Exhibit 10.52
XXXX.XXX
CONSULTANCY AGREEMENT
This Consultancy Agreement (the "Agreement") is entered into by and
between XXXX.xxx, (the "Company"), a Cayman Islands company, and Xxxxx Xx
("Consultant").
1. CONSULTING RELATIONSHIP. During the term of this Agreement,
Consultant will provide the Company consulting services (the "Services") as
specified by the Board of Directors or the chief executive officer of the
Company from time to time. Consultant shall use Consultant's best efforts to
perform the Services such that the results are satisfactory to the Company.
Consultant shall devote approximately 1/2 of Consultant's time to performance of
the Services.
2. FEES. As consideration for the Services to be provided by Consultant
and other obligations, the Company shall pay to Consultant a monthly amount of
US$8,333.33 (US$100,000 on an annualized basis) during the term of this
Agreement in accordance with the Company's normal payment practices for
consultants. As additional consideration for the Services, the Company will
provide Consultant with such support facilities and space as may be required in
the Company's judgment to enable Consultant to properly perform the Services.
3. EXPENSES. Consultant shall not be authorized to incur on behalf of
the Company any expenses without the prior written consent of the Company's
chief executive officer or chief financial officer. As a condition to receipt of
reimbursement, Consultant shall be required to submit to the Company reasonable
evidence that the amount involved was expended and related to Services provided
under this Agreement.
4. TERM AND TERMINATION. Consultant shall serve as a consultant to the
Company for a period commencing on September 21, 2001 and terminating on
September 20, 2004.
Should either party default in the performance of this Agreement or
materially breach any of its obligations under this Agreement, including but not
limited to Consultant's obligations under the Confidential Information Agreement
between the Company and Consultant referenced below in Section 8, the
non-breaching party may terminate this Agreement immediately if the breaching
party fails to cure the breach within five (5) business days after having
received written notice by the non-breaching party of the breach or default.
Notwithstanding the above, either party may terminate this Agreement at
any time upon thirty (30) days' written notice. In the event of such
termination, Consultant shall be paid for any portion of the Services that have
been performed prior to the termination.
5. INDEPENDENT CONTRACTOR. Consultant's relationship with the Company
will be that of an independent contractor and not that of an employee.
(a) METHOD OF PROVISION OF SERVICES: Consultant shall be solely
responsible for determining the method, details and means of performing the
Services.
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Consultant may, at Consultant's own expense, employ or engage the service of
such employees or subcontractors as Consultant deems necessary to perform the
Services required by this Agreement (the "Assistants"). Such Assistants are not
the employees of the Company and Consultant shall be wholly responsible for the
professional performance of the Services by his Assistants such that the results
are satisfactory to the Company. Consultant shall expressly advise the
Assistants of the terms of this Agreement, and shall require each Assistant to
execute a Confidential Information Agreement substantially in the form attached
to this Agreement as Exhibit A (the "Confidentiality Agreement").
(b) NO AUTHORITY TO BIND COMPANY. Neither Consultant, nor any
partner, agent or employee of Consultant, has authority to enter into contracts
that bind the Company or create obligations on the part of the Company without
the prior written authorization of the Company.
(c) NO BENEFITS. Consultant acknowledges and agrees that, save for
any employee share options which would be eligible to the employees/consultants
of the Company, Consultant will not be eligible for any Company employee
benefits and, to the extent Consultant otherwise would be eligible for any
Company employee benefits but for the express terms of this Agreement,
Consultant hereby expressly declines to participate in such Company employee
benefits.
(d) WITHHOLDING; INDEMNIFICATION. Consultant shall have full
responsibility for applicable withholding taxes for all compensation paid to
Consultant, its partners, agents or its employees under this Agreement, and for
compliance with all applicable labor and employment requirements with respect to
Consultant's self-employment, sole proprietorship or other form of business
organization, and Consultant's partners, agents and employees, including state
worker's compensation insurance coverage requirements and any US immigration
visa requirements (provided that the Company shall avail all reasonable
assistance to the Consultant if so requested). Consultant agrees to indemnify,
defend and hold the Company harmless from any liability for, or assessment of,
any claims or penalties with respect to such withholding taxes, labor or
employment requirements, including any liability for, or assessment of,
withholding taxes imposed on the Company by the relevant taxing authorities with
respect to any compensation paid to Consultant or Consultant's partners, agents
or its employees.
6. SUPERVISION OF CONSULTANT'S SERVICES. All of the Services to be
performed by Consultant, including but not limited to the Services, will be as
agreed between Consultant and the Company's chief executive officer. Consultant
will be required to report to the Company's chief executive officer concerning
the Services performed under this Agreement. The nature and frequency of these
reports will be left to the discretion of the Company's chief executive officer.
7. CONSULTING OR OTHER SERVICES FOR COMPETITORS. Consultant represents
and warrants that Consultant does not presently perform or intend to perform,
during the term of the Agreement, consulting or other services for, or engage in
or intend to engage in an employment relationship with, any businesses or
proposed businesses in any way involve newspaper and magazine publishing, video
or audio products distribution, satellite channel, internet broadband or
narrowband portal which would be competitive with the Company's products or
services, or those products or services proposed or in development by the
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Company during the term of the Agreement (except for those companies, if any,
listed on Exhibit B attached hereto). If, however, Consultant decides to do so,
Consultant agrees that, in advance of accepting such work, Consultant will
promptly notify the Company in writing, specifying the organization with which
Consultant proposes to consult, provide services, or become employed by and to
provide information sufficient to allow the Company to determine if such work
would conflict with the terms of this Agreement, including the terms of the
Confidentiality Agreement, the interests of the Company or further services
which the Company might request of Consultant. If the Company determines that
such work conflicts with the terms of this Agreement, the Company reserves the
right to terminate this Agreement immediately.
8. CONFIDENTIALITY AGREEMENT. Consultant shall sign, or has signed, a
Confidential Information Agreement substantially in the form attached to this
Agreement as Exhibit A (the "Confidentiality Agreement"), on or before September
26, 2001. In the event that Consultant is an entity or otherwise will be causing
individuals in its employ or under its supervision to participate in the
rendering of the Services, Consultant warrants that it shall cause each of such
individuals to execute a Confidentiality Agreement in the form attached as
Exhibit A.
9. CONFLICTS WITH THIS AGREEMENT. Consultant represents and warrants
that neither Consultant nor any of Consultant's partners, employees or agents is
under any pre-existing obligation in conflict or in any way inconsistent with
the provisions of this Agreement. Consultant represents and warrants that
Consultant's performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by Consultant
in confidence or in trust prior to commencement of this Agreement. Consultant
warrants that Consultant has the right to disclose and/or or use all ideas,
processes, techniques and other information, if any, which Consultant has gained
from third parties, and which Consultant discloses to the Company or uses in the
course of performance of this Agreement, without liability to such third
parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall
not bundle with or incorporate into any deliveries provided to the Company
herewith any third party products, ideas, processes, or other techniques,
without the express, written prior approval of the Company. Consultant
represents and warrants that Consultant has not granted and will not grant any
rights or licenses to any intellectual property or technology that would
conflict with Consultant's obligations under this Agreement. Consultant will not
knowingly infringe upon any copyright, patent, trade secret or other property
right of any former client, employer or third party in the performance of the
Services required by this Agreement.
9. INSURANCE. The Company shall provide the Consultant with the benefit
of the Company's standard directors and officers insurance policy held by the
Company during the term of Consultant's directorship with the Company and shall,
after the Consultant is appointed as a director of the Company and at the
request of the Consultant, enter into a directors' indemnification agreement
with the Consultant on the Company's standard terms.
11. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of the parties.
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(b) SOLE AGREEMENT. This Agreement, including the Exhibits hereto,
constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(c) NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, 48
hours after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address or facsimile
number as set forth below, or as subsequently modified by written notice.
(d) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(f) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(g) ARBITRATION. Any dispute or claim arising out of or in connection
with any provision of this Agreement will be finally settled by binding
arbitration in San Mateo County, California, in accordance with the rules of the
American Arbitration Association by one arbitrator appointed in accordance with
said rules. The arbitrator shall apply California law, without reference to
rules of conflicts of law or rules of statutory arbitration, to the resolution
of any dispute. Judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
paragraph, without breach of this arbitration provision. This Section 10(g)
shall not apply to the Confidentiality Agreement.
(h) ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING
THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
(i) SOLICITATION OF EMPLOYEES. Consultant agrees that for a period of
twelve (12) months immediately following the termination of the consultant
relationship with the Company for any reason, whether with or without cause,
Consultant shall not either directly or indirectly solicit, induce, recruit or
encourage any of the Company's employees to leave their employment, or take away
such employees, or attempt to solicit, induce, recruit,
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encourage or take away employees of the Company, either for Consultant or for
any other person or entity.
The parties have executed this Agreement on the respective dates set
forth below.
XXXX.xxx
/s/ Xxxxxx Xxx
---------------------------------------
Signature
By: Xxxxxx Xxx
Title: Chief Executive Officer
Address: 0000 Xxxxxx Xx
Xxxxxxxxx, XX 00000
Date: September 28, 2001
Xxxxx Xx
/s/ Xxxxx Xx
---------------------------------------
Signature
Address:
-------------------------------
Date: September 28, 2001
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EXHIBIT A
CONFIDENTIAL INFORMATION AGREEMENT
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EXHIBIT B
LIST OF COMPANIES
EXCLUDED UNDER SECTION 7
___ No conflicts
___ Additional Sheets Attached
Signature of Consultant:______________________________
Print Name of Consultant: Xxxxx Xx
Date:
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