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EXHIBIT 10.15
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of this
19th day of April, 1999, by and between XX0.XXX, INC. ("Company") and
ATLAS/THIRD RAIL MANAGEMENT, INC. ("Consultant").
1. Services.
Consultant shall render services as a promotional consultant to Company
consisting of Consultant's using reasonable efforts to facilitate multiple
promotions each involving one or more artists to be mutually approved by
Consultant and Company. Each promotion may consist of one free download or
on-demand streaming for a limited period of time of a sound recording of a song
by the artist(s) from the Company's website and a related promotional event to
be mutually approved by Consultant, Company and the artist(s) (the
"Promotion"). Consultant and Company mutually approved Xxxxxx Xxxxxxxxxx to
participate in a Promotion and currently expect that she will be involved in
the first Promotion contemplated under this Agreement. Consultant and Company
currently anticipate that the Promotion involving Xxxxxx Xxxxxxxxxx will
coincide with her Summer of 1999 tour and will include tour sponsorship,
tickets, merchandise giveaways, a retail partner and on-line tour events (e.g.,
live tracks, interview and reviews). Consultant will use reasonable efforts
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to assist in providing for the multiple promotions and other promotional
activities, but does not guarantee, represent or warrant that any or all of
them will be provided.
2. Term.
This Agreement shall be for a period of three (3) years from the date of
this Agreement, unless earlier terminated as provided in paragraph 6 below.
3. Common Stock Warrant.
Concurrently with the release of the press announcement of this Agreement
pursuant to paragraph 4 below, Company shall issue to Consultant a Warrant to
Purchase 439,103 shares of Common Stock of XX0.XXX, Inc. ("Warrant")
substantially in the form attached hereto.
4. Press Announcements.
Consultant and Company will jointly approve press announcement(s) of this
Agreement and any Promotion(s) under this Agreement, and the artist(s) involved
in a Promotion will also have the right to approve press announcement(s)
insofar as they relate to them.
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5. Expenses.
Company shall reimburse Consultant for all expenses reasonably
incurred by Consultant in the performance of the services under this Agreement,
including, without limitation, travel and related expenses; provided, however,
that prior to incurring expenses reasonably foreseen to exceed $500.00,
Consultant shall seek pre-approval by Company of any such expenses.
6. Termination.
Consultant, in its sole discretion,may terminate this Agreement if
Company exercises its "Right of Repurchase" pursuant to paragraph 8 of the
Warrant. In addition, Consultant, in its sole discretion, may terminate this
Agreement if within one year of the date of this Agreement Company has not
either (i) completed its initial public offering; or (ii) been acquired by a
company with a pre-acquisition market capitalization of at least $500 million
in a transaction that values the market capitalization of the Company at a
minimum of $300 million. Notwithstanding any termination of this Agreement by
Consultant as provided herein, Consultant shall be entitled to the Warrant as
provided in this Agreement and subject to the terms and conditions of the
Warrant.
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7. Non-Exclusivity and Registrations.
Consultant and Company acknowledge and agree that the services
provided by Consultant are non-exclusive and that Consultant may also act as a
consultant, whether promotional or otherwise, for other companies and
individuals; provided, however, that, except as provided below, Consultant shall
not, during the Term of this Agreement, consult with or provide consulting
services to another company engaged in the business of digital distribution
of music over the internet or other electronic medium. Consultant and Company
acknowledge and agree that nothing in this Agreement shall prevent Consultant
from engaging in any of the following even if it involves consulting or other
services rendered by Consultant relating to the digital distribution of music
over an electronic medium: (i) representing, managing or consulting with
individual artists or performers who are managed by Consultant or representing,
managing or consulting with companies owned and/or controlled by such artists
or performers notwithstanding that such artists, performers or companies are
engaged in the business of digital distribution of music over an electronic
medium; (ii) representing, managing or consulting with individual artists or
performers or representing, managing or consulting with individuals or
companies who do business with a company engaged in the business of digital
distribution of music over an electronic medium; and/or (iii) owning, managing,
operating,
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controlling, participating in or being affiliated with a company primarily
engaged in the business of producing, broadcasting, promoting, marketing,
selling, distributing, exhibiting or otherwise exploiting phonorecords, motion
pictures, soundtracks or television programming or services, including free,
basic cable, pay television, pay-per-view, satellite and other methods of
distribution of television programming or services now known or hereafter
developed, even if such business includes digital distribution of music over an
electronic medium (including, without limitation, the co-venture between
consultant's affiliate and Hollywood Records). In addition, Consultant and
Company acknowledge and agree that nothing in this Agreement shall prevent
Consultant from representing, managing or consulting with individuals or
companies primarily engaged in a business other than digital distribution of
music over an electronic medium, even if their business may include such
distribution of music, so long as the services rendered relate to business
activities other than digital distribution of music over an electronic medium.
8. Personnel.
Company agrees to employ or hire as additional consultants Xxxxx
Xxxxxxxxx and Xxxx Xxxxxxxxx pursuant to terms to be negotiated in good faith
for the purpose of helping to formulate and carry out the artist promotions
referred to in paragraph 1 above and the press releases referred to in paragraph
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4 above.
9. Miscellaneous.
Company and Consultant acknowledge and agree that they intend to
enter into a more detailed agreement consistent with the terms hereof, the
language of which shall be negotiated diligently and in good faith by the
parties hereto. This Agreement shall be binding and effective until such time
as a more formal agreement is executed by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of the
date first written above.
XX0.XXX, INC. ATLAS/THIRD RAIL MANAGEMENT, INC.
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxx
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Title: President Title: President
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