EXHIBIT 10.63
CONSULTANT AGREEMENT
AGREEMENT made as of November 25, 2002, between LIQUID AUDIO, INC., a
Delaware corporation (the "Company"), and Asset Strategies, Inc. and its
employee, Xxxxxx Xxxxx (the "Consultant").
WHEREAS, the Company desires to benefit from the Consultant's business
acumen and commercial expertise by retaining the Consultant under this
Agreement; and
WHEREAS, the Consultant, in accordance with the terms and provisions
set forth below, desires to be retained by the Company under this Agreement and
to advise and consult with the Company regarding matters relevant to her areas
of expertise.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
SERVICES
1.01. Services. The Consultant agrees to advise and consult with the
executive management of the Company on such matters as the Board of Directors or
any committee thereof requests of the Consultant from time to time (the
"Services"). Nothing contained in this Agreement shall prevent the Consultant
from engaging in any business, charitable or personal activities that do not
interfere with her ability to perform the Services.
1.02. Term. This Agreement shall become effective on the date hereof
and shall terminate at the request of the Board of Directors or terminated
earlier pursuant to Section 2.04 hereof at the direction of the Board of
Directors (the "Term").
1.03 Confidential Information. (a) The Consultant shall not, during
and after the Term, without the prior written consent of the Company, directly
or indirectly, use any Confidential Information (as defined below) in any way,
or divulge, disclose or make available or accessible any Confidential
Information to any person, firm, partnership, corporation, trust or any other
entity or third party, other than when required to do so in good faith to
perform the Services under and in accordance with this Agreement or when
required to do so by a lawful order of a court of competent jurisdiction. In
addition, the Consultant shall not create any derivative work or other work
product based on or resulting from any Confidential Information, except in good
faith in order to provide the Services under and in accordance with this
Agreement.
(b) The Consultant shall at all times use her best efforts to safeguard
any Confidential Information in her possession or under her control. In
addition, the Consultant shall immediately
notify the Company if she becomes aware of any unauthorized use or disclosure of
any Confidential Information by any third party, and the Consultant agrees to
cooperate fully in any attempts or efforts by the Company or any of its
affiliates to obtain any relief or remedy in respect of such unauthorized use or
disclosure.
(c) For purposes of this Agreement, "Confidential Information" shall mean
all information relating to the business, investments, finances or other matters
of a confidential nature of the Company or any of its affiliates of which the
Consultant may in the course of her duties hereunder or otherwise become
possessed; provided, however, that Confidential Information shall not include
any information that is, becomes, generally available to the public (unless such
availability occurs as a result of the Consultant's breach of any portion of
this Section or any other obligation the Consultant owes to the Company or any
of its affiliates).
ARTICLE II
REMUNERATION OF THE CONSULTANT; TERMINATION
2.01. Compensation. The Company shall pay the Consultant $200 per hour
for any service which the Consultant is engaged in on behalf of the Company at
the request of the Board of Directors or any committee of the Board of
Directors; provided, however, that such compensation shall not exceed $50,000 in
the aggregate.
2.02. Expenses. The Company shall reimburse the Consultant for all
ordinary, necessary and reasonable business expenses incurred by the Consultant
in connection with the Services. The Consultant shall furnish the Company with
reasonably detailed documentation for any such reimbursable expenses.
2.03. Indemnification. (a) In the event the Consultant in her capacity
under and in accordance with the provisions of this Agreement was, is or becomes
a party to or other participant in, or is threatened to be made a party to or
other participant in, a Claim (as defined below) by reason of (or arising or
allegedly arising in any manner out of or relating to in whole or in part) an
Indemnifiable Event (as defined below), the Company to the fullest extent
permitted by applicable law shall indemnify and hold harmless the Consultant
from and against any and all Losses (as defined below) suffered, incurred or
sustained by the Consultant or to which the Consultant becomes subject,
resulting from, arising out of or relating to such Claim. The Consultant shall
give the Company written notice of any Claim (accompanied by such reasonable
supporting documentation as may be in the Consultant's possession) as soon as
practicable after the Consultant becomes aware thereof; provided, however, that
the failure of the Consultant to give such notice shall not relieve the Company
of its indemnification obligations under this Agreement, except to the extent
that such failure materially prejudices the rights of the Company.
(b) For purposes of this Agreement, (i) a "Claim" shall mean any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative, formal or informal investigative or other), whether
instituted by the Company or any other party, or any inquiry or investigation
that the Consultant in good faith believes might lead to the institution of any
such action, suit or proceeding, (ii) an "Indemnifiable Event" shall mean any
event or
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occurrence relating to or directly or indirectly arising out of, or any action
taken or omitted to be taken by the Consultant in good faith in connection with
the Services, (iii) "Losses" shall mean any and all damages, judgments, fines,
penalties, amounts paid or payable in settlement, deficiencies, losses and
Expenses (including all interest, assessments, and other charges paid or payable
in connection with or in respect of such Losses), and (iv) "Expenses" shall mean
all reasonable attorneys' fees and all other reasonable fees, costs, expenses
and obligations paid or incurred in connection with the Services or related
matters, including without limitation, investigating, defending or participating
(as a party, witness or otherwise) in (including on appeal), or preparing to
defend or participate in, any Claim relating to any Indemnifiable Event.
(c) In the case of the commencement of any action against the Consultant in
respect of which she may seek indemnification from the Company hereunder, the
Company will be entitled to participate therein, including, without limitation,
the negotiation and approval of any settlement of such action and, to the extent
that the Company may wish to assume the defense thereof, with counsel
satisfactory to the Consultant, and after notice from the Company to the
Consultant of the Company's election so to assume the defense thereof, together
with the Company's written acknowledgement and agreement that it will fully
indemnify the Consultant under the terms of this Agreement with regard to such
Claim, the Company will not be liable to the Consultant under this Agreement for
any Expenses subsequently incurred by her in connection with the defense thereof
other than reasonable costs of investigation and preparation therefore
(including, without limitation, appearing as a witness and reasonable fees and
expenses of legal counsel in connection therewith). The Company shall in no
event be liable for any settlement of any action effected without its prior
written consent (which consent shall not be unreasonably withheld). The Company
shall not settle any Claim in any manner that would impose any expense, penalty,
obligation or limitation on the Consultant, or would contain language (other
than a recitation of any amounts to be paid in settlement) that could reasonably
be viewed as an acknowledgment of wrongdoing on the part of the Consultant or as
materially detrimental to the reputation of the Consultant, without the
Consultant's prior written consent (which consent shall not be unreasonably
withheld).
(d) The Consultant's right to indemnification in this Section 2.03 shall
include the right of the Consultant to be advanced by the Company any Expenses
incurred in connection with any Indemnifiable Event as such expenses are
incurred by the Consultant; provided, however, that all amounts advanced in
respect of such Expenses shall be repaid to the Company by the Consultant if it
shall ultimately be determined in a final judgment that the Consultant is not
entitled to be indemnified for such Expenses.
2.04. Termination. This Agreement may be terminated by the Company at
the direction of the Board of Directors, effective upon two (2) days prior
written notice to the Consultant, at any time with or without cause. If the Term
is terminated early by the Company or if the Consultant should die during the
Term or if the Consultant terminates her performance of the Services under this
Agreement prior to the end of the Term for any reason, the Term shall
automatically be terminated, and the Consultant (or her designated beneficiary
or estate in the event of death) shall be entitled to receive her compensation
and reimbursement of expenses incurred through the date of such termination (or
death).
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ARTICLE III
GENERAL PROVISIONS
3.01. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, without
reference to the principles of conflicts of laws.
3.02. Assignment. This Agreement shall bind and inure to the benefit
of the successors and assigns of the parties hereto. Neither of the parties
hereto may assign this Agreement or any rights hereunder without the written
consent of the other party hereto.
3.03. Waiver or Amendment. No waiver, change or amendment of any
provision of this Agreement shall be valid or of force or effect unless made in
writing and signed by the party against which the enforcement of such change or
waiver is sought. The signing of such waiver or change in any instance shall in
no event be construed to be a general waiver, abandonment or change of any of
the provisions hereof, but shall be strictly limited to the specific instance
and for the specific purpose stated therein.
3.04. No Agency, Etc. This Agreement is not intended to create an
employment relationship between the Company and the Consultant. For all
purposes, the Consultant shall be deemed an independent contractor and not the
Company's agent or employee, and the Consultant shall have no authority to act
for, represent, bind or obligate the Company, and nothing contained herein shall
be deemed to create a partnership or a joint venture between the Company and the
Consultant. Neither party shall be liable for any act of or failure to act by
the other party except as herein specifically provided.
3.05. Survival. The provisions of Section 1.03 and Article II shall
survive the termination of this Agreement. Moreover, the respective rights and
obligations of the parties hereto shall survive any expiration and/or
termination of the Term and/or this Agreement for any reason to the extent
necessary to effect the intended provision of such right and obligation.
3.06. Entire Agreement. This Agreement constitutes the entire
agreement between the Consultant and the Company regarding the subject matter
hereof and supercedes all previous agreements, promises, proposals,
representations, understandings and negotiations, whether written or oral,
between the Consultant and the Company and/or its affiliates regarding such
subject matter.
3.07. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
3.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized representatives as of
the day and year first above written.
LIQUID AUDIO, INC.
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
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