EXHIBIT 10.8
[Logo Graphic Omitted]
INVESTOR RELATIONS CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made this 1st day of May, 2005, by
and between Catcher, Inc. a Delaware Corporation (together with its parent and
any affiliates, hereinafter referred to as the "Company" or "Catcher"), and
Hayden Communications, Inc., a South Carolina Corporation (hereinafter referred
to as the "Consultant" or "HC").
EXPLANATORY STATEMENT
The Consultant affirms that it has successfully demonstrated financial
and public relations consulting expertise, and possesses valuable knowledge, and
experience in the areas of business finance and corporate investor/public
relations. The Company believes that the Consultant's knowledge, expertise and
experience would benefit the Company, and the Company desires to retain the
Consultant to perform consulting services for the Company under this Agreement.
NOW, THEREFORE, in consideration of their mutual agreements and
covenants contained herein, and for other valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and in further consideration of
the affixation by the parties of their respective signatures below, the parties
agree as follows:
I. CONSULTING SERVICES
1.1 HC agrees that for a period of twelve (12) months commencing [May 1],
2005, the Consultant will reasonably be available during regular business hours
to advise, counsel and inform designated officers and employees of the Company
about the various industries and businesses in which the Company is engaged,
financial markets and exchanges, competitors, business acquisitions and other
aspects of or concerning the Company's business about which HC has knowledge or
expertise.
1.2 HC shall render services to the Company as an independent contractor,
and not as an employee. All services rendered by HC on behalf of the Company
shall be performed to the best of HC's ability in concert with the overall
business plan of the Company and the goals and objectives of the Company's
management and Board of Directors. Consultant further acknowledges the
consideration provided below is a gross amount of consideration and that the
Company will not withhold from such consideration any amounts as to income
taxes, social security payments or any other payroll taxes. All such income
taxes and other such payment shall be made or provided for by Consultant
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and the Company shall have no responsibility or duties regarding such matters.
Neither the Company nor the Consultant possesses the authority to bind each
other in any agreements without the express written consent of the entity to be
bound.
II. SCOPE OF SERVICES/PROGRAMS/ACTIVITIES
Hayden Communications, Inc. (HC) will develop, implement, and maintain an
investor communications and market support system for the Company with the
general objective of expanding awareness about the Company and its CATCHERTM
device among stockbrokers, analysts, micro-cap portfolio/fund managers, market
makers, and the appropriate financial & trade publications, while keeping
current investors informed and aware of material developments.
1. PROFESSIONAL INVESTMENT COMMUNITY AWARENESS
A. Introductions to professionals at select firms, with a focus
on members of the Financial Community in various geographic
regions, both in the United States, Canada and Europe. The
targeted group of professionals, which would be drawn from our
proprietary database of contacts will be a SUBSET of the
following:
1. Over 20,000 Equity Brokers
2. Over 1,400 Analysts (Buy and Sell Side - both generalists
and industry specialists)
3. Over 4,500 Micro-Cap Portfolio/Hedge Fund Managers
4. Over 120 Market Makers (both retail and wholesale)
5. Financial, Trade and Industry Publications
B. Introductions to new fund managers and analysts (buy and sell
side) through the utilization of both Big Dough and other
on-line tools such as StreetWise, etc.
C. Introductions to High Net-Worth accredited investors who build
positions in micro-cap companies and are familiar with other
quality companies, which Hayden Communications, Inc. currently
and previously represented.
D. Broker conference calls/presentations arranged by HC in select
cities (ONCE A QUARTER) with top management at the Company.
Cities we would schedule meetings include New York, Baltimore,
Boston, Dallas, Denver, Ft. Lauderdale, Tampa, Houston,
Atlanta, Chicago, LA, Minneapolis, Miami, Orange County, CA,
San Diego, San Francisco, St. Louis, D.C., and other select
cities.
E. All interested parties will be continually updated of
Company's progress via phone conversations and through our
fax/e-mail list for news releases.
F. HC will screen all investment firms for upcoming financial
conferences, which would be appropriate for the Company. HC
will work through the proper channels with the goal of
receiving invitations for management to present at those
conferences which are relevant.
2. SHAREHOLDER COMMUNICATIONS
A. HC will consult management in all aspects as it relates to the
public dissemination of information to shareholders, the press
and financial community.
B. Handle investor requests for timely information via the
telephone and e-mail. HC will have a knowledgeable associate
available during market hours to field and respond to all
investor inquiries in a timely manner. This is a time
intensive service that allows management to focus on executing
its business plan.
C. HC will provide same day fulfillment for all investor package
requests.
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D. Quarterly Conference Calls to accompany the earnings release.
HC will assist with scripting these calls and monitoring the
continuity to ensure a smooth roll-out for investors.
E. Quarterly Interim-Reports to the shareholders, which provides
a complete update on the Company's performance, financial
position and material developments. The interim report
includes a "CEO letter" to the shareholders updating Company
achievements and properly positioning the company's strategic
growth opportunities.
3. THE FINANCIAL PRESS
A. HC will assist senior management to draft and complete press
releases on all material events as deemed by the Company.
Management and corporate counsel will approve all releases
before they are sent to the wire.
B. HC will disseminate news releases through a Broadcast Fax
and/or electronic mail (e- mail) to our established database
of financial professionals including: special situation
analysts, brokers, fund managers, individual investors, money
managers, and current or prospective individual shareholders
who are already invested or have expressed an interest in the
Company.
C. HC will contact the national and regional circuits to receive
coverage for material developments at the Company with
regional and national newspapers, television, radio stations
and the relevant trade publications.
4. MEDIA RELATIONS
A. Our Media Department will develop a focus list of financial
publications and contact appropriate editors, review and
manage editorial calendars for relevant upcoming articles.
B. Financial Newsletter campaign. HC will work with our many
financial newsletter editors and publishers for a "Buy
Recommendation" for the Company. The newsletters we contact
have a paid subscription base of investors who focus solely on
micro cap stocks and do not solicit compensation for coverage.
A "Buy Recommendation" can produce a great deal of new
investor interest and lends third party support and opinion.
HC has been able to achieve "Buy Recommendations" for former
and current clients in: The Kon-Lin letter, The Conservative
Speculator, Dick Davis Digest, George Southerland's Special
Investment Situations, The Patient Inve$tor, and Equities
Special Situations. Other publications we have worked with and
will introduce the Company to include: The Red Chip Review,
Investor's Digest, The Quiet Investor, Acker Letter,
High-Growth Newsletter, Bullish Investor, Low-Priced Stocks,
and the Micro-Stock Digest.
III. AGENDA (INITIAL 4 MONTHS)
A. Establish a time line of expected corporate events,
partnerships, news queue, trade shows, product launches, etc.
B. Work with management on proper positioning of the Company for
both the financial community and business media.
C. Generate a two-page CORPORATE PROFILE, which clearly
articulates Catcher's current business and financial position,
as well as its strategy for future growth.
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D. Assist Catcher in creating its investor package and investor
information via the company's corporate Web site. Assist with
Shareholders' letter included quarterly update.
E. Assist management in updating its PowerPoint presentation to
utilize during corporate presentations. F. Make Select
Introductions to those investors who have a long-term horizon
and tend to be position builders. G. Open a line of
communication with current significant shareholders, including
funds and brokers/high-net worth individuals. Handle all
incoming investor calls.
EXPANDED AGENDA - FOLLOWING 8 MONTHS
H. Target select brokers and micro-cap fund managers, which
follow growth companies that have a similar profile to the
Company.
I. Once HC has created a geographic footprint of interest we will
plan in house broker and fund meetings/conference calls in
select cities (typically one to two groups of meetings per
quarter). Follow up with phone calls to gauge management's
effectiveness in articulating the story.
J. Target newsletter editors and publishers for a "Buy
Recommendation". Focus on Financial Publications for
appropriate stories on the Company's products, services,
attributes and value proposition to the marketplace.
K. If appropriate, introduce the Company to possible acquisition
and/or joint venture candidates.
L. Evaluate achievements and formulate new agenda if relationship
continues.
ONGOING SERVICES
M. Maintain and update the database to ensure that all press
releases are faxed and/or e-mailed to all interested
professionals.
N. Manage all investor calls in a timely manner to facilitate the
timely distribution of corporate information. Focus on
educating professional shareholders, with the premise that an
informed investor will become a longer term shareholders.
Many of the above items will occur simultaneously. Certain items will
have chronological priority over others, however for the most part
agenda items will progress in unison throughout the initial 120-day
period. As the Company grows and evolves, we will recommend changes to
the Agenda that compliment the growth. As the company continues to
execute its strategic plan by signing new installation contracts and
completing strategic acquisition which will compliment its growth, we
will target an expanded universe of brokers, analysts and
portfolio/fund managers. At each stage of growth, the appropriate
approach to the market will be incorporated into the agenda for optimal
results. A new formal Agenda will be created after the initial four
months, or earlier if necessary.
GENERAL
O. Notwithstanding anything in this Agreement to the contrary, HC
will not release any materials or oral disclosure (not already
available in the general public) to the general public or to the
financial or other particular community within the scope of HC's duties
under this
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Agreement without first obtaining from the Company its written consent
to do so, including approval of the content of such materials or
disclosure.
IV. TERM
This Agreement shall remain in effect for a period commencing on the signature
date and terminating twelve months (360 days) from signing date. At the six
month anniversary either party will have the option to terminate the Agreement
immediately upon notice. In the event that HC commits any material breach or
violation of the provisions of this Agreement, then, the Company has the right
to terminate this Agreement any time during the contractual period and/or any
extension periods after the initial contractual period upon notice. It is also
understood that the Company is entering into this Agreement with Consultant
based on its personal relationship and confidence in the skills of Matthew
Heyden. Therefore, if Mr. Heyden leaves the Consultant or dies or becomes
physically unable to perform any meaningful activities during the term of the
Agreement, the Company will have the right to terminate this Agreement upon
notice to the Consultant.
V. COMPENSATION AND EXPENSES
A. Regarding compensation, it is our intention to propose
parameters that are mutually acceptable to both the Company
and HC in order to accomplish our collective mission. Based on
a commitment of resources necessary to perform successfully on
behalf of Catcher for a period of 12 months, Hayden
Communications will be paid a services fee of $5,000 due at
the beginning of each month of service.
B. Only expenses that would ordinarily be incurred by the Company
will be billed back on a monthly basis. Applicable
reimbursements would include: postage for investor packages or
research reports (if our office provides fulfillment), fees
for news wire services (if our office disseminates news
releases), and fees for fax-broadcasting news releases. The
Company shall provide HC all investor and broker due-diligence
packages. Any packages requiring additional
photocopying/printing will be billed back to the Company at
cost (with no mark-up). Any extraordinary items, such as
broker lunch presentations, air travel, hotel, ground
transportation or media campaigns, etc. shall be paid by the
Company, only with Company authorization prior to incurring
any expenses.
VI. PRIOR RESTRICTION
HC represents to the Company that it is not subject to, or bound by, any
agreement which sets forth or contains any provision, the existence or
enforcement of which would in any way restrict or hinder HC from performing the
services on behalf of the Company that HC is herein agreeing to perform.
VII. ASSIGNMENT
This Agreement is personal to HC and may not be assigned in any way by HC
without the prior written consent of the Company. Subject to the foregoing, the
rights and obligations under this Agreement shall inure to the benefit of, and
shall be binding upon, the heirs, legatees, successors and permitted assigns of
HC, and upon the successors and assigns of the Company.
VIII. CONFIDENTIALITY
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The Consultant acknowledges that during the term of this Agreement "Confidential
Information" of the Company will be disclosed, orally and in writing, or
revealed to it, which information is not readily available to the general pubic.
Confidential Information includes, without limitation, business plans, financial
information, strategic plans, personnel information, ideas and concepts. The
Consultant acknowledge that the Confidential Information contains unique,
valuable, and confidential proprietary information which is not available to the
general public, as well as trade secrets, concepts, and ideas. The Consultant
will hold the Confidential Information in the strictest confidence and will not
disclose such Confidential Information to any other persons or entities, other
than authorized representatives of the Company, either orally or in writing,
unless it shall have obtained the prior written consent of the Company. The
Consultant also will make use of Confidential Information only for purposes of
performing its obligations pursuant to this Agreement and will not make use of
the Confidential Information for its own benefit at any time. In the event that
the Consultant is requested in any proceeding to disclose any Confidential
Information, the Consultant will give the Company prompt notice of such request
so that the Company may seek an appropriate protective order. If, in the absence
of a protective order, the Consultant is nonetheless compelled to disclose
Confidential Information, the Consultant may disclose such information without
liability hereunder; provided, however, that the Consultant gives the Company
notice of the Confidential Information to be disclosed as far in advance of its
disclosure as is practicable and uses all commercially reasonable efforts to
obtain assurances that confidential treatment will be accorded to such
Confidential Information. Upon request of the Company, the Consultant agrees
that it will promptly return to the Company all tangible evidence of any
Confidential Information and all copies thereof and memoranda with respect
thereto which are in its possession, and to delete any computer reproducible
form of the Confidential Information. The Company may request return of such
Confidential Information at any time at its sole discretion. The Consultant
acknowledge that violation of any of the provisions of this paragraph will
result in irreparable harm to the Company and that damages would be an
inadequate remedy. Accordingly, the Consultant agrees that, in addition to all
remedies at law, the Company is entitled to equitable relief, including without
limitation injunctive relief (temporary, preliminary or permanent), in any court
of competent jurisdiction to restrain any violation of this paragraph without
any requirement to post bond as a condition of such relief and to such other and
further relief as a court of competent jurisdiction may deem proper under the
circumstances.
IX. MANDATORY ARBITRATION AND DEFAULT
9.1 Except for a claim or controversy arising under Section 6 of this
Agreement, any dispute arising between the Company and HC in connection with
this Agreement shall be, in the first instance, settled between the parties. If
amicable settlement cannot be reached within thirty (30 days, then any dispute
arising out of or relating to this Agreement, including with respect to its
arbitrability, will be finally and exclusively settled by arbitration in
accordance with the commercial rules of the American Arbitration Association
(the "Rules"), except that the arbitrator shall not have the power to alter,
modify, amend, add to or subtract from any term or provision of this Agreement
or to grant injunctive relief of any nature. The arbitration will be governed by
the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq., and judgment upon
the reward rendered by the arbitrator may be entered by any court with complete
jurisdiction. The arbitration will be held in San Diego. The arbitrator shall
apply the
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internal law of the State of California. If judicial action is commenced in
order to compel arbitration, and if arbitration is in fact compelled, the party
that shall have resisted arbitration shall be required to pay to the other party
all costs and expenses, including reasonable attorneys' fees, that it incurs in
compelling arbitration. The arbitration shall be conducted by a sole arbitrator
to be appointed in accordance with the Rules. The parties agree to exclude any
right of application to appear to any courts in connection with any question of
law or fact arising in the course of the arbitration or with respect to any
award made, except for the purposes of enforcing the award or enforcing the
obligation to arbitrate.
9.2 The Consultant acknowledge that material breach of any of the
provisions of this Agreement will result in irreparable harm to the Company and
that damages would be an inadequate remedy. Therefore, in the event that HC
commits any material breach of any provision of this Agreement, as determined by
the Company in good faith, the Company may, by injunctive action, compel HC to
comply with, or restrain HC from violating, such provision, and, in addition,
and not in the alternative, the Company shall be entitled to declare HC in
default hereunder and to terminate this Agreement and any further payments
hereunder. Accordingly, the Consultant agrees that, in addition to all remedies
at law, the Company is entitled to equitable relief, including without
limitation injunctive relief (temporary, preliminary or permanent), in any court
of competent jurisdiction to restrain any violation of this paragraph without
any requirement to post bond as a condition of such relief and to such other and
further relief as a court of competent jurisdiction may deem proper under the
circumstances.
9.3 The Company warrants and represents that all oral communications,
written documents or materials furnished to Consultant in connection with its
duties under this Agreement are accurate in all material respects and Consultant
may rely upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless Consultant against any claims
or litigation including any damages, liability, cost and reasonable attorney's
fees as incurred with respect thereto resulting from Consultant's communication
or dissemination of any said information, documents or materials excluding any
such claims or litigation resulting from Consultant's communication or
dissemination of information not provided or authorized by the Company.
Consultant will indemnify and hold Company harmless against any claims or
litigation, including any damages, liability, cost and reasonable attorney's
fees as incurred with respect thereto resulting from Consultant's communication
or dissemination of any false or inaccurate information, provided said
information was not given to the Consultant by the Company. The indemnifying
party will have the right to control the defense of such matter indemnified and
no matter will be settled, except solely for money, without the indemnified
party's prior written approval and only if the settlement provides an
unconditional release of the indemnified party.
X. SEVERABILITY AND REFORMATION
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future law, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision were never a part hereof, and the
remaining provisions shall remain in full force and shall not be affected by the
illegal, invalid, or unenforceable provision, or
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by its severance; but in any such event this Agreement shall be construed to
give effect to the severed provision to the extent legally permissible.
XI. NOTICES
Any notices required by this Agreement shall (i) be made in writing and
delivered to the party to whom it is addressed by hand delivery, by certified
mail, return receipt requested, with adequate postage prepaid, or by courier
delivery service (including major overnight delivery companies such as Federal
Express and Airborne), (ii) be deemed given when received, and (iii) in the case
of the Company, be mailed to its principal office at 1165 Via Vera Cruz, San
Marcos, CA 92069, Attention President, and in the case of HC, be mailed to
Hayden Communications, Inc., 1401 Havens Drive, Suite 100, North Myrtle Beach,
South Carolina 29582.
XII. MISCELLANEOUS
12.1 This Agreement may not be amended, except by a written instrument
signed and delivered by each of the parties hereto.
12.2 This Agreement contains the entire agreement of the parties relating to
the subject matter hereof and supersedes all prior written and oral agreements,
representations, warranties and understandings between the parties with respect
to the subject matter hereof. No provision of this Agreement and its terms may
not be changed or waived orally but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
12.3 This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
In Witness Whereof, the parties have executed this Consulting Agreement as of
the day and year first above written.
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AGREED:
HAYDEN COMMUNICATIONS, INC. CATCHER, INC.
BY: /s/ Matthew M. Hayden BY: /s/ Ira Tabankin
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MATTHEW M. HAYDEN, PRESIDENT IRA TABANKIN, CHAIRMAN
DATE: DATE:
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