CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made the 15th day of July 1998, by and
between Luminart, a Nevada corporation, ("Company") and FPI, an
Illinois corporation ("Consultant").
Background
Company desires to engage Consultant to perform certain
consulting services for Company and Consultant desires to perform
such services on the terms and conditions set forth below.
NOW THEREFORE, in consideration of the premises hereof and the
mutual promises and agreements contained herein, the parties
hereto, intending to be legally bound, do hereby agree as
follows:
1. Engagement; Scope of Services.
Company hereby engages Consultant to perform the duties set forth
in this Agreement. The engagement by Company of Consultant under
this Agreement is non-exclusive and shall not limit Company's
right to engage other persons (including but not limited to
consultants, investment bankers, finders and brokers) to conduct
activities on behalf of Company. During the term of this
Agreement Consultant shall not perform comparable services for
any person or entity involved in the business in which Company
(or any of its subsidiaries or affiliates) is engaged.
2. Duties and Responsibilities of Consultant.
2.1 Consistent with Consultant's experience and expertise in
dealing with government heads of state, international finance
management, U.S. financing and international trade, Consultant
shall advise and consult with Company's representatives or
affiliated representatives on such subjects, meting with them
from time to time at the request of the Company. At such
meeting, Consultant shall advise, make recommendations, introduce
acquisition opportunities, joint venture prospects and
opportunities for turnkey systems operations, and direct
governmental introductions.
2.2 Consistent with Consultant's experience and expertise in
dealing with government heads of state, international finance
management, U.S. financing and international trade, Consultant
shall advise and consult with Company's representatives or
affiliated representatives on such subjects, meting with them
from time to time at the request of the Company. At such
meeting, Consultant shall advise, make recommendations, introduce
acquisition opportunities, joint venture prospects and
opportunities for turnkey systems operations, and direct
governmental introductions.
2.3 Consultant's duties hereunder shall include (but not be
limited to): (1) preparing strategic analyses, (2) preparing
political and economic analyses, (3) estimating demand, (4)
describing profiles or key players, (5) describing and assessing
strategic opportunities, and (6) reporting his conclusions with
respect to such activities. In no event shall Consultant have
the authority or apparent authority (nor shall Consultant suggest
to third parties that he has the authority, express or implied)
(1) to bind Company to any agreements or arrangements, whether
written, oral or implied, (2) to make an offer or accept an offer
on behalf of the Company, or (3) to make representations,
warranties, guaranties, commitments or covenants on behalf of
Company.
2.4 Consultant shall submit and identify to Company all
contracts for possible business relationships; however,
Consultant shall inform such contracts that no obligation is
created on the part of the Company by virtue of such submission.
2.5 Consultant shall devote at least one week per month during
the Term (as defined in Section 6.1) hereof fulfilling the duties
described herein.
2.6 Both parties intend this Agreement to be a personal contract
and Consultant shall not assign or delegate any rights, duties or
obligations arising under this Agreement without the prior
written consent of Company, which consent may be withheld in
Company's sole discretion.
3. Representations, Warranties, Covenants, and Agreements of
Consultant.
3.1 Representations and Warranties. Consultant hereby
represents and warrants to the Company as follows:
(a) Consultant is familiar with the provisions and purposes of
the United States statute known as the Securities Act of 1933 and
the Securities Exchange Act of 1934.
(b) Consultant also acknowledges that it is written and
established policy of the Company to comply fully with all
applicable laws and regulations of the United States and all
jurisdictions in which it does business, and Consultant warrants
that he will not take any action which would constitute a
violation of any law of any jurisdiction in which he performs
services or of the United States including without limitations of
the Securities Act of 1933 and the Securities Exchange Act of
1934.
(c) Neither Consultant nor any employee, agent, or other
representative of Consultant is (i) an officer or employee of any
government or of any department, agency or instrumentality of any
government, (ii) an official or employee of any political party,
(iii) a candidate for any political office, or (iv) an owner,
officer, director, shareholder, joint venturer, partner, employee
representative or affiliate of any potential customer.
(d) The execution and performance of this Agreement by
Consultant will not violate, or result in a default under, any
agreement, law, statute, regulation, or other authoritative rule
of any governmental body to which Consultant is a party or by
which Consultant is bound.
(e) There is no restriction upon Company disclosing to any
person or entity (i) that Company has the relationship with
Consultant provided for in this Agreement, (ii) that Consultant
is to receive from Company compensation in connection with the
performance of services hereunder, (iii) the amount of that
compensation, or (iv) the terms upon which payment has been or
will be made.
(f) This Agreement, when executed, will constitute the valid and
legally binding obligation of Consultant, fully enforceable
against him in accordance with its terms. The execution and
performance of this Agreement by Consultant will not violate ant
constitutional provisions, statutes, ordinances, regulations, tax
codes, or other laws of the United States or Consultant is not
engaged in, and will not during the term of this Agreement
(including any extensions hereof) shall not become, a citizen of
the United States or a resident (for United State income tax
purposes) of the United States. Consultant represents, warrants
and covenants that he shall file all documents, records and forms
and take all other actions that are necessary under law with
respect to this Agreement.
3.2 Covenants and Agreements. Consultant hereby covenants with
Company and agrees as follows:
(a) Consultant shall not make use of any agent, consultant, or
finder in connection with the performing of any of his duties
hereunder without the prior written approval of an authorized
executive officer of Company. Notwithstanding anything to the
contrary in this Agreement, Consultant may delegate
administrative duties (including data processing and other
ministerial functions) to third parties, so long as such third
parties are informed of, and agree to be bound by, the provisions
of Section 13 hereof.
(b) Consultant shall not hold himself out, directly or by
implication, as being an employee or contracting agent of the
Company.
(c) Consultant shall not make any representation, directly or by
implication, that Company has any obligation to any third party
with respect to the payment of any of the payments to be made to
Consultant hereunder.
(d) In the performance of this Agreement, neither Consultant nor
any employee or agent of Consultant shall, except as approved in
writing in advance by Company, offer to pay, promise to pay, or
authorize the payment of, any money, or offer to give, give,
promise to give or authorize the giving of, anything of value,
directly or indirectly, to (i) any office or employee of any
government or of any department, agency or instrumentality
thereof, or government-owned enterprise, or to any person acting
in an official capacity or on behalf of any such government,
department, agency or instrumentality, or government-owned
enterprise, (ii) any political party or any official thereof,
(iii) any candidate for political office, or (iv) any officer,
employee, agent or representative of customers. Consultant shall
immediately notify Company of any violation of this subparagraph
an shall immediately pay Company out of monies paid by Company to
Consultant, an amount equal to the amount of the payment or the
value of the gift to a foreign official which gives rise to such
violation.
(e) Consultant hereby authorizes Company to disclose to any
governmental authority that properly requests such disclosure,
(i) this Agreement, (ii) the amount of any compensation paid to
Consultant hereunder, and the terms and manner of such payment,
and (iii) such other information as may be required by law or
regulation. Consultant agrees to provide to Company in a timely
manner, any information necessary for Company to make disclosure.
(f) In performance of this Agreement, Consultant shall fully
comply with all applicable laws governing the transactions
undertaken including without limitations the Securities Act of
1933 and the Securities Exchange Act of 1934 and all other laws
which may be applicable. Consultant shall inform Company
immediately if any representation, warranty, covenant, or
agreement contained in Section 3 hereof is no longer accurate.
4. Compensation.
Except as expressly provided herein, neither Company nor any
parent, subsidiary, or affiliate of Company or joint venture in
which Company may have an interest, shall be liable for any
payment to Consultant.
4.1 Company shall pay to Consultant, during the term of this
Agreement, a retainer fee of 650,000 shares of free trading
stock. No compensation or commissions shall be payable by
Company to Consultant under the terms of this Agreement.
4.2 Except pursuant to an assignment approved in writing as set
forth in Section 10 hereof, payment of compensation made
hereunder shall be made only to Consultant and only by check or
back transfer payable to the order of Consultant at the following
address:
FPI
0000 Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
5. Term and Termination.
5.1 Term. The term of this Agreement (the "Term") shall
commence on the date hereof and shall continue for one year,
subject to the termination rights of the Company as set forth in
Section 6.2, below. If Consultant is actively engaged in
promotion with respect to any business relationship at the date
of termination of this Agreement, Company may, at its sole
discretion, extend the Term of this Agreement on a month-to-month
basis. This Agreement may be extended for one additional twelve
month period upon the mutual written agreement of the parties
hereto.
5.2 Special Termination Rights.
(a) Anything herein to the contrary notwithstanding, in the
event that Company determines in good faith that its relationship
with Consultant subjects Company or any of its employees to
potential violations of any applicable law, regulation, or order,
then this Agreement, and all obligations of Company hereunder,
shall expire immediately upon Company giving notice to Consultant
of such determination.
(b) This Agreement may be terminated at any time without notice
by Company (i) for illegal acts or willful neglect on the part of
Consultant or Consultant's agents or employees or (ii) in the
event any representation, warranty, covenant, or agreement of
Consultant contained in this Agreement shall prove to be
inaccurate in whole or in part.
6. Indemnification.
Consultant shall defend, indemnify and hold harmless Company and
its officers, directors, employees, agents, parent, subsidiaries
and other affiliates, from and against any and all damage, cost,
liability, and expense whatsoever (including attorney's fees and
related disbursements) incurred by reason of (a) any failure by
Consultant to perform any covenant or agreement set forth herein,
or (b) any breach by Consultant of any representation, warranty,
covenant or agreement contained herein. Company shall have the
right to offset against any fees or commissions due Consultant
for any damage, cost, liability, expense, fee or other
disbursement incurred by Company pursuant to this Section 6.
7. Independent Status of Consultant.
This Agreement establishes the rights, duties and obligations of
Company and Consultant, and does not create an employer-employee
or agency relationship between Company, or any entity affiliated
with Company, and Consultant, or any of Consultant's employees,
or agents. Consultant acknowledges and agrees that Consultant is
an independent contractor to Company and Consultant shall not act
as an agent of Company. As an independent contractor, Consultant
shall be responsible for any social security taxes, insurance,
and any other taxes or fees that are applicable to him and his
employees and agents pursuant to law.
8. Promotional Materials.
From time to time, Company may furnish Consultant with such
promotional data, materials and technical information as Company
deems necessary for Consultant to have in the performance of his
duties hereunder. Consultant shall use such materials in
furtherance of the objectives of this Agreement and shall not
disseminate the same except as set forth in Section 12 hereof.
9. Governing Law.
This Agreement shall be governed by, and its terms and conditions
shall be construed and enforced in accordance with the domestic
laws of the United States of America, excluding its principle of
conflicts of laws and the parties hereto and hereby irrevocably
submit to the jurisdiction and venue of the United States
District Court for the District of Nevada to resolve any disputes
arising hereunder or related hereto.
10. Assignment.
Neither this Agreement nor any money due or to become due
hereunder may be assigned, in whole or in part by Consultant
without prior written consent of Company, which consent may be
withheld in Company's sole discretion.
11. Notices.
All notices or other communications required or permitted to be
given hereunder shall be (as elected by the person giving such
notice) (a) personally delivered, (b) transmitted by postage
prepaid registered mail (airmail if international), or (c)
transmitted by telex, with postage prepaid mail information
(airmail if international), to the parties as follows:
11.1 If to Company:
Luminart Corp.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx Xxxx, XX 00000
11.2 If to Consultant:
FPI
0000 Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
11.3 Except as otherwise specified herein, all notices and other
communications shall be deemed to have been given on the date of
receipt if delivered personally, fourteen (14) days after posting
if transmitted by mail, or on the date of transmission with
confirmed answer back transmitted by telex, whichever shall first
occur. Any party hereto may change its address for purposes
hereof by written notice to the other party.
12. Use of Information and Non-Solicitation.
Any information including, but not limited to, data, business
information, technical information, specifications, drawing,
sketches, models, samples, tools, promotional material, computer
programs and documentation, written, oral or otherwise together
with analyses, compilations, comparisons, studies or other
documents prepared by Company or its partners or employees which
contain or reflect such information (all herein designated
"Information") furnished to Consultant hereunder or in
contemplation hereof shall remain Company property or the
property of the Company subsidiary or affiliate which furnished
the Information to Consultant. All copies of such Information in
written, graphic or other tangible form shall be returned to
Company or such Company subsidiary or affiliate upon request.
Unless such Information was previously known to Consultant free
of any obligation to keep it confidential or has been or is
subsequently made public by Company or a third party without
violation of this Agreement, it shall be kept confidential by
Consultant and his partners and employees, and shall be disclosed
only upon the prior written consent of Company or upon such terms
as may be agreed upon in writing by the parties hereto. Any
findings, reports, questionnaires, or other results of this
Agreement shall be the exclusive property of the Company
including title to copyright in all copyrightable material and
shall be considered a "work made for hire" in accordance with the
copyright statute.
Consultant covenants and agrees that during this Agreement and
the two (2) year period immediately following the termination of
this Agreement (including any extensions hereof), Consultant
shall not (1) directly or indirectly induce or attempt to induce
any employee of Company which Consultant served during the term
of this Agreement, provided, however, that Consultant may offer,
take or receive any employment or services (on behalf of himself
or on behalf of another) to any customer, partner or joint
venturer of which, without any solicitation, inducement or
direction by Consultant, has terminated contractual or other
business relationships with Company.
13. Miscellaneous.
This Agreement constitutes the entire understanding of the
parties hereto concerning the subject matter hereof, and
supercedes all prior agreements and understandings, whether
written, oral or otherwise, between the parties, and may be
altered or amended only in a writing signed by both parties.
Except as otherwise expressly provided herein, no purported
waiver by any party of any breach by the other party of its
obligations, representations, warranties, agreements or covenants
hereunder shall be effective unless made in writing, and no
failure to pursue or elect any remedy with respect to any default
under or breach of any provisions of this Agreement shall be
deemed to be a waiver of any subsequent, similar or different
default or breach. Consultant hereby consents and agrees that
the United States District Court for the District of Nevada is
the exclusive forum for litigation of any claim by Consultant
arising under this Agreement. Consultant hereby irrevocably
waives and relinquishes any right to bring or cause to be brought
a claim in any judicial or administrative forum located outside
of the State of Nevada of the United States of America.
14. Signatures.
Facsimile signatures shall have the same effect as originals for
the purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement under seal as of the date first written above.
Luminart Corp. FPI
By: /s/ Wm. Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
Wm. Xxxxxxx Xxxxxxxx, President Xxxxxx Xxxxxx, President
