CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made the 10th day of July 1998, by and
between Luminart, a Nevada corporation, ("Company") and Labranda,
Inc. ("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 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.
2.3 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.
2.4 Consultant shall devote at least one week per month during the
Term (as defined in Section 6.1) hereof fulfilling the duties
described herein.
2.5 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.
3.4 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.
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.
(b) 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.
(c) 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.
(d) 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.
(e) 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 500,000 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:
Labranda, Inc.
20 Quai Gustive
P. O. Xxx 0000
XX 0000 Xxxxxx, Xxxxxxxxxxx
5. Term and Termination.
5.1 Term. The term of this Agreement (the "Term") shall co9mmence 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:
Labranda, Inc.
20 Quai Gustive
P. O. Xxx 0000
XX 0000 Xxxxxx, Xxxxxxxxxxx
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. Labranda, Inc.
By: /s/ Wm. Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
Wm. Xxxxxxx Xxxxxxxx, President Xxxxxx Xxxxxxx, President
