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EXHIBIT 10.12
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of August 5,
1998, by and between U30 Group LLC, a Tennessee limited liability company
("Consultant"), and Digital Entertainment Network, Inc., a Delaware corporation
("Company", and together with Consultant, the "Parties").
This Agreement is entered into with reference to the following:
A. Company is a Delaware corporation authorized to do business in
California with power to own property and to employ such agents, representatives
and consultants necessary to carry on the business and operations of Company.
Company is a start-up corporation which intends to produce entertainment content
and distribute it via the Internet and other methods of distribution;
B. Consultant is a Tennessee limited liability company, a professional
consultant to businesses, and desires to assist, through the services of its
member and manager Xxxxxx Xxxxxx, Company with respect to its sales and
marketing efforts; and
C. Consultant and Company desire to agree upon the compensation payable
to Consultant and to set forth their respective rights and obligations as to
consulting services to be provided by Consultant to Company.
Accordingly, the parties hereto agree as follows:
1. Services To Be Performed.
During the term of this Agreement, Consultant will make Xxxxxx
Xxxxxx available to consult with, and will cause Xxxxxx Xxxxxx to provide, on an
exclusive full-time basis, consulting services to Company concerning the matters
set forth on Schedule I attached hereto and incorporated herein by reference.
Consultant hereby acknowledges and agrees that Company's decision to enter into
this Agreement was based on the fact that Xxxxxx Xxxxxx will be providing
services to Company on a full time exclusive basis hereunder on behalf of
Consultant, and that Consultant may not use any other person to fulfill such
responsibilities. A condition precedent to the Parties' obligations hereunder is
the execution and delivery of the DEN Executive Employment Agreement, a form of
which is attached hereto as Exhibit A, by each of Company and Xxxxxx Xxxxxx. The
Parties agree that the services to be performed by Xxxxxx Xxxxxx on behalf of
Consultant hereunder shall be performed primarily at Consultant's principal
office in Knoxville, Tennessee, subject to such travel by Xxxxxx Xxxxxx as
Company may reasonably require, taking into account, among other factors,
Company's needs and Xxxxxx Xxxxxx'x family obligations.
2. Term.
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The term ("Term") of this Agreement will commence as of August 5, 1998
and will terminate as of December 31, 1998, unless terminated sooner pursuant to
the terms of the Paragraph entitled "Termination," and subject to the Paragraph
entitled "Obligations Upon Termination."
3. Compensation.
(a) Cash Compensation. Subject to Paragraph 7 of this Agreement,
as full and complete compensation for Consultant's services hereunder, and for
all rights in and to the results and proceeds of such services, Company will pay
to Consultant the sum (the "Compensation") of Four Hundred Thousand Dollars
($400,000) which shall be payable in equal installments semi-monthly.
4. Termination.
Company has the right to terminate this Agreement subject to this
Paragraph. No amounts shall be paid upon any termination of this Agreement,
whether as liquidated damages or otherwise, except as specifically provided in
the Paragraph entitled "Obligations Upon Termination."
(a) Death or Disability.
(i) This Agreement shall automatically terminate upon
Xxxxxx Xxxxxx'x death; and
(ii) Company may terminate this Agreement, subject to
any applicable Federal and state laws, in the event of Xxxxxx Xxxxxx'x failure
or inability to perform his duties hereunder on behalf of Consultant on an
exclusive and full time basis due to his mental or physical disability. Xxxxxx
Xxxxxx shall be deemed to be disabled, for purposes of this Agreement, if he is
unable to perform with reasonable accommodation, by reason of physical or mental
disability, his essential duties or obligations on behalf of Consultant
hereunder, for a period of six (6) consecutive weeks.
(b) Termination for Cause. Company may terminate this Agreement
for "cause" at any time upon written notice to Consultant. As used herein, the
term "cause" shall mean any one or combination of the following:
(i) Xxxxxx Xxxxxx'x continuing failure (i) to
substantially perform his services and duties on behalf of Consultant hereunder
(including, without limitation, as described in Paragraphs 1, 13 and 14) or (ii)
to comply with reasonable directions of his supervisors and the Board of
Directors and/or their designees. In the event that a cure of any such failure
is reasonably possible and practicable, the Board of Directors of Company (the
"Board of Directors"), the President of the Company (the "President"), any of
his supervisors and/or whomever is designated by the Board of Directors shall
provide Consultant and Xxxxxx Xxxxxx fourteen (14) days' written notice and
opportunity to cure the identified deficiencies;
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(ii) Consultant's material breach of this Agreement;
(iii) Xxxxxx Xxxxxx'x gross negligence in the performance
of his services and duties on behalf of Consultant hereunder;
(iv) Xxxxxx Xxxxxx'x conviction of any crime (whether or
not involving Company) which constitutes a crime of moral turpitude or is a
felony; provided, however, that nothing in this Agreement shall obligate Company
to pay the Compensation during any period that he is unable to perform his
services and duties on behalf of Consultant hereunder due to any incarceration;
provided, further, that nothing shall prevent the termination of this Agreement
under another subparagraph of this Paragraph if it provides independent grounds
for termination;
(v) Xxxxxx Xxxxxx'x or Consultant's material violation of
any written rule or regulation of Company applicable to him or it, as the case
may be. In the event that a cure of any such failure is reasonably possible or
practicable, the Board of Directors, the President, any of his supervisors
and/or whomever is designated by the Board of Directors shall provide Xxxxxx
Xxxxxx and Consultant fourteen (14) days' written notice and opportunity to cure
the identified deficiencies;
(vi) Xxxxxx Xxxxxx'x or Consultant's omission or act
constituting fraud, dishonesty or misrepresentation relating to the business of
Company or the provision of Consultant's services hereunder.
(vii) Xxxxxx Xxxxxx'x failure to satisfy the requirements
of the Immigration Reform and Control Act of 1986. In the event that a cure of
any such failure is reasonably possible or practicable, the Board of Directors,
the President, any of his supervisors and/or whomever is designated by the Board
of Directors shall provide Xxxxxx Xxxxxx and Consultant fourteen (14) days'
written notice and opportunity to cure the identified deficiencies;
(c) Termination Without Cause. Company may terminate this
Agreement without cause (as "cause" is defined above), subject to the provisions
of the Paragraph entitled "Obligations Upon Termination."
(d) Company Breach. In the event of any material breach of this
Agreement by Company, Consultant shall be entitled to terminate this Agreement
thirty (30) days following written notice to Company, which notice shall
identify such breach and shall give Company the opportunity to cure such breach
within such thirty (30) day period; provided, however, that the cure period for
failure to pay Consultant the Compensation when due is five (5) business days.
5. Election Not to Proceed. Company has the right to terminate this
Agreement immediately upon written notice to Consultant if it elects not to
continue to actively proceed with the development and/or operation of the
business described in Recital A for the remainder of the Term; provided,
however, that as a condition to exercising such termination right, Company shall
pay Consultant all Compensation due and payable as of the date thereof and
unreimbursed business expenses in accordance with Company's customary policies.
If Company so terminates and
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subsequently elects to restart development and/or operation of such business
prior to the expiration of the Term, Company shall give Consultant notice
thereof and Consultant shall have the opportunity for a period of thirty (30)
days from such notice to reinstate the provision of Xxxxxx Xxxxxx'x services and
duties on behalf of Consultant under this Agreement promptly upon written notice
to Company (but without compensation for the period during which the provision
of such services and duties under this Agreement was terminated); provided,
however, that Xxxxxx Xxxxxx is ready, willing and able to recommence the
provision of his services and duties on behalf of Consultant hereunder upon
expiration of such thirty (30) day period.
6. Force Majeure. In the event of any event or reason beyond the
reasonable control of the Company (including, without limitation, acts of
nature, war, riot, shortage of materials, strike or labor disruption, blackouts,
etc.) which materially interrupts or materially interferes with the development
and/or operation of Company as a whole and which continues for more than
forty-five (45) days ("Event of Force Majeure"), Company has the right to
terminate this Agreement immediately upon notice to Consultant. If Company so
terminates and the Event of Force Majeure ends prior to expiration of the Term,
Company shall give Consultant notice thereof and Consultant shall have the
opportunity for a period of thirty (30) days from such notice to reinstate the
provision of Xxxxxx Xxxxxx'x services and duties on behalf of Consultant under
this Agreement promptly upon written notice to Company (but without compensation
for the period during which the provisions of Xxxxxx Xxxxxx'x services and
duties on behalf of Consultant under this Agreement was terminated on account of
Event of Force Majeure); provided, however, that Xxxxxx Xxxxxx is ready, willing
and able to recommence his services and duties on behalf of Consultant hereunder
within ten (10) business days of Consultant giving the Company timely notice of
its intention to reinstate the provision of Xxxxxx Xxxxxx'x services and duties
on behalf of Consultant.
7. Obligations Upon Termination.
(a) Notwithstanding anything in this Agreement to the contrary,
in the event of a termination for cause (as defined above), Company shall have
no further obligations to Consultant under this Agreement (other than as
otherwise specifically required by applicable law), except payment of the
Compensation, and reimbursement of expenses (in accordance with Company's
customary policies), and Company shall continue to have all other rights
available hereunder at law or in equity.
(b) Notwithstanding anything in this Agreement to the contrary,
if Company provides Consultant notice that it has made an election to terminate
this Agreement pursuant to either of the paragraphs entitled "Election Not to
Proceed" or "Force Majeure," Company shall have no further obligations to
Consultant under this Agreement (other than as otherwise specifically required
by applicable law), except for payment of the Compensation through the date of
termination, and reimbursement of business expenses in accordance with Company's
customary policies, and Company shall continue to have all other rights
available hereunder at law or in equity.
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8. Reporting.
Xxxxxx Xxxxxx, on behalf of Consultant, shall report to Xxxx
Xxxxxxx-Xxxxxx, Xxxxx Xxxxxx and the Chief Executive Officer, if any, of the
Company, unless otherwise directed by same; provided, however, that in the event
of any conflict in instructions from such persons, Mr. Winter will ultimately
report to Xxxx Xxxxxxx-Xxxxxx.
9. Expenses.
Consultant shall be entitled to reimbursement for all reasonable,
ordinary and properly vouchered business and business-related entertainment
expenses incurred in the performance of its services hereunder subject to the
Company's policies and procedures with respect thereto as may be from time to
time in effect (including, without limitation, regarding caps on expenses);
provided, however, that if Company requires You to travel outside of Knoxville,
Tennessee, Company shall furnish You with at least first class round-trip air
travel (if available and if used) and first-class accommodations; provided,
further, during the Term hereof, Company shall reimburse You for flying (via
economy class) and housing Your family with You for up to one trip, with a
maximum stay of one week. You shall also be entitled to be reimbursed for a
reasonable portion of Your office expenses and administrative assistance in
Knoxville, Tennessee.
10. Assignment.
Neither Party may assign its rights or delegate its duties hereunder
without first having obtained the other Party's written consent to any such
assignment and/or delegation, which consent may be withheld at such other
Party's sole discretion for any reason whatsoever. Consent of any one assignment
or delegation will not constitute a waiver of such Party's right to approve or
disapprove any subsequent proposed assignment or delegation. Any such assignment
or delegation without the consent of a Party will be void and will, at the
option of such Party, constitute a default under this Agreement.
11. Consultant Not Agent or Employee.
Consultant and Company agree that Consultant and third parties engaged
directly by Consultant (including, but not limited to, Xxxxxx Xxxxxx) rather
than directly by Company are not and are not to be deemed employees, agents,
joint venturers or partners of Company, but are rendering services hereunder as
an independent contractor and/or employee of Consultant and/or subcontractor
engaged by Consultant, and Consultant and third parties engaged directly by
Consultant (including, but not limited to, Xxxxxx Xxxxxx) rather than directly
by Company may not assume or create any obligation or responsibility on behalf
of or in Company's name, except as expressly authorized in advance in writing by
Company.
12. No Withholding Obligation.
Consultant and Company agree that Company will not make any payments or
deduct any amounts for unemployment, pension or any other employer
contributions, or withholding or other
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payroll or related taxes, from any payments to Consultant or third parties
engaged directly by Consultant rather than directly by Company, including,
without limitation, Xxxxxx Xxxxxx and other persons engaged by Consultant.
Consultant shall (i) be solely responsible for any and all taxes or other
required payments related to Xxxxxx Xxxxxx'x and such third parties', (ii)
comply with all federal, state and local income reporting requirements with
respect to itself and third parties engaged by Consultant directly rather than
directly by Company (including, but not limited to, Xxxxxx Xxxxxx), and shall
(iii) indemnify, defend, save and hold Company, its officers, directors,
stockholders, agents, attorneys, employees, representatives, heirs, successors,
and assigns, harmless from and against any and all actions, claims, losses,
penalties, assessments, damages and other costs and expenses (including, without
limitation, attorneys' fees and costs) arising out of or relating to such
payments.
13. Confidentiality.
(a) Consultant shall not disclose the terms of this Agreement
and/or its association with Company (other than to its professional advisors or
its members and/or managers) without Company's prior approval which can be
withheld by Company in its sole discretion. Consultant further agrees to execute
and be bound by the Confidentiality Agreement attached hereto as Exhibit "B-1"
and cause Xxxxxx Xxxxxx to execute and be bound by the Confidentiality Agreement
attached hereto as Exhibit "B-2", both of which are incorporated herein by this
reference and the execution of which are conditions precedent to Company's
obligations under this Agreement.
(b) Consultant shall not at any time during the Term be or become
(i) interested or engaged in any manner, directly or indirectly, either alone or
with any person, firm or entity now existing or hereafter created, in any
business which is or may be competitive with the business of Company or (ii)
directly or indirectly involved as a stockholder or officer, director or
employee of, or in any manner associated with, or aid or abet or give
information or financial assistance to, any such business. The provisions of
this subparagraph (b) shall not be deemed to prohibit Consultant's purchase or
ownership, as a passive investment, of not more than five percent (5%) of the
outstanding capital stock of any corporation whose stock is publicly traded. The
foregoing shall not be construed as requiring the divestiture of any investment
made by Consultant prior to the date hereof. Consultant further agrees to
execute and be bound by the Code of Conduct attached hereto as Exhibit "C-1" and
cause Xxxxxx Xxxxxx to execute and be bound by the Code of Conduct attached
hereto as Exhibit "C-2", both of which are incorporated herein by reference and
the execution of which are conditions precedent to Company's obligations under
this Agreement.
(c) Consultant hereby acknowledges that the provisions of this
Paragraph are reasonable and necessary to protect the legitimate interests of
Company and that any violation of such provisions may result in immediate and
irreparable injury to Company, which cannot reasonably or adequately be
compensated by monetary damages. In the event of a violation of the provisions
of this Paragraph, Consultant further agrees that Company shall, in addition to
all other remedies available to it, be entitled to seek equitable relief by way
of injunction and any other legal or equitable remedies.
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(d) Xxxxxx Xxxxxx by his acknowledgment on the signature page
hereof agrees to be bound by each and every provision of this Paragraph 13.
14. No Solicitation.
Consultant shall not during the Term or for one (1) year thereafter
induce or attempt to induce any employees or independent contractors (who are
natural persons) of Company (or those of any of its subsidiaries, affiliates or
related companies) to stop working for, contracting with or representing Company
(or any of its subsidiaries, affiliates or related companies) or to otherwise
alter their relationship with Company (or any of its subsidiaries, affiliates or
related companies). Further, Consultant shall not during the Term or for one
year thereafter induce or attempt to induce any employees, or independent
contractors (who are natural persons) of Company to work for, contract with or
represent, any competitors of Company (or any of its subsidiaries, affiliates or
related companies), including Consultant or any third party subsequently
employing Consultant.
Consultant hereby acknowledges that the provisions of this Paragraph are
reasonable and necessary to protect the legitimate interests of Company and that
any violation of such provisions may result in immediate and irreparable injury
to Company, which cannot reasonably or adequately be compensated by monetary
damages. In the event of a violation of the provisions of this Paragraph,
Consultant further agrees that Company shall, in addition to all other remedies
available to it, be entitled to seek equitable relief by way of injunction and
any other legal or equitable remedies.
Xxxxxx Xxxxxx by his acknowledgment on the signature page hereof agrees
to be bound by each and every provision of this Paragraph 14.
15. Work for Hire.
Other than as set forth on Schedule II attached hereto, all of the
results and proceeds of all services of every kind or nature rendered by
Consultant for Company, including, but not limited to, all (a) plans, methods,
slogans, product names and/or ideas, (b) creative, literary, dramatic and/or
musical material, elements, ideas, suggestions, plots, themes, titles, stories,
characterizations and other material, and/or (c) scientific or technical
material, elements, ideas or suggestions, whether or not in writing, which are
created, suggested and/or obtained by Consultant in the course and scope of
Consultant's performance of its obligations under this Agreement (collectively,
the "Work"), shall be the sole property of Company. To the extent possible or
required under applicable laws, including, without limitation, the U.S.
Copyright Act, the Work shall be considered a "Work Made For Hire." If any
element of the Work is not legally capable of being considered as such, then, in
such event, Consultant hereby irrevocably assigns to Company in perpetuity,
throughout the universe, all rights therein and thereto, including, but not
limited to, copyright and any renewals and/or extensions thereof. Consultant
hereby grants Company the right to change, add to, take from, translate,
reformat and/or reprocess the Work in any manner Company may in its sole
discretion determine. To the fullest extent allowable under any applicable law,
Consultant hereby irrevocably waives or assigns to Company Consultant's
so-called "moral rights" or "droit moral." Consultant and Company acknowledge
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and agree that the Compensation payable hereunder is, in part, in consideration
of, and constitutes equitable remuneration for, any so-called rental right to
the Work. Consultant agrees to immediately deliver to Company upon its request,
but not later than upon completion of its services pursuant to this Agreement,
all copies, notes, tapes, disks, etc. of the Work. Consultant agrees to execute
and deliver to Company such assignments, certificates of engagement or other
instruments as Company may require from time to time to evidence Company's
ownership of the Work.
Xxxxxx Xxxxxx by his acknowledgment on the signature page hereof agrees
to be bound by each and every provision of this Paragraph 15.
16. No Obligation to Use Consultant.
Notwithstanding anything to the contrary contained in this Agreement,
Company shall not be obligated to actually use the service of Consultant nor to
publish, distribute, advertise, exploit or otherwise make any use of the work
created or worked upon by it and in such instance Company's sole obligation to
Consultant shall be to pay the Compensation due in accordance with and subject
to Paragraph 3.
Xxxxxx Xxxxxx by his acknowledgment on the signature page hereof agrees
to be bound by each and every provision of this Paragraph 16.
17. Representations and Warranties.
Consultant hereby represents and warrants to Company as follows:
(a) Consultant has full power and authority to execute and
deliver this Agreement, and perform the transactions contemplated thereby.
(b) This Agreement constitutes the legal, valid and binding
obligation of Consultant, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws and equitable principles relating to or limiting creditors rights
generally.
(c) The execution and delivery of this Agreement, and the
performance of the transactions contemplated thereby, will not (i) conflict with
or violate the Operating Agreement or other organizational documents of
Consultant, or (ii) conflict with, violate or constitute a material breach or
default (whether upon lapse of time and/or the occurrence of any act or event or
otherwise) of any provision of any contract, agreement or understanding
applicable to Consultant, or violate any statute, law, rule, regulation, decree,
injunction, judgment, order, ruling or writ applicable to Consultant.
(d) Consultant understands that Xxxxxx Xxxxxx'x provision of
services and duties to Company on behalf of Consultant hereunder is critical to
Company, and that Company
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would not have entered into this Agreement but for the provision of such
services and duties solely by Xxxxxx Xxxxxx.
18. Indemnity.
Each Party (an "Indemnifying Party") agrees to defend, indemnify and
hold harmless the other Party, its respective successors, assigns, and
affiliated companies and the directors, officers, stockholders, employees,
agents, attorneys and representatives of each of the foregoing (collectively, an
"Indemnified Party"), from any damage, loss, liability, cost, penalty, award or
expense of any kind (including, without limitation, attorneys' fees and costs)
(collectively, "Liability") incurred, directly or indirectly, as a result of (i)
the breach of any representation or warranty by such Indemnifying Party
hereunder; (ii) the breach of any covenant, agreement or other provision of this
Agreement by such Indemnifying Party; or (iii) any intentional or negligent act
or omission by such Indemnifying Party in the course of performance of this
Agreement. This indemnity does not require payment of Compensation by Company as
a condition precedent to recovery from Consultant hereunder. Company may keep
any accrued Compensation due to Consultant hereunder to offset Consultant's
payment to Company of any Liability under this indemnity and Consultant shall
remain obligated for the amount of said Liability to the extent such kept
payments are insufficient to satisfy the Liability. If the Indemnified Party so
elects, the Indemnified Party shall have the absolute right to control any
litigation of or resolution of any claim, demand or action to which this
indemnity applies.
19. No Implied Waivers.
The failure of either party at any time to require performance by the
other party of any provision hereof will not affect in any way the full right to
request such performance at any time thereafter, nor will the waiver by either
of a breach of any provision hereof be taken or held to be a waiver of any
subsequent breach or of the provision itself.
20. Remedies.
Consultant agrees that it shall not be entitled to injunctive or
equitable relief against Company with respect to Company's performance of its
obligations, and is limited to its remedies at law. All remedies accorded herein
or otherwise available to the parties are cumulative, and no one such remedy
shall be exclusive to any other except as limited by the Paragraph entitled
("Choice of Law, Jurisdiction and Venue"). The pursuit by a party to this
Agreement of any remedy under this Agreement or otherwise shall not be deemed to
waive any other or different remedy which may be available to such party under
this Agreement or otherwise. Without waiving any of a Party's rights or remedies
under this Agreement or otherwise, such Party may from time-to-time recover, by
action, any damages arising out of any breach of this Agreement by the other
Party, and may institute and maintain subsequent actions for additional damages
which may arise from the same or other breaches. The commencement or maintaining
of any such action or actions by a Party shall not constitute an election on
such Party's part to terminate this Agreement or constitute or result in
termination of the other Party's obligations hereunder unless such Party shall
expressly so elect by written notice to the other Party.
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21. Garnishment.
If Company is required because of the service of any garnishment or by
the terms of any contract or assignment executed by Consultant to pay all or any
portion of the Compensation hereunder to any other person or entity, the
withholding of payment of such compensation or any portion thereof shall not be
construed as breach by Company of this Agreement. Consultant further agrees to
indemnify Company for its Liability related in any way to such a service of
garnishment.
22. Publicity.
Consultant hereby irrevocably grants Company the right, during the Term,
to use Xxxxxx Xxxxxx'x approved professional biography with respect to
advertising, promotion and publicity relating to the Company and/or its products
and services. Consultant agrees that Company shall have the right to issue
publicity concerning Xxxxxx Xxxxxx and/or Consultant with respect to this
Agreement, the results and proceeds of Consultant's services hereunder and
Company and/or Company's products and services. Notwithstanding the foregoing,
Consultant may make incidental, nonderogatory references to Company and/or its
products and services after such time as Company publicly announces this
Agreement.
23. Captions.
Captions in this Agreement are inserted for convenience of reference
only and do not define, describe or affect the construction or interpretation or
limit the scope or the intent of this Agreement or any of the terms or
provisions hereof.
24. Arbitration.
(a) Except for Company's right to seek immediate injunctive and
equitable relief in accordance with the provisions of this Agreement, the
parties hereto agree that all disputes, claims and other matters in controversy
arising out of or relating to this Agreement, or the interpretation, performance
or breach thereof, shall be submitted to binding arbitration in accordance with
the provisions and procedures of this Paragraph 24. This arbitration requirement
shall include, without limitation, the agreement by Consultant to submit to
arbitration any and all claims arising out of any alleged discrimination or
harassment, including, but not limited to, those covered by the California Fair
Employment and Housing Act, the 1961 Civil Rights Act, 42 U.S.C. Sections 2000e
et seq. (Title VII), the Age Discrimination in Employment Act, and the Americans
With Disabilities Act.
(b) The arbitration provided for in this Paragraph 24 shall take
place in Los Angeles County, California, in accordance with the provisions of
Title 9, Sections 1280 et seq. of the California Code of Civil Procedure, except
as provided to the contrary hereunder. The arbitration shall be held before and
decided by a single neutral arbitrator. The single neutral arbitrator shall be
selected in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (the "AAA"), as effective on
June
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1, 1997, or as thereafter amended and currently in force (the "AAA Rules"), or
by a process mutually agreed upon by the Parties. If no agreement can be reached
as to the process for selecting the arbitrator or if the agreed method fails,
the arbitrator shall be appointed by the AAA.
(c) The parties hereto shall mutually agree upon the date and
location of the arbitration, subject to the availability of the arbitrator. If
no agreement can be reached as to the date and location of the arbitration, the
arbitrator shall appoint a time and place in accordance with the provisions of
the AAA Rules, except that the arbitrator shall give not less than thirty (30)
days' notice of the hearing unless the parties hereto mutually agree to shorten
time for notice.
(d) The arbitrator shall issue a written reasoned decision
consistent with applicable law. The arbitrator shall not have the authority to
award punitive damages. The decision of the arbitrator may be confirmed pursuant
to the provisions of California Code of Civil Procedure Section 1285, and shall
not be appealable or correctable except to the extent it is inconsistent with
applicable law and/or the express terms of this Agreement, however, it being
understood that a petition to vacate an award for any of the reasons set forth
in California Code of Civil Procedure Section 1286.2(e) shall not be permitted.
25. Completeness of Agreement.
This Agreement (and the exhibits and schedules attached hereto),
together with the Employment Agreement contemplated hereby and that certain
Letter Agreement dated as of the date hereof, among Company, Xx Xxxxxx and Xxxx
Xxxxxxx-Xxxxxx, contains the entire agreement between the parties hereto
relating to the transactions contemplated hereby and all prior or
contemporaneous agreements, understandings, representations, and statements,
oral or written, are superseded and of no force and effect.
26. Modification of Agreement.
Except as otherwise provided for herein, no modification, waiver,
amendment, discharge or change of this Agreement or any term or representation
therein will be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment,
discharge, or change is or may be sought.
27. Attorneys' Fees.
In the event either party commences litigation for the judicial
interpretation, enforcement, breach or rescission hereof, the prevailing party
will be entitled to recover reasonable attorneys' fees and court and other costs
incurred.
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28. Binding Effect.
All terms of this Agreement will be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective legal
representatives, successors, and assigns.
29. Choice of Law, Jurisdiction, Venue.
This Agreement shall be governed and interpreted by the laws of the
State of California (without giving effect to any conflict of law provisions
thereof) applicable to agreements entered into and to be fully performed
therein. Subject to Paragraph 24 of this Agreement, the parties to this
Agreement agree to submit to the exclusive jurisdiction and venue of the Los
Angeles County Superior Court and/or the U.S. District Court for the Central
District of California with respect to disputes arising under this Agreement,
and hereby consent to service by U.S. Mail.
30. Severability.
In the event that any provision, or portion thereof, of this Agreement
is held to be unenforceable or invalid by any court of competent jurisdiction,
the validity and enforceability of the remaining provisions, or portions
thereof, will not be affected thereby.
31. Execution in Counterparts.
This Agreement may be executed in counterparts. When each party has
signed and delivered at least one counterpart, each counterpart shall be deemed
an original and, when taken together with the other counterparts, shall
constitute one agreement which shall be binding on and inure to the benefit of
all parties. Photographic or facsimile copies of such signed counterparts may be
used in lieu of the originals for any purpose.
32. Interpretation.
The parties agree that no portion of this Agreement shall be interpreted
against a party because it was the drafting party of such portion of this
Agreement.
33. Survival.
The representations, warranties and indemnities set forth in this
Agreement shall survive the termination of this Agreement.
34. Written Notice.
Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder will be in writing and will be deemed to
have been delivered as of actual personal delivery or as of the third business
day (excluding Saturdays) after mailing by
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United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Consultant, to:
U30 Group LLC
000 X. Xxx Xxxxxx
Xxxxxxxxx Tower, 23rd Floor
Knoxville, TN 37904
With a copy to:
Xxxxxx, Tipton, Kizer, XxXxxxxx & Jendrek, P.C.
000 Xxxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxxx, Esq.
If to Company, to:
Digital Entertainment Network, Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxx Xxxxxx & Zavis
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
35. Acknowledgment of Xxxxxx Xxxxxx.
Xxxxxx Xxxxxx acknowledges that he has read this Agreement, confirms his
understanding that Consultant has undertaken to provide the services under this
agreement through him and hereby covenants and agrees that he shall abide by the
terms of this Agreement and provide the services described herein on behalf of
the Consultant.
THE UNDERSIGNED REPRESENTS THAT IT HAS CAREFULLY READ THIS AGREEMENT, HAS BEEN
GIVEN A SUFFICIENT OPPORTUNITY TO CONSULT COUNSEL OF ITS CHOICE WITH RESPECT TO
ENTERING INTO THIS AGREEMENT, THAT IT FULLY UNDERSTANDS THIS AGREEMENT'S FULL
AND BINDING EFFECT, AND THAT IT IS SIGNING THIS AGREEMENT VOLUNTARILY.
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This Agreement has been executed by Consultant and Company effective as
of the date first above written.
U30 GROUP, LLC, a Tennessee limited liability
company ("Consultant")
By: /s/ XXXXXX XXXXXX
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Founder & Chief Manager
DIGITAL ENTERTAINMENT NETWORK, INC.,
a Delaware corporation ("Company")
By: /s/ XXXX XXXXX
---------------------------------------------
Name: Xxxx Xxxxx
Title: GC, EUP
ACKNOWLEDGED:
/s/ XXXXXX XXXXXX
---------------------------
Xxxxxx Xxxxxx
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