EXHIBIT 10.12
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 17th day of November,
2004 between Sunset Brands, 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 one-year period (the
"Term") commencing on the date hereof but may be terminated by the
Company for any reason upon at least thirty (30) days prior
written notice.
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.
Consultant shall use its best efforts to conduct its services and
affairs in a professional manner and in accordance with good
industry practice.
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. Consultant shall
not incur (i) any travel expenses or (ii) more than $500 in other
expenses, without the express written authorization 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) $15,000 (the "Retainer), which shall
represent the first and last month's payment under the Agreement
and 70,000 shares of the Company's fully-paid, non-assessable
common stock ("Common Stock"). In addition, the Company shall pay
Consultant $7,500 on or before the 17th day of each month during
the term of this Agreement, excluding the final month. Company
shall also pay Consultant's Expenses as outlined in Section 4
promptly. Company shall grant Consultant, or its designee,
"piggyback" registration rights, which shall entitle Consultant or
its designee to register its shares in connection with the
Company's next registration of securities for which Consultant's
Common Stock is eligible to be registered, at Company's expense;
provided, however, that no such registration shall be required
after one year from the date of grant so long as the Company
provides, at Company's expense, a legal opinion which will allow
Consultant or its designee to register for sale its Common Stock
under Rule 144. In the event that this Agreement is terminated by
the Company prior to the expiration of the initial one year term,
the Company shall not be required to make any monthly payment for
any period following the date of such termination.
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 6 hereof ) and that, as a consultant to the Company, it
will attempt to provide advice that serves the best interest of
the Company. Because of the uniqueness of this
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relationship, the Consultant covenants and agrees that, with
respect to the Common Stock that it receives. Consultant shall, at
all times that it is the beneficial owner of such shares, vote
such shares on all matters coming before it as a stockholder of
the Company in the same manner as the majority of the Board of
Directors of the Company shall recommend or if no such
recommendation is made, shall not vote with respect to such
matters.
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.
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 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 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 Consultant
under an obligation of confidence; (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; 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. Severability. 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.
9. 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
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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.
10. Independent Relationship. It is mutually understood and agreed
that the relationship between the parties under this Agreement is
not an employment relationship and that the Consultant is acting
and performing services at all times as an independent contractor.
Each party shall be solely responsible for and shall be in
compliance with all state and federal laws pertaining to
employment taxes, income taxes, unemployment compensation
contributions, and other employment related statutes.
11. Representations, Warranties and Covenants of Consultant.
Consultant represents, warrants and covenants that (i) it has all
licenses and permits required to be held by it or its personnel
under applicable law in order to render the services contemplated
by this Agreement, (ii) in rendering the services contemplated by
this Agreement, it will comply with all applicable state and
federal laws and regulations, including all applicable
anti-spamming and similar laws and regulations, and (iii) will
indemnify, defend and hold harmless the Company and its officers,
directors, agents and affiliates from and against any loss, damage
or liability (including reasonable attorneys fees and costs)
resulting from a breach by Consultant of any of the material terms
or provisions of this Agreement.
12. 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 its
executive offices as set forth in its latest public filings
with the Securities and Exchange Commission, Attention: Chief
Executive Officer, or if to Consultant, addressed to it at
CEOcast, Inc., 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Administrator, facsimile number: (212)
732-1131, 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date hereof.
SUNSET BRANDS, INC.
By: /s/ XXXX XXXXXXX
----------------------------
CEOCAST, INC.
By: /s/ XXXXXXX XXXXX
----------------------------
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EXHIBIT A
1. Non-deal road show including meetings with brokers, fund
managers and sells-side analysts.
2. Company featured on the Home Page of CEOcast Internet
site for one week.
3. The writing and distribution of press releases to over
275,000 opt-in consumer products investors.
4. Company covered in CEOcast weekly newsletter.
5. Calls to 200 brokers on each news release.
6. Interviews on xxxxxxx.xxx web site as desired with
distribution to over 275,000 opt-in consumer products
investors.
7. Investor line to handle call volume.
8. Strategic advice, including technical analysis to ensure
that press release distribution and other dissemination of
news releases generates the maximum impact.
9. Maintenance of company databases.
10. Market surveillance.
Notwithstanding anything to the contrary contained in this
Exhibit A or the Agreement of which this Exhibit A is a
part, Consultant shall not issue any press release or
otherwise distribute information regarding the Company
without prior approval of the form and content of such
information.
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