CONSULTATION AGREEMENT
Agreement made this 1st day of January, 1999, between
Luminart Corp. (hereinafter referred to as "Corporation"), and
Xxx Xxxxxx (hereinafter referred to as "Consultant"):
Recitals:
In consideration of the mutual promises contained in this
Agreement, the contracting parties agree as follows:
Xxx Xxxxxx specializes in instore fixtures, marketing and
advertising. Xx. Xxxxxx is currently employed by a national
retail sales company. This contract is not designed to conflict
with any employment or consulting agreements any in which Xx.
Xxxxxx is currently engaged.
The Corporation desires to engage the services of the
Consultant to perform consulting services in the instore fixtures
marketing, advertising and promotional areas of the Corporation's
business.
The Consultant desires to consult with the Board of
Directors, the Officers of the Corporation, and certain
administrative staff members of the Corporation, and to undertake
for the Corporation consultation as to the Corporation's and its
subsidiaries' marketing, advertising and promotional activities.
1. The initial term of this Agreement shall be for a period of
six (6) months commencing on the date first appearing above. In
addition to the initial term, the term of this Agreement shall be
automatically extended for up to three additional six month
periods, unless either party shall give written notice of its
desire not to extend within twenty (20) days of the end of the
proceeding term.
Services Provided by Consultant
2. Consultant will provide consulting services upon the
reasonable request of the Corporation in connection with the
Corporation's marketing, advertising and promotion areas of all
activities undertaken by the Corporation or its subsidiaries.
Consultant may provide such services, to the extent practicable,
by telephone, correspondence and E-mail. Consultant shall not be
required to devote more than 40 hours in any month to performing
the services.
3. In consideration for the services provided by Consultant to
Corporation, the Corporation shall pay or cause to be delivered
to the Consultant, as promptly as possible following execution of
this Agreement, the following:
a. Within ten (10) business days from this date written above,
the Corporation shall issue to Consultant or its designee 100,000
shares of the Corporation's restricted common stock. Consultant
shall have "piggy back" registration rights pari passu with any
other shareholders having such rights. In addition, to the
extent the Corporation is eligible for such registration,
Consultant may require the Corporation to file an S-8
Registration with respect to Consultant's warrants and the
underlying common stock. In addition, the Corporation shall
issue to Consultant or its designee warrants to purchase 150,000
shares of the Corporation's common stock. The warrants shall be
divided into three 50,000 share lots and shall be exercisable
under the following terms and conditions: (1) a lot of 50,000
shares may be exercised after the end of the initial six month
term of this Agreement at an exercise price which is the lower of
$1.00 per share or one half the average Bid price of the
Corporation's stock for a period of thirty days prior to the
exercise date; (2) a second lot of 50,000 shares may be exercised
after the end of the first six month extension of this Agreement
at an exercise price which is the lower of $1.50 per share or one
half of the average Bid price of the Corporation's stock for a
period of thirty days prior to the exercise date; and (3) the
third lot of 50,000 shares may be exercised after the end of the
second six month extension of this Agreement at an exercise price
which is the lower of $2.00 per share or one half of the average
Bid price of the Corporation's stock for a period of thirty days
prior to the exercise date. The corporation shall deliver the
stock to consultant immediately upon receipt of the consultants
written notice of exercise and payment of the exercise price.
If this Agreement is not renewed for a second six month
period as set forth in paragraph 1 above, the unexercised
warrants shall be forfeited and of no force or effect.
Representation of Corporation
4. (a) The Corporation, upon entering this Agreement, hereby
warrants and represents to the Consultant that all statements,
either written or oral, made by the Corporation to the Consultant
are true and accurate, and contain no misstatements of a material
fact. The Corporation acknowledges that the information it
delivers to the Consultant will be used by the Consultant in
preparing materials regarding the Company's business, including
but not necessarily limited to, its financial condition, for
dissemination to the public. Therefore, in accordance with
Paragraph 5 below, the Corporation shall defend, indemnity hold
harmless the Consultant from any and all losses, costs, expenses,
claims, demands, actions, debts, obligations, suits, judgments or
proceedings arising out of or relating to any actual or alleged
errors, omissions, misstatements, negligent or intentional
misrepresentations, in connection with all information furnished
by Corporation to Consultant, in accordance with and pursuant to
the terms and conditions of this Agreement for whatever purpose
or purposes the Consultant sees fit to use said information. The
Corporation further represents and warrants that as to all
matters set forth within this Agreement, the Corporation has had
independent legal counsel and will continue to maintain
independent legal counsel to advise the Corporation of all
matters.
Limited Liability
5. With regard to the services to be performed by the
Consultant pursuant to the terms of this Agreement, the
Consultant shall not be liable to the Corporation, or to anyone
who may claim any right due to any relationship with the
Corporation, for any acts or omissions in the performance of
services on the part of the Consultant, or on the part of the
agents or employees of the Consultant, except when said acts or
omissions of the Consultant are due to the willful misconduct of
Consultant or Consultant's employees.
Termination
6. This Agreement may be terminated by either party upon the
giving of not less than sixty (60) days written notice except
that only twenty (20) days shall be required for non renewal of
this agreement as provided in paragraph 1 above delivered to the
parties at such address or addresses as set forth in paragraph 7,
below. In the event this Agreement is terminated by the
Corporation, all compensation paid by Corporation to the
Consultant shall be deemed earned. In the event this Agreement
is terminated by Consultant, a portion of the compensation paid
by Corporation to Consultant shall be refunded to the Corporation
as follows:
(a) In the event the Agreement is terminated by the Consultant
in months 1 through 6, Consultant shall return to Corporation a
portion of the shares, determined as follows: (1) 50,000 of the
shares shall be deemed earned upon the signing of this Agreement,
and shall not be subject to being returned; (2) the remaining
50,000 shares shall be deemed to vest on the last day of each of
months one through six, inclusive, at the rate of eight thousand
three hundred thirty-three and one-third (8,333 1/3) shares per
month, and Consultant shall be required to return all unvested
shares as of the date of such termination.
(b) In the event Consultant is required to return any unvested
shares to Corporation pursuant to Paragraph 6(a) above,
Consultant may, at Consultant's option, either pay the
Corporation cash an amount equal to the fair market value of the
unvested shares, or return that number of shares of the
Corporation for cancellation. The fair market value of bid
shares for purposes of repayment of shares, shall be the bid
price of said shares as of the date shares are tendered back to
the Corporation. If there is no bid price, then the price shall
be agreed to by the parties, or, in the event the parties fail to
so agree, the price shall be determined by appraisal by a
mutually agreeable appraiser, or by arbitration in accordance
with Paragraph 8 below.
Notices
7. Notices to be sent pursuant to the terms and conditions of
this Agreement, shall be sent as follows:
Luminart Corp.
c/o Xxxxx Xxxxxxx
0000 Xxxx Xxxxxx Xxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Xxx Xxxxxx
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Arbitration
8. In connection with any controversy or claim arising out of
or relating to this Agreement, the parties hereto agree that such
controversy shall be submitted to arbitration, which arbitration
shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Any award
rendered as a result of the arbitration of any dispute herein,
shall upon being rendered by the arbitrators be submitted to a
Court of competent jurisdiction within the State of California or
in any state where a party to this action maintains its principal
business or is a corporation incorporated in said state. In the
event any arbitration arises out of or in connection with this
Agreement between parties hereto, the prevailing party in such
litigation shall be entitled to recover from the other parties,
all reasonable attorney's fees, expenses and costs, including
those associated within the appellate or post judgement
collection proceedings.
Governing Law
9. This Agreement shall be construed under and in accordance
with the laws of the State of Nevada
Parties Bound
10. This Agreement shall be binding on and inure to the benefit
of the contracting parties and their respective heirs, executors,
administrators, legal representatives, successors, and assigns
when permitted by this Agreement.
Legal Construction
11. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, the invalidity, illegality, or
unenforceability shall not affect any other provisions, and this
Agreement shall be construed as if the invalid, illegal, or
unenforceable provision had never been contained in it.
Prior Agreements Superseded
12. This Agreement constitutes the sole and only Agreement of
the contracting parties and supersedes any prior understandings
or written or oral agreements between the respective parties
hereto.
Multiple Copies or Counterparts of Agreement
13. The original and one or more counterparts, and all of such
counterparts taken together shall constitute but one fully
executed original. Further, this Agreement may be signed by the
parties and copies hereof delivered to each party by way of
facsimile transmission, and such facsimile copies shall be deemed
original copies for all purposes if original copies of the
parties' signatures are not delivered.
Headings
14. Headings used throughout this Agreement are for reference
and convenience, and in no way define, limit or describe the
scope or intent of this Agreement or effect its provisions.
IN WITNESS WHEREOF, the parties have set their hands and seal as
of the 11th day of December, 1998,
By: /s/ Wm. Xxxxxxx Xxxxxxxx
Wm. Xxxxxxx Xxxxxxxx, CEO
Luminart Corp.
/s/ Xxx Xxxxxx
Xxx Xxxxxx, an individual
