CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of
December 10, 1997, by and between Netter Digital Entertainment, Inc.,
a Delaware corporation ("Company") and Xxxxxxxx Xxxxxx ("Consultant")
with reference to the following facts:
A. Company is in the business of digital entertainment
production and services and the manufacture and distribution of
lighting
products (collectively, the "Business").
B. Consultant has expertise in managing companies engaged in
the Business, in developing business plans for companies engaged in the
Business, in identifying and analyzing other companies which might be
acquired by or merged into the Company to augment and enhance the
Business, and in advising the Company concerning its operations and
financial growth.
C. Consultant was formerly Acting Chief Financial Officer and
a member of the Board of Directors of the Company.
D. Company now wishes to engage Consultant, and Consultant
wishes to provide services to Company, in the capacity of an
independent
consultant on the terms and conditions set forth below.
E. Company acknowledges that Consultant is the Chief
Executive Officer and a full-time employee of X. X. Xxxxxxxxxx
Entertainment Inc. ("JCW") and that JCW may at times be in a
competitive position with the Company in the marketplace.
NOW, THEREFORE, the parties agree as follows:
1. Engagement. Commencing effective as of the date of this
Agreement, and continuing thereafter for a period of three (3) months,
Company engages Consultant, and Consultant hereby accepts such
engagement with Company, to render independent consulting services
regarding Company's operations and, in particular, the organization,
implementation and operation of the Business, including, but not
limited
to, reviewing business plans for the Company, advising the Company
concerning its operations and financial growth (but not including
identifying and/or analyzing other companies which might be acquired
by or merged into the Company, which services, if requested by
Company, shall be the subject of a separate mutual agreement).
Consistent with his primary duty to JCW, Consultant shall use
reasonable efforts and judgment to promote the business of the Company
during the term of this Agreement. Consultant shall render service as
and when requested by the Company; provided (i) the Company shall give
Consultant not less than one day's notice of the Company's intention to
utilize the services of Consultant and (ii) Consultant shall not be
required
to reschedule any business appointments or travel arrangements he
otherwise may have. Further, notwithstanding any other provision of
this
Agreement, Consultant shall not be required to render services outside
the greater Los Angeles area or for a period exceeding ten (10) hours
per
month.
2. Compensation. In consideration for the services to be
performed by Consultant, the Company shall grant to Consultant (i) a
base consulting fee at the rate of $500.00 per month (payable monthly
commencing with the date hereof) and (ii) an option to acquire 150,000
shares of the common stock of the Company upon the terms and
conditions set forth in a Stock Option Agreement, which Stock Option
Agreement shall be in the form attached hereto as Exhibit "A". In
addition, Company shall reimburse Consultant for his reasonable out-of-
pocket expenses incurred at Company's request, provided such expenses
are pre-approved by the Company and are supported by vouchers or
receipts detailing the expenses for which reimbursement is being
claimed.
3. Registration of Shares. The Company agrees to use
reasonable efforts to cause the shares subject to the Stock Option
Agreement to be registered pursuant to a Form S-8 on or before
December 20, 1997.
4. Independent Contractor. In the performance of its duties
and obligations hereunder, Consultant shall at all times act and
perform
in the capacity of an independent contractor. Company shall neither
have nor exercise any control or direction over the methods by which
Consultant shall perform its services, it being the sole interest of
Company to assure that the services shall be performed and the results
achieved in a competent, efficient and satisfactory manner. Company
shall have no responsibility to Consultant for income tax withholding,
payroll taxes, worker's compensation, unemployment or disability
insurance, group medical insurance, pension or profit sharing
contributions, or other benefits extended to employees of Company.
5. No Contracting Authority. Unless expressly authorized in
writing in advance by Company, Consultant shall not have any power or
authority to bind Company by any contract or engagement or pledge its
credit, or render it liable for any purpose or in any amount.
6. Termination. This Agreement may be terminated at any time
(i) by mutual agreement, or (ii) by the Company "for cause" if
Consultant
dies or is permanently disabled, or materially breaches any of his
obligations or agreements hereunder (the cure of which breach is not
commenced within thirty (30) days after written notice thereof and
thereafter diligently prosecuted to completion by Consultant), or (iii)
by
Consultant "for cause" if the Company materially breaches any of its
obligations or agreements hereunder (the cure of which breach is not
commenced within thirty (30) days after written notice thereof and
thereafter diligently prosecuted to completion by the Company).
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7. General Provisions.
a. Subject to Paragraph 7.e below, the rights and
obligations of Company under this Agreement shall inure to the benefit
of and shall be binding upon the successors and assigns of Company.
b. Any notice to be given to Company under the terms of
this Agreement shall be addressed to Company at the address of its
principal place of business, and any notice to be given to Consultant
shall be addressed to him at his home address last shown on the records
of Company, or at such other address as either party may hereafter
designate in writing to the other. Any such notice shall be deemed
duly
given when deposited in the United States mail, certified or registered
mail, postage prepaid, addressed as aforesaid or when served
personally.
c. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a
waiver of any such provision or provisions, nor prevent that party
thereafter from enforcing each and every other provision of this
Agreement. The rights granted both parties herein are cumulative and
shall not constitute a waiver of either party's right to assert all
other legal
remedies available to it under the circumstances.
d. This Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof,
supersedes
all prior agreements and understandings between the parties and may
not be modified or terminated orally. No modification, termination or
attempted waiver shall be valid unless in writing and signed by the
party
against whom the same is sought to be enforced.
e. The rights under this Agreement shall not be
assignable nor the duties delegable by either party without the prior
written consent of the other, except that Company may assign its rights
hereunder in connection with the sale of all or substantially all of
its
assets or business. Nothing contained in this Agreement, express or
implied, is intended to confer upon any person or entity, other than
the
parties hereto and their successors in interest and permitted
assignees,
any rights or remedies under or by reason of this Agreement unless so
stated to the contrary.
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f. This Agreement shall be construed, interpreted and
enforced
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"COMPANY" "CONSULTANT"
Netter Digital Entertainment, Inc.
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxxxxxx
Xxxxxx
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Xxxxxxx Xxxxxx, Chairman Xxxxxxxx Xxxxxx
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