CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement") is entered into
this 16th day of June, 2005 by and between Xxxxxxx X. Xxxxxxxxx, 000 Xxxxxxx
Xxxxx Xx., Xxxxxx, XX. 00000, (hereinafter referred to as, "Consultant"), and
M Power Entertainment, Inc. (OTCBB: MPWE) (hereinafter referred to as,
"Client"), a Delaware corporation, (collectively referred to as the "Parties")
with reference to the following:
Preliminary Statement
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A. The Client desires to be assured of the association and services
of the Consultant in order to avail itself of the Consultant's experience,
skills, abilities, knowledge, and background to facilitate the daily
operations of the company, and to advise the Client in business and/or
financial and merger/acquisition matters and is therefore willing to engage
Consultant upon the terms and conditions set forth herein. Consultant desires
to be assured, and Client desires to assure Consultant, that, if Consultant
associates with Client and allocates its resources necessary to provide Client
with its business advisory and consulting services, Consultant will be paid
the consideration described herein and said consideration will be
nonrefundable, regardless of the circumstances.
Consultant agrees to be engaged and retained by Client and upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
Engagement. Client hereby engages Consultant on a non-exclusive basis, and
Consultant hereby accepts the engagement to a become business and financial
Consultant to Client and to render such advice, consultation, information, and
services to the Directors and/or Officers of Client regarding general
financial and business matters including, but not limited to the following
1.1 Assistance, Advice and Counsel. Consultant will provide assistance,
advice and counsel regarding Client's daily operations, strategic business
plans, strategy and negotiations with potential business strategic partnering,
corporate planning and or other general business consulting needs as expressed
by Client.
1.2 Client and/or Client's Affiliate Transaction Due Diligence. Consultant
will participate and assist Client in the due diligence process, where
possible, on all proposed financial transactions affecting Client of which
Consultant is notified in writing in advance, including conducting
investigation of and providing advice on the financial, valuation and stock
price implications of the proposed transaction(s).
1.3 Ancillary Document Services. If necessary, Consultant will assist and
cooperate with Client in the development, editing and production of such
documents as are reasonably necessary to assist in any transaction covered by
this Agreement. However, this Agreement will not include the preparation or
procuring of legal documents or those documents normally prepared by an
attorney.
1.4 Mergers and Acquisitions. Consultant will provide assistance to Client,
as mutually agreed, in identifying merger and/or acquisition candidates,
assisting in any due diligence process, recommending transaction terms and
providing advice and assistance during negotiations, as needed. It is
expressly understood that Consultant shall have no power to bind Client to any
contract or transaction obligation. Additional compensation to Consultant for
the successful closing of any such merger or acquisition shall be made
pursuant to Section 1.4.a.ii. below.
a. Mergers and Acquisitions. Consultant agrees to introduce and/or
assist Client in acquiring, merging, and/or divesting on a non-exclusive
basis, from time to time, as Consultant deems appropriate in its sole
discretion. Consultant will introduce and/or assist the Client with one or
more parties who might be interested in (whether by way of merger,
consolidation, asset purchase, technology license, or substantially similar
transaction) either, (a) acquiring some or all of Client's assets or, (b)
selling some or all of their own assets to Client and/or, (c) entering into
some form of strategic alliance with Client. In consideration of Consultant's
services, Client agrees to pay Consultant the fee set forth in paragraph
1.4.a.ii.
i. Performance by Consultant. Consultant shall be deemed to have
earned its entire fee under Section 1.4.a.ii upon, (i) Consultant's
introduction of any bona fide potential acquirer or seller of assets or merger
candidate or, (ii) upon materially assisting Client with merger, acquisition
and/or divestiture efforts for an introduced or non-introduced merger,
acquisition and/or divestiture candidate and, (iii) the consummation of the
merger, acquisition, and/or divestiture by Client within 12 months from the
date of such introduction or effort. Consultant shall be entitled to receive a
fee (as described in paragraph 1.4.a.ii., below) for each merger, acquisition
and/or divestiture by the Client. Each such obligation of Client to pay such
fee shall be deemed a separate agreement hereunder severable from each of the
other obligations to pay fees arising hereunder and each obligation shall be
separately enforceable as if separate written agreements existed for each
introduction and/or effort made by Consultant.
ii. Amount and Payment of Consultant's Fee For Merger/Acquisition
For a merger/acquisition entered into by Client as a result of the efforts of,
or an introduction of a bona fide merger/acquisition candidate by Consultant
during the term of this Agreement, Client shall pay Consultant, two and a half
percent (2.5%) of the total value of the transaction.
Note: Such percentage(s) shall be paid to Consultant in the same
ratio of cash and / or stock as the transaction. "Total value" shall include,
but is not limited to cash, cash equivalents, stock, and the value of any
consideration other than cash paid or received by Client. All shares earned
under this section that have not been registered with the Securities and
Exchange Commission shall be registered by Client on Form S-8 or similar
registration within 5 days of the completion of the transaction. All costs in
connection with the registration shall be borne by Client.
b. Payment. In addition to the payment of the Engagement Fee, which
is due and payable upon the execution of this Agreement pursuant to the terms
of Section 2 below, each time a fee is due as specified in any other provision
of this Agreement, the fee amount, as specified therein, shall be payable by
Client to Consultant upon the closing of the transaction. The fee due
Consultant shall be in addition to any fee or funds which may be payable to
any other person or entity as a result of the transaction.
Consultant makes no guarantee that it will be able to successfully locate a
merger or acquisition target and in turn consummate a merger or acquisition
transaction for client, or to successfully complete such a transaction within
client's desired time frame. Any comments made regarding potential time frames
or anything that pertains to the outcome of client's needs are expressions of
consultant's opinion only, and for purposes of this agreement are specifically
disavowed.
1.5 Standard of Performance. Consultant shall devote such time and efforts
to the affairs of the Client as is reasonably necessary to render the services
contemplated by this Agreement. Any work or task of Consultant provided for
herein which requires Client to provide certain information to assist
Consultant in completion of the work shall be excused (without effect upon any
obligation of Client) until such time as Client has fully provided all
information and cooperation necessary for Consultant to complete the work.
The services of Consultant shall not include the rendering of any legal
opinions or the performance of any work that is in the ordinary purview of a
certified public accountant, or other licensed professional. Consultant
cannot guarantee results on behalf of Client, but shall use commercially
reasonable efforts in providing the services listed above. If an interest is
communicated to Consultant regarding satisfying all or part of Client's
business and corporate strategic planning needs, Consultant shall notify
Client and advise it as to the source of such interest and any terms and
conditions of such interest.
2. Compensation to Consultant.
a. Monthly Fee. Client shall pay a monthly retainer fee of Ten
Thousand and no/100 Dollars ($10,000.00), which shall be due and payable, on
the first day of each month commencing with the execution of this Agreement
(the "Retainer Fee").
b. Terms of Payment. With each invoice submitted by Consultant,
Consultant shall designate the preferred manner of payment, which may be in
the form of cash or in M Power Entertainment, Inc. common stock. In the event
that Consultant elects to receive common stock, the issuance of said shares
shall be registered with the U.S. Securities and Exchange Commission on its
Form S-8 or similar registration. The number of shares to be received by
Consultant shall be calculated by dividing the invoiced amount by the closing
bid price of the stock on the date of invoice. Client shall retain the right
to make the final determination of whether such payments shall be in stock or
cash.
c. Invoicing and Payment Terms. Consultant shall submit to Client an
invoice for the Retainer Fee and any and all additional services rendered on
or before the first of each month. Client agrees to pay any net amount due to
Consultant within ten (10) days after receipt of the statement.
d. Initial Consideration. As consideration for Consultant entering
into this Agreement, Client agrees to cause a Common Stock Purchase Warrant to
be issued for Consultant to purchase up to 250,000 shares of its Common Stock.
The Warrant is to be issued to Xxxxxxx X. Xxxxxxxxx at an exercise price
equivalent to the closing price of Client's common stock on June 1, 2005.
Note: Consultant shall have no obligation to perform any duties provided for
herein if payment [cash and/or stock] is not received by consultant within the
time periods as stipulated above. In addition, consultant's obligations under
this agreement shall be become null and void if any payment owing hereunder is
not delivered within the time periods as stipulated above. Furthermore, the
receipt of any fees due to consultant upon execution of this agreement are not
contingent upon any prior performance of any duties whatsoever described
within this agreement. Client expressly agrees that the engagement fee is
deemed earned upon execution of this agreement and is thereafter
non-refundable and non-cancelable.
2.1 Expenses. Client shall reimburse Consultant for reasonable expenses
incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging, and long
distance telephone and facsimile charges). Such reimbursement shall be
payable within seven days after Client's receipt of Consultant' invoice.
2.2 Additional Fees. Client and Consultant shall mutually agree upon any
additional fees that Client may pay in the future for services rendered by
Consultant under this Agreement. Such additional agreement(s) may, although
there is no requirement to do so, be attached hereto and made a part hereof as
Exhibits beginning with "A."
3. Indemnification. The Client agrees to indemnify and hold harmless
Consultant against any and all liability, loss and costs, expenses or damages,
including but not limited to, any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or howsoever caused by reason
of any injury (whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property, arising out
of any act, failure to act, neglect, any untrue or alleged untrue statement of
a material fact or failure to state a material fact which thereby makes a
statement false or misleading, or any breach of any material representation,
warranty or covenant by Client or any of its agents, employees, or other
representatives. Nothing herein is intended to nor shall it relieve either
party from liability for its own willful act, omission or negligence. All
remedies provided by law, or in equity shall be cumulative and not in the
alternative.
4. Confidentiality.
4.1 Consultant and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where release
may be detrimental to their respective business interests. Consultant and
Client shall each require their employees, agents, affiliates, other
licensees, and others who will have access to the information through
Consultant and Client respectively, to first enter appropriate non-disclosure
Agreements requiring the confidentiality contemplated by this Agreement in
perpetuity.
4.2 Consultant will not, either during its engagement by the Client pursuant
to this Agreement or at any time thereafter, disclose, use or make known for
its or another's benefit any confidential information, knowledge, or data of
the Client or any of its affiliates in any way acquired or used by Consultant
during its engagement by the Client. Confidential information, knowledge or
data of the Client and its affiliates shall not include any information that
is, or becomes generally available to the public other than as a result of a
disclosure by Consultant or its representatives.
5. Miscellaneous Provisions.
5.1 Amendment and Modification. This Agreement may be amended, modified and
supplemented only by written agreement of Consultant and Client.
5.2 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The obligations of either party
hereunder cannot be assigned without the express written consent of the other
party.
5.3 Governing Law; Venue. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws
of the State of California, without regard to its conflict of law doctrine.
Client and Consultant agree that if any action is instituted to enforce or
interpret any provision of this Agreement, the jurisdiction and venue shall be
Los Angeles, California.
5.4 Attorneys' Fees and Costs. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be construed
as applicable to the entire Agreement.
5.5 Survivability. If any part of this Agreement is found, or deemed by a
court of competent jurisdiction, to be invalid or unenforceable, that part
shall be severable from the remainder of the Agreement.
5.6 Facsimile Signatures. The Parties hereto agree that this Agreement may
be executed by facsimile signatures and such signature shall be deemed
originals. The Parties further agree that within ten (10) days following the
execution of this Agreement, they shall exchange original signature pages.
6. Arbitration. All disputes, controversies, or differences between client,
consultant or any of their officers, directors, legal representatives,
attorneys, accountants, agents or employees, or any customer or other person
or entity, arising out of, in connection with or as a result of this
agreement, shall be resolved through arbitration rather than through
litigation. With respect to the arbitration of any dispute, the undersigned
hereby acknowledge and agree that:
A. Arbitration is final and binding on the parties;
B. The parties are waiving their right to seek remedy in court,
including their right to jury trial;
C. Pre-arbitration discovery is generally more limited and
different from court proceeding;
D. The arbitrator's award is not required to include factual
findings or legal reasoning and any party's right of appeal or to seek
modification of ruling by the arbitrators is strictly limited;
E. This arbitration provision is specifically intended to
include any and all statutory claims which might be asserted by any party;
F. Each party hereby agrees to submit the dispute for resolution
to the American Arbitration Association, in New York, New York within five (5)
days after receiving a written request to do so from the other party;
G. If either party fails to submit the dispute to arbitration on
request, then the requesting party may commence an arbitration proceeding, but
is under no obligation to do so;
H. Any hearing scheduled after an arbitration is initiated shall
take place in New York, New York;
I. If either party shall institute any court proceeding in an
effort to resist arbitration and be unsuccessful in resisting arbitration or
shall unsuccessfully contest the jurisdiction of any arbitration forum located
in Los Angeles, California, over any matter which is the subject of this
agreement, the prevailing party shall be entitled to recover from the losing
party its legal fees and any out-of-pocket expenses incurred in connection
with the defense of such legal proceeding or its efforts to enforce its rights
to arbitration as provided for herein;
J. The parties shall accept the decision of any award as being
final and conclusive and agree to abide thereby;
K. Any decision may be filed with any court as a basis for
judgment and execution for collection.
7. Term/Termination. This Agreement is for a term of Twelve (12) months
ending June 1, 2006.
8. Representations, Warrants and Covenants. The Client represents, warrants
and covenants to the Consultant as follows:
The Client has the full authority, right, power and legal capacity to enter
into this Agreement and to consummate the transactions that are provided for
herein. The execution of this Agreement by the Client 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 Client's Board of Directors and no further authorization shall
be necessary on the part of the Client for the performance and consummation by
the Client of the transactions which are contemplated by this Agreement.
The business and operations of the Client have been and are being conducted in
all material respects in accordance with all applicable laws, rules and
regulations of all authorities that affect the Client 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 Client or cause
acceleration under any arrangement, agreement or other instrument to which the
Client is a party or by which any of its assets are bound. The Client 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.
9. 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; or (ii) overnight
delivery with confirmation of delivery; or (iii) facsimile transmission with
an original mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: Xxxx X. Xxxxxxx
M Power Entertainment, Inc
000 Xxxx Xxxxxx Xxxxx Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
If to Consultant: Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxxx Xx.
Xxxxxx, Xx. 00000
Facsimile No: (000) 000-0000
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 other methods of sending notice 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.
10. 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.
11. Preliminary Statement. The Preliminary Statement is incorporated herein
by this reference and made a material part of this Agreement.
**SIGNATURE PAGE FOLLOWS**
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CLIENT: M POWER ENTERTAINMENT, INC. (MPWE)
/s/ Xxxx X. Xxxxxxx
___________________________
Title: President and CEO
Date: June 10, 2005
Consultant:
/s/ Xxxxxxx X. XxXxxxxx
_________________________________
Xxxxxxx X. Xxxxxxxxx
Date: June 10, 2005
