XXXXXXXX.XXX
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CONSULTING SERVICES AGREEMENT
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THIS CONSULTING SERVICES AGREEMENT ("Agreement") dated as of April 17,
2000 ("Effective Date") is entered into by and between xxxxxxxx.xxx, inc.,
a Delaware corporation ("xxxxxxxx.xxx"), and Xxxxxx Xxxxxxxx (the
"Consultant').
1. Engagement of Services. Consultant agrees to perform the following
services for xxxxxxxx.xxx at such time and in such manner as is reasonably
acceptable to the parties hereto: (a) provide strategic advice to
xxxxxxxx.xxx's senior management team, including advice relating to
corporate development as well as advice relating to strategic alternatives
for xxxxxxxx.xxx, (b) attend the meetings of xxxxxxxx.xxx's Board of
Directors, and (c) such other services as are determined by mutual
agreement. Such services may be performed through telephonic conference.
xxxxxxxx.xxx selected Consultant to perform these services based upon
xxxxxxxx.xxx receiving Consultant's personal service and therefore
Consultant may not subcontract or otherwise delegate Consultant's
obligations under this Agreement without xxxxxxxx.xxx's prior written
consent.
2. Compensation. As full consideration for the services rendered by
Consultant pursuant to this Agreement, as soon as practicable following the
Effective Date, xxxxxxxx.xxx will pay Consultant a consultant's fee of
$16,666.67 per month (pro-rata amount for partial months) during the Term
(as defined below). In addition, on the Effective Date, xxxxxxxx.xxx shall
grant Consultant a stock option to purchase 20,000 shares of the common
stock of xxxxxxxx.xxx, par value $0.0l per share, subject to such terms and
conditions as set forth in the Nonqualified Stock Option Agreement attached
hereto as Exhibit A. Consultant will be reimbursed for reasonable expenses
incurred in connection with the performance of services under this
Agreement, upon xxxxxxxx.xxx's receipt of invoices evidencing such
expenses.
3. Independent Consultant Relationship. Consultant and xxxxxxxx.xxx
understand, acknowledge and agree that Consultant's relationship with
xxxxxxxx.xxx will be that of an independent contractor and nothing in this
Agreement is intended to or should be construed to create a partnership,
joint venture, or employment relationship.
4. Intellectual Property Rights; Indemnification.
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4.1. Ownership of Work Product.
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(a) xxxxxxxx.xxx shall own all right, title, and interest in
and to the results of Consultant's services hereunder and each element and
part thereof and other tangible embodiments resulting from such services
(collectively, "Work Products). With respect to any and all copyrightable
works and/or materials comprising the Work Product, Consultant acknowledges
that all such Work Product is specially ordered or commissioned by
xxxxxxxx.xxx for use as a contribution to an audiovisual work such shall be
considered "works made for hire" for xxxxxxxx.xxx as author thereof (as
defined in the United States Copyright Act of 1976, as amended). Consultant
further agrees and acknowledges that xxxxxxxx.xxx is the entity for which
the Work Product is and will be prepared and that xxxxxxxx.xxx shall be
considered the author therefor the purposes of copyright and shall own all
rights comprised in and to the copyrights thereof and renewals and
extensions of such copyrights. Consultant hereby irrevocably assigns,
conveys, and otherwise transfers to xxxxxxxx.xxx, and its respective
successors and assigns, all rights, title, and interests worldwide in and
to the Work Product and all propriety rights therein. including, without
limitation, all copyrights, trademarks, design patents, trade secret
rights, moral rights, and all contract and licensing rights, and all claims
and causes of action of any kind with respect to the foregoing, whether now
known or hereafter to become known. In the event Consultant has any rights
in and to the Work Product that cannot be assigned to xxxxxxxx.xxx,
Consultant hereby unconditionally and irrevocably waives the enforcement of
all such rights, and all claims and causes of action of any kind with
respect to any of the foregoing against xxxxxxxx.xxx, its distributors,
licensees, successors, and customers, whether now known or hereafter to
become known, and agrees at the request and expense of xxxxxxxx.xxx and its
respective successors and assigns to consent to and join in any action to
enforce such rights. In the event Consultant has any rights in and to the
Work Product that are for any reason not deemed to be "works made for hire"
and/or that Consultant has any rights in and to the Work Product that
cannot be assigned to xxxxxxxx.xxx and cannot be waived, Consultant hereby
grants to xxxxxxxx.xxx, and its respective successors and assigns, an
exclusive, worldwide, royalty-free license during the term of the rights to
reproduce, distribute, modify, publicly perform, publicly display, and
transmit with the right to sublicense and assign such rights in and to the
Work Product, included without limitation, the right to use in any way
whatsoever the Work Product in any and all media, now know or hereafter
devised. Consultant retains no rights to use the Work Product and agrees
not to challenge the validity of the ownership by xxxxxxxx.xxx in the Work
Product.
(b) Consultant agrees to assist xxxxxxxx.xxx in any
reasonable manner, at xxxxxxxx.xxx sole expense, to obtain and enforce for
xxxxxxxx.xxx's benefit patents, copyrights, and other property rights
covering the Work Product in any and all countries, and Consultant agrees
to execute, when requested, at xxxxxxxx.xxx's expense, any and all lawful
documents deemed necessary by xxxxxxxx.xxx to vest fully in xxxxxxxx.xxx
all rights, title and interests in the Work Product. In the event that
xxxxxxxx.xxx is unable for any reason whatsoever to secure Consultant's
signature to any lawful document required to vest fully in xxxxxxxx.xxx all
rights, title, interests in the Work Product, Consultant hereby irrevocably
designates and appoints xxxxxxxx.xxx and its duly authorized officers and
agents as Consultant's agents and attorneys-in-fact to act for and in
Consultant's behalf and instead of Consultant, to execute and file any such
documents and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or other rights thereon
with the same legal force and effect as if executed by Consultant. Such
power of attorney is irrevocable and coupled with an interest.
4.2. Further Warranties and Representations. Consultant hereby further
warrants and represents the following: (1) The Work Product will be wholly
original to Consultant except to the extent based on material supplied by
xxxxxxxx.xxx, if any, and (2) Consultant shall not at any time authorize or
willingly permit any person, firm or corporation to infringe upon the
rights granted to xxxxxxxx.xxx hereunder, and authorizes xxxxxxxx.xxx, in
Consultant's name or otherwise, to institute any proper legal proceedings
to prevent any such infringement.
4.3. Indemnification. xxxxxxxx.xxx will defend, indemnify and hold
harmless Consultant with respect to claims, damages, liabilities, costs and
expenses (including reasonable attorneys' fees) arising out of Consultant's
service to xxxxxxxx.xxx to the fullest extent permitted by Delaware General
Corporate Law, consistent with xxxxxxxx.xxx's By-Laws, as such By-Laws may
be amended from time to time, assuming that for this purpose, Consultant
will be deemed to be an officer of xxxxxxxx.xxx; provided, that
Consultant's actual status as not being an officer of xxxxxxxx.xxx shall
not reduce or in anyway diminish xxxxxxxx.xxx's obligation to provide the
indemnification contemplated by this Section 4.3.
4.4. Return of xxxxxxxx.xxx's Property. Consultant acknowledges that
xxxxxxxx.xxx's sole and exclusive property includes all documents, such as
drawings, manuals, notebooks, reports, sketches, records, computer
programs, employee lists, customer lists and the like in his custody or
possession, whether delivered to Consultant by xxxxxxxx.xxx or made by
Consultant in the performance of services under this Agreement, relating to
the business activities of xxxxxxxx.xxx or its customers or suppliers and
containing Confidential Information. Consultant agrees to deliver promptly
all of xxxxxxxx.xxx's property and all copies of xxxxxxxx.xxx's property in
Consultant's possession to xxxxxxxx.xxx at any time upon xxxxxxxx.xxx's
request.
5. Term; Termination.
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5.1. Termination. Unless otherwise terminated pursuant to this
Section, the term of this Agreement shall commence on the Effective Date
and shall continue until the earlier of (a) the date that xxxxxxxx.xxx
elects a new Chief Executive Officer; (b) the date that there is a "Change
of Control" (as defined below) of the Company; or (c) the six month
anniversary of the Effective Date (the "Term"). "Change of Control" means
(x) the sale or disposition of substantially all of xxxxxxxx.xxx's assets;
or (y) the acquisition by a third party of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Act of 1933) of more
than fifty percent (50%) of either (1) the then outstanding shares of
common stock of a party; or (2) the combined voting power of the then
outstanding voting securities of a party entitled to vote generally in the
election of directors. Either party may terminate this Agreement at any
time upon fifteen (15) day's prior written notice; provided, that, if
xxxxxxxx.xxx terminates this Agreement prior to the expiration of the Term
for any reason other than a material breach of this Agreement by Consultant
which has not been cured, if curable, within 15 days following written
notice by xxxxxxxx.xxx to the Consulting setting forth in detail how it
believes the Agreement has been materially breached, any stock options
granted in accordance with Section 2 of this Agreement that would have
vested on the next monthly anniversary date of the Effective Date following
the effective time of such termination of service shall automatically vest
and become exercisable in accordance with their terms.
6. Confidential Information. Consultant agrees, during and after the
term of this Agreement, to hold in confidence, and not to use except as
necessary to perform under this Agreement, any information, which it knows
or has any reason to know is considered confidential by xxxxxxxx.xxx
("Confidential Information"). Confidential Information includes, but it is
not limited to, any products and services developed by or contemplated to
be developed by xxxxxxxx.xxx, technical and business information relating
to xxxxxxxx.xxx's inventions, products or services, research and
development, manufacturing and engineering processes, and future business
plans. Confidential Information may take the form of documentation,
drawings, specifications, software, technical or engineering data, and
other forms and may be communicated orally, in writing, by electronic
media, by visual observation and by other means. Consultant agrees to hold
the Confidential Information in strict confidence, and to use the
Confidential Information only to the extent necessary to perform under this
Agreement. Consultant further agrees not to make any disclosure of the
Confidential Information to anyone without the express written consent of
xxxxxxxx.xxx, except to employees, consultants or agents of xxxxxxxx.xxx to
whom disclosure is necessary to the performance of this Agreement. Upon
request, Consultant shall return all originals and copies thereof of any
requested Confidential Information, which has been fixed, in any tangible
means of expression. Notwithstanding the foregoing, information shall not
be deemed Confidential Information if (a) it has been published or is
otherwise readily available to the public without restriction other than by
a breach of this Agreement; (b) it has been rightfully received by
Consultant from a third party without confidentiality limitations; (c) it
was known to the Consultant prior to its first receipt by the Consultant,
as shown by the files existing at the time of initial disclosure; or (d) it
is required to be disclosed in the context of any tax filing, or
administrative or judicial proceeding or as may be required by law.
Consultant represents that Consultant's performance of all of the terms of
this Agreement does not and will not breach any agreement to keep in
confidence proprietary information of a third party, and Consultant will
not disclose to xxxxxxxx.xxx any proprietary information belonging to third
parties.
7. General Provisions.
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7.1. Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the United States and the State of New York,
without regard to its conflict of laws principles for contracts executed
and to be wholly performed therein. Both parties submit to jurisdiction in
New York and further agree that any cause of action arising under this
Agreement shall be brought in a court in New York, New York.
7.2. Entire Agreement. This Agreement, including all Exhibits to this
Agreement, including, without limitation, the option agreement, constitutes
the entire agreement between the parties relating to this subject mater and
supersede all prior or simultaneous representations, discussions,
negotiations, and agreements, whether written or oral.
7.3. No Injunction. In the event of a breach by xxxxxxxx.xxx of any of
its obligation under this Agreement, Consultant's rights and remedies shall
be limited to the right to recover damages, if any, in an action at law,
and shall be limited to the right to recover damages, if any, in an action
at law, and shall not include the right to seek or obtain injunctive or
other equitable relief, or the right to rescind this Agreement, and in no
event shall Consultant have the right to enjoin, restrain or interfere with
the exploitation of the Work Product.
7.4. Severability; Waiver. If any provision of this Agreement is held
to be invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated in any
way. xxxxxxxx.xxx and Consultant agree to replace any invalid provision
with a valid provision which most closely approximates the intent and
economic effect of the invalid provision. The waiver by xxxxxxxx.xxx of a
breach of any provision of this Agreement by Consultant will not operate or
be interpreted as a waiver of any other or subsequent breach by Consultant.
7.5. Successors and Assigns. Neither this Agreement nor any of the
rights or obligations of either party arising under this Agreement may be
assigned or transferred without the other parties prior written consent.
This Agreement will be for the benefit of xxxxxxxx.xxx's successors, and
will be binding on Consultant's heirs and legal representatives.
7.6. Notices. All notices and other communications required to be
given under this Agreement must be in writing, mailed by registered or
certified mail, postage prepaid and return receipt requested, or delivered
by band to the party to whom such notice is to be given. Any such notice
will be considered to have been given when received, or if mailed, five (5)
business days after it was mailed, as evidence by the postmark. The mailing
address for notice to either party will be the address shown on the
signature page of this Agreement.
7.7. Survival. The following provisions shall survive termination of
this Agreement: Article 4, Section 5.2, Article 6, and Article 7.
xxxxxxxx.xxx: CONSULTANT:
xxxxxxxx.xxx, inc. Xxxxxx Xxxxxxxx
By: By:
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Title: Title:
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Address: Address:
000 Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
