Exhibit 10.4 Consulting Service Contract
CONSULTING SERVICE CONTRACT
WITH XXXXXX X XXXXXX
This consulting services agreement ("Consulting Agreement") is made as of this
1st day of October, 2002, by and between Xxxxxx X Xxxxxx, 00 Xxxxxx Xxxx,
Xxxxxxxxx Xxxxxxxxxxx 00000 and Xxxxxx Media, Inc., 00 Xxxx 00xx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000, (referred to herein as the "Company"), with Xxxxxx X
Xxxxxx and Company collectively sometimes herein referred to as the "Parties
WHEREAS, the Company (a Nevada corporation) is a fully reporting company whose
securities are traded on the Over-the-Counter Bulletin Board under the ticker
symbol "MULM"; and
WHEREAS, the Consultant possesses certain management skills and is in the
business of assisting companies with the selection, review, and due diligence
necessary relating to possible acquired companies; and to assimilate such
companies into the acquiring company's corporate plan.
WHEREAS, the Company wishes to retain Xxxxxx X Xxxxxx as a non-exclusive
corporate consultant; and
IT IS, THEREFORE agreed that:
1. Services. The Company shall retain Xxxxxx X Xxxxxx to provide general Merger
and acquisition consulting services which may include, but not be limited to:
screening possible acquisition candidates, assistance in the due diligence
review, preparation, and assistance with documentation relating to closure and
general filings in accordance with the Rules and Regulations of the Securities
and Exchange Commission. The Consultant shall agree to make himself available
for the foregoing purposes and devote such business time and attention thereto
as it shall determine is required.
The Company understands that any and all suggestions, opinions or advice given
to the Company by the Consultant are advisory only and the ultimate
responsibility, liability and decision regarding any action(s) taken or filings
made lies solely with the Company and not with the Consultant.
2. Term. The term of this Consulting Agreement shall be from the date hereof and
two years hence (the "Term"). This agreement shall be renewed automatically on
July 1, of each year thereafter for one (1) additional year term, unless and
until terminated as provided elsewhere in this agreement.
3. Compensation. As compensation for entering into this Consulting Agreement and
for services rendered over the Term, Xx. Xxxxxx X Xxxxxx shall receive a base
amount equal to One hundred ninety six thousand ($196,000.00) per annum, payable
in equal monthly installments.
4. Arbitration. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing now, in
the past or in the future.
as to which the parties or any affiliates may be adverse parties, and whether
arising out of this Consulting Agreement or from any other cause, will be
resolved by arbitration before the American Arbitration Association within the
State of Nevada. The parties hereby irrevocably consent to the jurisdiction of
the American Arbitration Association and the situs of the arbitration (and of
any action for injunctive or other equitable relief) within the State of Nevada.
Any award in arbitration may be entered in any domestic or foreign court having
jurisdiction over the enforcement of such awards. The law applicable to the
arbitration and this Consulting Agreement shall be that of the State of Nevada,
determined without regard to its provisions which would otherwise apply to a
question of conflict of laws.
5. Independent Contractor Relationship. Consultant and the Company are
independent contractors and nothing contained in this Agreement shall be
construed to place them in the relationship of partners, principal and agent,
employer/employee or joint ventures. Neither party shall have the power or right
to bind or obligate the other party, nor shall it hold itself out as having such
authority.
6. Indemnification. Company shall indemnify and hold harmless the Consultant
from and against any and all losses, damages, liabilities, reasonable attorney's
fees, court costs and expenses resulting or arising from any or omission by
Company. The Consultant shall indemnify and hold harmless the Company from and
against any and all losses, damages, liabilities, reasonable attorney's fees,
court costs and expenses resulting or arising from any act or omission by the
Consultant.
7. Miscellaneous.
7.1 Assignment. This Agreement is not transferable or assignable.
7.2 Execution and Delivery of Agreement. Each of the parties shall be entitled
to rely on delivery by fax transmission of an executed copy of this agreement by
the other party, and acceptance of such fax copies shall create a valid and
binding agreement between the parties.
7.3 Titles. The titles of the sections and subsections of this agreement are for
the convenience of reference only and are not to be considered in construing
this agreement.
7.4 Severability. The invalidity or unenforceability of any particular provision
of this agreement shall not affect or limit the validity or enforceability of
the remaining provisions of this agreement.
7.5 Entire Agreement. This agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matters herein and
supersedes and replaces any prior agreements and understandings, whether oral or
written, between them with respect to such matters.
7.6 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
8. Termination.
Termination for cause The Company, acting through its Board of Directors, may
terminate this agreement only for cause by written notice to the consultant. For
the purposes of this agreement, the term "cause" shall include only the
following acts: (1) any serious, willful act of infidelity or breach of any
fiduciary duty owed by the consultant to the Company; or (2) any mental or
physical disability suffered by the consultant which makes it impossible for the
consultant to perform his duties under this agreement for a period of one
hundred eighty (180) consecutive days; or (3) the consultants failure, not
caused by physical or mental disability, to perform his duties and
responsibilities as required under the express terms of this agreement.
Voluntary Termination by the consultant This agreement may be terminated by the
consultant with or without cause upon sixty (60) days written notice to the
Company prior to the end of the then-effective term of this agreement, in which
case such termination shall be effective upon the expiration of the then
-effective term of this agreement as set forth in section 2 hereof.
9. Severance In the event this Agreement is either (i) terminated by the Company
for any reason other than the willful misconduct of the consultant, or (ii)
terminated by the consultant for Company cause, then the Company shall pay
consultant the following:
(a) A severance bonus from the general funds of the Company of:
(i) The present value of the remaining consultant's salary;
(ii) At the consultant's election, either the payment of the present value of
the remaining consultant's salary or the equal to ten percent (10%) of the gross
amount of any xxxxxxxx in excess of two million dollars invoiced and collected
in the previous year.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above mentioned.
October 1, 2002
XXXXXX MEDIA, INC.
By: /s/ X. X. Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx,
Vice President,
General Counsel,
Secretary and Director
By: /s/ Xxxx X. Xxxxx
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Xxxx X Xxxxx
Chairman and CEO
