Exhibit 10.5
AGREEMENT FOR CONSULTING SERVICES
AGREEMENT made and entered into as of this fifteenth day of August 2002 (the
"Agreement"), by and between Eclipse Entertainment Group, Inc., a Nevada
corporation (the "Company") with principal offices at 00000 Xxxxxx Xxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxxxx 00000 and Xxxx X. Xxxxxxxx residing at 0 XxxXxxx Xxxxx,
Xxxxxx Xxxxxx, XX 00000 ("Consultant").
WHEREAS, the Company is in the business of producing films and establishing a
network of foreign and domestic buyers to produce or acquire film programming;
and
WHEREAS, the Consultant is in the business of providing business advice,
management and product marketing services to companies and the Company believes
such experience is in its best interest to utilize, and
WHEREAS, the Company acknowledges that the Consultant has been performing such
services since August 1st, 2002 for the Company, and
WHEREAS, the Company formally desires to engage Consultant to continue to
provide such services in accordance with the terms and conditions hereinafter
set forth;
Now, therefore, the Company and Consultant agree as follows:
1. ENGAGEMENT. The Company agrees to engage Consultant and Consultant agrees to
provide business advice, management, and product development and marketing
services to the Company
2. TERM. The term of this agreement shall commence on the date hereof and shall
continue for a period of six months.
3. SERVICES. Consultant shall render advice and assistance to the Company on
business related matters (the "Services") and in connection there with shall:
(a) attend meetings of the Company's Board of Directors or Executive
Committee(s) when so requested by the Company;
(b) attend meetings at the request of the Company and review, analyze and report
on proposed business opportunities;
(c) consult with the Company concerning on-going strategic corporate planning
and long term corporate development policies, including any revision of the
Company's business plan;
(d) consult with, advise and assist the Company in identifying, studying and
evaluating acquisition, joint venture, strategic alliance, recapitalization and
restructuring proposals, including the preparation of reports, outlines and
studies thereon when advisable, and assist in negotiations and discussions
pertaining thereto;
(e) assist the Company in obtaining technical and advisory assistance from other
professionals where necessary or advisable, including, but not limited to
attorneys and accountants;
(f) consult with, advise and assist the Company in the identification and
selection of additional staff, employees and professional advisors and assist
the Company in the evaluation, redeployment and/or retention of existing
employees;
(g) assist in the creation of sales and data management systems for the
distribution of product sales materials worldwide to film distributors, film
marketers, and other interested intermediaries;
(h) assist the Company in implementing its product development and marketing
program, including, but not limited to development of a more robust model for
the acquisition, production and distribution of film and other media assets.
(i) provide the Company with advice related to aforementioned activities.
In connection with the Services to be rendered by Consultant, Consultant shall
report to the Board of Directors and President of the Company and shall consult
with those individuals on behalf of the Company in connection with its
obligations set forth above. Consultant agrees to make himself available to
evaluate all proposals that relate to any business undertaken by the Company,
subject to the limitations of Section 5 and 7 hereof.
Anything to the contrary herein notwithstanding, it is agreed at the
Consultant's Services will not include any services that constitute opinions or
performance of work that is in the ordinary purview of a certified public
accountant or attorney or any work that is the ordinary purview of a registered
broker/dealer or in connection with or related to the offer or sale of
securities of the Company in a capital raising transaction.
4. COMPENSATION.
(a) The Company shal1 cause to be issued to the Consultant, as a non-refundable
retainer for services rendered and for entering into this agreement 1,500,000
(one million five hundred thousand) shares of its Common Stock which shall be
issued pursuant to registration on Form S-8 under the Securities Act of 1933.
(b) All out-of-pocket expenses incurred by the Consultant in the performance of
the Services to be incurred hereunder shall be borne by the Company and paid
upon submission of appropriate documentation thereof, provided, however, prior
authorization is required for amounts in excess of $250.
5. BEST EFFORTS BASIS. Subject to Section 7 and the last sentence of Section 5
hereof, Consultant agrees that he will at all times faithfully and to the best
of his experience, ability and talents perform all the duties that may be
required of it pursuant to the terms of this Agreement. The Company specifically
acknowledges and agrees, however, that the services to be rendered by Consultant
shal1 be conducted on a "best-efforts" basis and has not, cannot and does not
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guarantee that his efforts will have any impact on the Company's business or
that any subsequent corporate improvement will result from his efforts.
6. COMPANY'S RIGHT TO APPROVE TRANSACTION. The Company expressly retains the
right to approve, in its sole discretion, each and every transaction introduced
by Consultant that involves the Company as a party to any agreement. Consultant
and the Company mutually agree that Consultant is not authorized to enter any
agreement on behalf of the Company.
7. NON-EXCLUSIVE SERVICES. The Company understands that Consultant is currently
providing certain advisory and business development services to other
individuals and entities and agrees that Consultant is not prevented or barred
from rendering services of the same nature or a similar nature to any other
individuals or entities and acknowledges that such Services may from time to
time conflict with the timing of and the rendering of Consultant's services. In
addition, Consultant understands and agrees that the Company shall not be
prevented or barred from retaining other persons or entities to provide services
of the same or similar nature as those provided by Consultant.
8. INFORMATION REGARDING COMPANY. Consultant represents and warrants that it has
received copies of the Company's financial statements and other disclosure
documents (collectively, the "Disclosure Documents"). Consultant represents that
it has read the Disclosure Documents and has reviewed all such information with
his legal, financial and investment advisors to are extent it deemed such review
necessary or appropriate. Because of the Company's financial condition and other
factors, the receipt of capital stock of the Company as compensation under this
Agreement involves a high degree of risk, including the risks that such stock
may substantially decrease in value or have no value. The Consultant
acknowledges and accepts that risk. As a result, Consultant is cognizant of the
financial condition and operations of the Company, has available full
information concerning its affairs and has been able to evaluate the merits and
risks of being compensated in common stock of the Company. Consultant represents
and warrants to the Company that it has received from the Company and has
otherwise had access to all information necessary to verify the accuracy of the
information in the Disclosure Documents.
9. CONSULTANT NOT AN AGENT OR EMPLOYEE. Consultant's obligations under this
Agreement consist solely of the services described herein. In no event shall
Consultant be considered to be acting as an employee or agent of the Company or
otherwise representing or binding the Company. For the purposes of the
Agreement, Consultant is independent contractor. All final decisions with
respect to acts of the Company or its affiliates, whether or not made pursuant
to or in reliance on information or advice furnished by Consultant hereunder,
shall be those of the Company or such affiliates and Consultant shall, under no
circumstances, be liable for any expenses incurred or losses suffered by the
Company as a consequence of such actions. Consultant agrees that all of his work
product relating to the Services to be rendered pursuant to this agreement shall
become the exclusive property of the Company. The parties acknowledge that the
Services provided by the Consultant hereunder are not in connection with the
offering or sale of securities of the Company in a capital raising transaction.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to Consultant, each such representation and warranty being deemed to be
material, that:
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(a) The Company will cooperate fully and timely with consultant to enable
Consultant to perform his obligations under this Agreement;
(b)The Board of Directors of the Company in accordance with applicable law has
duly authorized the execution and performance of this agreement by the Company;
(c)The performance by the Company of this Agreement will not violate any
applicable court decree, law or regulation nor it will violate any provision of
the organizational documents of the Company or any contractual obligation by
which the Company may be bound;
(d) Because Consultant will rely upon information being supplied it by the
Company, all such information shall be true, accurate, complete and not
misleading, in all material respects;
(e) The Shares, when issued, will be duly and validly issued, fully paid and
nonassessable with no personal liability to the ownership thereof;
(f) The Company will act diligently and promptly in reviewing materials
submitted to it by Consultant to enhance timely distribution of such materials
and will inform Consultant of any inaccuracies contained therein prior to
dissemination;
(g) The services to be provided by Consultant to the Company hereunder are not
in connection with or related to the offer or sale of securities of the Company
in a capital raising transaction.
11. REPRESENTATIONS AND WARRANTIES OF CONSULTANT. By virtue of the execution
hereof, and in order to induce the Company to enter into this Agreement,
Consultant hereby represents and warrants to the Company as follows:
(a) He has full power and authority to enter into this Agreement, to enter into
a consulting relationship with the Company and to otherwise perform this
Agreement in the time and manner contemplated;
(b) He has the requisite skill and experience to perform the services and to
carry out and fulfill his duties and obligations hereunder;
(c)The services to be provided by Consultant to the Company hereunder are not in
connection with or related to the offer or sale of securities of the Company in
a capital raising transaction,
(d) Consultant is not an affiliate of or associated with any broker-dealers or
associated with any finders which the doing or have done business with the
Company.
12. LIABILITY OF CONSULTANT. In furnishing the Company with management advice
and other services as herein provided, Consultant shall not be liable to the
Company or its creditors for errors of judgment or for anything except
malfeasance or gross negligence in the performance of his duties or reckless
disregard of the obligations and duties under the terms of this Agreement. It is
further understood and agreed that Consultant may rely upon information
furnished to it reasonably believed to be accurate and reliable and that, except
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as set forth herein in the first paragraph of this Section 12, Consultant shall
not be accountable for any loss suffered by the Company by reason of the
Company's action or non-action on the basis of any advice, recommendation or
approval of Consultant.
The parties further acknowledge that Consultant undertakes no responsibility for
the accuracy of any statements to be made by management contained in press
releases or other communications, including, but not limited to, filings with
the Securities and Exchange Commission and the National Association of
Securities Dealers, Inc.
13. CONFIDENTIALITY. Until such time as the same may become publicly known,
Consultant agrees that any information provided it by the Company, of a
confidential nature will not be revealed or disclosed to any person or entities,
except in the performance of this Agreement, and upon completion of the term of
this Agreement and upon the written request of the Company, any original
documentation provided by the Company will be returned to it. Consultant will,
where it deems necessary, require confidentiality agreements from any associated
persons where it reasonably believes they will come in contact with confidential
material.
14. NOTICE. All notices, requests, demands and other communications provided for
by this Agreement shall, where practical, be in writing and shall be deemed to
have been given when mailed at any general or branch United States Post office
enclosed in a certified post-paid envelope and addressed to the address of the
respective party first above stated. Any notice of change of address shall only
be effective however, when received.
15. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors, and assigns, including, without
limitation, any corporation which may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged and Consultant and his heirs and administrators.
Consultant agrees that it will not sell, assign, transfer, convey, pledge or
encumber this Agreement or his right, title or interest herein, without the
prior written consent of the Company, this Agreement being intended to secure
the personal services of Consultant.
16. TERMINATION. Consultant agrees that the Company may terminate this Agreement
at any time providing prior written notice of termination to Consultant. Any
notice of termination shall only be effective however, when received.
The Company agrees that the Company may terminate this Agreement at any time
providing prior written notice of termination to the Company. Any notice of
termination shall only be effective however, when received.
17. APPLICABLE LAW. This Agreement shall be deemed to be a contract made under
the laws of the State of Nevada, and for all purposes shall be construed in
accordance with the laws of said state. The Company;
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(i) agrees that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted exclusively in Nevada State District
Court, County of Xxxxx, or in the United States District Court for the State of
Nevada,
(ii) waives any objection which the Company may have now or hereafter to the
venue of any such suit, action, or proceeding, and
(iii) gives irrevocable consent to the jurisdiction of the Nevada State District
Court, County of Xxxxx, and the United States District Court for the State of
Nevada in any such suit, action or proceeding.
18. OTHER AGREEMENTS. This Agreement supersedes all prior understandings and
agreements between the parties. This Agreement may not be amended orally, but
only by a writing signed by the parties hereto.
19. NON-WAIVER. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right shall
constitutes a waiver of that or any other right.
20. HEADING. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shaI1 be deemed an original but all of which together shall
constitute one and the same instrument.
In Witness Whereof, the parties hereto have executed this Agreement the day and
year first above written.
ECLIPSE ENTERTAINMENT GROUP, INC.
By
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Art Birzneck, President
XXXX X. XXXXXXXX
By
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Xxxx X. Xxxxxxxx
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