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EXHIBIT 10.121
CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this day 19 of
February, 1999 between American Artists Film Corporation, a Missouri corporation
(the "Company") and Fontenelle, LLC ("Consultant"), a Nevada limited liability
company.
RECITALS
A. The Company is a multi-faceted entertainment company committed to
the creation, production and distribution of original, innovative programming
and films for a variety of media. The Company has also developed a concept for
the installation and operation of a network of large screen video display
("LSVD") units.
B. The Consultant is generally knowledgeable in the areas of business
operations and plan implementation, possesses a high level of experience in the
entertainment/LSVD industry and is experienced in evaluating and developing
strategic business plans.
C. The Company wishes to engage the Consultant on a nonexclusive basis
as an independent contractor to utilize Consultant's general business and
entertainment/LSVD industry experience and contacts and to further develop and
refine its strategic business plan.
D. The Consultant is willing to be so retained on the terms and
conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to
perform the following consulting services (the "Consulting Services"):
a. Review and evaluate the Company's current business plan and
remain knowledgeable about the contents thereof;
b. Work with the Company's management to develop and prepare a
detailed strategic business plan as well as periodically revise said plan as
required during the Term of this Agreement;
c. Provide general strategic advice and consultation to the
Company's management on all matters pertaining to the business of the Company,
and;
d. Provide introductions to entertainment/LSVD industry contacts.
2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public relation
services to the Company inclusive of but not limited to (i) direct or indirect
promotion of the Company's securities; (ii) assistance in making of a market in
the Company's securities; and (iii) assistance in obtaining debt and/or equity
financing.
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3. Consideration. As full and complete consideration for the
performance by the Consultant of the Consulting Services, the Company will issue
to the Consultant 800,000 shares of the Company's Class A common stock, $0.001
par value (the "Shares"). In the event that Consultant does not completely
perform the Consulting Services (for any reason, including the death or
incapacity of Consultant), then for each month that Consultant does not perform
the Consulting Services during the Term, one sixth (1/6) of the Shares (as
adjusted for stock splits, reverse stock splits, stock dividends or
distributions or other reclassifications of the Company's capital stock) shall
be returned to the Company and canceled. Consultant agrees to purchase shares in
the open market, if necessary, to fulfill such obligation to return shares to
the Company.
The Shares will be issued as soon as practicable following
execution of this Agreement and the filing of a registration statement under the
Securities Act of 1933, as amended, on Form S-8 (or other available form)
covering the issuance of the Shares to Consultant.
4. Term. This Agreement shall be effective for a term of six (6) months
starting from the date first written above unless sooner terminated upon mutual
written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of reimbursement
from the Company unless such expenses are pre-approved by the Company.
6. Consultant's Liability. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
any terms of this Agreement, the Consultant shall not be liable to the Company
or to any officer, director, employee, stockholder or creditor of the Company,
for any act or omission in the course of or in connection with the rendering or
providing of services hereunder. Except in those cases where the gross
negligence or willful misconduct of the Consultant or the breach by the
Consultant of any terms of this Agreement is alleged and proven, the Company
agrees to defend, indemnify, and hold the Consultant harmless from and against
any and all reasonable costs, expenses and liability (including reasonable
attorney's fees paid in the defense of the Consultant) which may in any way
result from services rendered by the Consultant pursuant to or in any connection
with this Agreement. This indemnification expressly excludes any and all damages
as a result of any actions or statements, on behalf of the Company, made by the
Consultant without the prior approval or authorization of the Company.
7. Company's Liability. The Consultant agrees to defend, indemnify, and
hold the Company harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in defense of
the Company) which may in any way result pursuant to its gross negligence or
willful misconduct or in any connection with any actions taken or statements
made, on behalf of the Company, without the prior approval or authorization of
the Company or which are otherwise in violation of applicable law.
8. Representations. The Consultant makes the following representations:
(a) Consultant has no prior or existing legally binding obligations
that are in conflict with its entering into this Agreement;
(b) Consultant shall not offer or make payment of any consideration
to brokers, dealers, or others for purposes of inducing the purchase, making of
a market or recommendation for the purchase of the Company's securities;
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(c) Consultant is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any state
securities commission;
(d) Consultant's activities and operations fully comply with now and
will comply with in the future all applicable state and federal securities laws
and regulations;
(e) Consultant is either properly registered as, or exempt from
registration, as a broker-dealer or an investment advisor;
(f) Consultant understands that, as a result of its services, it may
come to possess material non-public information about the Company, and that it
has implemented internal control procedures designed to reasonably to insure
that it and none of its employees, agents, consultants or affiliates, trade in
the securities of client companies while in possession of material non-public
information;
(g) During the Term of this Agreement and for a period of two year
thereafter, the Consultant shall treat as the Company's confidential trade
secrets all data, information, ideas, knowledge and papers pertaining to the
affairs of the Company. Without limiting the generality of the foregoing, such
trade secrets shall include: the identity of the Company's customers, suppliers
and prospective customers and suppliers; the identity of the Company's creditors
and other sources of financing; the Company's estimating and costing procedures
and the cost and gross prices charged by the Company for its products; the
prices or other consideration charged to or required of the Company by any of
its suppliers or potential suppliers; the Company's sales and promotional
policies; and all information relating to entertainment programs or properties
being produced or otherwise developed by the Company. The Consultant shall not
reveal said trade secrets to others except in the proper exercise of its duties
for the Company, or use their knowledge thereof in any way that would be
detrimental to the interests of the Company, unless compelled to disclose such
information by judicial or administrative process; provided, however, that the
divulging of information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to judicial
or governmental order. The Consultant shall also treat all information
pertaining to the affairs of the Company's suppliers and customers and
prospective customers and suppliers as confidential trade secrets of such
customers and suppliers and prospective customers and suppliers, and:
(h) Consultant agrees to notify the Company immediately if, at any
time, any of the representations and warranties made by the Consultant herein
are no longer true and correct or if a breach of any of the representations and
warranties made by the Consultant herein occurs.
9. The Company makes the following representations:
(a) The Company is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any state
securities commission.
(b) The Company is in good standing in its state of incorporation,
Missouri.
(c) The Company is a "reporting company" under the Securities Act of
1934 and has timely filed all of its required reports, except for its Form
10-KSB for the year ended July 31, 1998 and its Form 10-QSB for the quarter
ended October 31, 1998.
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(d) The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's annual and
quarterly reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute a waiver of any other provision, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights
hereunder may not be assigned by the parties (except by operation of law or
merger) and shall be binding upon and inure to the benefit of the parties and
their respective successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties
hereto shall be sufficiently given if sent by certified or registered mail,
postage prepaid, or faxed and confirmed at the following locations:
Company:
American Artists Film Corporation
6600 Peachtree Dunwoody Road, Xxxx. 000, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Consultant:
Fontenelle, LLC
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
or at such other location as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice or other communication shall
be deemed to be given on the date of receipt.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Georgia, without giving effect to
conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for
the convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
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17. Further Acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to
carry out the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that it
had the opportunity to employ separate and independent counsel of its own
choosing in connection with this Agreement.
19. Independent Contractor Status. There is no relationship,
partnership, agency, employment, franchise or joint venture between the parties.
The parties have no authority to bind the other or incur any obligations on
their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first written above.
AMERICAN ARTISTS FILM CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, CEO
FONTENELLE, LLC
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Authorized Officer
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