CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT
This
Consulting Services Agreement (the “Agreement”) is entered into this 1st day of
April,
2007 by and between Xxxxxx XxXxxxxxx, 00000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx,
XX, 00000, (hereinafter referred to as “Consultant”), and M Power Entertainment,
Inc., a Delaware corporation, and its successors, affiliates and assigns,
(hereinafter referred to as “Client”), (collectively referred to as
the“Parties”) with reference to the following:
Preliminary
Statement
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 its operations, 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:
1. ENGAGEMENT,
Client
hereby engages Consultant on a non-exclusive basis, and Consultant hereby
accepts the engagement to become a business Consultant to Client and to render
advice, consultation, information, and services to the Directors and/or Officers
of Client regarding general business matters including, but not limited to
the
following:
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1.
1
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Brand
Development.
Assist
Client in bringing Client's vision of eDOORWAYS to reality by using
Consultant's past experiences in developing brands, affinity programs,
and
other vertical media extensions.
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1.2
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Creation
of Media Platform.
Work
with Client to create a compelling media platform that will generate
excitement and "buzz" across vertical communities and investor markets,
alike.
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1.3
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Brand
Objectives.
Consultant agrees to pursue the following objectives, as stated herein
and
as identified in Consultant's original proposal dated March 19th,
2007:
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1.3.a.
Initiate brand development for eDoorways to include style guides (ubiquitous
look and feel imagery) and templates for design, partnership and
investment.
1.3.b.
Oversee creation of eDoorways scaleable beta site based upon its original
functional requirements document and feature set list.
1.3.c.
Initiate four-pronged attack on specific vertical market growth areas and to
establish a fertile environment for additional tiers to grow
organically.
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1.4
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Brand
Strategy.
Consultant agrees to pursue the following strategy, as stated herein
and
as identified in Consultant's original proposal dated March 19th,
2007:
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1.4.a.
Engage and closely manage a top creative services group to design the initial
logos and style guides for eDoorways and its vertical platforms. Focus on
effective communication of concept, cost efficient design and concise packaging
which serves the creative, business and overall investor
objectives.
1.4.b.
Engage and closely manage a top experiential web design group to design and
initiate the eDoorways beta site. Focus will be on clear articulation of
eDoorways concept, delivery of core feature sets, functionality and scaleable
design.
1.4.c.
Research and identify the most appropriate vertical markets for eDoorways launch
based on existing web communities, endemic and non-endemic sponsor availability,
traditional media and retail partner potential. Develop early partner packages
and “ground floor” opportunities. Identify and engage / incentivise core
“influencers” to seed the verticals.
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1.5
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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. The time frame for completion of 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 extended
(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.
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2.
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COMPENSATION
TO CONSULTANT
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a. Monthly
Retainer Fee. .
Client
shall pay Consultant a monthly retainer fee of fifteen thousand dollars
($15,000.00), the first of which payments (in the prorated amount of $30,000.00)
shall be due and payable upon execution of this Agreement. Subsequent payments
shall be due and payable on the first of each month following execution of
this
Agreement for the entire term of this Agreement.
b. Form of
Retainer Fee Payment.
For
each monthly retainer fee payment, Consultant may elect to receive payment
in
the form of common stock of M Power Entertainment or its successor(s) rather
than in a cash payment. 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 within five
days
of delivery of such stock to Consultant. The number of shares to be received
by
Consultant shall be calculated by dividing the amount of the monthly retainer
fee payment ($15,000.00) by the average trading price for the five days prior
to
the date payment is due.
c. Reimbursement
for Expenses,
Consultant shall submit to Client a monthly invoice for all expenses incurred
on
Client’s behalf, as specified in Par. 2.1 below, Client agrees to reimburse
Consultant for such expenses within ten (10) days from receipt of the
statement.
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2.1
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Expenses.
Client shall reimburse Consultant for reasonable expenses incurred
in
performing its duties pursuant to this Agreement (including, but
not
limited to printing, postage, express mail, photo reproduction, travel,
lodging, and long distance telephone cell phone, entertainment, software
and facsimile charges), pursuant to the terms of Par. 2(d) above.
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2.2
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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.”
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3.
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INDEMNIFICATION.
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3.1.
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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 Consultant
in
the performance of his duties under this Agreement, or 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. All remedies provided
by law,
or in equity shall be cumulative and not in the
alternative.
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4
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CONFIDENTIALITY
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4.
1
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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.
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4.2
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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.
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| 5 |
INDEPENDENT
CONTRACTOR
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5.1 In
his performance hereunder, Consultant and his agents shall be independent
contractors. Consultant shall complete the services required hereunder according
to his own means and methods of work, shall be in the exclusive charge and
control of Consultant, and shall not be subject to the control or supervision
of
Client, except as to the results of the work. Client acknowledges that nothing
in this Agreement shall be construed to require Consultant to provide services
to Client at any specific time, or in any specific place or manner. Payments
to
Consultant hereunder shall not be subject to withholding taxes or other
employment taxes as required with respect to compensation paid to an employee.
It is further understood and agreed that Consultant’s compensation under this
Agreement is not for any capital raising or stock promotion or
support.
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6.
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MISCELLANEOUS
PROVISIONS
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6.1
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Amendment
and Modification.
This Agreement may be amended, modified and supplemented only by
written
agreement of Consultant and Client,
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6.2
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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.
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6.3
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Binding Effect.
All obligations of Client under this Agreement shall be binding upon,
and
fully enforceable against, Client, its agents, officers, directors,
successors, assigns, affiliates and
purchasers.
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6.3
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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
Texas, 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
Houston, Texas.
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6.4
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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.
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6.5
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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.
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6.6
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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.
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7. TERM/TERMINATION.
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7.1
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The
Term of this Agreement (the “Term”)
shall commence on the April 1, 2007 and shall continue until August
1,
2007. The parties to this Agreement agree that prior to 30 days before
the
end of the Term they will notify each other of their intent to extend
this
Agreement. If an extension is not agreed upon, the Agreement will
terminate at the end of the Term. In the event that there is an extension
and either party wishes to terminate the agreement, the terminating
party
will notify the other party of such intent at least 30 days prior
to the
date of termination.
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a.
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Early
Termination With or Without Cause.
Either
party may terminate this Agreement with or without cause with 30
days
advance written notice.
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b.
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Early
Termination for Material Breach or Bankruptcy.
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Notwithstanding
the provisions of Section 7 above, either party may terminate this Agreement
for
the following:
| i. |
on
or after the thirtieth (30th) day after such party gives the other
party
written notice of a material breach by such other party of any obligation
hereunder unless such breach is cured within thirty (30) days following
the breaching party’s receipt of such written notice. Neither party will
be liable to the other party for damages of any kind resulting from
any
rightful termination of this Agreement as provided by this Section
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ii.
either party may terminate this Agreement upon written notice to
the
other
if such other party: (i) shall make an assignment for the benefit of creditors,
(ii) shall be adjudicated bankrupt or insolvent, (iii) shall seek the
appointment of, or be the subject of an order appointing, a trustee, liquidator
or receiver as to all or part of its assets, (iv) shall commence, approve or
consent to, any case or proceeding under any bankruptcy, reorganization or
similar law and , in the case of an involuntary case or proceeding, such case
or
proceeding is not dismissed within forty-five (45) days following the
commencement thereof, or (v) shall be the subject of an order for relief in
an
involuntary case under federal bankruptcy law.
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8.
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CLIENT
REPRESENTATIONS, WARRANTS AND COVENANTS.
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8.1
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Client
represents, warrants and covenants to the Consultant as
follows:
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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.
Consultant
makes no representations or warranties other than those contained within this
Agreement.
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9.
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NOTICES.
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9.1
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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:
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If
to the
Client: Xxxx
X.
Xxxxxxx
M
Power
Entertainment, Inc
0000
Xxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Facsimile
No: 000-000-0000
If
to
Consultant: Xxxxxx
XxXxxxxxx
00000
Xxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 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.
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10.
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COUNTERPARTS
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10.1
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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.
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11.
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PRELIMINARY
STATEMENT
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11.1
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The
Preliminary Statement is incorporated herein by this reference and
made a
material part of this Agreement
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IN
WITNESS WHEREOF,
the
Parties hereto have caused this Agreement to be duly executed, all as of the
day
and year first above written.
M
Power Entertainment, Inc.
________________________________________________________
Xxxx
X.
Xxxxxxx
Title:
President
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Date:
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Xxxxx
0, 0000
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XXXXXXXXXX:
________________________________________________________
Xxxxxx
XxXxxxxxx
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Date:
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April
1, 2007
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