CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 15th day of December, 1999 by and between Xxx Xxxxxx ("Consultant") and
JVWeb, Inc. (the "Company").
RECITALS:
WHEREAS, the Company desires to engage Consultant to provide to the
Company certain consulting services described hereinafter (the "Services"), and
Consultant is willing and desires to be engaged by the Company to provide the
Services to the Company, upon the terms, provisions and conditions set forth
hereinafter; and
WHEREAS, the Company and Consultant desire to set forth the terms,
provisions and conditions of
Consultant's engagement by the Company;
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by each
of the Company and Consultant, each of the Company and Consultant hereby agrees
as follows:
l. Engagement. Subject to the terms, provisions and conditions
hereinafter stated, the Company hereby
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engages Consultant to provide to the Company the following services, which
are referred to hereinafter as the
"Services", and Consultant hereby accepts such engagement:
o Sale of advertising "banner ads" on various websites affiliated with JVWeb. o
Promotion of the web sites to create traffic to those sites. o Identification of
strategic partners for JVWeb and its affiliated entities.
Consultant shall also provide such other services as from time to time may be
reasonably requested by the President of the Company. In providing Services
hereunder, Consultant shall use reasonable, and Consultant's best, efforts, and
shall perform the Services in a competent, professional and good xxxxxxx-like
manner of the highest caliber. Consultant shall devote all of his business time
and attention to performing his duties hereunder. During the term of this
Agreement, Consultant agrees to work exclusively for the Company and to provide
the Services to no person other than the Company. Consultant shall be based in
Xxxxxx County, Texas, or surrounding area, but shall undertake such travel as is
necessary or advisable for him to perform his duties hereunder. The Company
shall provide to Consultant the use of such facilities and services as may be
necessary for the adequate performance of his duties hereunder, all of which
facilities shall be located in Xxxxxx County, Texas, or surrounding area.
2. Compensation. As compensation for providing the Services,
Consultant shall be paid as follows:
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(a) JVWeb shall pay to consultant a base compensation
amount of $4,000.00 per month, starting on December
16, 1999, and continuing for a twelve month period.
(b) JVWeb shall pay an additional bonus/commission to the
Consultant equal to 15% of the first month's revenue
on the sale of banner ads or corporate sponsorships
for each corporate sponsor brought to JVWeb, or any
of its affiliated websites, by the Consultant during
the term of this Agreement with respect to which
JVWeb consummates a transaction. JVWeb shall pay an
additional bonus/commission to the Consultant of 10%
for each additional month that the corporate sponsor
remains as an advertiser.
(c) Additional compensation. Consultant will be entitled to various
stock options in JVWeb, and affiliated
entities as follows:
1. In JVWeb: Consultant shall be entitled to
300,000 stock options under the
non-qualified plan set up by JVWeb,
pursuant to the attached stock option
plan. Such options will be for a period
of three years from the date of this
agreement.
2. Bonus stock options: Consultant, from
time to time, will be involved in the
development of sites that are affiliated
to JVWeb. On occasion, and subject to the
discretion of the Board of Directors of
JVWeb, Inc., Consultant will be granted
additional stock options in JVWeb, based
on Consultants participation in the
success of those affiliated projects.
Any fees due shall be payable five days after the receipt of an invoice from
Consultant submitted to the Company at the end of a month during the term of
this Agreement. Consultant shall not be entitled to participate in any employee
benefit plan now or hereafter established by the Company unless the Company
agrees to this expressly in writing.
3. Term. Subject to Section 4 below, the term of this Agreement
shall begin on the date hereof and
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shall continue until and through December 31, 2002.
4. Termination.
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(a) For Cause. The Company may, at its election, terminate
Consultant's engagement at any time for just cause, which shall include, without
any limitations thereon, the following: (i) Consultant shall have failed or
refused to faithfully, diligently and competently perform the Services under
this Agreement or otherwise to have breached any term or provision contained
herein; (ii) Consultant shall be disabled or otherwise unable for whatever
reason to fully perform the Services hereunder for 60 consecutive days or for
more than 120 days in any twelve-month period; (iii) Consultant shall be guilty
of fraud, dishonesty, or similar acts of misconduct; or (iv) Consultant shall be
finally convicted of a felony or a misdemeanor involving moral turpitude. At any
time after the occurrence of an event permitting the Company to terminate
Consultant's engagement pursuant to this Section 4(a), the Company may elect for
termination of Consultant's engagement by notifying Consultant as to the
Company's election to terminate, and thereupon Consultant's engagement with the
Company will terminate on the date specified in the notice or (if no date is
specified) upon the delivery of the notice. Notwithstanding the preceding, upon
any an event permitting the Company to terminate Consultant's engagement
pursuant to this Section 4(a) and in lieu of terminating Consultant's
engagement, the Company may, with or without notice to Consultant, suspend the
performance of the Company's obligations under this Agreement (including,
without limitation, the Company's obligations under Section 2), and while such
an event has occurred and has not been cured, (x) the Company shall not be
obligated to fulfill, but shall be relieved of, the Company's obligations under
this Agreement (including, without limitation, the Company's obligations under
Section 2), (y) such obligations shall not accrue, and (z) Consultant shall
forfeit all rights and remedies with respect thereto. Notwithstanding anything
else contained herein, if the Company suspends any of its obligations to
Consultant pursuant to the preceding sentence, the Company may thereafter elect
to terminate Consultant's engagement in accordance with the other provisions of
this Section 4(a).
(b) By Notice. Either the Company or Consultant may terminate
Consultant's engagement hereunder without cause by giving written notice to the
other, at least 60 days prior to the proposed date of termination, of the
notifying party's desire to terminate Consultant's engagement hereunder
whereupon Consultant's engagement shall terminate on the date given in the
notice or (if no date is given) 60 days after the notice is given.
(c) Automatic. The term of this Agreement shall
automatically terminate upon Consultant's
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death.
(d) Effect of Termination. Upon termination of Consultant's
engagement, all rights and obligations under this Agreement shall cease except
for (i) the rights and obligations under Section 5, 6, 7A, 7B and 8 hereof, and
(ii) the rights and obligations under Section 2 hereof to the extent Consultant
has not been compensated for services performed prior to termination
(Consultant's fee to be pro rated for the portion of the pay period prior to
termination).
5. Noncompetition Agreement.
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(a) Agreement. For a period of one year(s) after the
expiration of this Agreement or the termination of this Agreement by the Company
with just cause or Consultant voluntarily, Consultant shall not, directly or
indirectly, acting alone or as a member of a partnership, or as an officer,
director, shareholder, employee, consultant, or representative of any
corporation or in any other capacity with any other business entity: (i) engage
in the Strategic Internet Services Businesss (such business is referred to
hereinafter as the "Restricted Business") in electronic commerce (such area is
referred to hereinafter as the "Restricted Area"); (ii) solicit, deal,
negotiate, enter into an arrangement or contract, or attempt to do any of the
foregoing, in any manner with respect to the Restricted Business in the
Restricted Area with respect to any person that was a client of the Company at
any time during the two-year period prior to the date of expiration or
termination, or attempt to cause any such person to not continue the business
relationship that it has with the Company; or (iii) induce or attempt to
influence, directly or indirectly, any person employed by or under contract with
the Company at the date of expiration or termination, to terminate his or her
engagement or contractual relationship with the Company.
(b) Permitted Exception. Notwithstanding the foregoing
provisions of this section, Consultant shall be permitted to own up to five
percent of the publicly-traded securities, registered under Section 12 or 15(d)
of the Securities Exchange Act of 1934, of any competitor of the Company.
(c) Reasonableness. Consultant hereby specifically
acknowledges and agrees that the temporal and other restrictions contained in
this section are reasonable and necessary to protect the business of the
Company, and that the enforcement of the provisions of this section will not
work an undue hardship on Consultant.
(d) Reformation. Consultant further agrees that in the event
either the length of time or any other restriction, or portion thereof, set
forth in Section 5(a) above is held to be overly restrictive and unenforceable
in any court proceeding, the court may reduce or modify such restrictions to
those which it deems reasonable and enforceable under the circumstances and the
parties agree that the restrictions of Section 5(a) will remain in full force
and effect as reduced or modified.
(e) Sole Remedy. Company and Consultant hereby agree and
acknowledges that the Company's sole remedy for breach of
this provision is the forfeiture by consultant of all
stock and stock options vested or to be vested while
engaged by the Company.
(f) Severability. Consultant further agrees, in the event that
any provision of Section 5(a) is held to be invalid or against public policy,
the remaining provisions of Section 5(a) and the remainder of this Agreement
shall not be affected thereby.
6. Confidentiality.
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(a) "Confidential Information" means and refers to information
and materials belonging to the Company that are not generally known outside the
Company, including, without limitation, customers and customer lists, pricing
policies, operational procedures, sources of supply, methods, formulae,
processes, software programs, hardware configurations, know-how, computer
programs and access codes, technological information, information relating to
the cost of its products and services, marketing strategies, financial
statements and projections, and any other information which bears a logical
relationship to the Confidential Information described above such that
Consultant knows or should logically conclude that the Company regards the
information to be Confidential Information. Confidential Information shall not
include any knowledge or information that Consultant already knows as of the
date of this Agreement, that is already known to the general public as of the
date of this Agreement or that becomes known to the general public after the
date of this Agreement through no breach of Consultant's confidentiality
obligations.
(b) Consultant hereby recognizes and acknowledges that
Consultant may receive information from, or may develop information on the
behalf of, the Company Confidential Information. Consultant hereby agrees to
maintain on a confidential basis all Confidential Information, and Consultant
agrees that Consultant shall not, without the prior express written consent of
the Company, use for Consultant's or anyone else's benefit or disclose to any
other person any Confidential Information, except in connection with
Consultant's work on behalf of the Company. Consultant hereby acknowledges that,
as between the Company and Consultant, the Company has the complete, sole and
full right, title and interest in and to the Confidential Information, and that
Consultant has no rights, expressed or implied, with respect to the foregoing
other than those expressly provided for to the contrary in a writing signed by
both the Company and Consultant. Consultant further agrees that Consultant
shall, immediately upon the Company's request, return to the Company all written
Confidential Information and all writings regarding oral Confidential
Information whether such writings were authorized or not. Consultant hereby
agrees that the confidentiality agreement provided for hereby shall last with
respect to any Confidential Information for five years after such Confidential
Information is disclosed by the Company to Consultant or developed by Consultant
on behalf of the Company, as the case may be.
7A. Assignment of Inventions.
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(a) For purposes of this Section 7A, the term "Inventions"
shall mean discoveries, concepts, and ideas, whether patentable or copyrightable
or not, including, but not limited to, improvements, know-how, data, processes,
methods, formulae and techniques, as well as improvements thereof, or know-how
related thereto, concerning any past, present, or prospective activities of the
Company, which Consultant makes, discovers or conceives (whether or not during
the hours of Consultant's engagement or with the use of the Company's
facilities, materials, or personnel), either solely or jointly with others
during Consultant's engagement by the Company. All Inventions shall be the sole
property of the Company, and Consultant agrees to perform the provisions of this
Section 7A with respect thereto without the payment by the Company of any
royalty or any consideration therefor, other than the regular compensation paid
to Consultant in his capacity as a consultant of the Company.
(b) Consultant shall apply, at the Company's request and
expense, for United States and foreign letters patent or copyrights, either in
Consultant's name or otherwise as the Company shall desire.
(c) Consultant hereby assigns to the Company all of
Consultant's rights to the Inventions and to applications for United States
and/or foreign letters patent or copyrights and to United States and/or foreign
letters patent or copyrights granted in respect of the Inventions.
(d) Consultant shall acknowledge and deliver promptly to the
Company, without charge to the Company, but at the Company's expense, such
written instruments (including applications and assignments) and do such other
acts, such as giving testimony in support of Consultant's inventorship, as may
be necessary in the opinion of the Company to obtain, maintain, extend, reissue,
and enforce United States and/or foreign letters patent and copyrights relating
to the Inventions and to vest the entire right and title thereto in the Company
or its nominee. Consultant acknowledges and agrees that any copyright developed
or conceived of by Consultant during the term of Consultant's engagement which
is related to the business of the Company shall be a "work for hire" under the
copyright law of the United States and other applicable jurisdictions.
(e) The Company shall also have the royalty-free right to use
in its business, and to make, use, and sell products, processes, and/or services
derived from any inventions, discoveries, concepts, and ideas, whether or not
patentable, including, but not limited to, processes, methods, formulas, and
techniques, as well as improvements thereof or know-how related thereto,
concerning any past, presents, or prospective activities of the Company, which
are not within the scope of Inventions as defined in Section 7A(a) hereof, but
which are conceived or made by Consultant during the period that Consultant is
engaged by the Company with the use or assistance of the Company's facilities,
materials, or personnel.
(f) Consultant represents that Consultant's performance of all
of the terms of this Agreement and as a consultant of the Company does not and
will not breach any trust relationship existing prior to Consultant's engagement
by the Company. Consultant agrees not to enter into any agreement, either
written or oral, in conflict herewith and represents and agrees that Consultant
has not brought and will not bring with Consultant to the Company or use in the
performance of Consultant's responsibilities at the Company any materials or
documents of a former employer or client which are not generally available to
the public, unless Consultant has obtained written authorization from the former
employer or client for their possession and use, and Consultant has provided a
copy of such written authorization to the Company.
7B. Property of the Company. In addition to the provisions of Section 6
above, Consultant agrees that, upon the expiration or termination of
Consultant's engagement with the Company, Consultant will immediately surrender
to the Company all property, equipment, funds, lists, books, records, and other
materials of the Company or any affiliate thereof in the possession of or
provided to Consultant.
8. Indemnification. Consultant shall protect, indemnify and hold
harmless the Company and each affiliate of the Company (including, without
limitation, the Company's shareholders, directors, officers, employees, agents,
attorneys and accountants) from any and all demands, threats, claims, suits,
proceedings, actions, causes of actions, damages, injuries, judgements,
liabilities, obligations, expenses and costs (including costs of litigation and
attorneys' fees), arising from (a) any breach by Consultant of any agreement,
covenant, promise, representation or warranty made by Consultant in this
Agreement, or (b) any action or omission constituting negligence or willful
misconduct of Consultant in the course of, or connected with, the performance of
the Services pursuant hereto.
9. Law Governing. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE
STATE OF TEXAS AND SHALL BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
10. Notices. Any notice or request herein required or permitted to be
given to any party hereunder shall be given in writing and shall be personally
delivered or sent to such party by prepaid mail at the address set forth below
the signature of such party hereto or at such other address as such party may
designate by written communication to the other party to this Agreement. Each
notice given in accordance with this paragraph shall be deemed to have been
given, if personally delivered, on the date personally delivered, or, if mailed,
on the third day following the day on which it is deposited in the United States
mail, certified or registered mail, return receipt requested, with postage
prepaid.
11. Headings. The headings of the paragraphs of this Agreement
have been inserted for convenience of
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reference only and shall in no way restrict or modify any of the terms or
provisions hereof.
12. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
13. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, whether written or
oral, relating to the subject matter hereof.
14. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each party hereto and his, her or its respective
successors, heirs, assigns, and legal representatives, but neither this
Agreement nor any rights hereunder may be assigned by any party hereto without
the consent in writing of the other party.
15. Remedies. No remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise. The election of any one or more remedies by any party hereto shall
not constitute a waiver of the right to pursue other available remedies.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of
the first date written above.
"COMPANY"
JVWEB, INC.
By:_______________________________________
Xxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
"CONSULTANT"
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Name:_____________________________________
Address: _______________________________
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