CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made and entered as
of the 18th day of May, 2005 by and among Alan Howarth (hereinafter referred
to collectively as "Consultant"), and M Power Entertainment Inc., a Delaware
corporation ("Client").
Preliminary Statement
Client desires to be assured of the association and services of
Consultant in order to avail itself of Consultant's experience, skills,
abilities, knowledge and background to assist Client in facilitating
long-range strategic planning and to advise Client in business and/or
financial matters and Client desires to retain Consultant on the terms and
conditions set forth herein. Consultant agree to be retained by the Client on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein
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 the services Consultant on a
non-exclusive basis when requested by Client and subject to Consultant's
pre-existing commitments at such times, and Consultant hereby accepts the
engagement to become Consultant to Client to render advice, consultation,
information and services to the directors and/or officers of Client regarding
those business matters of which Consultant has knowledge and/or experience
including, but not limited to:
A. Mergers and acquisitions, due diligence studies, and reorganizations;
B. Music and Entertainment Industry, and
C. Technology trends and potential benefits that could arise in Client's
adoption of certain technology systems and or procedures and
It is expressly understood that neither party hereto shall have power to
bind the other party hereto to any contract or obligation or to transact any
business in the other party's name or on behalf of the other party hereto in
any manner.
2. Term. The term ("Term") of this Agreement shall commence on the
date hereof and continue for one (1) year.
3. Compensation and Fees. As consideration for Consultant entering
into this Agreement, Client and Consultant shall agree to the following:
Client shall issue to Consultant $ 90,000 worth of its common stock
within five days of the execution of this Agreement. The stock shall be issued
in the name of Alan Howarth. Upon issuance, the shares shall be registered by
Client on behalf of Consultant with the Securities and Exchange Commission
using Form S-8 or similar filing.
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The actual number of shares shall be determined by taking $ 90,000 and
dividing that sum by the average five day closing price of Client's common
stock immediately prior to issuance.
All Shares, when issued to Consultant, shall be duly authorized, validly
issued and outstanding, fully paid and nonassessable and will not be subject
to any liens or encumbrances.
4. Exclusivity; Performance; Confidentiality. The services of Consultant
hereunder shall not be exclusive, and Consultant and their agents may perform
similar or different services for other persons or entities ("Person(s)")
whether or not they are competitors of Client. Consultant shall be required to
expend only such time as is necessary to service Client in a commercially
reasonable manner. Consultant acknowledges and agrees that confidential and
valuable information proprietary to Client and obtained during its engagement
by the Client if same is identified when first provided to Consultant as
confidential and valuable information proprietary to Client, shall not be,
directly or indirectly, disclosed without the prior express written consent of
the Client, unless and until such information is otherwise known to the public
generally or is not otherwise secret and confidential.
5. Indemnification. The Client agrees to fully and effectively
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 reason of any claim or injury (whether to body, property,
personal or business character or reputation) made or 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 or alleged breach of any material representation, warranty or covenant
by Client or any of its agents, employees, or other representatives. Nothing
herein is intended to nor shall it relieve either party from liability for its
own willful act, omission or negligence. All remedies provided by law, or in
equity shall be cumulative and not in the alternative.
6. Expenses. Client shall reimburse Consultant for reasonable expenses
incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging, and long
distance telephone and facsimile charges); provided, however, that Consultant
has received prior written approval from the Client before an expense was
incurred for each expense that Consultant wishes to have reimbursed by Client.
Such reimbursement shall be payable within 7 seven days after Client's receipt
of Consultant's invoice for same.
7. Independent Contractor. In his performance hereunder, Consultant and
his agents shall be an independent contractor. 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 which shall not
be subject to the control or supervision of Client, except as to the results
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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.
8. Arbitration and Fees. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled by binding arbitration in accordance
with the Arbitration rules of the American Arbitration Association in Los
Angeles, California. Any decision issued there from shall be binding upon the
parties and shall be enforceable as a judgment in any court of competent
jurisdiction. The prevailing party in such arbitration or other proceeding
shall be entitled, in addition to such other relief as many be granted, to a
reasonable sum for attorneys' fees and all reasonable costs incurred in such
arbitration or other proceeding from the non-prevailing party. The arbitrator
or other officer in such proceeding shall determine in each instance who is
the prevailing party, whether or not such controversy proceeds to final
adjudication. If collection is required for any payment not made when due, the
creditor shall collect statutory interest and the cost of collection,
including reasonable attorneys' fees whether or not court action is required
for enforcement.
9. Miscellaneous. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in writing by all parties. This Agreement constitutes the entire agreement
between the parties and supersedes any prior agreements or negotiations. There
are no third party beneficiaries of this Agreement. The terms of this
Agreement shall be governed by and construed in accordance with the internal
laws of the State of California, without regard to its laws of conflicts.
( Signature Page Follows )
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first written above.
"CLIENT"
/s/ Gary Kimmons
Signature: ______________________________
Gary Kimmons, President and CEO
Company: M Power Entertainment Inc.
"CONSULTANT"
/s/ Alan Howarth
Signature: ______________________________
Alan Howarth