EXHIBIT 10.3
CONSULTING AGREEMENT
THIS AGREEMENT, made, entered into, and effective this day of July, 2003
(the "Effective Date"), by and between XXXX XXXXXXXX, an individual having an
address at 0000 X. 0xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to
as "Consultant"), and PEAK ENTERTAINMENT HOLDINGS, INC., a Nevada corporation
(hereinafter referred to as "Corporation").
W I T N E S S E T H:
WHEREAS, Consultant desires to provide consulting services for the
Corporation as an independent contractor, with the understanding that he shall
not be required to devote his full time to the business of the Corporation and
shall be free to pursue other personal and business interests; and
WHEREAS, the Corporation desires to engage Consultant to provide services
to the Corporation.
NOW, THEREFORE, in consideration of the premises, the mutual covenants of
the parties herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, it is agreed as follows:
1. CONSULTING ARRANGEMENT. The Corporation hereby contracts for the services of
Consultant and Consultant agrees to perform such duties and responsibilities and
to render advice and consulting as may be requested by the Corporation from time
to time during the term of this consulting arrangement in connection with the
Corporation's business throughout the United States and world wide ("Consulting
Arrangement"). Said consulting services shall include, but not be limited to,
the exploitation of products or licenses related to the garment and textiles
industry, marketing, sales and business development. Consultant shall use his
best efforts to keep the Corporation informed of all corporate business
opportunities which shall come to his attention and appear beneficial to the
Corporation's business so that the Corporation can obtain the maximum benefits
from Consultant's knowledge, experience, and personal contacts.
2. RELATIONSHIP BETWEEN PARTIES. During the term of the Consulting Arrangement,
Consultant shall be deemed to be an independent contractor. He shall be free to
devote his time, energy and skill to any such person, firm or company as he
deems advisable except to the extent he is obligated to devote his time, energy
and skill to the Corporation pursuant to the terms of this Agreement. Consultant
shall not be considered as having an employee status vis-a-vis the Corporation,
or by virtue of the Consulting Arrangement being entitled to participate in any
plans, arrangements or distributions by the Corporation pertaining to or in
connection with any pension, stock, bonus, profit sharing, welfare benefits, or
similar benefits for the regular employees of the Corporation. The Corporation
shall not withhold any taxes in connection with the compensation due Consultant
hereunder, and Consultant will be responsible for the payment of any such taxes
and hereby agrees to indemnify the Corporation against nonpayment thereof.
3. COMPENSATION FOR THE CONSULTING ARRANGEMENT. As consideration for the
services to be rendered under this Agreement, the Corporation shall enter into
the Stock and Warrant Purchase Agreement attached hereto. The Consultant shall
not be entitled to any compensation or remuneration for the services to be
provided hereunder.
4. TERM OF CONSULTING ARRANGEMENT. The Consulting Arrangement shall be
effective
as of the date of this Agreement and shall continue for a period of twelve (12)
months (the "Consulting Period").
5. CONFIDENTIALITY COVENANTS.
5.1 Acknowledgments by the Consultant. The Consultant acknowledges that (a)
during the Consulting Period and as a part of his Consulting Arrangement, the
Consultant will be afforded access to Confidential Information (as defined
below); (b) public disclosure of such Confidential Information could have an
adverse effect on the Corporation and its business; (c) because the Consultant
possesses substantial technical expertise and skill with respect to the
Corporation's business, the Corporation desires to obtain exclusive ownership of
each Consultant Invention (as defined below), and the Corporation will be at a
substantial competitive disadvantage if it fails to acquire exclusive ownership
of each Consultant Invention; (d) the provisions of this Section 5 are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Corporation with exclusive ownership
of all Consultant Inventions.
5.2 Agreements of the Consultant. In consideration of the compensation and
benefits to be paid or provided to the Consultant by the Corporation under this
Agreement, the Consultant covenants as follows:
(a) Confidentiality.
(i) During and following the Consulting Period, the Consultant
will hold in confidence the Confidential Information and will not disclose it to
any person except with the specific prior written consent of the Corporation or
except as otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Corporation will be entitled to all
of the protections and benefits under applicable law. If any information that
the Corporation deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement, such
information will, nevertheless, be considered Confidential Information for
purposes of this Agreement. The Consultant hereby waives any requirement that
the Corporation submit proof of the economic value of any trade secret or post a
bond or other security.
(iii) None of the foregoing obligations and restrictions applies
to any part of the Confidential Information that the Consultant demonstrates was
or became generally available to the public other than as a result of a
disclosure by the Consultant.
(iv) The Consultant will not remove from the Corporation's
premises (except to the extent such removal is for purposes of the performance
of the Consultant's duties at home or while traveling, or except as otherwise
specifically authorized by the Corporation) any document, record, notebook,
plan, model, component, device, or computer software or code, whether embodied
in a disk or in any other form (collectively, the "Proprietary Items"). The
Consultant recognizes that, as between the Corporation and the Consultant, all
of the Proprietary Items, whether or not developed by the Consultant, are the
exclusive property of the Corporation. Upon termination of this Agreement by
either party, or upon the request of the Corporation during the Consulting
Period, the Consultant will return to the Corporation all of the Proprietary
Items in the Consultant's possession or subject to the Consultant's control, and
the Consultant shall not retain any copies, abstracts, sketches, or other
physical embodiment of any of the Proprietary Items.
(b) Consultant Inventions. Each Consultant Invention will belong
exclusively to the Corporation. The Consultant acknowledges that all of the
Consultant's writing, works of authorship, and other Consultant Inventions are
works made for hire and the property of the Corporation, including any
copyrights, patents, or other intellectual property rights pertaining thereto.
If it is determined that any such works are not works made for hire, the
Consultant hereby assigns to the Corporation all of the Consultant's right,
title, and interest, including all rights of copyright, patent, and other
intellectual property rights, to or in such Consultant Inventions. The
Consultant covenants that he will promptly:
(i) disclose to the Corporation in writing any Consultant
Invention;
(ii) assign to the Corporation or to a party designated by the
Corporation, at the Corporation's request and without additional compensation,
all of the Consultant's right to the Consultant Invention for the United States
and all foreign jurisdictions;
(iii) execute and deliver to the Corporation such applications,
assignments, and other documents as the Corporation may request in order to
apply for and obtain patents or other registrations with respect to any
Consultant Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support of
the Corporation's rights to any Consultant Invention.
5.3 Disputes or Controversies. The Consultant recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Corporation, the Consultant, and their respective attorneys and experts, who
will agree, in advance and in writing, to receive and maintain all such
information in secrecy, except as may be limited by them in writing.
5.4 Definitions.
(a) For the purposes of this Section 5, "Confidential Information"
shall mean any and all:
(i) trade secrets concerning the business and affairs of the
Corporation, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information, and any other information, however documented, that is a trade
secret within the meaning of Chapter 688, Florida Statutes;
(ii) information concerning the business and affairs of the
Corporation (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel
training and techniques and materials, however documented; and
(iii) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Corporation containing or based, in whole
or in part, on any information included in the foregoing.
(b) For the purposes of this Section 5, "Consultant Invention" shall
mean any idea, invention, technique, modification, process, or improvement
(whether patentable or not), any industrial design (whether registerable or
not), any mask work, however fixed or encoded, that is suitable to be fixed,
embedded or programmed in a semiconductor product (whether recordable or not),
and any work of authorship (whether or not copyright protection may be obtained
for it) created, conceived, or developed by the Consultant, either solely or in
conjunction with others, during the Consulting Period, or a period that includes
a portion of the Consulting Period, that relates in any way to, or is useful in
any manner in, the business then being conducted or proposed to be conducted by
the Corporation, and any such item created by the Consultant, either solely or
in conjunction with others, following termination of the Consultant's Consulting
Arrangement with the Corporation, that is based upon or uses Confidential
Information.
6. NOTICES. All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers designated by the parties.
7. BINDING EFFECT. This Agreement shall extend to, shall inure to the benefit of
and shall be binding upon all the parties hereto and upon all of their
respective heirs, successors and representatives.
8. ENTIRE AGREEMENT. This Agreement, including the agreements incorporated by
reference, contains the entire Agreement among the parties hereto with respect
to the matters contemplated hereby and supersedes all prior agreements and
undertakings between the parties with respect to such matters. This Agreement
may not be amended, modified or terminated in whole or in part, except in
writing, executed by each of the parties hereto.
9. SEVERABILITY. Should any part of any provision of this Agreement be declared
invalid by a court of competent jurisdiction, such decision or determination
shall not affect the validity of any remaining portion of such provision or any
other provision and the remainder of the Agreement shall remain in full force
and effect and shall be construed in all respects as if such invalid or
unenforceable provision or portion thereof were not contained herein. In the
event of a declaration of invalidity, the provision or portion thereof declared
invalid shall not necessarily be invalidated in its entirety, but shall be
observed and performed by the parties to the Agreement to the extent such
provision is valid and enforceable.
10. SECTION HEADINGS. The section headings contained herein are for convenience
of reference only and shall not be considered any part of the terms of this
Agreement.
11. CHOICE OF LAW. This Agreement shall be interpreted and performed in
accordance with the laws of the State of New York, and the parties agree,
notwithstanding the principles of conflicts of law, that the internal laws of
the State of New York shall govern and control the validity, interpretation,
performance, and enforcement of this Agreement.
IN WITNESS WHEREOF, Consultant has hereunto put his hand, and the
Corporation has caused this instrument to be executed in its corporate name by
its duly authorized officer, all as of the day and year first above written.
CONSULTANT:
_______________________________________
Xxxx Xxxxxxxx
CORPORATION:
PEAK ENTERTAINMENT HOLDINGS, INC.
By:_____________________________________
Name:
Title:
[FORM OF WARRANT]
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED
UNTIL (I) A REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II)
THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
PEAK ENTERTAINMENT HOLDINGS, INC.
COMMON STOCK PURCHASE WARRANT
240,000 shares
Original Issue Date:
THIS CERTIFIES THAT, FOR VALUE RECEIVED, Xxxx Xxxxxxxx or his registered
assigns ("Holder") is entitled to purchase, on the terms and conditions
hereinafter set forth, at any time or from time to time from the date hereof
until 5:00 p.m., Eastern Time, on third anniversary of the Original Issue Date
set forth above, or if such date is not a day on which the Company (as
hereinafter defined) is open for business, then the next succeeding day on which
the Company is open for business (such date is the "Expiration Date"), but not
thereafter, to purchase up to TWO HUNDRED FORTY THOUSAND (240,000) shares of the
Common Stock, $.001 par value (the "Common Stock"), of Peak Entertainment
Holdings, Inc., a Nevada corporation (the "Company"), at $1.20 per share (the
"Exercise Price"), such number of shares and Exercise Price being subject to
adjustment upon the occurrence of the contingencies set forth in this Warrant.
Each share of Common Stock as to which this Warrant is exercisable is a "Warrant
Share" and all such shares are collectively referred to as the "Warrant Shares."
Section 1. Exercise of Warrant; Conversion of Warrant.
(a) This Warrant may, at the option of Holder, be exercised in whole
or in part from time to time by delivery to the Company at its principal office,
Attention: President, on or before 5:00 p.m., Eastern Time, on the Expiration
Date, (i) a written notice of such Holder's election to exercise this Warrant
(the "Exercise Notice"), which notice may be in the form of the Notice of
Exercise attached hereto, properly executed and completed by Holder or an
authorized officer thereof, (ii) a check payable to the order of the Company, in
an amount equal to the product of the Exercise Price multiplied by the number of
Warrant Shares specified in the Exercise Notice, and (iii) this Warrant (the
items specified in (i), (ii), and (iii) are collectively the "Exercise
Materials").
(b) As promptly as practicable, and in any event within five (5)
business days after its receipt of the Exercise Materials, Company shall execute
or cause to be executed and delivered to Holder a certificate or certificates
representing the number of Warrant Shares specified in the Exercise Notice,
together with cash in lieu of any fraction of a share, and if this Warrant is
partially exercised, a new warrant on the same terms for the unexercised balance
of the Warrant Shares. The stock certificate or certificates shall be registered
in the name of Holder or such other name or names as shall be designated in the
Exercise Notice. The date on which the Warrant shall be deemed to have been
exercised (the "Effective Date"), and the date the person in whose name any
certificate evidencing the Common Stock issued upon the exercise hereof is
issued shall be deemed to have become the holder of record of such shares, shall
be the date the Company receives the Exercise Materials, irrespective of the
date of delivery of a certificate or certificates evidencing the Common Stock
issued upon the exercise or conversion hereof, provided, however, that if the
Exercise Materials are received by the Company on a date on which the stock
transfer books of the Company are closed, the Effective Date shall be the next
succeeding date on which the stock transfer books are open. All shares of Common
Stock issued upon the exercise or conversion of this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes, liens, and
charges with respect thereto.
Section 2. Adjustments to Warrant Shares.
The number of Warrant Shares issuable upon the exercise hereof shall be
subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation, share
exchange, or merger, or the sale of all or substantially all of the assets
of the Company to, any person, or in the case of any consolidation or
merger of another corporation into the Company in which the Company is the
surviving corporation, and in which there is a reclassification or change
of the shares of Common Stock of the Company, this Warrant shall after such
consolidation, share exchange, merger, or sale be exercisable for the kind
and number of securities or amount and kind of property of the Company or
the corporation or other entity resulting from such share exchange, merger,
or consolidation, or to which such sale shall be made, as the case may be
(the "Successor Company"), to which a holder of the number of shares of
Common Stock deliverable upon the exercise (immediately prior to the time
of such consolidation, share exchange, merger, or sale) of this Warrant
would have been entitled upon such consolidation, share exchange, merger,
or sale; and in any such case appropriate adjustments shall be made in the
application of the provisions set forth herein with respect to the rights
and interests of Holder, such that the provisions set forth herein shall
thereafter correspondingly be made applicable, as nearly as may reasonably
be, in relation to the number and kind of securities or the type and amount
of property thereafter deliverable upon the exercise of this Warrant. The
above provisions shall similarly apply to successive consolidations, share
exchanges, mergers, and sales. Any adjustment required by this Section 2
(a) because of a consolidation, share exchange, merger, or sale shall be
set forth in an undertaking delivered to Holder and executed by the
Successor Company which provides that Holder shall have the right to
exercise this Warrant for the kind and number of securities or amount and
kind of property of the Successor Company or to which the holder of a
number of shares of Common Stock deliverable upon exercise (immediately
prior to the time of such consolidation, share exchange, merger, or sale)
of this Warrant would have been entitled upon such consolidation, share
exchange, merger, or sale. Such undertaking shall also provide for future
adjustments to the number of Warrant Shares and the Exercise Price in
accordance with the provisions set forth in Section 2 hereof.
(b) In the event the Company should at any time, or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
stock split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock, or
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock
(hereinafter referred to as "Common Stock Equivalents") without payment of
any consideration by such holder for the additional shares of Common Stock
or the Common Stock Equivalents (including the additional shares of Common
Stock issuable upon exercise or exercise thereof), then, as of such record
date (or the date of such dividend, distribution, split, or subdivision if
no record date is fixed), the number of Warrant Shares issuable upon the
exercise hereof shall be proportionately increased and the Exercise Price
shall be appropriately decreased by the same proportion as the increase in
the number of outstanding Common Stock Equivalents of the Company resulting
from the dividend, distribution, split, or subdivision. Notwithstanding the
preceding sentence, no adjustment shall be made to decrease the Exercise
Price below $.0001 per Share.
(c) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
reverse stock split, or a transaction having a similar effect on the number
of outstanding shares of Common Stock of the Company, then, as of such
record date (or the date of such reverse stock split or similar transaction
if no record date is fixed), the number of Warrant Shares issuable upon the
exercise hereof shall be proportionately decreased and the Exercise Price
shall be appropriately increased by the same proportion as the decrease of
the number of outstanding Common Stock Equivalents resulting from the
reverse stock split or similar transaction.
(d) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for a reclassification of
its Common Stock, then, as of such record date (or the date of the
reclassification if no record date is set), this Warrant shall thereafter
be convertible into such number and kind of securities as would have been
issuable as the result of such reclassification to a holder of a number of
shares of Common Stock equal to the number of Warrant Shares issuable upon
exercise of this Warrant immediately prior to such reclassification, and
the Exercise Price shall be unchanged.
(e) The Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger,
dissolution, issue, or sale of securities, sale of assets or any other
voluntary action, void or seek to avoid the observance or performance of
any of the terms of the Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such actions
as may be necessary or appropriate in order to protect the rights of Holder
against dilution or other impairment. Without limiting the generality of
the foregoing, the Company (x) will not create a par value of any share of
stock receivable upon the exercise of the Warrant above the amount payable
therefor upon such exercise, and (y) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally
issue fully paid and non-assessable shares upon the exercise of the
Warrant.
(f) When any adjustment is required to be made in the number or kind
of shares purchasable upon exercise of the Warrant, or in the Exercise
Price, the Company shall promptly notify Holder of such event and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of the Warrants and of the Exercise Price,
together with the computation resulting in such adjustment.
(g) The Company covenants and agrees that all Warrant Shares which may
be issued will, upon issuance, be validly issued, fully paid, and
non-assessable. The Company further covenants and agrees that the Company
will at all times have authorized and reserved, free from preemptive
rights, a sufficient number of shares of its Common Stock to provide for
the exercise of the Warrant in full.
Section 3. No Stockholder Rights.
This Warrant shall not entitle Holder hereof to any voting rights or other
rights as a stockholder of the Company.
Section 4. Transfer of Securities.
(a) This Warrant and the Warrant Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon, or otherwise, shall not be
transferable except upon compliance with the provisions of the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities laws
with respect to the transfer of such securities. The Holder, by acceptance of
this Warrant, agrees to be bound by the provisions of Section 4 hereof and to
indemnify and hold harmless the Company against any loss or liability arising
from the disposition of this Warrant or the Warrant Shares issuable upon
exercise hereof or any interest in either thereof in violation of the provisions
of this Warrant. (b) Each certificate for the Warrant Shares and any shares of
capital stock received in respect thereof, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate shall (unless otherwise permitted by the provisions hereof) be
stamped or otherwise imprinted with a legend in substantially the following
form:
"NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER."
Section 5. Registration.
All Warrant Shares are subject to the rights and privileges granted to the
participants in the private placement offering pursuant to which this Warrant
was issued.
Section 6. Miscellaneous.
(a) The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or permitted assigns of the Company and Holder.
(b) Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person or by duly
authorized attorney on the books of the Company upon surrender of this Warrant,
properly endorsed, to the Company. The Company may deem and treat the registered
holder of this Warrant at any time as the absolute owner hereof for all purposes
and shall not be affected by any notice to the contrary.
(c) Notwithstanding any provision herein to the contrary, Holder may
not exercise, sell, transfer, or otherwise assign this Warrant unless the
Company is provided with an opinion of counsel satisfactory in form and
substance to the Company, to the effect that such exercise, sale, transfer, or
assignment would not violate the Securities Act or applicable state securities
laws.
(d) This Warrant may be divided into separate warrants covering one
share of Common Stock or any whole multiple thereof, for the total number of
shares of Common Stock then subject to this Warrant at any time, or from time to
time, upon the request of the registered holder of this Warrant and the
surrender of the same to the Company for such purpose. Such subdivided Warrants
shall be issued promptly by the Company following any such request and shall be
of the same form and tenor as this Warrant, except for any requested change in
the name of the registered holder stated herein.
(e) Any notices, consents, waivers, or other communications required
or permitted to be given under the terms of this Warrant must be in writing and
will be deemed to have been delivered (a) upon receipt, when delivered
personally, (b) upon receipt, when sent by facsimile, provided a copy is mailed
by U.S. certified mail, return receipt requested, (c) three (3) days after being
sent by U.S. certified mail, return receipt requested, or (d) one (1) day after
deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same.
If to Holder, to the registered address of Holder appearing on the books of
the Company. Each party shall provide five (5) days prior written notice to the
other party of any change in address, which change shall not be effective until
actual receipt thereof
(f) The corporate laws of the State of Nevada shall govern all issues
concerning the relative rights of the Company and its stockholders. All other
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of New
York. Each party hereby irrevocably submits to the non-exclusive jurisdiction of
the state and federal courts sitting the City of New York, borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Warrant and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If any provision of this
Warrant shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Warrant in that jurisdiction or the validity or enforceability
of any provision of this Warrant in any other jurisdiction.
[Signatures on the following page]
SIGNATURE PAGE
TO
COMPANY
COMMON STOCK PURCHASE WARRANT
IN WITNESS WHEREOF, the Company, has caused this Warrant to be executed in
its name by its duly authorized officers under seal, and to be dated as of the
date first above written.
PEAK ENTERTAINMENT HOLDINGS, INC.
By:_______________________________
Name: Xxxxxxx Xxxxxxxxx
Title: President
ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the
foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers
unto
___________________________________________________________________________
the foregoing Warrant and the rights represented thereto to purchase shares of
Common Stock of Peak Entertainment Holdings, Inc. in accordance with terms and
conditions thereof, and does hereby irrevocably constitute and appoint
________________ Attorney to transfer the said Warrant on the books of the
Company, with full power of substitution.
Holder:
_______________________________
_______________________________
Address
Dated: __________________, 20__
In the presence of:
_______________________________
EXERCISE or conversion notice
[To be signed only upon exercise of Warrant]
To: Peak Entertainment Holdings, Inc.
The undersigned Holder of the attached Warrant hereby irrevocably elects to
exercise the Warrant for, and to purchase thereunder, _____ shares of Common
Stock of Peak Entertainment Holdings, Inc., issuable upon exercise of said
Warrant and hereby surrenders said Warrant.
The undersigned herewith requests that the certificates for such shares be
issued in the name of, and delivered to the undersigned, whose address is
________________________________.
If electronic book entry transfer, complete the following:
Account Number:____________________________
Transaction Code Number:___________________
Dated: ___________________
Holder:
____________________________
____________________________
By:_________________________
Name:
Title:
NOTICE
The signature above must correspond to the name as written upon the face of
the within Warrant in every particular, without alteration or enlargement or any
change whatsoever.
