CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and effective on March 1,
1996, by and between Netter Digital Entertainment, Inc., a Delaware corporation
(the "Company") and Trital Acquisition Corp. and Xxxxxxxx Xxxxxx (collectively,
the "Consultant"), and is made with reference to the following facts:
The purpose of this Agreement is to set forth the respective rights and
duties of Consultant and the Company in connection with retaining Consultant as
a business consultant for the Company.
NOW, THEREFORE, in consideration of the premises and mutual covenants,
representations and warranties contained herein, the parties agree as follows:
1. Retention. For the term of this Agreement, the Company will retain
Consultant and Consultant accepts such retention on the terms and conditions set
forth below.
2. Term. The term of this Agreement shall be for six (6) months from the
date of this Agreement and this Agreement shall thereafter automatically be
renewed on a monthly basis until either party provides 30-days written notice of
non-renewal .
3. Compensation. For services rendered by Consultant to the Company under
this Agreement, the Company shall pay Consultant as follows:
3.1 Monthly Fee. The Company shall pay to Consultant a monthly fee of
Five Thousand Dollars ($5,000.00) per month, made payable in advance to Trital
Acquisition Corp. at the beginning of each month.
3.2 Performance Fee. In the event the Company acquires a target or
completes a transaction identified by Consultant, the Company shall pay
Consultant a performance fee calculated as follows:
5% of the first million dollars or part thereof, paid by the Company;
4% of the second million;
3% of the third million;
2% of the fourth million;
1% of the fifth million; and
1/2% of any amount over $5,000,000.
The performance fee for any transaction introduced by Consultant during the term
of this Agreement which is completed after the termination of this Agreement
shall be payable to the Consultant upon completion of the transaction. The
Company shall be permitted to deduct from any performance fee due such amounts
the Company has paid in advance for the establishment and operation of
Consultants' Xxxxxxx Hills office, including, but not limited to, rent and
utilities payments for such office.
1
3.3 Due Diligence Fee. For any transaction not introduced by
Consultant, but for which the President of the Company requests Consultant to
perform certain services, a due diligence fee for such services, on mutually
agreeable terms to be negotiated prior to providing such services, shall be paid
by the Company to the Consultant.
4. Required Services. In consultation with the Company, Consultant shall
actively search out and locate suitable acquisition merger, joint venture or
similar targets for the Company, conduct preliminary due diligence and valuation
analysis of potential targets, whether identified by Consultant or not, and
assist the Company, as directed by the President, in consummating acquisitions
or similar transactions found suitable by the Company's Board of Directors. The
parties hereto agree to report all sums paid and received by Trital Acquisition
Corp. under this Agreement to federal and state taxing authorities as sums paid
and received under a Consulting Agreement for consulting services.
5. Expenses. The Company shall reimburse Consultant for any reasonable
business expenses which have been pre-approved in writing by the Company in
advance of being incurred.
6. Independent Contractor. It is understood and agreed that Consultant
shall be acting only in the capacity of an independent contractor insofar as
this Agreement is concerned, and not as a partner, co-venturer, agent, employee,
franchisee or representative of the Company. Consultant shall be responsible for
payment of all state, federal or other taxes due on all sums paid to Consultant
under this Agreement.
7. Entire Agreement. This Agreement contains the entire agreement between
the parties hereto with respect to the transactions contemplated hereby, and
contains all of the terms and conditions thereof and supersedes all prior
agreements and understandings relating to the subject matter hereof. No changes
or modifications of or additions to this Agreement shall be valid unless the
same shall be in writing and signed by each party hereto.
8. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any one or more of the provisions
hereof shall not affect the validity and enforceability of the other provisions
hereof.
9. Assignment. The rights and obligations of Consultant under this
Agreement shall not be assignable without the prior written consent of the
Company. The rights and obligations of the Company under this Agreement shall
not be assignable without the prior written consent of Consultant which consent
shall not be unreasonably withheld or delayed; provided, however, no consent is
required in the event of a sale of substantially all of the Company's assets or
similar reorganization . Any attempted assignment in violation of this Agreement
shall be void and of no effect.
10. Waivers. No waiver of any of the provisions of this Agreement shall be
deemed to be or shall constitute a waiver of any other provision of this
Agreement, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver of any provision of this Agreement shall be binding on the
parties hereto unless it is executed in writing by the party making the waiver.
11. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of delivery if delivered personally to the party to whom notice is
to be given, or on the third (3rd) day after mailing if mailed to the party to
whom notice is given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
a. If to Company:
Netter Digital Entertainment, Inc.
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
Xxxx, Forward, Xxxxxxxx & Scripps
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
b. If to the Consultant:
Xxxxxxxx Xxxxxx
Trital Acquisition Corp.
000 X. Xxx Xxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Either party may change the address to which notices to such party are to
be addressed by giving the other party hereto written notice of such change in
the manner herein set forth.
12. Arbitration of Disputes. Any controversy or claim arising out of or
relating to the between Consultant and the Company shall be settled by
arbitration in accordance with the laws of the State of California by a mutually
agreeable arbitrator, whose approval shall not be unreasonably withheld by
either party. If the parties cannot agree on the appointment of an arbitrator,
then the arbitrator shall be appointed by the American Arbitration Association
in Los Angeles, California. Such arbitration shall be conducted in Los Angeles,
California in accordance with the rules of the American Arbitration Association,
except with respect to the selection of the arbitrator which shall be as
provided in this Section 12. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. The party or parties
againt whom the arbitrator shall render an award shall pay the other party's or
parties' reasonable attorneys' fees and other reasonable costs and expenses in
connection with the enforcement of its or their rights under this Agreement
(including the enforcement of any arbitration award in court), unless and to the
extent the arbitrator shall determine that under the circumstances recovery by
the prevailing party or parties of all or a part of any such fees and costs and
expenses would be unjust.
13. No Third-Party Benefits. None of the provisions of this Agreement shall
be for the benefit of, or enforceable by, any third-party beneficiary.
14. Headings. The Section and Subsection headings used herein are for
convenience or reference only, are not a part of this Agreement and are not to
affect the construction of, or be taken into consideration in interpreting, any
provision of this Agreement.
15. Counterparts. This Agreement may be executed in several counterparts
all of which together shall constitute one and the same instrument with the same
force and effect as though each of the parties had executed the same document.
16. Governing Law. This Agreement is made and shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
without regard to the conflict of laws principles thereof, as the same apply to
agreements executed solely by residents of California and wholly to be performed
within California. Venue for any proceeding shall be only in Los Angeles County,
California.
17. Construction. In the interpretation and construction of this Agreement,
the parties acknowledge that the terms hereof reflect extensive negotiations
between the parties shall not be deemed, for the purpose of construction and
interpretation, that either party drafted this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CONSULTANT:
Trital Acquisition Corp.
By:/s/Xxxxxxxx Xxxxxx
___________________________________
Xxxxxxxx Xxxxxx, President
/s/Xxxxxxxx Xxxxxx/
___________________________________
Xxxxxxxx Xxxxxx
COMPANY:
Netter Digital Entertainment, Inc.
By:/s/ Xxxxxxx Xxxxxx/
___________________________________
Xxxxxxx Xxxxxx, President
