CONSULTING AGREEMENT
THIS
AGREEMENT is
entered into as of the date last written below by and between Xxxxxx Xxxxxxx,
an
individual (“Consultant”)
and
SOLAR
NIGHT INDUSTRIES, INC. (the “Company”).
The
following recitals form the basis of this Agreement and are a material part
hereof.
WHERE
AS,
The Company is engaged in the business of developing solar lighting products
and, sales and marketing of the same (the “Business”)
as
more
fully described on Exhibit
A hereto;
and Consultant has certain expertise in areas relating to the
Business.
NOW,
THEREFORE,
in consideration of the mutual covenants contained in this Agreement, the
parties agree as follows:
1. Engagement;
Term. The
Company hereby engages
Consultant,
and Consultant hereby accepts such engagement, to provide to the Company the
services specified in the Section hereof entitled “Description
of Service”
for
a
term commencing on the date of this Agreement and ending 36 mouths from the
date
hereof, unless sooner terminated as hereinafter provided.
2. Description
of Service. During
the term of this Agreement, Consultant shall be reasonably available to the
Company in person and by telephone to consult with and advise the Company during
normal business hours and at all times mutually convenient to the Company and
Consultant with respect to any and all matters involving the operations of
the
Company. The Company acknowledges and agrees that: (i) the duties and
obligations of Consultant hereunder are not those which would ordinarily attend
an employment relationship and Consultant shall have no obligation to maintain
office hours at the Company or the Company’s principal place of business or to
devote any specific portion of his time on a regular basis to the Company or
the
Company’s affairs or to provide his personal services in fulfillment of this
Agreement; (ii) Consultant’s services shall be rendered at a place mutually
convenient to Consultant and the Company; and (ii) the inability of Consultant
to timely render services for the Company when requested by the Company for
any
reason shall not constitute a failure by him to perform his obligations
hereunder, and shall not be deemed a breach or default by him
hereunder.
3. Compensation.
Consultant’s
sole compensation for such services shall be the issuance of Common Stock
pursuant to a Stock Purchase Agreement entered into simultaneously herewith
between Consultant and the Company.
4. Death
or Disability of Consultant. If
the
Consultant dies or becomes disabled during the term of this Agreement, this
Agreement will terminate.
5. Non-Competition.
Consultant
specifically agrees that during the term of this Agreement, Consultant will
not
engage in the Business on behalf of any person other than the Company; provided
Consultant’s current employment as of the date of this Agreement shall not be
deemed to be competitive with the Company hereunder. If the foregoing covenant
is not enforceable to the full extent provided herein, it shall be and remain
enforceable to the full extent permitted by law, In the event that the Company
shall fail to make any payment due hereunder,
or
breach
any covenant or term hereunder, each when due, Consultant’s obligations pursuant
to this Section 6 shall terminate.
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6. Employment
of Consultant by Company. At
any
time during the term of this Agreement, Consultant may elect to become a
full-time employee of the Company by executing and delivering the Employment
Agreement attached hereto as Exhibit
B to
the
Company and upon such execution and delivery such agreement shall be deemed
executed by the Company.
7. Miscellaneous.
(a) Notices.
All
notices, demands, and other communications hereunder shall be deemed to have
been duly given, if delivered by hand or mailed, certified or registered mail
with postage prepaid:
| Consultant:_________________________________ | ||
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_________________________________
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| Company: Solar Night Industries, Inc. | ||
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_________________________________
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_________________________________
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(b) Captions.
The
section or paragraph titles or captions contained in this Agreement are for
convenience only and shall not be deemed a part of this Agreement.
(c) Representations
and Warranties.. The
Company acknowledges that: (i) it is a Delaware corporation in good standing,
and (ii) the Company is duly authorized to enter into this Agreement, and (iii)
this Agreement is enforceable in accordance with its terms The Consultant
represents and warrants that: (i) he has the requisite capacity to enter into
this Agreement, and (ii) this Agreement is enforceable in accordance with its
terms.
(d) Number
and Gender. All
pronouns shall be deemed to refer to the masculine, feminine, neuter, singular
or plural, as the identity of the person or persons, firm or corporation may
require in the context thereof.
(e) Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement shall be unenforceable or invalid under applicable law, such provision
shall be ineffective only to the extent of such unenforceability or invalidity,
and the remaining provisions of this Agreement shall continue to be binding
and
in full force and effect.
(f) Modifications;
Waiver. No
change, amendment or modification of this Agreement shall be valid unless the
same shall be in writing and signed by each of the parties. No waiver of any
provision of this Agreement shall be valid unless in writing and signed by
the
party to be charged.
(g)
Entire
Agreement. This
Agreement contains all of the agreements between the parties with respect to
the
subject matters hereof; and this Agreement supersedes all other agreements
oral
or written, between the parties hereto with respect to the subject matter
hereof.
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(h) Successors
and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns. Neither party may assign to any other person or entity any of its
rights or delegate any of its duties arising under this Agreement without the
prior written consent of the other party hereto.
(i) Attorney’s
Fees. On
any
action brought under the provisions of this Agreement, the prevailing party
shall be entitled to collect its court costs as well as its reasonable
attorneys’ and experts fees and expenses.
(j) Governing
Law. This
Agreement shall be governed and controlled as to validity, enforcement,
interpretation, construction, effect and in all other respects by the internal
laws of the State of Missouri.
(k)
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which when taken together shall be deemed
to
constitute a single instrument.
(l) Enforcement.
The
parties agree that irreparable damage would occur in the event that any of
he
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of Missouri
or
in any Missouri state court, this being in addition to any other remedy to
which
they are entitled at law or in equity.
IN
WITNESS
WHEREOF,
the
parties hereto have signed this Agreement as of the date first set forth
above.
___________________________
By:
________________________
Title:
______________________
CONSULTANT:
___________________________
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Name:
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