Exhibit 10.8
CONSULTING AGREEMENT
THIS MANAGEMENT CONSULTING AGREEMENT (this "Agreement") is made as of
the 1st day of August, 2006, by and between Tombstone Cards Inc. a Colorado
corporation (the "Company"), and Capital Merchant Banc, LLC, an Illinois limited
liability company ("Consultant").
RECITALS:
WHEREAS, the Company desires to engage Consultant to perform
consulting services relating to marketing, sales, and corporate structure
services for the Company in connection with the Company's development and launch
of a line of print based products in the Poker Industry (the "Project").
WHEREAS, Consultant is willing to be so engaged, and desires to work
with the Company.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. ENGAGEMENT OF CONSULTANT. The Company hereby engages Consultant, and
Consultant hereby accepts the engagement, to perform the services described on
Exhibit A "Scope of Services."
2. TERM OF ENGAGEMENT. Consultant's engagement under this Agreement
will commence as of August 1st, 2006 (the "Effective Date") and will continue
for the One year term unless sooner terminated in accordance with the provisions
of Section 6 (the "Term").
3. INDEPENDENT CONTRACTOR STATUS. During the Term, Consultant and the
Company acknowledge and agree that Consultant is an independent contractor for
Federal and state income tax purposes and that Consultant shall be solely
responsible for full payment of all tax liabilities on any compensation paid to
Consultant hereunder.
4. COMPENSATION. In consideration for the performance of Consultant's
duties hereunder: (i) Consultant will be paid $9000 upon signing of the
consulting agreement and will further be paid at the rate of $3,000 per month at
the 1st of the month for the term of the contract which is for 9 months, final
payment to be made on May 1st, 2007; (ii) the Company shall execute and deliver
to Escrow Agent a Warrant for the purchase of 600,000 shares at $0.55 per share
of the Company Common Stock in the form of EXHIBIT B attached hereto. These
warrants shall be held in escrow with company counsel and may be assigned,
through the escrow, to ensure compliance with NASD rules and SEC regulations
until the effective date of the Registration Statement of the shares underlying
the warrants.
5. EXPENSES. Consultant shall be entitled to reimbursement for normal
business expenses which Consultant's employees and agents are required to incur
in providing the services hereunder provided that supporting documentation is
provided to the Company. Notwithstanding the foregoing, the Company shall not be
required to reimburse Consultant for total business expenses in excess of
$750.00 in any calendar month, unless Consultant obtains prior written
authorization from the Company for any such expenses.
6. TERMINATION. This Agreement shall terminate prior to the expiration
of the Term if (a) Consultant shall dissolve or (b) either party serves written
notice upon the other of intent to terminate for cause (the "Termination
Notice") as of a date specified in such notice (the "Effective Date of
Termination"), provided that the Termination Notice is given at least 60 prior
to the Effective Date of Termination.. In the event of termination of this
Agreement, the Company shall no longer be obligated to pay to Consultant any
compensation (other than compensation accrued prior to the Effective Date of
Termination). Sections 7 through 16 of this Agreement will survive expiration or
early termination of this Agreement.
7. CONFIDENTIALITY. Consultant hereby covenants and agrees that,
without the prior written consent of the Company, Consultant and its employees
and agents will not at any time disclose to any person (other than persons
employed or otherwise engaged by the Company and having a need to know such
information in order for Consultant to provide its services hereunder), or use
for any purpose other than providing the consulting (but not the finders)
services under this Agreement, any confidential or proprietary information of
the Company. Company hereby covenants and agrees that, without the prior written
consent of Consultant, the Company and its employees and agents will not at any
time disclose to any person not employed or otherwise engaged by Consultant, or
use for any purpose other than the Project, any confidential or proprietary
information of Consultant, other than information conveyed to Company by
Consultant in the course of Consultant's services under this Agreement. For the
purposes of this Agreement, the term "confidential or proprietary information"
will include all information of any nature and in any form that is owned by
Consultant or the Company, as applicable, and is not publicly available (other
than by a breach of this Section 7 by the party obligated to keep such
information confidential) or generally known to persons engaged in businesses
similar or related to those of the Company (in the case of confidential or
proprietary information of the Company) or Consultant (in the case of
confidential or proprietary information of Consultant). Confidential or
proprietary information will include, but will not be limited to, a party's
financial condition, results of operations, business matters, customers,
employees, industry contracts, business plans, product development (or other
proprietary product data), marketing plans, and all other secrets and all other
information of a confidential or proprietary nature. For the purposes of the two
preceding sentences, the terms Company, Consultant, and parties each refer to
any of the applicable party's subsidiaries or affiliates in addition to such
parties. The foregoing obligations imposed by this Section 7 will not apply (i)
if such confidential or proprietary information shall have become generally
known to the public through no fault of the party obligated to keep such
information confidential or (ii) if the party obligated to keep such information
confidential is required by law to make disclosure (after giving the other party
notice and an opportunity to contest such requirement).
8. INJUNCTIVE RELIEF. Consultant agrees that any violation of Section 7
of this Agreement will cause the Company irreparable harm. Consultant agrees
that the Company is entitled to protection from such violation, including
protection by injunctive relief, in addition to other remedies available under
the law.
9. INDEMNIFICATION BY CONSULTANT. Consultant hereby agrees to indemnify
and hold the Company and its shareholders, directors, officers, employees and
affiliates harmless from and against any and all liabilities, demands, claims,
actions or causes of action, assessments, losses, costs, damages or expenses,
including reasonable attorneys' fees sustained or incurred by such persons,
resulting from or arising out of or in any way relating to, or by virtue of (i)
any breach of any representation or warranty on the part of Consultant under
this Agreement and Exhibit A attached hereto (unless the same will have been
waived by the Company in writing), (ii) any failure by Consultant to comply with
any applicable laws, rules or regulations, or (iii) any third-party claims
arising solely from Consultant's actions or failure to take action, except any
action or failure to take action by Consultant in accordance with Company's
direct instructions.
10. INDEMNIFICATION BY COMPANY. Company hereby agrees to indemnify and
hold Consultant and its members, managers, directors, officers, employees and
affiliates harmless from and against any and all liabilities, demands, claims,
actions or causes of action, assessments, losses, costs, damages or expenses,
including reasonable attorneys' fees sustained or incurred by such persons,
resulting from or arising out of or in any way relating to, or by virtue of (i)
any breach of any representation or warranty on the part of the Company under
this Agreement and Exhibit A attached hereto (unless the same will have been
waived by Consultant in writing), (ii) any failure by the Company to comply with
any applicable laws, rules or regulations (other than as a result of
Consultant's conduct), or (iii) any third-party claims arising solely from
Company's actions or failure to take action, except any action or failure to
take action by Company in accordance with Consultant's recommendations or advice
in connection with the services rendered by Consultant hereunder.
11. NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be personally delivered, sent by overnight courier
or facsimile, or mailed by certified or registered mail, return receipt
requested, and addressed as set forth in Exhibit A, until some other address
shall have been designated in a written notice given in a like manner. Notices
sent by mail shall be deemed received 5 days after deposit in the United States
mail, and notices delivered in any other manner shall be deemed to be given upon
receipt.
12. SEVERABILITY. If any provision of this Agreement or any part hereof
shall be found to be illegal, invalid or otherwise unenforceable, such provision
or part thereof shall be deemed to have been deleted from this Agreement and
such deletion shall not affect the remaining provision of this Agreement, which
shall be given their full force and effect.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties concerning the subject matter hereof, and no
representations, promises, agreements or understandings, written or oral, not
contained herein shall be of any force or effect.
14. AMENDMENT. This Agreement shall be binding upon the parties hereto
unless the same shall be in writing and executed by each of the parties hereto.
15. BENEFIT OF AGREEMENT. This Agreement shall not be assignable by
Consultant, but shall be binding upon and inure to the benefit of the successors
and assigns of the Company.
16. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Colorado, without regard
to the provisions thereof respecting the conflict of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TOMBSTONE CARDS INC
By: /s/John N. Harris - August 4, 2006
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Its: President
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By: /s/Neil A. Cox - August 4, 2006
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Its: CFO
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CAPITAL MERCHANT BANC, LLC
By: /s/
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Its: President
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If to Company:
Tombstone Cards Inc.
5380 Highlands Drive,
Longmont, CO 8080503
Facsimle: (303) 684-0673
Attention: Neil A Cox
If to Consultant:
Capital Merchant Banc, LLC
660 N Bradley Rd.
Lake Forest, Illinois 60106
Facsimile: (847) 295-0924
Attention: Joe Kurczodyna
EXHIBIT A
SCOPE OF SERVICES - As and when requested by management:
1. Product Public Relations Program Design
2. Sales Program Design & Implementation
3. Corporate Awareness Program
4. Corporate Capital Structure Planning
5. Sales and marketing of company's new and existing products