EXHIBIT 10.23
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into as of March ___, 2002 by and
between L90, INC., a Delaware corporation (the "Corporation"), and LOS ALTOS
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GROUP, INC. (the "Consultant").
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R E C I T A L S
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A. Corporation is currently engaged in the business of providing marketing
and sales services.
B. Consultant provides management consulting services.
C. Corporation desires to have Consultant render consultation and services
to it in connection with its current and future businesses (the "Business"), and
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Consultant desires to render such consultation and services to Corporation.
D. Corporation desires to retain and engage Consultant as a consultant, and
Consultant is desirous of rendering consulting services to Corporation, all upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants of the
parties contained herein, the parties hereto agree as follows:
1. Engagement. Corporation hereby engages Consultant and Consultant hereby
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agrees to perform consulting services to Corporation upon the terms and
conditions provided herein below. Consultant is and shall be an independent
contractor which, subject to the terms hereof, shall have sole control of the
manner and means of performing its obligations under this Agreement. Except as
provided for in other agreements between Consultant and Corporation, Consultant
shall not have, nor shall Consultant claim, suggest or imply that Consultant
has, any right, power or authority to enter into any contract or obligation on
behalf of, or binding upon, Corporation or any of its representatives.
Consultant shall pay, when and as due, any and all taxes as a result of
Consultant's receipt of compensation pursuant to this Agreement, including
estimated taxes, and shall provide Corporation with proof of such payments upon
Corporation's request. Consultant shall be responsible for providing, at
Consultant's expense and in Consultant's name, such disability, worker's
compensation and other insurance as is necessary or appropriate for Consultant
to provide the services hereunder.
2. Term. The term of this Consulting Agreement shall commence on the date
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hereof and shall continue until terminated as provided in Paragraph 8 below.
Nothing provided herein, however, shall be construed to obligate Corporation to
any commitments or compensation beyond that provided for during such term.
3. Compensation. Subject to the provisions of Paragraph 8, in consideration
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of Consultant's obligations hereunder, Corporation agrees to pay to Consultant a
monthly fee equal to $16,000 (the "Consulting Fee"), such fee to be paid in
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semi-monthly installments of $8,000. In any month in which Consultant shall be
engaged for less than the entire number of days in such month, the compensation
payable under this Section 3 shall be prorated on the basis of the number of
days during which Consultant was actually engaged by Corporation divided by the
number of days in such month.
4. Expenses. Corporation will reimburse Consultant for all expenses that
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are approved in advance by an officer of Corporation as reasonably incurred by
Consultant in connection with the performance of its duties hereunder, upon the
presentation by Consultant, from time to time, of itemized accounts of such
expenditures.
5. Duties and Responsibilities. During the term of this Consulting
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Agreement, Consultant shall devote such time and effort to the Business and
render such advice and counsel and perform such services not inconsistent with
its position as are, from time to time, assigned to it by Corporation. Without
limiting the foregoing, Consultant hereby agrees:
(a) to be available to Corporation to render such advice and consultation
as Corporation may deem reasonable and necessary in connection with the
Business; and
(b) to deliver to Corporation upon termination or expiration of this
Consulting Agreement for any reason, all documents, materials, working papers
and data of any nature pertaining to Consultant's work with Corporation and not
take with it any documents, materials, working papers and data of any nature
pertaining to Consultant's work with Corporation or pertaining to any Business
Proprietary Information (as defined below).
6. Working Facilities. Corporation shall furnish Consultant with office
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and/or work space and such other facilities, supplies and services as are deemed
appropriate by Corporation to be necessary for the performance of Consultant's
duties hereunder.
7. Confidentiality and Proprietary Information.
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(a) Consultant understands that (i) in connection with its engagement by
Corporation it will be privy to and has and will continue to assist in the
development of new information and inventions of value to Corporation, (ii) that
it is expected to render advise and counsel to Corporation and/or its designees
with respect to the Business, and to communicate freely with Corporation and its
designees regarding the Business in a relationship of confidence and trust, and
(iii) Corporation possesses and
will accumulate, in part as a result of Consultant's activities in the Business
and the activities of its staff and others employed or engaged by it,
significant "Business Proprietary Information" (defined herein to include, but
not be limited to trade secrets, processes, formulas, data, know-how,
discoveries, inventions, improvements, techniques, marketing plans, forecasts
and any other information developed by or on behalf of Corporation that is not
in the public domain or owned by others).
(b) Consultant hereby agrees that all Business Proprietary Information
shall be the sole property of Corporation and its successors and assigns, and
Corporation and its successors and assigns shall be the sole and exclusive owner
of all patents, copyrights, trademarks, trade secrets, trade names and other
rights relating to all such Business Proprietary Information. In furtherance of
the foregoing, Consultant hereby assigns to Corporation any rights that it may
have or acquire in such Business Proprietary Information.
(c) At all times, both during the period of its engagement by Corporation
and after termination of such engagement, Consultant shall keep in strict
confidence and trust all Business Proprietary Information, and not use or
disclose any Business Proprietary Information in any way related to Corporation,
its engagement by Corporation, or any research and development activities now or
hereafter engaged in or undertaken by Corporation, without the express prior
written consent of Corporation, except as may be necessary in the ordinary
course of performing its duties as a Consultant to Corporation. The obligations
of Consultant under this Paragraph 7(c) shall survive the termination or
expiration of this Consulting Agreement for a period of five years after said
termination or expiration date.
(d) Consultant hereby represents and warrants to Corporation that its
performance of all of the terms of this Consulting Agreement do not and will not
breach any agreement to keep in confidence proprietary information acquired by
Consultant in confidence or in trust. Consultant has not entered into, and
hereby agrees not to enter into, any agreement, either written or oral, in
conflict with this Consulting Agreement without the prior written consent of
Corporation.
(e) Consultant acknowledges and agrees that upon a breach of any of the
provisions set forth in Paragraph 7 hereof, Corporation shall be entitled to
injunctive relief as a remedy at law would be inadequate and insufficient.
Nothing in this Paragraph 7 shall be construed as limiting in any way
Corporation's right to recover such damages as it can show it has sustained by
reason of such breach.
8. Early Termination. This Consulting Agreement may be terminated at any
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time by Corporation or Consultant in its sole discretion upon
at least 30 days prior written notice to the other party.
9. Arbitration and Choice of Law. Any controversy or claim arising out of,
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or relating to this Consulting Agreement, or the breach thereof, shall be
settled by
arbitration in Los Angeles, California, in accordance with the rules of the
American Arbitration Association then obtaining, and judgment upon any award so
rendered may be entered into any court having jurisdiction thereof. This
Agreement shall be governed by and construed and interpreted in accordance with
the laws of the State of California, without regard to that state's conflicts of
laws principles.
10. Notices. Any notice or other communication required or permitted to be
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transmitted under this Consulting Agreement shall be in writing, and personally
delivered or mailed, return receipt requested, postage prepaid, addressed to the
parties hereto at their addresses indicated below, or at such other addresses as
may be hereafter designated by a party by a notice delivered in accordance
herewith.
11. Waiver of Breach. The waiver of Corporation of a breach of any
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provision of this Consulting Agreement by Consultant shall not operate or be
construed as a waiver of any subsequent breach by Consultant.
12. Assignment. The rights and obligations of Corporation under this
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Consulting Agreement shall inure to the benefit of and shall be binding upon
Corporation and its successors and assigns. The ownership and confidentiality
provisions of this Consulting Agreement shall be binding upon Consultant and its
successors and assigns. Consultant may not assign, transfer or delegate its
rights or obligations hereunder and any attempt to do so shall be void.
13. Entire Agreement and Severability. This instrument contains the entire
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agreement between the parties with respect to the subject matter hereof. It may
not be changed orally but only by agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought. If any provision of this Agreement, or the application of such provision
to any person or circumstance, shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or
the application of such provision to persons or circumstances other than those
to which it is held to be invalid or unenforceable, shall not be affected
thereby.
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IN WITNESS WHEREOF, this Consulting Agreement is executed the day and year
first written above.
CORPORATION:
L90, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: President and CEO
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Address:
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
CONSULTANT:
LOS ALTOS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: _________________________
Address:
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
