CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made this 12th day of December,
2006, between Wataire International, Inc., a bulletin board public company
("WTAR"), and CUCOLORIS FILMS, INC., a California corporation ("CUCOLORIS"),
(collectively, the "Parties," and each individually a "Party").
RECITALS:
A. CUCOLORIS is a consultant who desires to provide consulting services
to WTAR; and
B. WTAR desires to retain CUCOLORIS as a branding, marketing,
advertising, media and public relations consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each Party, the Parties, intending to be legally bound, hereby
agree as follows:
1. RECITALS. The Parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
2. ENGAGEMENT. WTAR hereby engages CUCOLORIS and WTAR hereby accepts such
engagement upon the terms and conditions set forth in this Agreement.
2.1 DUTIES. CUCOLORIS is engaged by WTAR as a branding, marketing,
advertising, media and public relations consultant, to represent WTAR and its
business Globally, to assist WTAR in creating its product awareness and product
launch in "consulting" services and trade as previously outlined in a November
2006 online presentation. CUCOLORIS will report directly to the Board of
Directors of WTAR. CUCOLORIS shall at all times faithfully and industriously and
to the best of its ability, experience and talent, perform all of the duties
that may be required of and from it pursuant to the express and implicit terms
hereof. CUCOLORIS shall devote such of its time and business efforts to the
performance of the services as CUCOLORIS deems reasonably necessary and
advisable to discharge its responsibilities and obligations hereunder. The
services shall be performed at such place or places as CUCOLORIS reasonably
determines. CUCOLORIS does not guaranty or make any representation or warranty
regarding the results of its services.
2.2 TERM. The term of this Agreement shall commence upon the date
hereof and shall continue in full force and effect for a term of 12 months.
2.2 FEE STRUCTURE.
2.2.1 TIME IS OF THE ESSENCE. Time is of the essence with respect
to the Parties' respective obligations under this Agreement. Any payment not
made when due shall bear interest until paid at the rate of 10% per annum.
2.2.2 AMOUNT OF FEE. WTAR hereby agrees to pay $1,000,000 to
CUCOLORIS, and CUCOLORIS agrees to accept such fee from WTAR as hereinafter
provided: $250,000 will be paid on each of January 15, 2006, February 15, 2006,
March 15, 2006, and April 15, 2006.
2.2.3 OTHER AGREEMENT. In addition to this Agreement, the parties
hereto have entered into another consulting agreement dated December 11, 2006
(the "Other Agreement"). The material breach of WTAR's obligations under the
Other Agreement shall be a material breach and default by WTAR of this
Agreement.
2.2.4 INDEPENDENT CONTRACTOR. The relationship of the CUCOLORIS to
WTAR hereunder shall be that of an independent contractor. WTAR shall pay
CUCOLORIS directly, without payroll deductions of any kind whatsoever. Nothing
contained herein shall be construed to create the relationship between WTAR and
CUCOLORIS of employer and employee, partners or joint venturers. Neither Party
shall have any authority to create any obligations, express or implied, on
behalf of the other Party and neither Party shall have any authority to
represent the other Party as an employee or in any capacity other than as herein
provided.
3. TERMINATION. This Agreement may only be terminated by the mutual
consent of both parties hereto or by a material breach of the terms of this
Agreement by either of the parties. Any dispute regarding a material breach of
the terms of this Agreement shall be resolved by binding arbitration as set
forth in Section 4 below.
4. ARBITRATION. Any disputes or differences between the parties arising
out of this Agreement that the parties are unable to resolve themselves shall be
submitted to and resolved by binding arbitration as herein provided. Within 10
business days after commencement of arbitration in accordance with the rules of
Judicial Arbitration & Mediation Services, Inc. ("JAMS") then in effect, any of
the parties hereto in dispute may request JAMS to designate one arbitrator, who
shall be a retired or former judge of any appellate court of the State of
California, any United States appellate court or the United States District
Court for any California District who is, in any such case, not affiliated with
any party in interest to such arbitration and who has substantial professional
experience with regard to corporate legal matters. The arbitrator shall consider
the dispute at issue at Los Angeles, California at a mutually agreed upon time
within 30 days (or such longer period as may be acceptable to the parties hereto
in dispute) of the designation of the arbitrator. The arbitration proceeding
shall be held in
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accordance with the rules for practice and procedure of JAMS then in effect on
the date of commencement of such arbitration and shall include an opportunity
for the parties to conduct discovery in advance of the proceeding.
Notwithstanding the foregoing, the parties hereto agree that they will attempt,
and they intend that they and the arbitrator should use their best efforts in
that attempt, to conclude the arbitration proceeding and have a final decision
from the arbitrator within 90 days from the date of selection of the arbitrator;
provided, however, that the arbitrator shall be entitled to extend such 90-day
period one or more times to the extent necessary for such arbitrator to place a
dollar value on any claim that may be unliquidated. The arbitrator shall
promptly deliver to each of the parties a written decision with respect to the
dispute that reveals the essential findings and conclusions upon which the
decision is based, and each party shall promptly act in accordance therewith.
Each party to such arbitration agrees that any decision of the arbitrator shall
be final, conclusive and binding. The cost of the arbitration proceeding and any
proceeding in court to confirm or to vacate any arbitration award, as applicable
(including, without limitation, attorneys' fees and costs), shall be borne by
the unsuccessful party and shall be awarded as part of the Arbitrator's award.
It is specifically understood and agreed that any party may enforce any award
rendered pursuant to the arbitration provisions of this Section 4 by bringing
suit in any court of competent jurisdiction. The parties hereto agree that the
arbitrator shall have authority to grant injunctive or other forms of equitable
relief to any party that prevails in any such arbitration. This Section 4 shall
survive the termination or cancellation of this Agreement.
5. EQUITABLE RELIEF. Each Party hereto acknowledges and agrees that, in
view of the uniqueness of the subject matter hereof and the transactions
contemplated by this Agreement, irreparable damage would occur to the other
Party (and such other Party would not have an adequate remedy at law for money
damages) if any of the provisions of this Agreement were not performed by the
Party in accordance with their specific terms or were otherwise breached.
Accordingly, it is agreed that each Party shall be entitled to one or more
injunctions or restraining orders or both to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof, in addition to any
other remedy to which it is entitled at law or in equity, all without the need
to post a bond or any other security or to prove any amount of actual damages.
6. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants to the other that (a) it has the full power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby and (b) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary actions on the part of such party and this Agreement constitutes a
valid and binding obligation of such party.
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7. INDEMNIFICATION AND HOLD HARMLESS CLAUSE. WTAR shall indemnify, hold
harmless and defend CUCOLORIS, its affiliates within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended, its successors and assigns, and
each of their stockholders, directors, officers, employees, agents and counsel
(collectively, "Indemnified Parties"), to the fullest extent lawful, from and
against any and all "Loss" (as defined herein) incurred or sustained by any such
Indemnified Parties directly or indirectly as a result or arising out of (a) any
untrue statement (or alleged untrue statement) of a material fact, or the
omission (or alleged omission) therefrom of a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, (i) made by any Person other than the Indemnified Party
and/or (ii) made by an Indemnified Party that is contained in the Brochure or in
any writing supplied to CUCOLORIS by WTAR or one of its agents; (b) any
transaction contemplated by the Agreement; and/or (c) CUCOLORIS performing any
of the services contemplated under the Agreement; provided, however, that WTAR
shall not be liable to the extent that any Loss is found in a final judgment by
a court of competent jurisdiction to have resulted from CUCOLORIS' gross
negligence or bad faith in performing such services. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall CUCOLORIS and/or
any Indemnified Party be required to contribute an amount in excess of net
compensation received by CUCOLORIS and/or such Indemnified Party pursuant to the
Agreement. As used in this Agreement, "Loss" means any judgment, cost, direct or
consequential damage, disbursement, expense, liability, loss, deficiency,
obligation, penalty, recovery or settlement of any kind or nature, whether
foreseeable or unforeseeable, including but not limited to, interest or other
carrying costs, penalties, attorneys' fees and expenses, accounting fees,
witness fees (expert or otherwise), travel expenses, and all costs and other
amounts paid in connection with any threatened, pending or contemplated claim,
demand, action, suit, proceeding or inquiry, whether of a civil, criminal,
administrative or investigative nature, and whether the Indemnified Party is
defendant, plaintiff or otherwise, including, without limitation, costs of
investigation, collection, prosecution, defense, appeal, attachment and bonds,
or in connection with establishing a right to indemnification under the
Agreement, any other agreement or any insurance.
8. NOTICE. Any notice given or required to be given under this
Agreement shall be in writing and service thereof shall be sufficient if sent be
hand or by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the Parties' respective addresses
herein above set forth. Each Party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be sent.
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9. ATTORNEYS' FEES. In the event any party hereto brings any legal
action, suit, counterclaim, appeal, arbitration, mediation or other proceeding
("Party Action") against any other party hereto, declaratory or otherwise, in
connection with this Agreement, in addition to any damages, costs or other
relief which the prevailing party otherwise would be entitled, the prevailing
party shall be entitled to reimbursement from the non-prevailing party for all
reasonable attorneys' fees and all other costs incurred in such Party Action
and/or enforcing any judgment, order, ruling or award ("Decision") granted
therein, all of which must be paid whether or not such Party Action is
prosecuted to a Decision. Any Decision entered in such Party Action must contain
a specific provision providing for the recovery of attorneys' fees and costs
incurred in enforcing such Decision. The court or arbitrator may fix the amount
of reasonable attorneys' fees and costs on the request of either party. For
purposes hereof, the attorney's fees award shall not be computed in accordance
with any court fee schedule, but shall be such as to fully reimburse all
attorneys' fees reasonably incurred and shall include, without limitation, fees
incurred in connection with the following: (a) post-judgment motions and
collection actions; (b) contempt proceedings; (c) garnishment, levy and debtor
and third party examinations; (d) discovery; and (e) bankruptcy. As used in this
Section 9, "prevailing party" includes, without limitation, a party who agrees
to dismiss a Party Action on the other party's payment of the sum allegedly due,
or performance of the covenants allegedly breached, or who obtains substantially
the relief sought by it. If there are multiple claims, a prevailing party shall
be established for each claim separately by determining which party obtained the
greater relief in connection with such claim; provided, however, that the court
or arbitrator may determine that there is no prevailing party with respect to
any particular claim.
10. BINDING EFFECT. The terms of the Agreement shall be binding upon
the respective Parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, consultants and successors and assigns.
11. ASSIGNMENT. This Agreement and the rights and obligations hereunder
may not be assigned or delegated by either Party without the prior consent of
the other Party.
12. CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of California applicable to agreements
made and to be performed entirely within such State. The parties hereby agree
that the sole and exclusive venue and forum for any and all actions or
proceedings initiated by any Party hereto and arising directly or indirectly out
of this Agreement shall be the Superior Court of the State of California, County
of Los Angeles, or the United States District Court for the Central District of
the State of California. The parties hereby expressly
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submit and consent in advance to such jurisdiction in any action or proceeding
commenced in any of such courts and hereby waive personal service of the summons
and complaint, or other process of papers issued therein, and agree that service
of such summons and complaint or other process or papers may be made by
registered or certified mail addressed to any of the parties at the address to
which notices are to be sent pursuant to this Agreement. The parties hereto
waive any claim that Los Angeles, California is an inconvenient forum or an
improper forum based on lack of venue. The exclusive choice of forum for the
parties set forth in this Section shall not be deemed to preclude the
enforcement of any judgment obtained in any other forum or the taking of any
action to enforce the same in any other appropriate jurisdiction, and the
parties hereby waive the right to collaterally attack any such judgment or
action.
13. VENUE. The State of California shall be proper venue for any and
all litigation and other proceeds involving this Agreement.
14. COUNTERPARTS. This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of this
Agreement.
15. SEVERABILITY. In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term, covenant or condition to Parties or circumstances
other than those as to which it is held invalid or non enforceable, shall not be
affected thereby; and each term, covenant, or condition of this Agreement shall
be valid and shall be enforced to the fullest extent permitted by law.
16. MODIFICATION. No amendment, modification, or waiver of this
Agreement or any provision hereof shall be valid unless in writing duly signed
by the Parties hereto, which writing specifically refers to this Agreement and
states that it is an amendment, modification, or waiver.
17. ENTIRE AGREEMENT. This Agreement, together with the Other
Agreement, represents the entire agreement between the Parties to this Agreement
concerning its subject matter, and any and all prior representations and
agreements with respect to such subject matter, if any, are merged herein and
are superseded by this Agreement
18. CONSTRUCTION. Section headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of this
Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
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IN WITNESS WHEREOF, the Parties have executed this Agreement at Los
Angeles, California on December 12, 2006.
CUCOLORIS FILMS, INC. WATAIRE INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx By:
------------------------- ------------------------------
XXXXX XXXXXXX, XXXXXX XXXXXX.
President President/Chief Executive Officer
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