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Exhibit 10.5
CONSULTING AGREEMENT
This CONSULTING AGREEMENT dated as of _________, 1999 (the "Effective
Date") between AMERICAN SPORTS INTERNETWORK COMPANY, LLC, (the "Consultant"),
which has its principal office located at Xxx Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx
00000 and XXX.XXX CORPORATION, ("XXX.XXX"), which has its principal office
located at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000.
R E C I T A L S
A. XXX.XXX desires to retain Consultant to render general and specific
sports related consulting services with respect to its Internet business, and
B. Consultant is willing to render such services on the terms and
conditions hereinafter provided,
P R O V I S I O N S
NOW, THEREFORE, in consideration of the mutual agreements set forth in
this Agreement and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT.
(a) XXX.XXX hereby engages and retains Consultant to render
the consulting services described in Section 2 hereof. Nothing contained in this
Agreement shall be deemed to create or evidence any partnership, joint venture
or employment arrangement by or between the parties, it being understood that
the relationship established hereunder is limited to that of Consultant as an
independent contractor acting for and on behalf of XXX.XXX as expressly set
forth herein.
(b) Without limiting Section 1(a), Consultant shall have no
fiduciary duty or any other duty to XXX.XXX not expressly set forth herein to
Consultant shall not be an agent for or have authority to act on behalf of or
contractually bind XXX.XXX, except for any specific transaction which XXX.XXX
may authorize Consultant to do in writing. In the absence of specific written
authorization, Consultant shall have no authority to enter into any
understanding, commitment or agreement on behalf of XXX.XXX or to otherwise bind
XXX.XXX in any manner. Consultant agrees not to hold himself itself out to
others as having any authority on behalf of or related to XXX.XXX, except as may
be specifically granted to Consultant.
2. SERVICES. (a) For a period not to exceed three (3) years from the
Effective Date (the "Initial Term"), unless otherwise mutually extended, in
writing, by the Consultant and XXX.XXX, Consultant shall, at XXX.XXX's request
from time to time at Consultant's reasonable convenience, consult with and
advise XXX.XXX with respect to corporate, business, marketing and promotional
strategy involving XXX.XXX's sports related content,
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e-commerce opportunities, strategic partners and Web sites who apply to become
members of the XXX.XXX Network. In addition, upon request by XXX.XXX, Consultant
shall use commercially reasonable efforts to arrange meetings with appropriate
representatives of the National Football League ("NFL"), NFL teams, XXX Xxxxx,
NFL Properties and other similar sports governing bodies and sports marketing
organizations, as well as with potential strategic partners such as, television
networks and other organizations. Consultant shall not be required to devote any
particular amount of time toward the performance of its duties hereunder;
provided, that Consultant shall use its reasonable efforts, and devote
sufficient time as may be necessary, to become familiar with and knowledgeable
about XXX.XXX's products, services and plans, including its banner and network.
This Agreement expressly excludes the Consultant from providing any and all
capital formation and/or public relations services to the Company inclusive of,
but not limited to (i) direct or indirect promotion of the Company's securities;
(ii) assistance in making of a market in the Company's securities; and (iii)
assistance in obtaining debt and/or equity financing.
3. PAYMENT FOR SERVICES AND EXPENSES. In full consideration for the
Consultant's willingness to enter into this Agreement and to perform the
services described herein, during the Initial Term, simultaneously with the
execution hereof, XXX.XXX and Consultant shall enter into a warrant agreement
which provides for the issuance of warrants (the "Warrants") to purchase an
aggregate of 2,000,000 shares of XXX.XXX's Common Stock at an exercise price of
$8.00 per share. The Warrant Agreement shall be in the form of Exhibit A
attached hereto and the Warrants issuable pursuant to the Warrant Agreement
shall vest during the Initial Term in equal thirds on a cumulative basis on the
first three anniversary dates of the execution of the Warrant Agreement as more
specifically provided therein; provided that the vesting will be accelerated in
the event of a Change of Control (as defined in the Warrant Agreement) or if
XXX.XXX terminates this Agreement without cause (as defined in Section 7 of this
Agreement).
4. NONEXCLUSIVITY OF THIS AGREEMENT. XXX.XXX understands and agrees
that, except as set forth in the next sentence, Consultant shall not be
prevented or barred from rendering services of any nature for or on behalf of
any other person, firm, corporation or entity, subject to Consultant's
obligation to maintain confidentiality of XXX.XXX's confidential information
pursuant to Section 5 below. Consultant understands and agrees that XXX.XXX
shall not be prevented or barred from retaining other persons or entities to
provide services of the same nature or similar nature as those described herein
or of any nature whatsoever.
5. CONFIDENTIALITY. During the term of this Agreement and for a period
of three (3) years thereafter, Consultant will not disclose to any other person,
firm or corporation, nor use for his own benefit, during or after the term of
this Agreement, any trade secrets or other confidential information of XXX.XXX
which is acquired by Consultant in the course of performing services hereunder.
For purposes of this Agreement, a "trade secret" is information not generally
known to the public which gives XXX.XXX an advantage over its competitors,
including all data, ideas, information, knowledge and papers pertaining to the
Company's affairs, including all products or services under development,
production methods and processes, subscriber or customer lists, marketing plans
and information
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involving XXX.XXX Network applicants and participants. Any information, which
(i) at or prior to the time of disclosure by XXX.XXX to Consultant was generally
available to the public through no breach of this Agreement, (ii) was available
to the public on a nonconfidential basis prior to its disclosure by XXX.XXX to
Consultant or (iii) was made available to Consultant from a third party
(provided that Consultant did not know that such party obtained or disseminated
such information in breach of any legal obligation to XXX.XXX) shall not be
deemed confidential information of XXX.XXX for purposes hereof. The Consultant
shall also treat all information pertaining to the affairs of web publishers who
participate in the XXX.XXX Network and all existing and future or prospective
customers or strategic partners of confidential trade secrets of such
participants, customers and partners
6. REPRESENTATIONS AND WARRANTIES.
(a) XXX.XXX represents and warrants that (i) the Company is in
good standing under the laws of the State of Nevada (ii) this Agreement and the
Warrant Agreement have been authorized by all necessary corporate action of
XXX.XXX and constitute valid, binding, Obligations of XXX.XXX enforceable in
accordance with their terms and (iii) all Warrants and all shares to be issued
pursuant thereto have been duly authorized and all shares issuable under the
Warrants shall, upon tender of the exercise price thereof, be fully paid and
nonassessible.
(b) Consultant represents and warrants that: (i) this
Agreement has been authorized by all necessary corporate action of the
Consultant and are valid and binding obligations, enforceable in accordance with
their terms; (ii) it is not a party to any agreement or instrument which would
prevent it from entering this agreement or performing its obligations hereunder
or otherwise conflicts with this Agreement; and (iii) Consultant shall not offer
or make payment of any consideration to brokers, dealers or others for purposes
of inducing the purchase, making of a market or recommendation for the purchase
of Company's securities.
7. TERMINATION. This Agreement may be terminated by either Consultant
or XXX.XXX at anytime on sixty (60) day's notice. This Agreement also may be
terminated by XXX.XXX for "cause", which shall be deemed to exist of the
Consultant materially breaches any of its material obligations under this
Agreement, provided that XXX.XXX shall first have given the Consultant written
notice specifying the facts constituting the material breach at least ten (10)
days prior to the date of termination and the Consultant shall not have cured
such breach if it is capable of being cured.
8. CONSULTANT'S LIABILITY. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
any term of this Agreement, the Consultant shall not be liable to the Company or
to any officer, director, employee, shareholder or creditor of the Company, for
any act or omission in the course of or in connection with the rendering or
providing of services hereunder. Except in those cases where gross negligence or
willful misconduct of the Consultant or the breach by the Consultant of any
terms of this Agreement is alleged and proven, the Company agrees to defend,
indemnify, and hold the Consultant harmless from and against any and all
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reasonable costs, expenses and liability (including reasonable attorney's fees
paid in the defense of the Consultant) which may in any way result from services
rendered by the Consultant pursuant to or in connection with this Agreement.
This indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Company, made by the Consultant without
the prior approval or authorization of the Company.
9. COMPANY'S LIABILITY. The Consultant agrees to defend, indemnify, and
hold the Company harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in defense of
the Company) which may in any way result pursuant to its gross negligence or
willful misconduct or in any connection with any actions taken or statements
made, on behalf of the Company, without the prior approval or authorization of
the Company or which are otherwise in violation of the term of this Agreement.
10. MISCELLANEOUS.
(a) No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge is
agreed to in writing and signed by each of the parties hereto or a duly
authorized representative thereto. No waiver by any party hereto at any time of
any breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
(b) If any provision of this Agreement shall be determined by
any court of competent jurisdiction to be unenforceable or invalid to any
extent, the remainder of this Agreement shall not be affected thereby, and this
Agreement shall be construed to the fullest extent possible as to give effect to
the intentions of the provision found unenforceable or invalid.
(c) This Agreement may not be assigned by Consultant without
the prior written consent of XXX.XXX.
(d) Whether by a sale of all or substantially all of its
assets, a change in control or by operation of law), which consent shall not be
unreasonably withheld or delayed. This Agreement shall be binding upon the
parties hereto and all permitted Successors and assigns.
(e) All notices and other communications provided for
hereunder shall be in writing and shall be delivered to each party hereto by
hand or sent by reputable overnight courier, with receipt verified, or
registered or certified mail, return receipt requested, addressed to the
addresses set forth in the beginning of this Agreement, Attention Vice-President
Finance in the case of XXX.XXX and Attention Managing Member in the case of
Consultants or at such other address as either party may specify by notice to
the other party given as aforesaid. Such notices shall be deemed to be effective
when the same shall be deposited, postage prepaid, in the mail and/or when the
same shall
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have been delivered by hand or overnight courier, as the case may be. If any
action or notice is to be taken or given on or by a particular calendar day, and
such calendar day is not a business day, then such action or notice may be
deferred until, or may be taken or given on, the next business day.
(f) The validity, interpretation, construction and performance
of this Agreement shall be governed by and construed in accordance with the laws
of the State of New York without regard to its conflicts of law principles. Any
action or proceeding involving the parties hereto shall be adjudicated in a
Court located in Monroe County, New York. The parties hereto hereby irrevocably
consent to the juristriction and venue of such Courts.
(g) This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
(h) All headings contained in this Agreement are for reference
purposes only and shall not in any way effect the meaning or interpretation of
any provision or provisions of this Agreement.
(i) This Agreement, and the documents to be delivered in
connection therewith, and the exhibits and schedules thereto, if any, set forth
the entire agreement of the parties hereto in respect of the subject matter
contained herein and supersede all prior and contemporaneous agreements,
promises, covenants, arrangements, understandings, communications,
representations or warranties, whether oral or written, by any party hereto; and
any prior agreement of the parties hereto in respect of the subject matter
contained herein is hereby terminated and canceled. No agreements or
representations, whether written, oral, express or implied, with respect to the
subject matter hereof have been made by either party that are not set forth
expressly in this Agreement and the other documents to be delivered in
connection herewith and therewith.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the ___ day of ___________, 1999.
XXX.XXX CORPORATION
By:
Name:
Title:
AMERICAN SPORTS INTERNETWORK
COMPANY, LLC
By:
Name:
Title:
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