurately disseminating information to the market place, which
information has been provided by the Company.
3.3. To expose the Company to a broad network of active retail
brokers, financial analysts, institutional fund managers, private investors and
active financial newsletter writers.
3.4 Assist the Company in the preparation of all press
releases and coordinate the release of such releases with the Company.
ALL OF THE FOREGOING CERVELLE PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE, FAX
SHEETS, AND QUARTERLY NEWSLETTERS, SHALL BE PREPARED BY CERVELLE FROM MATERIALS
SUPPLIED TO IT BY THE COMPANY AND SHALL BE APPROVED BY THE COMPANY PRIOR TO
DISSEMINATION BY CERVELLE.
4. CERVELLE'S COMPENSATION. Company hereby covenants and agrees to pay, total
compensation to Cervelle as follows:
o 33,333 unrestricted free trading shares of Peabodys Coffee
Inc. (OTCBB: PBDY) per month for the duration of the
Agreement.
o 50,000 shares of rule144 restricted stock of stock symbol
PBDY.
5 CERVELLE'S EXPENSES AND COSTS. Company shall pay all costs and expenses
incurred by Cervelle, its directors, officers, employees, and agents, in
carrying out its duties and obligations pursuant to the provisions of this
Agreement, excluding Cervelle's general and administrative expenses and costs,
but including and not limited to the following costs and expenses; provided, all
cost and expense items in excess of $500.00 are approved by the Company prior to
Cervelle's incurrence of the same:
5.1. Travel expenses, including, but limited to transportation,
lodging and food expenses, when such travel is conducted on behalf of the
Company. (If requested)
5.2. Seminars, expositions, money and investment shows.
5.3. Radio and television time and print media advertising costs.
5.4. Subcontract fees and costs incurred in preparation of
research reports.
5.5. Cost of on site due diligence meetings.
5.6. Printing and publication costs of brochures and marketing
materials.
5.7. Printing and publication costs of Company annual reports.
5.8. Postage on all packages mailed.
5.9. Conference Calls set up by company and Agreed to by Client.
Company shall pay to Cervelle all costs and expenses incurred with ten (10) days
of receipt of Cervelle's written invoice for the same.
6. COMPANY'S DUTIES AND OBLIGATIONS. Company shall have the following
duties and obligations under this Agreement.
6.1. Cooperate fully and timely with Cervelle so as to enable
Cervelle to perform its obligations under this Agreement.
6.2. Within one (1) day of the date of execution of this
Agreement to deliver to Cervelle a complete due diligence package on the Company
including all the Company's filings with Securities and Exchange Commission
within the last twelve months, the last twelve months of press releases on the
Company and all other relevant materials, including but not limited to corporate
reports, brochures, and the like; a list of the names of addresses of all the
Company's shareholders known to the Company; and, a list of the brokers and
market makers in the Company's securities and which have been following the
Company.
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6.3 The Company will provide Cervelle with weekly DTC reports
by 5:00 PM every Tuesday starting on the first Tuesday after the execution of
the Agreement ending the first Tuesday after the termination of the Agreement.
6.4. The Company will act diligently and promptly in reviewing
materials submitted to it from time to time by Cervelle and to inform Cervelle
of any inaccuracies contained therein prior to the dissemination of such
materials.
6.5. Immediately give written notice to Cervelle of any change
in its financial condition or in the nature of its business or operations which
had or might have an adverse effect on its operations, assets, properties or
prospects of its business.
6.6. Immediately pay all costs and expenses incurred by
Cervelle under the provisions of this Agreement when presented with invoices for
the same by Cervelle.
6.7. Give full disclosure of all material facts concerning the
Company to Cervelle and to up date such information on a timely basis.
6.8. Promptly pay the compensation due Cervelle under the
provisions of this Agreement.
7. NONCIRCUMVENTION. Company, its officers, directors, employees,
agents, and affiliates agree, upon Cervelle's disclosure and/or introduction to
brokers, investment bankers, institutional fund managers, financial analysts,
accredited investors, financial publicist, financial public relations firms and
the like, not to circumvent, avoid, bypass, or obviate, directly or indirectly,
Cervelle's rights under this Agreement.
8. NONDISCLOSURE. Except as may be required by law, Company, its
officers, directors, employees, agents and affiliates shall not disclose the
contents and provisions of this Agreement to any individual or entity without
Cervelle's expressed written consent; provided, however, Cervelle consents to
the inclusion of this Agreement as an exhibit to the Form SB-2 Registration
Statement registering the shares set forth in Section 4 above.
9. COMPANY'S DEFAULT. In the event of any default in the payment of
Cervelle's compensation to be paid to it pursuant to this Agreement, or any
other charges or expenses on the Company's part to be paid or met, or any part
or installment thereof, at the time and in the manner herein prescribed for the
payment thereof and as when the same becomes due and payable, and such default
shall continue for five (5) days; and such default shall continue for five (5)
days after Cervelle has given Company written notice thereof, or if a petition
in bankruptcy is filed by the Company, or if the Company is adjudicated of
bankrupt, or if the Company shall compound its debts or assign over its assets
or its effects for the payments thereof, or if a receiver shall be appointed of
the Company's property, then upon the happening of any of such events, Cervelle
shall have the right, at its option, forthwith or there after to accelerate all
compensation, costs and expenses due or coming due hereunder and to recover the
same from the Company by suit or otherwise; and further, to terminate this
Agreement. The Company covenants and agrees to pay all reasonable attorney fees,
paralegal fees, costs and expenses of Cervelle, including court costs,
(including such attorney fees, paralegal fees, costs and expenses incurred on
appeal) if Cervelle employs an attorney to collect the aforesaid amounts or to
enforce other rights of provided for in this Agreement in the event of any
default as set forth above and the same shall be payable regardless of whether
collection or enforcement is effected by suit or otherwise. Further, until
Cervelle has received the initial monthly amount(s) Cervelle shall not be
required to commence performing hereunder.
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10. COMPANY'S REPRESENTATIONS AND WARRANTIES. Company represents and
warrants to Cervelle for the purpose of inducing Cervelle to enter into and
consummate this Agreement as follows:
10.1. Company has the power and authority to execute, deliver
and perform this Agreement.
10.2. The execution and delivery by the Company of this
Agreement has been duly and validly authorized by all requisite action by the
Company. No license, consent or approval of any person is required for the
Company's execution and delivery of this Agreement.
10.3. This Agreement has been duly executed and delivered by
the Company. This Agreement is the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its respective terms,
subject to the effect to any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law effecting creditors' rights generally and to general
principals of equity.
10.4. The execution and delivery by the Company of this
Agreement does not conflict with, constitute a breach of or a default thereunder
(i) any applicable law, or any applicable rule, judgment, order, writ,
injunction, or decree of any court; (ii) any applicable rule or regulation of
any administrative agency or other governmental authority; (iii) the certificate
of incorporation and By-Laws of the Company; (iv) any agreement, indenture,
instrument or contract to which the Company is now a party or by which it is
bound.
10.5. No representation or warranty by the Company in this
Agreement and no information in any statement, certificate, exhibit, schedule or
other document furnished, or to be furnished by the Company to Cervelle pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein not misleading. There is no fact which the Company has not disclosed to
Cervelle, in writing, which materially adversely affects, nor, so far as the
Company can now foresee, may adversely effect the business, operations,
prospects, properties, assets, profits or condition (financial or otherwise) of
the Company.
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11. DISCLAIMER BY CERVELLE. CERVELLE WILL BE THE PREPARER AND PUBLISHER
OF CERTAIN MATERIALS CONCERNING THE COMPANY. MAKES NO REPRESENTATIONS AND
WARRANTIES THAT ITS SERVICES (i) WILL RESULT IN ANY ENHANCEMENT TO THE COMPANY;
(ii) CAUSE THE BID AND/OR ASK PRICE OF THE COMPANY'S PUBLICLY TRADED SECURITIES
TO INCREASE; (iii) WILL CAUSE ANY PERSON TO PURCHASE THE COMPANY'S SECURITIES;
OR, (iv) WILL CAUSE ANY PERSON TO LEND MONEY TO OR INVEST IN OR WITH THE
COMPANY.
12. CERVELLE CONFIDENTIALITY AGREEMENT. Cervelle acknowledges that
during the performance of its duties and obligations pursuant to this Agreement
it shall receive information on the Company which is not known to the public;
i.e., confidential information. will use the Company's confidential information
only for the purposes of fulfilling its duties and obligations under this
Agreement and for no other purpose; nor, shall Cervelle disclose to others such
confidential information, except to those individuals or entities who are
directly involved in Cervelle's performance under this Agreement, each of such
individuals or entities having first agreed, in writing, to be bound by the
provisions of this paragraph. Cervelle's obligations of confidentiality shall
not apply to information (i) known to or owned by Cervelle prior to the date of
this Agreement, (ii) developed by Cervelle independent of the Company, (iii) was
at the time of disclosure to Cervelle or thereafter became public knowledge
through no fault or omission of Cervelle; or, (iv) was lawfully obtained by
Cervelle from a third party under no obligation of confidentiality to the
Company. Upon completion of its services and upon the Company's written request,
all materials, including original documentation, provided by the Company to
Cervelle will be returned to the Company. (v) Under this Agreement, Cervelle
shall receive information which is not known to the public. The only two
individuals from Cervelle that will review this information are the managing
partners: Xxxxx Xxxxxx and Xxx X. Xxxxxxxxx. All individuals employed by
Cervelle will follow strict adherence to the SEC Fair Disclosure Act of 2000.
13. OWNERSHIP OF MATERIALS. All right, title and interest in and to
materials produced by Cervelle under this Agreement shall be and remain the sole
and exclusive property of Company.
14. LIMITATION OF CERVELLE LIABILITY. If Cervelle fails to perform its
duties and obligations hereunder, its maximum liability to the Company shall not
exceed the lesser of (i) the amount of cash compensation Cervelle has received
from the Company under Paragraph 4 of this Agreement; or, (ii) the actual damage
suffered by the Company as a result of such non-performance. IN NO EVENT WILL
CERVELLE BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES NOR FOR
ANY CLAIM AGAINST THE COMPANY BY ANY PERSON OR ENTITY ARISING FROM OR IN ANY WAY
RELATED TO THIS AGREEMENT, UNLESS SUCH DAMAGES RESULT FROM THE USE, BY CERVELLE,
OF INFORMATION NOT AUTHORIZED BY THE COMPANY.
15. MISCELLANEOUS.
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15.1. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing, and shall be deemed to have
been duly given when delivered personally or sent by registered or certified
mail, return receipt requested, postage prepaid to the Parties hereto at their
addresses indicated hereinafter. Either party may change his or its address for
the purpose of this paragraph by written notice similarly given. Parties
addresses are as follows:
COMPANY: Peabodys Coffee, Inc. The Cervelle Group:
0000 Xxxxxxxx Xxxx Ste.9 0000X Xxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
000-000-0000 Ext.19 407-295-7878
Fax: 000-000-0000 Fax: 000-000-0000
15.2. Entire Agreement. This Agreement represents the entire
Agreement between the parties in relation to the subject matter hereof and
supersedes all prior agreements between such parties relating to such subject
matter.
15.3. Amendment of Agreement. This Agreement may be altered or
amended, in whole or in part, only in writing signed by the party against whom
enforcement is sought.
15.4. Waiver. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other subsequent breach or
condition, whether of a like or different nature.
1.5.5 Captions. The captions appearing in this Agreement are
inserted as a matter of convenience and for reference and in no way affect this
Agreement, define, limit or describe its scope or any of its provisions.
15.6. Situs. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. Venue shall be Orange
County, Florida.
15.7. Benefits. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their heirs, personal representatives,
successors and assigns.
15.8. Severability. If any provision of this Agreement shall
be held to be invalid or unenforceable, such invalidity or unenforceability
shall attach only to such provision and shall not in any way affect or render
invalid or unenforceable any other provision of this Agreement, and this
Agreement shall be carried out as if such invalid or unenforceable provision
were not contained herein.
15.9. Arbitration. Except as to a monetary default by Company
hereunder, any controversy, dispute or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration. Arbitration
proceedings shall be conducted in accordance with the rules then prevailing of
the American Arbitration Association or any successor. The award of the
Arbitration shall be binding on the Parties. Judgment shall be entered upon an
award of a majority of the arbitrators filed in a court of competent
jurisdiction and confirmed by such court. Venue for Arbitration proceedings
shall be Orange County, Florida. The Parties consent that the costs of
arbitration, attorneys' fees of the Parties, together with all other expenses
shall be paid as provided in the Arbitration award.
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15.10. Number of Parties. The singular shall include the
plural and the plural the singular and one gender shall include all genders. As
used in this Agreement the term Affiliate means a person, directly or indirectly
through one or more intermediaries, controls or is controlled by, or is under,
control with, the Company.
15.11. Currency. In all instances, references to monies used
in this Agreement shall be deemed to be United States dollars.
15.12. Multiple Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, and
all of such counterparts shall constitute one (1) instrument.
15.13. Reports. For the term of this Agreement Cervelle shall
provide Peabodys Coffee, Inc. with a written report every thirty (30) days
starting from the execution of this Agreement. This report shall outline the
services provided for the previous thirty (30) days and shall be due no later
than 15 days after each thirty (30) day period.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMPANY: Peabodys Coffee, Inc.
By:
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Its:
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Date:
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The Cervelle Group
Delaware, LLC
By:
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Its:
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Date:
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