EXHIBIT 10.4
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 1st day of October, 2005,
between Terra Insight Corporation (the "Company") 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 one-year period (the "Term")
commencing on the date hereof. The Company shall have the option to
terminate the Agreement on the four-month anniversary.
3. Duties of Consultant. During the term of this Agreement, the Consultant
shall provide to the Company those services outlined in Exhibit A, under
the direct personal supervision of Xxxxxxx Xxxxx. 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
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. The 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) $5,000 (the "Retainer"), which represents the first and last
month's payment under the Agreement and 175,000 shares of the Company's
fully-paid non-assessable, common stock ("the "Common Stock"). In addition,
the Company shall pay the Consultant $5,000 on or before the 1st day of
each month during the term of the program. The Company shall also pay the
Consultant expenses as outlined in Section 4 upon presentation of invoices.
Company agrees, at its expense, to register the Consultant's shares in
connection with the next registration of its securities ("piggyback
registration rights"), unless requested by an underwriter thereof not to do
so, in which case the Consultant's shares shall be registered in the next
following registration thereafter. The Company agrees to provide an
opinion, at its expense, allowing the Consultant to sell its shares under
Rule 144, provided Rule 144 is applicable, at the end of one year. The
Company shall also issue the Consultant 325,000 shares of Common Stock on
the four-month anniversary of the Agreement, unless the Company elects to
terminate the Agreement pursuant to Section 2.
6. Further Agreements. Because of the nature of the services being provided by
the Consultant hereunder, the Consultant acknowledges that 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.
7. Confidentiality. The 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").
The 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 the Consultant shall
refrain from allowing such information to be used in any way for its own
private or commercial purposes. The Consultant shall also refrain from
disclosing any such Confidential Information to any third parties. The
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. The 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.
Notwithstanding the foregoing, nothing herein shall be construed as
prohibiting the Consultant from disclosing any Confidential Information (a)
which at the time of disclosure, the Consultant can demonstrate either was
in the public domain and generally available to the public or thereafter
becomes a part of the public domain and is generally available to the
public by publication or otherwise through no act of the Consultant; (b)
which the 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 from the Consultant under an
obligation of confidence; (c) which the 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; or (d) to the extent that the Consultant can reasonably
demonstrate such disclosure is required by law or in any legal proceeding,
governmental investigation, or other similar proceeding.
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 federal
and state courts located in New York County in the State 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 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, if to the Company, addressed to it at Terra Insight
Corporation, 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xxx Xxxxxxx, facsimile number: (000) 000-0000, or if to the
Consultant, addressed to it at CEOcast, Inc., 000 Xxxxxxxxx Xxxxxx,
0xx 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
other provisions 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.
TERRA INSIGHT CORPORATION
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, Managing Director
CEOCAST, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
EXHIBIT A
1. interviews on xxxxxxx.xxx that will be distributed to over 275,000 opt-in
energy investors registered on our Internet site.
2. Company featured on the Home Page of our Internet site for one week each
quarter.
3. The writing and distribution of press releases to over 275,000 opt-in energy
investors.
4. Company covered in CEOcast weekly newsletter.
5. Calls to 200 brokers on each news release. These brokers can buy small-cap
securities in particular.
6. Meetings with small-cap brokerage firms and brokers to develop support for
the company's stock and research coverage.
7. Investor line to handle call volume.
8. Strategic advice and other customary IR services.
