Exhibit 10.1
July 23,
2008
Theater Xtreme
Entertainment Group, Inc.
250 Corporate
Boulevard, Suites E and F
Newark, DE
19702
Dear Mr.
Oberosler:
Theater Extreme
Entertainment Group, Inc., a Florida corporation (hereinafter
referred to as the “Client”) has agreed to engage
Allen, Goddard, McGowan, Pak & Partners, LLC (“Allen
Partners”) on a non-exclusive basis to perform
services related to financial consulting and public relations
matters (“Services”) pursuant to the terms and
conditions of this Consulting Agreement (“Agreement”)
as set forth herein.
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1.
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Services . Allen Partners shall act as advisor to the
Client and perform such Services as requested by the Client,
which Services may include, but will not necessarily be
limited to:
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advice
regarding obtaining financing, including introducing the Company to
accredited investors, which may be corporations, partnerships,
mutual funds, hedge funds, investment partnerships, securities
firms, lending and other institutions and entities, as well as
select high net worth individuals for the purposes of providing
financing in the form of equity or equity-linked securities of the
Company or a combination of the foregoing (a “Corporate
Financing Transaction”);
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advice
regarding the financial structure of the Company or its divisions
or any programs and projects undertaken by any of the
foregoing;
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counsel Client
regarding its overall strategy and related activities within the
financial community;
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assist Client
with the preparation and revision of presentation materials for
meetings with the investment community; and
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Such other
duties as Client may reasonably request of Allen Partners from time
to time.
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In addition,
from time to time, subject to scheduling availability, Allen
Partners shall:
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meet with the
financial community on behalf of Client;
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survey key
analysts, brokers and institutional investors
nationwide;
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maintain
ongoing personal contact programs and establish a schedule of
activities; and
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arrange
meetings between Client’s senior management and members of
the financial community, including individual meetings, informal
group meetings and formal presentations.
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Performance
of Services . Allen
Partners shall be obligated to provide the Services as and when
requested by Client but shall not be obligated to expend any
specific amount of time in so doing and shall not be authorized or
obligated to perform any Services on Allen Partners’ own
initiative. The Services shall be performed reasonably promptly
after Client’s request, consistent with Allen Partners’
availability and good faith. The Company acknowledges that the
Services to be provided hereunder are not exclusive to the Client
and Allen Partners has other business obligations, including
providing investment banking, financial advisory and consultant
services to others, and the Company agrees that the provision of
such services shall not constitute a breach hereof of any duty owed
to the Company by virtue of this Agreement. Nothing
contained herein, other than Allen Partners’
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obligations
relating to the Company’s Confidential Material as provided
in Section 9 hereof, shall be construed to limit or restrict Allen
Partners or its affiliates in conducting such businesses with
respect to others or in rendering such services to
others
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Relationship
of the Parties . Allen
Partners shall be, and at all times during the Term of the
Agreement shall remain, an independent contractor. As such, Allen
Partners shall determine the means and methods of performing the
Services hereunder and shall render the Services at such places it
determines. The Client shall pay all reasonable costs and expenses
incurred by Allen Partners in the performance of its duties
hereunder, including but not limited to reasonable and documented
travel, legal fees and other expenses. Allen Partners
shall provide notice to the Company at such time, if any, the
foregoing expenses exceed $1,500 in the aggregate. Allen
Partners will not bear any of the Company’s legal,
accounting, printing or other expenses in connection with any
transaction considered or consummated hereby. It also is
understood that neither Allen Partners, nor any of its officers,
directors, employees or agents, will be responsible for any fees or
commissions payable to any finder or to any other financial or
other advisor utilized or retained by the Company.
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Assurances . Client acknowledges that all opinions and
advices (written or oral) given by Allen Partners to the Client in
connection with this Agreement are intended solely for the benefit
and use of Client, and Client agrees that no person or entity other
than Client shall be entitled to make use of or rely upon the
advice of Allen Partners to be given
hereunder. Furthermore, no such opinion or advice given
by Allen Partners shall by used at any time, in any manner or for
any purpose, and shall not be reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose, except
as may be contemplated herein. Client shall not make any public
references to Allen Partners without Allen Partners’ prior
written consent or as required by applicable law.
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Compensation . In consideration of such Services, the Company
agrees to pay Allen Partners during the Term a non-accountable and
non-refundable monthly retainer of Five Thousand ($5,000) Dollars,
with the first payment due upon the execution and delivery of this
Agreement and subsequent payments due on the last day of each month
thereafter while this Agreement is in effect. In
addition, upon execution of this Agreement, the Company will issue
to Allen Partners warrants to purchase an aggregate of 4,500,000
shares of the Company’s common stock at an exercise price of
$0.10 per share.
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Additional
Services . Should Client
desire Allen Partners to perform additional services not outlined
herein, Client may make such request to Allen Partners in writing.
Allen Partners may agree to perform those services at its sole
discretion and may enter into additional definitive agreements with
the Company which shall set forth Allen Partners’ obligations
in connection with such transactions, as well as the compensation
to be paid Allen Partners with respect to its additional
services. The monthly retainer shall not be credited to
any additional compensation to be paid for such additional
services.
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Approval of
Client Information .
Client will be required to approve all stockholder communications,
press release and other materials prepared and disseminated on its
behalf by Allen Partners.
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Term .
This Agreement shall remain in effect until July 31,
2010.
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Client
recognizes and confirms that, in advising Client and in fulfilling
its retention hereunder, Allen Partners will use and rely upon
data, material and other information furnished to it by Client.
Client acknowledges and agrees that in performing its Services
under this Agreement, Allen Partners may rely upon the data,
material and other information supplied by Client without
independently verifying the accuracy, completeness or veracity of
same. Such information shall be deemed
“Confidential Material”.
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Except as
contemplated by the terms hereof or as required by applicable law,
Allen Partners shall keep confidential, indefinitely, all
Confidential Material provided to it by Client, and shall not
disclose such information to any third party without Client’s
prior written consent, other than such of its employees and
advisors as Allen Partners reasonably determines to have a need to
know. In the event Allen Partners is required by
applicable law or legal process to disclose any of the Confidential
Material, Allen Partners will deliver to the Company prompt notice
of such requirement (by fax or overnight courier promptly following
Allen Partners’ knowledge or determination of such
requirement) prior to such disclosure so the Company may seek an
appropriate protective order and/or waive compliance of this
provision. If, in the absence of a protective order
(because the Company elected to not seek such an order or it was
denied by a court of competent jurisdiction) or receipt of written
waiver, Allen Partners is nonetheless, in the written opinion of
its counsel, compelled to disclose any Confidential Material, Allen
Partners may do so without liability hereunder.
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10. Indemnification
. The Company agrees to indemnify Allen Partners
in accordance with the provisions of Annex A hereto, which is
incorporated by reference and made a part hereof.
11. Limitation Upon the Use of Advice and
Services
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No person or
entity, other than the Company (including its directors, officers
and employees), shall be entitled to make use of, or rely upon any
advice of Allen Partners to be given hereunder, and the Company
shall not transmit such advice to, or encourage or facilitate the
use or reliance upon such advice by others without the prior
written consent of Allen Partners.
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Use of Allen
Partners’ name in annual reports or any other report of the
Company or releases by the Company requires the prior written
approval of Allen Partners unless the Company is required by law to
include Allen Partners’ name in such annual reports, other
report or release of the Company, in which event the Company shall
furnish to Allen Partners copies of such annual reports or other
reports or releases using Allen Partners’ name in advance of
publication by the Company.
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Cooperation . The Company will cooperate with and
will furnish Allen Partners or entities introduced by Allen
Partners with all reasonable information and data concerning the
Company which Allen Partners appropriate and will provide Allen
Partners with reasonable access to the Company’s officers,
directors, employees, independent accountants and legal
counsel. The Company represents that all information
made available to Allen Partners for distribution to investors will
be complete and correct in all material
respects. Notwithstanding anything set forth above to
the contrary, Allen Partners shall not be responsible for any due
diligence investigation of the Company on behalf of any other party
in connection with its services hereunder or in connection with any
Corporate Finance Transaction.
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Right of
First Refusal . The
Company will grant Alle
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