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EXHIBIT 10.08
THE COLUMBUS CIRCLE
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of this 1st
day of January, 1997, by and between The Columbus Circle, a New York limited
partnership (the "Consultant") and ML Direct, Inc., a Delaware corporation
(the "Company"). The parties hereby agree as follows:
1. Term.
The term of this Agreement shall begin on the date set forth above and
shall continue until the earlier of (a) December 31, 1999 and (b) the
termination of this Agreement by either party in accordance with Paragraph 9
hereof.
2. Consulting Services.
The Consultant agrees to perform such consulting services (the
"Consulting Services") as shall be agreed from time to time by the Company and
the Consultant. At the commencement of this Agreement, the services to be
rendered by the Consultant are those set forth on Schedule I hereto. The
Consultant shall perform the Consulting Services in a professional manner and
such services or the result thereof shall conform to the Company's standards,
specifications, and other requirements. The Consultant shall be available to
provide Consulting Services at the request of the Company for up to six (6)
man-days per month during the term of this Agreement.
3. Compensation; Stock Options.
In consideration for the performance of the Consulting Services, the
Company shall grant to the Consultant non-qualified options pursuant to the
option agreement attached hereto as Exhibit A. In addition, the Company shall
pay to the Consultant the additional compensation as is specified on Schedule
II hereto.
4. Proprietary Information.
The Consultant acknowledges that he or she may be furnished or may
otherwise receive or have access to information which relates to the Company's
past, present or future products, research, development, inventions, processes,
techniques, design or other technical information and data, etc. (the
"Proprietary Information"). The Consultant agrees to preserve and protect the
confidentiality of the Proprietary Information and all physical forms thereof,
whether disclosed to the Consultant before this Agreement is signed or
afterward. In addition, the Consultant shall not disclose or disseminate the
Proprietary Information to any third party and shall not use the Proprietary
Information for his or her own benefit or for the benefit of any third party.
The foregoing obligations shall not apply to any information which (i) is
publicly known; (ii) is given to the Consultant by someone else who is not
obligated to maintain confidentiality; or (iii) the Consultant had already
developed prior to the day the Agreement is signed, as evidenced by
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contemporaneously dated documents. Within three days after the termination of
this Agreement (or any other time at the Company's request), the Consultant
shall return to the Company all copies of Proprietary Information in tangible
form.
5. Representations.
The Consultant represents and warrants that (i) he or she is able to
perform the Consulting Services and that he or she does not have any
understanding or agreement with anyone else which restricts his or her ability
to perform such services; (ii) that any services he or she provides and
information or materials he or she develops for or discloses to the Company
shall not in any way be based upon any confidential or proprietary information
derived from any source other than the Company, unless the Consultant is
specifically authorized in writing by such source to use such proprietary
information; and (iii) that if the Company incurs any liability or expense as a
result of any claim that any of the above warranties is not true, the
Consultant shall indemnify the Company and hold it harmless against all such
liability or expense, including reasonable attorney's fees, provided that the
Company notifies the Consultant of the claim and cooperates with the Consultant
in defending against the claim. The Consultant shall notify the Company if he
or she ever becomes aware of any such claim.
6. Work for Hire; Assignment of Rights.
Everything the Consultant writes or develops in the course of
providing the Consulting Services shall be works made for hire and therefore
the property of the Company. If for any reason something the Consultant writes
or develops while performing the Consulting Services is not considered a work
made for hire, without any additional consideration the Consultant assigns to
the Company all right, title and interest therein, including all patent and
copyright rights, and agrees to execute at the Company's request a subsequent
document or documents as further evidence of this assignment. In addition,
without any additional consideration, the Consultant agrees to assign to the
Company all right, title and interest in any invention, patentable or not, made
or conceived solely by him or jointly with others during the course of
performing the Consulting Services. The Consultant shall promptly disclose any
such invention to the Company and shall, upon request, execute an assignment to
the Company of any patent, trade secret or other proprietary right and shall do
anything else reasonably necessary to enable the Company to perfect its rights
therein. The Consultant hereby agrees to indemnify the Company and hold it
harmless against all liabilities or expenses, including reasonable attorney's
fees, which may be incurred as a result of the breach by the Consultant of any
of the representations or covenants set forth in this Paragraph 6. The
obligations contained in this Paragraph 6 shall continue until fulfilled and
shall not be affected by the termination of this Agreement. The obligations of
the Consultant under this Paragraph 6 shall be binding on his or her assigns,
executors, administrators and other legal representatives to the extent that
any of them can fulfill those obligations left unfulfilled by the Consultant.
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7. Non-Competition.
During the term of this Agreement and for a period of one year
thereafter, the Consultant agrees that he or she will not, directly or
indirectly, as an owner, director, stockholder, consultant, independent
contractor, agent or otherwise, engage or assist any other person (other than
the Company) to engage anywhere in the world in the business of creating,
distributing or selling products or providing services competitive with those
offered by the Company. The Consultant shall not, directly or indirectly,
solicit for employment any of the Company's employees until at least one year
after the end of the Agreement.
8. Termination.
(a) This Agreement may be terminated by either party in the event
that the other party has not performed any material covenant or has otherwise
breached any material term of this Agreement (i) upon receipt of written notice
thereof if the non-performance or breach is incapable of cure, or (ii) upon the
expiration of thirty (30) days (or such additional cure period as the
non-defaulting party may authorize) after receipt of written notice thereof if
the non-performance or breach is capable of cure and has not been cured.
(b) This Agreement may be terminated by either party upon not less
than 90 days' prior written notice to the other.
(c) If the Consultant breaches this Agreement, the Company can (in
addition to all of its other rights) require the Consultant to give it all work
in progress in exchange for compensation earned to the date of termination.
The Consultant acknowledges that his breach (or threatened breach) of any of
his obligations under Paragraphs 5, 6, or 7 could irreparably injure the
Company and the Consultant could not remedy the damage caused the Company
simply by paying the Company some amount of money.
(d) OTHER THAN FOR BREACHES OF THE CONSULTANT'S OBLIGATIONS UNDER
PARAGRAPHS 5, 6, OR 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY CONSEQUENTIAL INCIDENTAL OR SPECIAL DAMAGES ARISING OUT OF ANY DEFAULT
UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT.
9. Miscellaneous.
(a) The Consultant shall continue to be bound by all obligations
described in Paragraphs 5 and 6 after the termination of this Agreement for
whatever reason and shall continue to be bound by all obligations described in
Paragraph 7 after the termination of this Agreement pursuant to Paragraph 8(a)
as a result non-performance or breach by the Consultant.
(b) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to
conflicts of law principles.
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(c) This Agreement is the entire agreement between the parties.
Any change in the Agreement must be made in writing and signed by both the
Company and the Consultant.
(d) In the event that any term or provision of this Agreement
shall be deemed by a court of competent jurisdiction to be overly broad in
scope, duration or area of applicability, the court considering the same shall
have the power and is hereby authorized and directed to limit such scope,
duration or area of applicability, or all of them, so that such term or
provision is no longer overly broad and to enforce the same as so limited.
Subject to the foregoing sentence, in the event any provision of this Agreement
shall be held to be invalid or enforceable for any reason, such invalidity or
unenforceability shall attach only to such provision and shall not affect or
render invalid or unenforceable any other provision of this Agreement.
(e) Either party's waiver of a default by the other does not
constitute a waiver of future or other defaults.
(f) The Consultant is performing services for the Company as an
independent contractor, and the parties are not partners or joint venturers.
Neither party can bind the other to any agreement with anyone else without the
prior written consent of such other party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ML DIRECT, INC.
By:
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Title:
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THE COLUMBUS CIRCLE
By:
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Title:
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SCHEDULE I
Description of Consulting Services
The Consultant shall provide the following services to the Company to the
extent it is requested from time to time to do so by the Chief Executive
Officer or the Board of Directors of the Company: (i) general management
services, (ii) marketing, consulting and sales support, (iii) evaluating and
assisting with respect to proposed mergers, acquisitions, strategic alliances
and third party arrangements (such as licensing agreements), and (iv) arranging
equity or debt financings.
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SCHEDULE II
Compensation
The Company shall pay to the Consultant (a) an initial fee of $120,000,
payable in 12 equal monthly installments on the first day of each month
beginning on February 1, 1997, and (b) an monthly amount equal to $15,000.
