Exhibit 10.25
321 Play, Inc.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of the 24th day of March 2004, is
between 321 Play, Inc. with its principal offices at 000 X. Xxxxxxx Xx. Xxxxx
000, Xxxx Xxxx Xxxxx Xxxxxxx 00000 (the "Company") and Mezhcorp, LLC
(collectively, "Consultant).
THEREFORE, in consideration of the mutual promises and of the
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound according to the terms of this
Agreement, hereby agree as follows:
1. Consultant
The Company shall engage Consultant, and Consultant hereby accepts such
engagement and agrees to perform its duties and responsibilities hereunder, in
accordance with the terms and conditions hereinafter set forth.
1.1 Duties and Responsibilities.
(a) During the Term, Consultant shall serve as Consultant and perform all
duties and accept all responsibilities incidental to such positions.
(b) Consultant represents to the Company that i is not subject or a party
to any consulting agreement, non- competition covenant, non-disclosure
agreement or other agreement, covenant, understanding or restriction of any
nature whatsoever which would prohibit Consultant from executing this
Agreement and performing fully its duties and responsibilities hereunder,
or which would in any manner, directly or indirectly, limit or affect the
duties and responsibilities which may now or in the future be assigned to
Consultant by the Company.
1.2 Extent of Service.
The Term of this Agreement shall be for a period of three years (the
"Employment Term"). During the Term, Consultant agrees to use its best
efforts to carry out its duties and responsibilities under Section 1.
hereof. Except as provided in Section 5 hereof, the foregoing shall not be
construed as preventing Consultant or its Members from making investments
in other businesses or enterprises provided that Consultant agrees not to
become engaged in any other business activity which may, in the judgment of
the Board of Directors of the Company, interfere with its ability to
discharge its duties and responsibilities to the Company.
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1.3 Base Compensation.
(a) For all the services rendered by Consultant hereunder, the Company
shall pay Consultant an annual base compensation of One Hundred Fifty
Thousand ($150,000.00) Dollars.
Bonuses - Consultant shall be eligible for bonus of $100,000 per annum, for
each $5,000,000 annual revenue generated by the Company. Total compensation
shall not exceed $300,000 under this Section
(b) Stock Participation - Consultant may be eligible to participate in any
stock option incentive plans established for non-Consultants of the
Company, at the discretion of the Board of Directors of the Company.
(c) Additional incentive compensation, if any, shall be at the discretion
of the Board of Directors of the Company.
2. Expenses
Consultant shall be reimbursed for the reasonable business expenses
incurred by its in connection with its performance of services hereunder during
the Employment Term upon presentation of an itemized account of such expenses in
accordance with the policies and procedures established by the Company. This
amount is not to exceed $500.00 for any single 30-day period without Secretary
or Treasurer's prior written approval.
3. Developments
All developments, including inventions, whether patentable or otherwise,
trade secrets, discoveries, improvements, ideas and writings which either
directly or indirectly relate to or may be useful in the business of the Company
or any of its affiliates (the "Developments") which Consultant, either by itself
or in conjunction with any other person or persons, has conceived, made,
developed, acquired or acquired knowledge of during its employment by the
Company, Consultant itseby assigns, transfers and conveys, and agrees to so
assign, transfer and convey to the Company, all of its right, title and interest
in and to any and all such Developments to the Board of Directors of the
Company. At any time and from time
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to time, upon the request and at the expense of the Company, Consultant will
execute and deliver any and all instruments, documents and papers, give evidence
and do any and all other acts which, in the opinion of counsel for the Company,
are or may be necessary or desirable to document such transfer or to enable the
Company to file and prosecute applications for and to acquire, maintain and
enforce any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain any
extension, validation, reissue, continuance or renewal of any such patent,
trademark or copyright. The Company will be responsible for the preparation of
any such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse Consultant for all reasonable expenses incurred
by its in compliance with the provisions of this Section.
4. Confidential Information
(a) Consultant recognizes and acknowledges that by reason of its services
by and service of the Company, it has had, and will continue to have (both
during the Term and at any time thereafter during which it may be employed by
the Company), access to confidential information of the Company and its
affiliates, including without limitation, information and knowledge pertaining
to products and services offered, ideas, plans, trade secrets, proprietary
information, advertising, distribution and sales methods and systems, sales and
profit figures, customer and client lists, and relationships between the Company
and its affiliates and customers, clients, suppliers and others who have
business dealings with the Company and its affiliates ("Confidential
Information"). Consultant acknowledges that such Confidential Information is a
valuable and unique asset and covenants that she will not, either during or at
any time after the Employment Term, disclose any such Confidential Information
to any person for any reason whatsoever (except as its duties described herein
may require) without the prior written authorization of the Board of Directors
of
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the Company, unless such information is in the public domain through no fault of
Consultant or except as may be required by law.
(b) Consultant will not disclose the terms of its services or the contents
of this agreement to any person for any reason whatsoever (except as its duties
described herein may require) without the prior written authorization of the
Board of Directors of the Company, unless such information is in the public
domain through no fault of Consultant or except as may be required by law.
5. Non-Competition
(a) During the Term and for a Twenty-four (24) month period following the
date the engagement of Consultant by the Company or any of its affiliates has
ended (whether or not such employment is pursuant to this Agreement), Consultant
will not, unless acting pursuant hereto or with the prior written consent of the
Board of Directors of the Company, directly or indirectly, own, manage, operate,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, partner, principal or
otherwise with any business or enterprise engaged within any portion of the
United States in the internet auction business or in any other business in which
the Company was engaged at the date of termination of Consultant's employment by
the Company or at any time for one year after termination of employment with the
Company. It is recognized by Consultant that the business of the Company and
Consultant's connection therewith is or will be involved in internet and auction
activity throughout the United States, and that more limited geographical
limitations on this non-competition covenant and the non- solicitation covenant
set forth in Section 6 hereof are therefore not appropriate.
(b) The foregoing restrictions shall not be construed to prohibit the
ownership by Consultant or its Members of not more than five percent (5%) of any
class of securities of any corporation which is engaged in any of the foregoing
businesses, provided that such ownership represents a passive investment and
that neither Consultant nor any group of persons including Consultant and/or its
Members in any way, either directly or indirectly, manages or exercises control
of any such corporation, guarantees any of its financial obligations, otherwise
takes any part in its business, other than exercising its rights as a security
owner, or seeks to do any of the foregoing.
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(c) In the event that Consultant is terminated Without Cause by the Company
pursuant to Section 8.4 and Consultant desires to be engaged by a company (the
"Prospective Employer") in violation of the covenants set forth in Section 5(a)
above, Consultant may request a waiver of Section 5(a) above and such waiver
shall be granted by the Company unless the Prospective Employer is a Direct
Competitor of the Company in the current geographic markets the Company is
engaged.
6. No Solicitation
During the Term and for the one year period following the date engagement
of Consultant by the Company or any of its affiliates has ended (whether or not
such employment is pursuant to the Agreement), Consultant will not, either
directly or indirectly, (i) call on or solicit any person, firm, corporation or
other entity who or which at the time of such termination was, or within two
years prior thereto had been, a customer of the Company or any of their
respective affiliates with respect to the activities prohibited by Section 6
hereof or (ii) solicit the employment of any person who was employed by the
Company or any of Its affiliates on a full or part-time basis at any time during
the course of Consultant's engagement, unless such person prior to such
solicitation of employment (A) was involuntarily discharged by the Company or
such affiliate, or (B) voluntarily terminated his/her relationship with the
Company or such affiliate.
7. Equitable Relief
(a) Consultant acknowledges that the restrictions contained in Sections 3,
4, 5 and 6 hereof are reasonable and that the Company would not have entered
into this Agreement in the absence of such restrictions, and that any violation
of any provision of those Sections will result in irreparable injury to the
Company.
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(b) CONSULTANT FURTHER REPRESENTS AND ACKNOWLEDGES THAT (i) SHE HAS BEEN
ADVISED BY THE COMPANY TO CONSULT ITS OWN LEGAL COUNSEL IN RESPECT OF THIS
AGREEMENT, (ii) THAT SHE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF THIS
AGREEMENT, TO REVIEW THROUGHLY THIS AGREEMENT WITH ITS COUNSEL, AND (iii) SHE
HAS READ AND FULLY UNDERSTANDS THE TERMS AND PROVISIONS OF THIS AGREEMENT.
(c) Consultant agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of providing actual damages,
as well as an equitable accounting of all earnings, profits and other benefits
arising from any violation of Sections 3, 4, 5 or 6 hereof, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of Sections 5,
or 6 hereof should ever be adjudicated to exceed the time, geographic, product
or service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, product or service, or other limitations
permitted by applicable law.
(d) Consultant irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Agreement, including
without limitation, any action commenced by the Company for preliminary or
permanent injunctive relief or other equitable relief, must be brought in the
United States District Court for the Southern District of Florida, or if such
court does not have jurisdiction or will not accept jurisdiction, in any court
of general jurisdiction in Palm Beach County (ii) consents to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
waives any objection which Consultant may have to the laying of venue of any
such suit, action or proceeding in any such court. Consultant also irrevocably
and unconditionally consents to the service of any process, pleadings, notices
or other papers in a manner permitted by the notice provisions of Section 12
hereof.
8. Termination
This Agreement shall terminate prior to the expiration of its term set
forth in Section 1.1 above upon the occurrence of any one of the following
events:
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8.1 Disability.
In the event that Consultant is unable fully to perform its essential
duties and responsibilities hereunder to the full extent required by the
Board of Directors of the Company by reason of illness, injury or
incapacity for one hundred and twenty consecutive days, during which time
she shall continue to be compensated as provided in Section 1.4 hereof
(less any payments due Consultant under disability benefit programs,
including Social Security disability, worker's compensation hereunder;
provided, however, that Consultant will be entitled to receive the payments
prescribed under any disability benefit plan which may be in effect for
employees of the Company and in which it participated. Consultant agrees,
in the event of any dispute under this Section 8.1, to submit to a physical
examination by a licensed physician selected by the Board of Directors of
the Company.
8.2 Death.
In the event that Consultant dies during the Term, the Company shall pay to
its executors, legal representatives or administrators any amounts due and
owing to the date of death to Consultant as part of the salary set forth in
Section 1.4(a) hereof, and thereafter the Company shall have no further
liability or obligation hereunder to his executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or
through its; provided, however, that Consultant's estate or designated
beneficiaries shall be entitled to receive the payments prescribed for such
recipients under any death benefit plan which may be in effect for
employees of the Company and in which Consultant participated.
8.3 Cause.
Nothing in this Agreement shall be construed to prevent its termination by
the Company at any time for "cause." For purposes of this Agreement,
"cause" shall mean and be limited to Consultant's:
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(a) Commission of any act of fraud, misappropriation or personal
dishonesty relating to or involving the Company in any material way;
(b) Gross negligence in the performanc of its duties or in any way
relating to the obligations and duties, which he owes the Company;
(c) Violation of any express direction of the Company or any material
violation of any rule, regulation, policy or plan established by the
Company from time to time regarding the conduct of its Consultants and/or
its business, if such violation is not remedied by Consultant within thirty
(30) days of receiving notice of such violation from the Company;
(d) Demonstrably willful and deliberat violation of any obligation
owed by Consultant to the Company;
(e) Material disclosure or use of Confidential Information, other than
as required in the performance of Consultant's duties under this Agreement;
(f) Conviction of a crime constituting a felony or any other crime
involving moral turpitude or criminal indictment for a crime involving
moral turpitude in which the substantial weight of credible evidence
indicates that Consultant has committed such a crime.
In the event of termination for cause under section 8.3(a) or (f) of this
Section 8.3, Consultant shall be suspended pending an independent
investigation by persons retained by the Company.
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In the event of a termination for cause, the Company shall have no
obligation to make any further payments or to provide any further benefits
or compensation hereunder to Consultant for any period subsequent to the
date of such termination, except that Consultant will receive Consultant's
Base Compensation, as well as bonus or commission payment(s) for which
Consultant is eligible for as of the date of termination.
8.4 Without Cause by the Company.
The Company may terminate this Agreement upon not less than 30 days'
written notice to Consultant at and for the Company's sole convenience and
in its sole discretion and without specifying any cause as set forth in
Section 8.3 hereof. If such termination shall occur, Consultant shall
receive compensation equal to ninety days (90) compensation and any and all
shares or securities shall Immediately vest upon said termination.
9. Survival
Notwithstanding the termination of this Agreement by the Company by reason
of Consultant's disability under Section 8.1, for cause under Section 8.3,
without cause under Section 8.4, or as a result of a Change of Control under
Section 8.5, his obligations under Sections 3, 4, 5 and 6 hereof shall survive
and remain in full force and effect for the periods therein provided, and the
provisions for equitable relief against Consultant in Section 8 hereof shall
continue in force, along with the provisions of Sections 10 through 18 hereof.
10. Governing Law
This Agreement shall be governed by and interpreted under the laws of the
State of Florida without giving effect to any conflict of laws provisions.
11. Litigation Expenses
In the event of a lawsuit by either party to enforce the provisions of this
Agreement each Party must pay their costs and expenses.
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12. Notices
All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand delivered or mailed by registered or
certified mail, as follows (provided that notice of change of address shall be
deemed given only when received):
If to the Company:
000 X. Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
If to Consultant:
or to such other names or addresses as to the Company or Consultant, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
13. Entire Agreement: Contents of Agreement.
(a) This Agreement supersedes any and all other agreements, either oral or
written, between the parties with respect to the employment of Consultant by
Employer for the purposes set forth in Section 1.2, and contains all of the
covenants and agreement between the parties with respect to such employment
whatsoever. Each party to this agreement acknowledges that no representation,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing and signed by both parties to this agreement.
321 Play, Inc. Consulting Agreement 10
(b) Consultant acknowledges that from time to time, the Company may
establish, maintain and distribute Consultant manuals or handbooks or personnel
policy manuals, and officers or other representatives of The Company of the
Company may make written or oral statements relating to personnel policies and
procedures. Such manuals, handbooks and statements are intended only for general
guidance. No policies, procedures or statements of any nature by or on behalf of
The Company or the Company (whether written or oral and whether or not contained
in any Consultant manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of any nature to Consultant.
(c) Words used herein, regardless of the number and gender specifically
used, shall be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the context
indicates is appropriate.
14. Assignment
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, except that the duties and responsibilities of Consultant hereunder are
of a personal nature and shall not be assignable or delegatable in whole or in
part by Consultant.
15. Severability
If any provision of this Agreement or application thereof to anyone or
under any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other
provision or application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction.
16. Remedies Cumulative: No Waiver:
No remedy conferred upon the Company or the Consultant by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any remedy given hereunder or
321 Play, Inc. Consulting Agreement 11
now or hereafter existing at law or in equity. No delay or omission by the
Company or Consultant in exercising any right, remedy or power hereunder or
existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by the Company or the employee from
time to time and as often as may be deemed expedient or necessary by the Company
or the Consultant at its sole discretion.
17. Indemnification:
17.1 Third-Party Proceedings.
The Company shall indemnify Consultant if Consultant is or was a party or
is threatened to be made a party to any threatened, pending, or completed
action or proceedings, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the Company) by
reason of the fact that Consultant is or was a director, officer, employee,
or agent of the Company or a Subsidiary (as hereinafter defined), by reason
of any action or inaction on the part of Consultant while a director,
officer, employee, or agent or by reason of the fact that Consultant is or
was serving at the request of the Company as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses (including reasonable attorneys fees),
judgments, fines, and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by Consultant in
connection with such action or proceeding unless the Company shall
establish that (a) Consultant did not act in good faith and in a manner
Consultant reasonably believed to be in the best interests of the Company
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe Consultant's conduct was unlawful; (b) Consultant's
actions amounted to gross negligence; or (c) Consultant's actions were
performed with knowledge and intent to harm the Company, The termination of
any action or proceeding by judgment, order, settlement, conviction, or
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upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption (i) that Consultant did not act in good faith and in a
manner which Consultant reasonably believed to be in the best interests of
the Company; or (ii) with respect to any criminal action or proceeding,
that Consultant had reasonable cause to believe that Consultant's conduct
was unlawful.
17.2 Proceedings by or in the Right of the Company.
The Company shall indemnify Consultant if Consultant was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action or proceeding by or in the right of the Company or any Subsidiary of
the Company to procure a judgment in its favor by reason of the fact that
Consultant is or was a director, officer, Consultant, or agent of the
Company, or any Subsidiary of the Company, by reason of any action or
inaction on the part of Consultant while a director, officer, consultant,
or agent or by reason of the fact that Consultant is or was serving at the
request of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including reasonable attorney's fees) and, to
the fullest extent permitted by law, amounts paid in settlement of such
action or proceeding unless the Company shall establish any of the
following concerning the action:
a. That Consultant did not act in good faith;
b. Consultant acted in a manner Consultant could not have reasonably
believed to be in the best interests of the Company and its
Members;
c. The Consultant actions were intentiona and with knowledge that
such actions would result in the harm complained of;
d. Consultant's actions amount to gross negligence; or
e. Consultant's actions were outside the scope of his employment.
No indemnification shall be made in respect of any claim, issue or matter
as to which Consultant shall have been adjudged to be liable to the Company
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in the performance of Consultant's duty to the Company or any Subsidiary of
the Company unless and only to the extent that the court in which such
action or proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, Consultant is fairly
and reasonably entitled to indemnity for expenses or amounts paid in
settlement and then only to the extent that the court shall determine.
17.3 Procedure.
Any indemnification provided for in this Agreement shall be made no later
than forty-five (45) days after the resolution (by judgment, settlement,
dismissal, or otherwise) of the claim to which indemnification is sought.
If a claim under this Agreement, under any statute, or under any provision
of the Company's Articles of Incorporation or bylaws providing for
indemnification, is not paid in full by the Company within such period,
Consultant may, but need not, at any time thereafter bring an action
against the Company to recover the unpaid amount of the claim and, subject
to ss. 17 of this Agreement, Consultant shall also be entitled to be paid
for the expenses (including reasonable attorneys' fees) of bringing such
action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any
action or proceeding in advance of its final disposition) that Consultant
has not met the standards of conduct which make it permissible under
applicable law for the Company to indemnify Consultant for the amount
claimed, but the burden of proving such defense shall be on the Company,
and Consultant shall be entitled to receive interim payments of expenses
pursuant to this Agreement unless and until such defense may be finally
adjudicated by court order or judgment from which no further right appeal
exists. It is the parties' intention that if the Company contest
Consultant's right to indemnification, the question of Consultant's right
to indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or its
Members) to have made a determination that indemnification of Consultant is
321 Play, Inc. Consulting Agreement 14
proper in the circumstances because Consultant has met the applicable
standard of conduct required by applicable law, nor an actual determination
by the Company (including its Board of Directors, any committee or subgroup
of the Board of Directors, independent legal counsel, or its Members) that
Consultant has not met such applicable standard of conduct, shall create a
presumption that Consultant has or has not met the applicable standard of
conduct.
17.4 Notice to Insurers.
If, at the time of the receip of a notice of a claim pursuant to this
Agreement, the Company has directors' and officers' liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Consultant, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
17.5 Relationship to Other Sources.
Consultant shall not be required to exercise any rights against any other
parties (for example, under any insurance policy purchased by the Company,
Consultant, or any other person or entity) before Consultant, or Agreement.
However, to the extent the Company actually indemnifies Consultant or
advances expenses, the Company shall be entitled to enforce any such
rights, which Consultant may have against third parties. Consultant shall
assist the Company in enforcing those rights if the Company pays
Consultant's reasonable costs and expenses of doing so.
17.6 Selection of Counsel.
In the event the Company shall be obligated under this Agreement to pay the
expenses of any proceeding against Consultant, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Consultant, which approval shall not be unreasonably withheld,
upon the delivery to Consultant of written notice of its election to do so.
After delivery of such notice, approval of such counsel by Consultant and
the retention of such counsel by the Company, the Company will not be
321 Play, Inc. Consulting Agreement 15
liable to Consultant under this Agreement for any fees of counsel
subsequently incurred by Consultant with respect to the same proceeding,
provided that (i) Consultant shall have the right to employ counsel in any
such proceeding at Consultant's expense; and (ii) if (A) the employment of
counsel by Consultant has been previously authorized by the Company (B)
Consultant shall have reasonably concluded that there may be a conflict of
interest between the Company and Consultant in the conduct of any such
defense, or (C) the Company shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the reasonable fees and
expenses of Consultant's counsel shall be at the expense of the Company.
17.7 Additional Rights
a. Scope. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Consultant to the fullest extent
permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the
Company's Articles of Incorporation, the Company's bylaws, or by statute.
In the event of any change, after the date of this Agreement, in any
applicable law, statute, or rule which expands the right of a Limited
Liability Company or other corporate entity to indemnify a member of its or
a Subsidiary's board of directors or an officer, such changes shall be,
ipso facto, within the purview of Consultant's rights and the Company's
obligations, under this Agreement. In the event of any change in any
applicable law, statute, or rule which narrows the right of a corporation
or other corporate entity to indemnify a member of its or a Subsidiary's
Board of Directors or an officer, such changes, to the extent not otherwise
required by such law, statute, or rule to be applied to this Agreement
shall have no effect on this Agreement or the parties rights and
obligations hereunder.
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b. Nonexclusivity. The indemnification provided by this Agreement shall not
be deemed exclusive of any rights to which Consultant my be entitled under
the Company's Articles of Incorporation, its bylaws, any agreement, any
vote of Members or disinterested directors, the Corporations Law of the
State of Nevada, or otherwise, both as to action in Consultant's official
capacity and as to action or inaction in another capacity while holding
such office. The indemnification provided under this Agreement shall
continue as to Consultant for any action taken or not taken while serving
in an indemnified capacity even though Consultant may have ceased to serve
in such capacity at the time of any action or other cover proceeding is
commenced.
c. Partial Indemnification. Consultant is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of
the expenses judgments, fines, or penalties actually or reasonably incurred
in the investigation, defense, appeal, or settlement of any civil or
criminal action or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Consultant for the
portion of such expenses, judgments, fines, or penalties to which
Consultant is entitled.
d. Acknowledgment. Both the Company and Consultant acknowledge that in
certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement
or otherwise. Consultant understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of
the Company's right under public policy to indemnify Consultant.
18. Miscellaneous
All section headings are for convenience only. This Agreement may be
executed in several counterparts, each of which is an original. It shall not be
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necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxxxxxx
------------------------ ------------------------
321 Play, Inc. Consultant
Xxxxxx X. Xxxxxx Xxxxxx Xxxxxxxxxxx
------------------------ ------------------------
Printed Name Printed Name
Chairman President
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Title Title
321 Play, Inc. Consulting Agreement 18
