XXXXX XXXXXXXX ENTERTAINMENT, INC.
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement"), made and
entered into as of this 1st day of May, 1999 by and between Xxxxx
Xxxxxxxx Entertainment, Inc., a Colorado corporation ("JNE" or the
"Company") and Xxxxxxx Xxxxxxx ("Xxxxxxx" or the "Consultant").
RECITALS
WHEREAS, JNE wishes to engage the consulting services of
Consultant; and
WHEREAS, Consultant wishes to provide JNE with consulting
services.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto hereby agree as follows:
1. CONSULTING SERVICES
JNE hereby authorizes, appoints and engages the Consultant to
perform the following services in accordance with the terms and
conditions set forth in this Agreement:
The Consultant will assist in the creation and development of
the Company's real estate website for its XxXx-xxxx.xxx operating
division. Consultant will report directly to Xxx Xxxxxxxx,
President of the JNE. In addition, Consultant will work with Xx.
Xxxxxxxx and the Company's Board of Directors to write a profile of
the Company and each of its operating divisions which can be used as
the basis for the Company's overall business plan.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect as of the
date hereof and for a period of one (1) year herefrom. JNE shall
have the right to terminate this Agreement in the event of the death
or assignment for the benefit of creditors of the Consultant, or on
thirty (30) days notice to Consultant, with or without cause.
Consultant shall have the right to terminate this Agreement if JNE
fails to comply with the terms of this Agreement, including without
limitation its responsibilities for compensation as set forth in
this Agreement, or on thirty (30) days notice to JNE, with or
without cause.
3. COMPENSATION TO CONSULTANT
a. Consultant shall receive cash consideration in the amount
of Five Thousand Dollars ($5,000) per month (the "Compensation"),
payable monthly beginning on the last day of the month following
the date of this Agreement.
b. In addition to the Compensation stated above, commencing
with the effective date of this Agreement, Consultant shall receive
a quarterly bonus (the "Bonus") equal to
fifteen percent (15%) of the gross revenues earned by the Company through
its real estate web site developed by Consultant for the Company's
XxXx-xxxx.xxx division. The Bonus shall be paid within 30 days of the end
quarters ending on March 31, June 30, September 31, and December 31.
Consultant may be entitled to additional bonuses or compensation as
agreed by the Company and Consultant. In the event of the
termination of this Agreement, Consultant shall be entitled to
receive the Bonus for revenues earned by the Company, as described
herein, for a period of five (5) years from the date of termination.
In the event that the Company is acquired or merged with another
entity, the Company hereby agrees that it will ensure that the terms
of this Paragraph 3(c) will be assumed by the acquiring or surviving
entity, unless waived in writing by Consultant.
c. In addition to the Compensation and Bonus stated above,
commencing with the effective date of this Agreement, Consultant
shall receive options (the "Options") to acquire shares of Company
common stock as follows:
(1) For every Five Hundred Thousand Dollars ($500,000) in
gross revenues attributable to the real estate web site developed by
Consultant for the Company's XxXx-xxxx.xxx division, up to a maximum
of Ten Million Dollars ($10,000,000), Consultant shall receive
options to acquire 25,000 shares of restricted (as that term is
defined under Rule 144 of the Securities Act of 1933) Company common
stock at an exercise price which is sixty percent (60%) of the bid
price on the last day of the month in which the revenue milestone
was reached. The Options shall be exercisable immediately and for a
period of three (3) years from the date earned.
d. The Company shall reimburse Consultant for all reasonable
business related expenses incurred by Consultant in the course of
his normal duties on behalf of the Company. In reimbursing
Consultant for expenses, the ordinary and usual business guidelines
and documentation requirements shall be adhered to by the Company
and Consultant. Any expenses which, individually or in the
aggregate, exceed Five Hundred Dollars ($500.00) must be consented
to by the Company in writing prior to being incurred by Consultant.
4. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
Consultant represents and warrants to and agrees with JNE
that:
a. This Agreement has been duly authorized, executed and
delivered by Consultant. This Agreement constitutes the valid, legal
and binding obligation of Consultant, enforceable in accordance with
its terms, except as rights to indemnity hereunder may be limited by
applicable federal or state securities laws, and except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditor's rights generally.
b. The consummation of the transactions contemplated hereby
will not result in any breach of the terms or conditions of, or
constitute a default under, any agreement or other instrument to
which Consultant is a party, or violate any order, applicable to
Consultant, of any court or federal or state regulatory body or
administrative agency having jurisdiction over Consultant or over
any of its property, and will not conflict with or violate the terms
of Consultants's current employment.
c. The parties hereto acknowledge and agree that JNE shall
have the right to refuse any course of action proposed by Consultant
and to refuse any customer or sale identified by Consultant or any
other source.
5. REPRESENTATIONS AND WARRANTIES OF JNE
JNE hereby represents, warrants, covenants to and agrees
with Consultant that:
a. This Agreement has been duly authorized, and executed by
JNE. This Agreement constitutes the valid, legal and binding
obligation of JNE, enforceable in accordance with its terms, except
as rights to indemnity hereunder may be limited by applicable
federal or state securities laws, except in each case as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditor's rights generally.
b. There is not now pending or, to the knowledge of JNE,
threatened, any action, suit or proceeding to which JNE is a party
before or by any court or governmental agency or body which might
result in a material adverse change in the financial condition of
JNE. The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach of the
terms or conditions of, or constitute a default under, any statute,
indenture, mortgage or other material Agreement or instrument to
which JNE is a party, or violate any order, applicable to JNE, or
governmental agency having jurisdiction over JNE or over any of its
property.
6. INDEPENDENT CONTRACTOR
Both JNE and the Consultant agree that the Consultant will
act as an independent contractor in the performance of his duties
under this Agreement. Nothing contained in this Agreement shall be
construed to imply that Consultant, or any employee, agent or other
authorized representative of Consultant, is a partner, joint
venturer, agent, officer or employee of JNE. Neither party hereto
shall have any authority to bind the other in any respect vis a vis
any third party, it being intended that each shall remain an
independent contractor and responsible only for its own actions.
7. NOTICES
Any notice, request, demand, or other communication given
pursuant to the terms of this Agreement shall be deemed given upon
delivery, if hand delivered or sent via facsimile, or Forty-Eight
(48) hours after deposit in the United States mail, postage prepaid,
and sent certified or registered mail, return receipt requested,
correctly addressed to the addresses of the parties indicated below
or at such other address as such party shall in writing have advised
the other party.
If to JNE:
Xxxxx Xxxxxxxx Entertainment, Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Chief Executive Officer
Facsimile No.: (000) 000-0000
With a copy to:
The Law Offices of M. Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Consultant:
Xxxxxxx Xxxxxxx
Xxxxxxx & Company
X.X. Xxx 000
Xxxxxxx Xxxxxxx, Xxxxx 00000
Facsimile (000) 000-0000
8. ASSIGNMENT
This contract shall inure to the benefit of the parties
hereto, their heirs, administrators and successors in interest.
This Agreement shall not be assignable by either party hereto
without the prior written consent of the other.
9. CHOICE OF LAW AND VENUE
This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the
State of California including all matters of construction, validity,
performance, and enforcement and without giving effect to the
principles of conflict of laws. Any action brought by any party
hereto shall be brought within the State of California, County of
Orange.
10. NONDISCLOSURE
Each party hereto agrees to keep the terms of this Agreement
and the transactions contemplated hereby as confidential and shall
not disclose such information to any third party, other
than professional advisors utilized to negotiate and consummate the
transactions contemplated hereby. The parties hereto agree that in
the event there is a breach of the foregoing confidentiality
provision, the damage to the parties hereto would be difficult to
estimate and as a result, in the event of such a breach, the
non-breaching party, in addition to any and all other remedies
allowed by law, would be entitled to injunctive relief enjoining the
actions of the breaching party.
11. ENTIRE AGREEMENT
Except as provided herein, this Agreement, including
exhibits, contains the entire agreement of the parties, and
supersedes all existing negotiations, representations, or agreements
and all other oral, written, or other communications between them
concerning the subject matter of this Agreement. There are no
representations, agreements, arrangements, or understandings, oral
or written, between and among the parties hereto relating to the
subject matter of this Agreement that are not fully expressed herein.
12. SEVERABILITY
If any provision of this Agreement is unenforceable, invalid,
or violates applicable law, such provision, or unenforceable portion
of such provision, shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Agreement.
13. CAPTIONS
The captions in this Agreement are inserted only as a matter
of convenience and for reference and shall not be deemed to define,
limit, enlarge, or describe the scope of this Agreement or the
relationship of the parties, and shall not affect this Agreement or
the construction of any provisions herein.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
15. MODIFICATION
No change, modification, addition, or amendment to this
Agreement shall be valid unless in writing and signed by all parties
hereto.
16. ATTORNEYS FEES
Except as otherwise provided herein, if a dispute should
arise between the parties including, but not limited to arbitration,
the prevailing party shall be reimbursed by the non-prevailing party
for all reasonable expenses incurred in resolving such dispute,
including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the Effective Date.
"JNE" "CONSULTANT"
Xxxxx Xxxxxxxx Entertainment, Inc. Xxxxxxx Xxxxxxx
a Colorado corporation
/s/ Xxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxx
By: Xxx Xxxxxxxx
Its: President
