CONSULTING AGREEMENT
Exhibit
4
AGREEMENT
dated as of 13th day of
March 2008 by and between Artfest International, Inc., a Delaware corporation,
with a principal place of business at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 (the “Company”) and Xxxxx Xxxxxxx, a New York resident,
with an office at 515 Madison Avenue, 25th Floor,
New York, New York 10022 (the “Consultant”).
WITNESSETH
WHEREAS, the Company and the
Consultant desire to enter into this Agreement and to set forth terms and
conditions with respect to the Company’s engagement of the
Consultant;
WHEREAS, the Company prints,
markets, and sells limited edition, signed and numbered fine art and
collectibles to its members which include collectors, dealers, artists,
decorators, designers, private collectors and investors;
WHEREAS, the Company desires a
relationship with the Consultant as its consultant and
representative;
WHEREAS, the Company and the
Consultant desire to enter into a mutually agreeable contract, whereby the
Company shall provide sufficient information with respect to its operations,
strategic business plans and management to the Consultant who shall provide
advisory and consulting services to the Company pursuant to the terms and
conditions of this Agreement;
NOW, THEREFORE, in
consideration of the mutual covenants of the parties which are hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged,
IT IS AGREED:
1. Recitals
Adopted. The parties hereto adopt as part of this Agreement
each of the recitals contained above in the WHEREAS clauses, and agree that such
recitals shall be binding upon the parties hereto by way of contract and not
merely by way of recital or inducement; and such clauses are hereby confirmed
and ratified as being true and accurate by each party as to itself.
2. Engagement.
A. The
Company is a publicly traded company (OTCBB: ARTI) which currently markets,
sells, and prints paintings and autographed limited-edition celebrity
photographs which are reproduced on canvas using the Giclée and lithograph
processes, and
textured Giclée printing method. The Company also operates and
manages a full-scale television network (the “Art Channel Network”) which
broadcasts art and other creative related programming which is syndicated to
20,000,000 viewers in 218 independent TV market national wide. The
Company seeks to use the Art Channel Network as an additional marketing tool to
market and sell its products.
The
Company seeks to develop the following three (3) sales strategies (the “Sales
Strategies”):
i. Direct
Marketing and Sales: This model is centered on an Associate Rewards Referral /
Party Plan System modeled after companies like Home Interiors, Tupperware,
Pampered Chef and Avon.
ii. Internet
Driver: This strategy offers our Associate Members a state-of-the-art website
that is a completely automated, turn-key online business building system that
will create unlimited spam-free traffic to the Company’s Associate Members
websites.
iii.
The Company’s signed and numbered fine art and autographed celebrity
collectibles will be marketed and sold through independent contractors who will
become Associate Members of the Company by enrolling and agreeing to the terms
and conditions for a free information and ecommerce personalized Company
website.
B. The
Consultant agrees that he will use his best efforts to learn about the Company’s
services (the “Company’s Services”) so that the Consultant shall have sufficient
knowledge to provide the Consulting Services (as defined in Paragraph “C” of
this Article “2” of this Agreement.
C. Upon
the terms and conditions which are hereinafter set forth, the Company hereby
retains the Consultant as an advisor and consultant to the Company and its
officers and directors to use his best efforts to provide services, including,
but not limited to, the following (the “Consulting Services”):
i. Develop
the Sales Strategies;
ii. Apply
the Sales Strategies in order to best promote the Company’s
Services;
iii. Expand
the Company’s Services;
iv. Business
advertising;
v. Develop
strategic alliances, including, but not limited to, alliances with artists who
may be interested in distributing their art through the Company, and introduce
to the Company prospective business partners, customers and Associate
Members through which the Company may expand Artfest Galleries and/or the Art
Channel Network;
vi. Advise
the Company in connection with its management and marketing strategy;
and
vii. Such
other matters as the Company shall from time to time request, subject to the
terms of this Agreement.
D. The
Consultant shall not be required to devote any minimum number of weeks, days, or
hours to the affairs of the Company during the term of this Agreement; provided,
however that the Consultant shall devote such time, attention and energies to
the business of the Company, as the Consultant determines in the exercise of his
good faith determination to enable him to fulfill his duties pursuant to this
Agreement.
E. The
Consulting Services shall not be in connection with the offer or sale of
securities in a capital raising transaction and do not and shall not directly or
indirectly promote or maintain a market for the Company’s
securities.
3. Term.
A. The
term of this Agreement shall commence as of March 13, 2008 and shall continue
for a period of one (1) year until March 12, 2009 (the “Term”). The
Company shall have the right to terminate the Consultant for Cause as defined in
Article “10” of this Agreement.
B. This
Agreement may be extended by the mutual written agreement of the
parties.
4. Compensation.
A. As
compensation for the services rendered pursuant to this Agreement, the
Consultant shall receive seven million five hundred thousand (7,500,000) free
trading shares of Common Stock of the Company (the “Shares”). The
Shares shall be duly authorized, validly issued and outstanding, fully paid and
non assessable and shall not be subject to any liens or
encumbrances. Three million (3,000,000) Shares shall be delivered to
the Consultant within ten (10) business days after the execution of this
Agreement, and the balance of four million five hundred thousand (4,500,000)
Shares shall be delivered to to the Consultant within sixty (60) days after the
execution of this Agreement. The Company acknowledges that it would
be extremely difficult or impracticable to determine the Consultant’s actual
damages and costs resulting from the delay in providing the Shares to the
Consultant and the inclusion herein of any such late charges or fees are the
agreed upon liquidated damages representing a reasonable estimate of those
damages and costs and do not constitute a penalty.
B. The
Company covenants and agrees that promptly after the execution of this
Agreement, the Company will file an S-8 Registration Statement covering the
Shares. All expenses in connection with preparing and filing any
registration statement under this Article “4” (and any registration or
qualification under the securities or “Blue Sky” laws of states in which the
offering will be made under such registration statement) shall be borne in full
by the Company.
C. The
parties acknowledge that the consideration being provided to the Consultant
pursuant to this Agreement is solely with respect to the Consulting Services,
and is not in connection with any funding provided or to be provided to the
Company.
5. Costs and
Expenses. The Consultant shall be reimbursed for all
reasonable expenses that the Consultant may incur in performing the Consulting
Services pursuant to this Agreement including, but not limited to, travel
expenses, third party expenses, copy and mailing expenses; provided, however,
that said expenses have been approved in writing by the Company.
6. Due
Diligence. The Company shall supply and deliver to the
Consultant all information relating to the Company’s business as may be
reasonably requested by the Consultant to enable the Consultant to make an
assessment of the Company and its business prospects and provide the Consulting
Services.
7. Best Efforts
Basis. The Consultant agrees that he will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of, and from, the Consultant pursuant to the terms of this
Agreement. The Consultant does not guarantee that his efforts will
have any impact upon the Company’s business or that there will be any specific
result or improvement from the Consultant’s efforts.
8. Company’s Right to Approve
Transactions.
A. The
Consultant and the Company mutually agree that the Consultant is not authorized
to enter into agreements on behalf of the Company. It is mutually
understood and agreed that the Company is not obligated to accept any
recommendations submitted by the Consultant.
B. The
Consultant agrees to provide the Company for approval, in its sole and absolute
discretion, a reasonable time in advance, any documents which are intended to be
utilized by the Consultant with respect to his services pursuant to this
Agreement, or otherwise. The Company will carefully and thoroughly
review all such material including without limitation material provided by the
Company to the Consultant and intended to be used by the Consultant, as to the
accuracy of the contents thereof and will promptly notify the Consultant in
writing of any inaccuracies or changes to be made with respect
thereto.
9. Non-Exclusive
Services. The Company acknowledges that the Consultant is
currently providing services of the same or similar nature to other parties and
the Company agrees that the Consultant is not prevented or barred from rendering
services of the same nature or a similar nature to any other individual or
entity. The Consultant understands and agrees that the Company shall
not be prevented or barred from retaining other persons or entities to provide
services of the same or similar nature as those provided by the
Consultant. The Consultant will take reasonable steps to determine
and to advise the Company of his position with respect to any activity,
employment, business arrangement or potential conflict of interest which may be
relevant to this Agreement, but Consultant shall not be obligated to conduct an
exhaustive review of his activities to determine whether or not such a conflict
exists.
10. Cause. For
purposes of this Agreement, the term “Cause” shall be limited to: (A) willful
malfeasance or gross negligence; (B) the Consultant’s fraud, misappropriation or
embezzlement; or (C) the Consultant’s default, violation of, or failure to
perform any provision of this Agreement; provided however that any termination
shall be subject to (i) the Consultant’s receipt of written notice (the “Default
Notice”) from the Company specifying the failure or default and (ii) the
Consultant’s (a) failure to cure such default within thirty (30) days after
receipt of the Default Notice or (b) if it is a default which cannot, with due
diligence, be cured within thirty (30) days, the Consultant’s failure to
institute within thirty (30) days steps reasonably necessary to remedy such
default and thereafter diligently prosecutes same to completion.
11. Representations, Warrants
and Covenants of the Consultant. The Consultant represents,
warrants and covenants to the Company as follows:
A. The
Consultant has the full authority, right, power and legal capacity to enter into
this Agreement and to consummate the transactions which are provided for
herein.
B. The
business and operations of the Consultant have been and are being conducted in
all material respects in accordance with all applicable laws, rules and
regulations of all authorities which affect the Consultant or his properties,
assets, businesses or prospects. The performance of this Agreement
shall not result in any breach of, or constitute a default under, or result in
the imposition of any lien or encumbrance upon any property of the Consultant or
cause an acceleration under any arrangement, agreement or other instrument to
which the Consultant is a party or by which any of his assets are
bound. The Consultant has performed in all respects all of his
obligations which are, as of the date of this Agreement, required to be
performed by the Consultant pursuant to the terms of any such agreement,
contract or commitment.
C. The
execution, delivery and performance of this Agreement: (i) does not violate any
agreement or undertaking to which the Consultant is a party or by which the
Consultant may be bound and (ii) shall not result in the imposition of any
restrictions or obligations upon the Consultant other than the restrictions and
obligations imposed by this Agreement.
D. The
execution and delivery by the Consultant of this Agreement and the performance
by the Consultant of his obligations hereunder and thereunder will not violate
any provision of law, any order of any court or other agency of government, and
will not result in a material breach of or constitute (with due notice or lapse
of time or both) a material default under any provision of any agreement or
other instrument to which the Consultant, or any of his properties or assets, is
bound.
E. The
Consultant has not entered into and is not subject to any agreement, including,
but not limited, to any employment, noncompete, confidentiality or work product
agreement which would (i) prohibit the execution of this Agreement, (ii)
prohibit his engagement as a Consultant by the Company, or (iii) affect any of
the provisions of, or his obligations pursuant to this Agreement.
F. If,
during the Term, any event occurs or any event known to the Consultant relating
to or affecting the Consultant shall occur as a result of which (i) any
provision of this Article “11” of this Agreement at that time shall include an
untrue statement of a fact, or (ii) this Article “11” of this Agreement shall
omit to state any fact necessary to make the statements herein, in light of the
circumstances under which they were made, not misleading, the Consultant will
immediately notify the Company pursuant to Paragraph “C” of Article “18” of this
Agreement.
G. The
receipt of the Common Stock by the Consultant is for the Consultant’s own
account. The Consultant is not participating and does not have a
participation in any distribution or the underwriting of any such
distribution.
H. The
Consultant has no present intention of creating a market or participating or
assisting in the creation of a market or in the promotion of a market for any
securities of the Company.
I. The
Consultant has no present intention of selling or otherwise disposing of the
Common Stock in violation of applicable securities laws.
J. The
Consultant is aware that no federal or state governmental authority has made any
finding or determination as to the fairness of an investment in the Common
Stock, or any recommendation or endorsement with respect thereto.
K. The
Consultant is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
L. The
Consultant has such knowledge and experience in financial, investing and
business matters as to be capable of evaluating the risks and merits of an
investment in the Common Stock and protecting the Consultant’s interests in
connection with an investment in the Common Stock.
M. The
Consultant has had access to and an opportunity to inspect all relevant
information relating to the Company sufficient to enable the Consultant to
evaluate the merits and risks of his receipt of the Common Stock
hereunder.
N. It
shall not be a defense to a suit for damages for any misrepresentation or breach
of covenant or warranty that the Company knew or had reason to know that any
representation, warranty or covenant of the Consultant in this Agreement or
furnished or to be furnished to the Company contained untrue
statements.
O. No
representation or warranty of the Consultant which is contained in this
Agreement, or in a writing furnished or to be furnished pursuant to this
Agreement, contains or shall contain any untrue statement of a material fact,
omits or shall omit to state any material fact which is required to make the
statements which are contained herein or therein, in light of the circumstances
pursuant to which they were made, not misleading.
P. All
representations, warranties and covenants made in or in connection with this
Agreement shall continue in full force and effect during and after the Term of
this Agreement, it being agreed and understood that each of such
representations, warranties and covenants is of the essence of this Agreement
and the same shall be binding upon the Consultant and inure to the Consultant,
his successors and assigns.
12. Representations, Warrants
and Covenants of the Company. The Company represents, warrants
and covenants to the Consultant as follows:
A. The
Company is a corporation with all requisite power and authority to carry on its
business as presently conducted in all jurisdictions where presently conducted,
to enter into this Agreement and to the transactions which are contemplated
herein.
B. The
Company has the full authority, right, power and legal capacity to enter into
this Agreement and to consummate the transactions which are provided for
herein. The execution of this Agreement by the Company and its
delivery to the Consultant, and the consummation by it of the transactions which
are contemplated herein have been duly approved and authorized by all necessary
action by the Company’s Board of Directors and no further authorization shall be
necessary on the part of the Company for the performance and consummation by the
Company of the transactions which are contemplated by this
Agreement.
C. The
business and operations of the Company have been and are being conducted in all
material respects in accordance with all applicable laws, rules and regulations
of all authorities which affect the Company or its properties, assets,
businesses or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Company or cause
an acceleration under any arrangement,
agreement or other instrument to which the Company is a party or by which any of
its assets are bound. The Company has performed in all respects all
of its obligations which are, as of the date of this Agreement, required to be
performed by it pursuant to the terms of any such agreement, contract or
commitment.
D. The
execution, delivery and performance of this Agreement: (i) does not violate any
agreement or undertaking to which the Company is a party or by which the Company
may be bound and (ii) shall not result in the imposition of any restrictions or
obligations upon the Company other than the restrictions and obligations imposed
by this Agreement.
E. If,
during the Term, any event occurs or any event known to the Company relating to
or affecting the Company shall occur as a result of which (i) any provision of
this Article “12” of this Agreement at that time shall include an untrue
statement of a fact, or (ii) this Article “12” of this Agreement shall omit to
state any fact necessary to make the statements herein, in light of the
circumstances under which they were made, not misleading, the Company will
immediately notify the Consultant pursuant to Paragraph “C” of Article “18” of
this Agreement.
F. It
shall not be a defense to a suit for damages for any misrepresentation or breach
of covenant or warranty that the Consultant knew or had reason to know that any
representation, warranty or covenant of the Company in this Agreement or
furnished or to be furnished to the Consultant contained untrue
statements.
G. No
representation or warranty of the Company which is contained in this Agreement,
or in a writing furnished or to be furnished pursuant to this Agreement,
contains or shall contain any untrue statement of a material fact, omits or
shall omit to state any material fact which is required to make the statements
which are contained herein or therein, in light of the circumstances pursuant to
which they were made, not misleading.
H. All
representations, warranties and covenants made in or in connection with this
Agreement shall continue in full force and effect during and after the Term of
this Agreement, it being agreed and understood that each of such
representations, warranties and covenants is of the essence of this Agreement
and the same shall be binding upon the Company and inure to the Consultant, its
successors and assigns.
13. Nondisclosure of
Confidential Information.
A. As
used in this Agreement, “Confidential Information” means information which is
presented to the Consultant by the Company or developed, conceived or created by
the Company, or disclosed to the Consultant or known by or conceived or created
by the Consultant during the Term, with respect to the Company, its business or
any of its products, processes, and other services relating thereto relating to
the past, present or future business of the Company or any plans therefore, or
relating to the
past, present or future business of a third party or plans therefore which are
disclosed to the Consultant. Confidential Information includes, but
is not limited to, all documentation, hardware and software relating thereto,
and information and data in written, graphic and/or machine readable form,
products, processes and services, whether or not patentable, trademarkable or
copyrightable or otherwise protectable, including, but not limited to,
information with respect to discoveries; know-how; ideas; computer programs,
source codes and object codes; designs; algorithms; processes and structures;
product information; marketing information; price lists; cost information;
product contents and formulae; manufacturing and production techniques and
methods; research and development information; lists of clients and vendors and
other information relating thereto; financial data and information; business
plans and processes; documentation with respect to any of the foregoing; and any
other information of the Company that the Company informs the Consultant or the
Consultant should know, by virtue of its position or the circumstances in which
the Consultant learned such other information, is to be kept confidential
including, but not limited to, any information acquired by the Consultant from
any sources prior to the commencement of the Consultant becoming a consultant to
the Company. Confidential Information also includes similar
information obtained by the Company in confidence from its vendors, licensors,
licensees, customers and/or clients. Confidential Information may or
may not be labeled as confidential.
B. Except
as required in the performance of the Consultant’s duties as a consultant, the
Consultant will not, during or after the Term, directly or indirectly, use any
Confidential Information or disseminate or disclose any Confidential Information
to any person, firm, corporation, association or other entity. The
Consultant shall take all reasonable measures and efforts to protect
Confidential Information from any accidental, unauthorized or premature use,
disclosure or destruction. The use of such measures and efforts shall
not constitute a defense if any of the Confidential Information is not kept
confidential in accordance with the terms of this Agreement. The
foregoing prohibition shall not apply to any Confidential Information which: (i)
was generally available to the public prior to such disclosure; (ii) becomes
publicly available through no act or omission of the Consultant (iii) is
disclosed as reasonably required in a proceeding to enforce the Consultant’s
rights under this Agreement or (iv) is disclosed as required by court order or
applicable law.
C. Upon
termination of the Consultant for any reason, or at any time upon request of the
Company, the Consultant agrees to deliver to the Company all materials of any
nature which are in the Consultant’s possession or control and which are or
contain Confidential Information, or which are otherwise the property of the
Company or any vendor, licensor, licensee, customer or client of the Company,
including, but not limited to writings, designs, documents, records, data,
memoranda, tapes and disks containing software, computer source code listings,
routines, file layouts, record layouts, system design information, models,
manuals, documentation and notes.
14. Company. As
used in this Agreement, “Company” shall mean, Artfest International, Inc. its
successors and assigns, and any of its present or future subsidiaries or
organizations controlled by it.
15. Assignment. The
rights granted hereunder to the Consultant are personal in
nature. Any purported transfer of any such rights, by operation of
law or otherwise, not specifically authorized pursuant to this Agreement shall
be void and shall also constitute a breach of this Agreement; provided, however,
the Consultant may assign all or a portion of the seven million five hundred
thousand (7,500,000) Shares issued to him pursuant to Article “4” of this
Agreement to one or more persons or entities.
16. No
Defenses. In the event that Consultant commences an action to
enforce this Consulting Agreement, the Company acknowledges and agrees that
there are, and shall be, no defenses, set-offs, equities, counterclaims or other
claims, whether legal or equitable, interposed and/or available to it or any
other person or entity affiliated with it or against the enforcement of this
Consulting Agreement, including, but not limited to, any such defenses,
set-offs, equities, counterclaims, or others legal or equitable including, but
not limited to, the statute of limitations, which arise out of this Consulting
Agreement or otherwise, the obligations of the Company with respect to this
Consulting Agreement, as the case may be, or in the course of dealings between
the Company and the Consultant and any representatives or affiliates thereof,
and any such defenses, set-offs, equities, counterclaims or other claims, legal
or equitable, available to the Company, or any entity affiliated with the
Company, whether known or unknown, arising out of this Consulting Agreement, the
administration of this Consulting Agreement are hereby expressly and forever
waived, released and discharged.
17. Relationship.
Except as provided for in this Agreement, neither party is the legal
representative or agent of, or has the power to obligate the other for any
purpose whatsoever; and no partnership, joint venture, agent, fiduciary, or
employment relationship is intended or created by reason of this
Agreement. It is the intent of the parties hereto that the Consultant
shall be an independent contractor of the Company and not an employee of the
Company.
18. Miscellaneous.
A. Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
B. Enforceability. If
any provision which is contained in this Agreement should, for any reason, be
held to be invalid or unenforceable in any respect under the laws of any State
of the United States, such invalidity or unenforceability shall not affect any
other provision of this Agreement. Instead, this Agreement shall be
construed as if such invalid or unenforceable provisions had not been contained
herein.
C. Notices. Any
notice or other communication required or permitted hereunder must be in writing
and sent by either (i) certified mail, postage prepaid, return receipt requested
and First Class mail, (ii) overnight delivery with confirmation of delivery, or
(iii) facsimile transmission with an original mailed by first class mail,
postage prepaid, addressed as follows:
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If
to the Company:
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Artfest
International, Inc.
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00000
Xxxxxx Xxxxxxx, Xxxxx 000
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Xxxxxxx,
XX 00000
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Attention:
Xx. Xxxxxx Xxxxxx
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Facsimile
No.: (000) 000-0000
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With
a copy to:
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Xxxxx
& Fraade, PC
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000
Xxxxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxxxxx X. Xxxxx, Esq.
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Facsimile
No.: (000) 000-0000
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If
to Consultant:
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Xx.
Xxxxx Xxxxxxx
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000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Facsimile
No.: (000) 000-0000
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With
a copy to:
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
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00
Xxxxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxxx X. Xxxxxxx, Esq.
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Facsimile
No.: (000) 000-0000
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or in
each case to such other address and facsimile number as shall have last been
furnished by like notice. If mailing is impossible due to an absence
of postal service, and the other methods of sending notice set forth in this
Paragraph “C” of this Article “18” of this Agreement are not otherwise
available, notice shall be hand-delivered to the aforesaid
addresses. Each notice or communication shall be deemed to have been
given as of the date so mailed or delivered, as the case may be; provided,
however, that any notice sent by facsimile shall be deemed to have been given as
of the date sent by facsimile if a copy of such notice is also mailed by first
class mail on the date sent by facsimile; if the date of mailing is not the same
as the date of sending by facsimile, then the date of mailing by first class
mail shall be deemed to be the date upon which notice given.
D. Governing Law;
Disputes. This Agreement shall in accordance with Section
5-1401 of the General Obligations Law of New York in all respects be construed,
governed, applied and exclusively enforced under the internal laws of the State
of New York without giving effect to the principles of conflicts of laws and be
deemed to be an agreement entered into in the State of New York and made
pursuant to the laws of the State of New York. The parties agree that
they shall be deemed to have agreed to
binding arbitration in New York, New York, with respect to the entire subject
matter of any and all disputes relating to or arising under this Agreement
including, but not limited to, the specific matters or disputes as to which
arbitration has been expressly provided for by other provisions of this
Agreement. Any such arbitration shall be by a panel of three
arbitrators and pursuant to the commercial rules then existing of the American
Arbitration Association in the State of New York, County of New
York. In all arbitrations, judgment upon the arbitration award may be
entered in any court having jurisdiction. The parties agree, further,
that the prevailing party in any such arbitration as determined by the
arbitrators shall be entitled to such costs and attorney's fees, if any, in
connection with such arbitration as may be awarded by the
arbitrators. In connection with the arbitrators’ determination for
the purpose of which party, if any, is the prevailing party, they shall take
into account all of the factors and circumstances including, without limitation,
the relief sought, and by whom, and the relief, if any, awarded, and to
whom. In addition, and notwithstanding the foregoing sentence, a
party shall not be deemed to be the prevailing party in a claim seeking monetary
damages, unless the amount of the arbitration award exceeds the amount offered
in a legally binding writing by the other party by fifteen percent (15%) or
more. For example, if the party initiating arbitration (“A”) seeks an
award of $100,000 plus costs and expenses, the other party (“B”) has offered A
$50,000 in a legally binding written offer prior to the commencement of the
arbitration proceeding, and the arbitration panel awards any amount less than
$57,500 to A, the panel should determine that B has “prevailed”. The
parties specifically designate the courts in the City of New York, State of New
York as properly having jurisdiction for any proceeding to confirm and enter
judgment upon any such arbitration award. The parties hereby consent to and
submit to personal jurisdiction over each of them by the courts of the State of
New York in any action or proceeding, waive personal service of any and all
process and specifically consent that in any such action or proceeding, any
service of process may be effectuated upon any of them by certified mail, return
receipt requested, in accordance with Paragraph “D” of this Article “18” of this
Agreement.
The
arbitration panel shall have no power to award non-monetary or equitable relief
of any sort. It shall also have no power to award (a) damages
inconsistent with any applicable agreement between the parties or (b) punitive
damages or any other damages not measured by the prevailing party’s actual
damages; and the parties expressly waive their right to obtain such damages in
arbitration or in any other forum. In no event, even if any other
portion of these provisions is held invalid or unenforceable, shall the
arbitration panel have power to make an award or impose a remedy which could not
be made or imposed by a court deciding the matter in the same
jurisdiction.
Discovery
shall be permitted in connection with the arbitration only to the extent, if
any, expressly authorized by the arbitration panel upon a showing of substantial
need by the party seeking discovery.
All
aspects of the arbitration shall be treated as confidential. The
parties and the arbitration panel may disclose the existence, content or results
of the arbitration only as provided in the rules of the American Arbitration
Association in New York, New York.
Before
making any such disclosure, a party shall give written notice to all other
parties and shall afford such parties a reasonable opportunity to protect their
interest.
E. Entire
Agreement. The parties have not made any representations,
warranties or covenants with respect to the subject matter hereof which is not
set forth herein, and this Agreement constitutes the entire agreement between
them with respect to the subject matter hereof. All understandings
and agreements heretofore had between the parties with respect to the subject
matter hereof are merged in this Agreement which alone fully and completely
expresses their agreement. This Agreement may not be changed,
modified, extended, terminated or discharged orally, but only by an Agreement in
writing, which is signed by all of the parties to this Agreement.
F. Further
Assurances. The parties agree to execute any and all such
other further instruments and documents, and to take any and all such further
actions which are reasonably required to consummate, evidence, confirm or
effectuate this Agreement and the intents and purposes hereof.
G. Binding
Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns.
H. Waiver. Except
as otherwise expressly provided herein, no waiver of any covenant, condition, or
provision of this Agreement shall be deemed to have been made unless expressly
in writing and signed by the party against whom such waiver is charged; and (i)
the failure of any party to insist in any one or more cases upon the performance
of any of the provisions, covenants or conditions of this Agreement or to
exercise any option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants or conditions,
(ii) the acceptance of performance of anything required by this Agreement to be
performed with knowledge of the breach or failure of a covenant, condition or
provision hereof shall not be deemed a waiver of such breach or failure, and
(iii) no waiver by any party of one breach by another party shall be construed
as a waiver with respect to any other breach of this Agreement.
I. Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
J. Severability. The
provisions of this Agreement shall be deemed separable. Therefore, if
any part of this Agreement is rendered void, invalid or unenforceable, such
rendering shall not affect the validity or enforceability of the remainder of
this Agreement.
IN
WITNESS WHEREOF, the parties to this Agreement have set their hands and seals or
caused these presents to be signed of the day and year first above
written.
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Artfest
International, Inc.
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By:
/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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President
& Chief Executive
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Officer
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/s/
Xxxxx Xxxxxxx
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Xxxxx
Xxxxxxx
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