Exhibit 10.2
Consulting and Termination Agreement
Consulting and Termination Agreement (this "Agreement"), dated as of May
1, 2003 (the "Effective Date") among XNH Consulting Services, Inc., a Florida
corporation (the "Consultant"), MediaBay, Inc. ("MediaBay" or the "Company") and
Xxxxxx Xxxxxxx ("Xxxxxxx").
1. Consultant's Services. MediaBay hereby engages Consultant to provide to
MediaBay, and Consultant agrees to provide to MediaBay under the terms of this
Agreement, the following consulting services: advice and strategy relating to
the Company's debt and equity financings, real estate, litigation and
compensation activities and such other related advice as may be reasonably
requested from time to time by the Company (hereinafter the "Services") during
the Term (defined below). Consultant shall cause Xxxxxxx to provide the
Services. During the Term, Consultant shall not be required to devote any fixed
amount of time in connection with the provision of the Services. The Services
shall be performed under the direct supervision of the Board of Directors of the
Company (the "Board") and shall be performed at such times and places and in
such manner (whether by conference, telephone, electronic communication or
otherwise) as Consultant may determine. It is understood and agreed that while
serving as a consultant to MediaBay hereunder, Consultant 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.
2. Compensation; Reimbursement of Expenses. Consultant shall render the
Services during the period from the Effective Date through April 29, 2005 (the
"Term"). In exchange for the performance of the Services, and specifically for
the covenants contained in Sections 3, 4 and 5 hereof, MediaBay shall pay
Consultant a fee at the rate of $8,333 per month. In addition, MediaBay will
reimburse Consultant for business expenses, to the extent such expenses relate
to Consultant's performance of the Services, it actually incurs in the
performance of the Services hereunder.
3. Noncompetition Covenant. During the period of this Agreement, neither
Consultant nor Xxxxxxx shall engage in any business activity on behalf of an
entity which is a direct competitor of MediaBay without obtaining the prior
written authorization of MediaBay.
4. Nondisclosure Obligation. Neither Consultant nor Xxxxxxx shall at any
time, whether during or two (2) years after the termination of this Agreement,
use or reveal to any person or entity any trade secrets or confidential
information of MediaBay or any trade secrets or confidential information of any
third parties which MediaBay is under an obligation to keep confidential, except
to employees of MediaBay who need to know such information for the purposes of
their employment, or as otherwise authorized by MediaBay in writing.
Confidential information includes, but is not limited to, customer or member
databases, terms of licensing arrangements, know how, marketing plans and
strategies, pricing and costing policies, customer and suppliers lists and
accounts, nonpublic financial information, systems, processes, software
programs, works of authorship, inventions, projects, plans and proposals.
Neither Consultant nor Xxxxxxx shall use or disclose any material non-public
information discovered about MediaBay, whether through the rendering of Services
or otherwise. Consultant and Xxxxxxx shall keep secret all matters entrusted to
Consultant or Xxxxxxx and shall not use or attempt to use any confidential
information except as may be required in the ordinary course of performing
Consultant's Services as a consultant of MediaBay, nor shall Consultant or
Xxxxxxx use any confidential information in any manner which may cause loss or
is calculated to cause loss to MediaBay. Notwithstanding the foregoing
sentences, such confidential information does not include (i) information which
is or becomes publicly available (except as may be disclosed in violation of
this Agreement) or (ii) information acquired by Consultant or Xxxxxxx from a
source other than the Company or any of its employees, which source acquired
such information directly from the Company without a breach of any
confidentiality obligation between such source and the Company; or (iii)
information which Consultant or Xxxxxxx is required to disclose by virtue of
subpoenas, court orders or otherwise as a matter of law.
5. Termination.
This Agreement may be terminated by Consultant upon ten (10) days notice
to the Company. In the event of termination by Consultant, Consultant shall be
entitled to no further benefits other than payment of amounts owed to Consultant
through the date of such termination.
6. Independent Contractor. It is expressly understood and agreed that
during the term of this Agreement, the Consultant'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. The Consultant 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 the Consultant 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.
The Consultant understands and agrees that the work to be performed 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. Insurance and Employee Benefits. During the Term, Xxxxxxx shall be
entitled to receive insurance and employee benefits applicable to all 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.
8. Termination of Employment Agreement. The employment agreement effective
as of November 2, 2002 by and between the Company and Xxxxxxx shall terminate on
the Effective Date.
9. 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 Consultant for any Claims (as defined in such indemnification
agreement) against Consultant to the extent that Xxxxxxx is entitled to receive
indemnification therefor.
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10. Miscellaneous.
(a) This Agreement contains, and is intended as, a complete statement of
all of the terms of the arrangement between the parties with respect to its
subject matter and supersedes all previous negotiations, promises, agreements
and understandings with respect to those matters, whether oral or written.
(b) No provision of this Agreement shall be waived, amended, modified,
superceded, canceled, terminated, renewed or extended except in a written
instrument signed by the party against whom any of the foregoing actions is
asserted. Any waiver shall be limited to the particular instance and for the
particular purpose when and for which it is given.
(c) Consultant hereby agrees that each provision herein shall be treated
as a separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses of the
Agreement. Moreover, if one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear. Consultant hereby further
agrees that the language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning and not strictly for or
against either of the parties.
(d) This Agreement, the Services to be performed and all rights hereunder
are unique to Consultant and Xxxxxxx and may not be performed on Consultant's
behalf by any person other than Xxxxxxx and may not be transferred or assigned
by Consultant or by the Company at any time.
(e) 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.
IN WITNESS WHEREOF, the parties hereby execute this Agreement this 1st day
of May 2003.
MEDIABAY, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Executive Vice President
XNH CONSULTING SERVICES, INC.
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, individually
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