EXHIBIT 10.4
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 1st day of September, 2004,
between Peak Entertainment Holdings, Inc. and CEOcast, Inc. (the "Consultant")
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby employs the Consultant during the Term (as
defined below) to render Investor Relations services to the Company,
upon the terms and conditions as set forth herein.
2. Term. This Agreement shall be effective for a six-month period (the
"Term") commencing on the date hereof.
3. Duties of Consultant. During the term of this Agreement, the Consultant
shall provide to the Company those services outlined in Exhibit A.
Notwithstanding the foregoing, it is understood and acknowledged by the
parties that the Consultant: (a) shall perform its analysis and reach
its conclusions about the Company independently, and that the Company
shall have no involvement therein; and (b) shall not render advice
and/or services to the Company in any manner, directly or indirectly,
that is in connection with the offer or sale of securities in a capital
raising transaction or that could result in market making.
4. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all
reasonable pre-approved out-of-pocket expenses incurred by it in
connection with services requested by the Company, including, but not
limited to, all charges for travel, printing costs and other expenses
spent on the Company's behalf. The Company shall immediately pay such
expenses upon the presentation of invoices. Consultant shall not incur
more than $500 in expenses without the express consent of the Company.
5. Compensation. For services to be rendered by the Consultant hereunder,
the Consultant shall receive from the Company upon the signing of the
Agreement: (a) $10,000 (the "Retainer"), which shall represent the
first month's payment under the Agreement and (b) 400,000 shares of the
Company's fully-paid non-assessable common stock (the "Common Stock").
The Common Stock shall be issued to Consultant or its designee. Company
agrees to register the Common Stock in connection with the next
registration of its securities. In addition, the Company shall pay
Consultant $10,000 on or before the first day of each of the next five
months, plus expenses outlined in Section 4. Company shall pay any
unpaid Consultant's Expenses under Section 4 at the end of the
Agreement. Company shall have the option to pay Consultant $5,000 per
month, and accrue $5,000 per month, until the Company raises debt or
equity financing exceeding $500,000 upon which occurrence, the Company
shall pay all amounts due and unpaid.
6. Further Agreements. Because of the nature of the services being
provided by Consultant hereunder, Consultant acknowledges that if it
may receive access to Confidential Information (as defined in Section 7
hereof ) and that, as a consultant to the Company, it will attempt to
provide advice that serves the best interest of the Company.
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7. Confidentiality. Consultant acknowledges that as a consequence of its
relationship with the Company, it may be given access to confidential
information which may include the following types of information;
financial statements and related financial information with respect to
the Company and its subsidiaries (the "Confidential Financial
Information"), trade secrets, products, product development, product
packaging, future marketing materials, business plans, certain methods
of operations, procedures, improvements, systems, customer lists,
supplier lists and specifications, and other private and confidential
materials concerning the Company's business (collectively,
"Confidential Information").
Consultant covenants and agrees to hold such Confidential
Information strictly confidential and shall only use such information
solely to perform its duties under this Agreement, and Consultant shall
refrain from allowing such information to be used in any way for its
own private or commercial purposes. Consultant shall also refrain from
disclosing any such Confidential Information to any third parties.
Consultant further agrees that upon termination or expiration of this
Agreement, it will return all Confidential Information and copies
thereof to the Company and will destroy all notes, reports and other
material prepared by or for it containing Confidential Information.
Consultant understands and agrees that the Company might be irreparably
harmed by violation of this Agreement and that monetary damages may be
inadequate to compensate the Company. Accordingly, the Consultant
agrees that, in addition to any other remedies available to it at law
or in equity, the Company shall be entitled to injunctive relief to
enforce the terms of this Agreement without proving actual damages.
Notwithstanding the foregoing, nothing herein shall be
construed as prohibiting Consultant from disclosing any Confidential
Information (a) which at the time of disclosure Consultant can
demonstrate either was in the public domain and generally available to
the public through no act of the Consultant; (b) which Consultant can
establish was independently developed by a third party who developed it
without the use of the Confidential Information and who did not acquire
it directly or indirectly under an obligation of confidence; or (c)
which Consultant can show was received by it after the termination of
this Agreement from a third party who did not acquire it directly or
indirectly from the Company under an obligation of confidence. To the
extent that the Consultant is legally compelled in any legal
proceeding, governmental investigation, or other similar proceeding to
disclose any Confidential Information to any person, Consultant shall
provide the Company with prompt prior written notice of such fact by
facsimile so that the Company may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this
Agreement with respect to such disclosure. In the event that such
disclosure is made, Consultant shall disclose only that portion of the
Confidential Information legally required to be disclosed and shall
take reasonable measures to ensure that confidential treatment will be
afforded to such disclosed Confidential Information.
8. Governing Law; Venue; Jurisdiction. This Agreement shall be construed
and enforced in accordance with and governed by the laws of the State
of New York, without reference to principles of conflicts or choice of
law thereof. Each of the parties consents to the jurisdiction of the
U.S. District Court in the Southern District of New York in connection
with any dispute arising under this Agreement and hereby waives, to the
maximum extent permitted by law, any objection, including any objection
based on forum non conveniens to the bringing of any such proceeding in
such jurisdictions. Each party hereby agrees that if another party to
this Agreement obtains a judgment against it in such a proceeding, the
party which obtained such judgment may enforce same by summary judgment
in the courts of any country having jurisdiction over the party against
whom such judgment was obtained, and each party hereby waives any
defenses available to it under local law and agrees to the enforcement
of such a judgment. Each party to this Agreement irrevocably consents
to the service of process in any such proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to
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such party at it address set forth herein. Nothing herein shall affect
the right of any party to serve process in any other manner permitted
by law. Each party waives its right to a trial by jury.
9. Miscellaneous.
(a) Any notice or other communication between parties hereto shall
be sufficiently given if sent by certified or registered mail,
postage prepaid, by overnight courier or facsimile, if to the
Company, addressed to it at Xxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx, XX XX00 0XX, facsimile number: x00(0)0000 000000,
with a copy via facsimile to Law Offices of Xxx Xxxxxxx,
facsimile number: 000-000-0000, or if to the Consultant,
addressed to it at CEOcast, Inc., 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Administrator, facsimile
number: (000) 000-0000, or to such address as may hereafter be
designated in writing by one party to the other. Any notice or
other communication hereunder shall be deemed given three days
after deposit in the mail if mailed by certified mail, return
receipt requested, or on the day after deposit with an
overnight courier service for next day delivery, or on the
date delivered by hand or by facsimile with accurate
confirmation generated by the transmitting facsimile machine,
at the address or number designated above (if delivered on a
business day during normal business hours where such notice is
to be received), or the first business day following such
delivery (if delivered other than on a business day during
normal business hours where such notice is to be received).
(b) This Agreement embodies the entire Agreement and understanding
between the Company and the Consultant and supersedes any and
all negotiations, prior discussions and preliminary and prior
arrangements and understandings related to the central subject
matter hereof.
(c) This Agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the Consultant.
(d) This Agreement and all rights, liabilities and obligations
hereunder shall be binding upon and inure to the benefit of
each party's successors but may not be assigned without the
prior written approval of the other party.
(e) If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal
or otherwise, the remainder of this Agreement shall not be
affected thereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date hereof.
PEAK ENTERTAINMENT HOLDINGS INC.
By: /s/________________________
CEOCAST, INC.
By: /s/________________________
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