TERMINATION AGREEMENT
AGREEMENT, dated as of the 8th day of March 2004, among XNH Consulting
Services, Inc., a Florida corporation ("XNH"), MediaBay, Inc., a Florida
Corporation ("MediaBay" or the "Company"), and Xxxxxx Xxxxxxx ("Xxxxxxx").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, XNH, Xxxxxxx and the Company entered into a Consulting Agreement
dated May 1, 2003 (the "Consulting Agreement"); and
WHEREAS, subject to the terms and conditions herein contained, the parties
hereto wish to terminate the Consulting Agreement effective as of December 31,
2003;
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto hereby agree as follows:
1. TERMINATION OF CONSULTING AGREEMENT. Effective as of December 31, 2003
("Termination Date"), and except as expressly set forth herein, the Consulting
Agreement is terminated and is of no further force or effect.
2. ADVISORY SERVICES. XNH will cause Xxxxxxx to provide advisory services
to the Company, from time to time upon request by MediaBay, as determined by XNH
in its sole discretion, and in accordance with Xxxxxxx'x availability, by
telephone, e-mail, or scheduled appointment. It is understood and agreed that
while providing advisory services, if any, to the Company hereunder, XNH and
Xxxxxxx may engage in any business or employment activities in any field either
for his own account or for the account of others subject to the provisions of
Section 3 below.
3. NONCOMPETITION COVENANT. Xxxxxxx and XNH agree that the Noncompetition
Covenant in Section 3 of the Consulting Agreement will survive the termination
of the Consulting Agreement for a period of three years from the Termination
Date.
4. NONDISCLOSURE OBLIGATION. Xxxxxxx and XNH agree that the Nondisclosure
Covenant in Section 4 of the Consulting Agreement will survive the termination
of the Consulting Agreement for a period of three years from the Termination
Date.
5. TERMINATION PAYMENT AND INSURANCE. In consideration for the advisory
services that may be provided by Xxxxxxx and XNH and the extensions of the
noncompetition covenant and nondisclosure obligation agreed to by Xxxxxxx and
XNH, as set forth in Sections 2 through 4 of this Agreement, and as
consideration for the Company's termination of the Consulting Agreement, the
Company agrees to pay to XNH a fee at the rate of $7,500 per month for 16 months
commencing on January 1, 2004. In addition, Xxxxxxx shall remain entitled to
receive insurance and employee benefits applicable to officers of the Company,
to the extent permitted by any benefit plan now or hereinafter in effect and, if
health insurance benefits for Xxxxxxx are not permitted by any such plan, the
Company shall reimburse Xxxxxxx for COBRA coverage in an amount equal to what
the cost of such benefits would be under the Company's benefit plans.
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6. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that
during the term of this Agreement, Xxxxxxx and XNH's relationship to MediaBay
will be that of an independent contractor and that neither this Agreement nor
the services to be rendered hereunder shall for any purpose whatsoever or in any
way or manner create, expressly or by implication, any employer-employee
relationship, partnership, joint venture or other relationship with MediaBay
other than that of independent parties contracting with each other solely for
the purpose of carrying out the provisions of the Agreement. XNH and Xxxxxxx
shall have sole responsibility for the payment of all federal, state and local
income taxes and for Social Security and other similar taxes with respect to any
compensation provided by MediaBay hereunder. Neither XNH nor Xxxxxxx is
authorized to bind MediaBay, or to incur any obligation or liability on behalf
of MediaBay, except as expressly authorized by MediaBay in writing. XNH
understands and agrees that the work to be performed, if any, is not covered
under the unemployment compensation laws and that the work to be performed is
not intended to be covered by applicable worker's compensation laws.
7. INDEMNIFICATION. The Company and Xxxxxxx acknowledge that the
indemnification agreement dated as of November 15, 2002 by and between the
Company and Xxxxxxx shall remain in full force and effect and that the Company
shall indemnify XNH for any Claims (as defined in such indemnification
agreement) against XNH to the extent that Xxxxxxx is entitled to receive
indemnification therefor.
8. MISCELLANEOUS.
8.1 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
made as of the date delivered or mailed if delivered personally or mailed by
registered or certified mail, postage prepaid, return receipt requested, to the
parties at their respective addresses set forth below:
If to the Company:
MediaBay, Inc.
0 Xxxxxxxxx Xxxxxx - Xxxxx 000
Xxxxx Xxxxxx, XX 00000
If to XNH or Xxxxxxx:
c/o XNH Consulting Services, Inc.
0000 Xxxxxxxxx Xxxx. X.X.
Xxxxx 000
Xxxx Xxxxx, XX 00000
8.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
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8.3 CHOICE OF LAW/GOVERNING LAW. This Agreement shall be construed
and enforced in accordance with the internal laws of the State of New Jersey
without reference to its conflicts of laws provisions.
8.4 AMENDMENT. This Agreement may only be modified by a written
instrument, which is executed by each of the parties hereto.
8.5 HEADINGS. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms of this Agreement.
8.6 BINDING EFFECT; BENEFIT. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
legal representatives, successors and assigns.
8.7 COUNTERPARTS AND FACSIMILE. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument. For purposes
of this Agreement signatures received by facsimile shall have the same force and
effect as original signatures.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
MEDIABAY, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Executive Vice President
XNH Consulting Services, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, individually
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