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Exhibit 10.8
Independent Contractor Agreement with Xxxxxx Xxxxxxx dated April 15, 1999
XXXXXXXXXX.XXX, INC.
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (this "Agreement") is entered into
as of this 15th day of April, 1999, by and between XxxxxxXxxx.Xxx, Inc. a
Delaware corporation (the "Company") and Xxxxxx Xxxxxxx ("Contractor"),
collectively referred to hereinafter as the "Parties" or individually as a
"Party."
WHEREAS, the Company is engaged in the business of creating a
sports-based membership organization that provides sports, outdoor, and
fitness-related products and services through an Internet portal and through a
network of independent sales representatives; and
WHEREAS, the Company seeks to utilize the services of Contractor to
provide marketing research and general business consulting services (hereafter,
the "Services") in furtherance of the development and promotion of such
membership organization.
NOW, THEREFORE, In consideration of the foregoing premises and the
mutual covenants contained herein, the Parties hereto agree as follows:
1. Services. For a minimum of eighteen (18) hours per week, Contractor agrees to
provide the Services as requested by the Company and in accordance with accepted
industry practices and guidelines and all applicable federal, state and local
laws, rules and regulations. Contractor also agrees to provide the Services
pursuant to the guidelines and requirements promulgated by the Company from time
to time and provided to Contractor by the Company.
2. Term. This Agreement will become effective on the date stated above, and will
continue in effect for one (1) year unless terminated by either Party as
provided herein.
3. Obligations of Contractor.
3.1 Licenses and Education. Contractor shall be responsible for
obtaining and maintaining Contractor's professional licenses, and/or
certifications, if any, and obtaining any continuing education or certification
that is required or is prudent to remain current and knowledgeable in
Contractor's field.
3.2 Taxes. Contractor shall be responsible for paying federal, state and
local income, Social Security, unemployment, and all other taxes upon amounts
earned by or paid to Contractor pursuant to this Agreement.
3.3 Expenses. Except as agreed by the Company in writing, Contractor
shall be responsible for providing Contractor's own transportation, lodging,
meals, insurance, and any and all other employment-related expenses.
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4. Compensation. Unless otherwise set forth in writing and signed by both
Parties, the Company shall pay and Contractor hereby accepts as full
compensation for Services rendered hereunder, the following amounts:
4.1 Cash. The Company agrees to pay Contractor Five Thousand Dollars
($5,000) per month. Payment with respect thereto shall be made on the last day
of each month for which Services have been rendered under this Agreement.
4.2 Grant of Option. Effective as of the date hereof, the Company hereby
grants to Contractor an option ("Option") to acquire sixty thousand (60,000)
shares of its common stock at an exercise price of $1.00 per share. The Option
shall vest in twelve (12) successive equal monthly installments of 5,000 shares
each, with the first installment vesting May 15, 1999. The Option or any portion
thereof shall expire if not exercised within five (5) years from the date
hereof. The Option shall be governed by and shall be subject to the provisions
of the Company's 1998 Stock Option Plan ("Plan"). The Company shall prepare and
deliver to Contractor a separate grant of the Option in accordance with the Plan
in the form attached hereto as Exhibit "A."
5. Termination.
5.1 Right of Termination. This Agreement may be terminated by either
Party, without cause, upon thirty (30) days prior written notice to the other
Party. This Agreement may be terminated by the Company for cause at any time and
without prior notice. For purposes of this Agreement, "cause" shall include,
without limitation, violations by Contractor of the terms of this Agreement or
the failure of Contractor to timely fulfill assignments given by management of
the Company under this Agreement.
5.2 Effect of Termination. In the event this Agreement is terminated,
all obligations of the Company and all obligations of Contractor shall cease
except as provided in Sections 6-16 below. Upon such termination, Contractor or
Contractor's representative or estate shall be entitled to receive only such
compensation earned or accrued by Contractor under Section 4 above prior to the
date of termination, computed pro rata up to and including the date of
termination, but shall not be entitled to any further compensation from such
date, provided however, that the Company may withhold any amounts under this
Agreement as a set-off against damages incurred from Contractor's breach of this
Agreement, and that any amounts payable hereunder shall be conditioned upon the
receipt by the Company of all Company materials and property from Contractor to
which Contractor has been entrusted or of which Contractor is in possession.
6. Covenant Not to Compete
6.1 Covenant. Contractor hereby agrees that during the term of this
Agreement and during the one (1) year period following the termination of this
Agreement, Contractor will not directly or indirectly compete (as defined in
Section 6.2 below) with the Company in any geographic area in which the Company
does or has done business, and will not (i) induce or attempt to induce any
employee of the Company to leave the employ of the Company or in any was
interfere with the relationship between the Company and any employee thereof,
(ii) hire directly or through another entity any person who was an employee of
the Company at any time during the six month period preceding the termination of
this Agreement, (iii) induce or attempt to induce any customer, supplier,
licensee, or other business relation of the Company to cease doing business with
the Company or in any way interfere with the relationship between any such
customer, supplier, licensee, or business relation and the Company, or (v)
authorize or assist in the taking of any of the foregoing actions by any third
party.
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6.2 Direct and Indirect Competition. As used herein, the phrase
"directly or indirectly compete" shall include owning, managing, operating or
controlling, or participating in the ownership, management, operation or control
of, or being connected with or having any interest in, as a stockholder,
director, officer, employee, contractor, agent, consultant, assistant,
instructor, advisor, sole proprietor, partner or otherwise, any business (other
than the Company's) which is the same as or competitive with any business
conducted or to be conducted by the Company; provided, however, that this
prohibition shall not apply to ownership of less than one percent (1%) of the
voting stock in companies whose stock is traded on a national securities
exchange or in the over-the-counter market.
6.3 Enforceability. If any of the provisions of this Section 6 is held
unenforceable, the remaining provisions shall nevertheless remain enforceable,
and the court making such determination shall modify, among other things, the
scope, duration, or geographic area of this Section to preserve the
enforceability hereof to the maximum extent then permitted by law. In addition,
the enforceability of this Section is also subject to the injunctive and other
equitable powers of a court as described in Section 10 below.
7. Confidential Information. Contractor acknowledges that during the term of
this Agreement, Contractor will develop, discovery, have access to, and become
acquainted with technical, financial, marketing, personnel, and other
information relating to the present or contemplated products or the conduct of
business of the Company which is of a confidential and proprietary nature
("Confidential Information"). Contractor agrees that all files, records,
documents, and the like relating to such Confidential Information, whether
prepared by him or otherwise coming into Contractor's possession, shall remain
the exclusive property of the Company, and Contractor hereby agrees to promptly
disclose such Confidential Information to the Company upon request and hereby
assigns to the Company any rights which Contractor may acquire in any
Confidential Information. Contractor further agrees not to disclose or use any
Confidential Information and to use Contractor's best efforts to prevent the
disclosure or use of any Confidential Information either during the term of this
Agreement or at any time thereafter, except as may be necessary in the ordinary
course of performing Contractor's duties under this Agreement. Upon termination
of this Agreement for any reason, Contractor shall promptly deliver to the
Company all materials, documents, data, equipment, and other physical property
of any nature containing or pertaining to any Confidential Information, and
Contractor shall not take from the Company's premises, without its prior written
consent, any such material or equipment or any reproduction thereof.
8. No Conflicts. Contractor hereby represents that, to the best of Contractor's
knowledge, Contractor's performance of all the terms of this Agreement and work
as an independent contractor for the Company does not breach any oral or written
agreement which Contractor has made prior to the effective date of this
Agreement.
9. Equitable Remedies. Contractor acknowledges that Contractor's obligations
hereunder are special, unique, and extraordinary, and that a breach by
Contractor of certain provisions of this Agreement, including without limitation
Sections 6 and 7 above, would cause irreparable harm to the Company for which
damages at law would be an inadequate remedy. Accordingly, Contractor hereby
agrees that in any such instance the Company shall be entitled to seek
injunctive or other equitable relief in addition to any other remedy to which it
may be entitled. All of the rights of the Company from whatever source derived,
shall be cumulative and not alternative.
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10. Assignment. This Agreement is for the unique personal services of Contractor
and is not assignable or delegable in whole or in part by Contractor without the
consent of an authorized representative of the Company. This Agreement may be
assigned or delegated in whole or in part by the Company and, in such case, the
terms of this Agreement shall inure to the benefit of, be assumed by, and be
binding upon the entity to which this Agreement is assigned.
11. Waiver or Modification. Any waiver, modification, or amendment of any
provision of this Agreement shall be effective only if in writing in a document
that specifically refers to this Agreement and such document is signed by the
Parties hereto.
12. Independent Contractor. The Parties agree that Contractor is an independent
contractor with respect to the Company and that no employment relationship
exists between the Parties hereto. Contractor shall use Contractor's own
professional discretion in performing the services called for hereunder. As an
independent contractor, Contractor shall have no power to act for, bind, or
otherwise create or assume any obligation on behalf of the Company, for any
purpose whatsoever.
13. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the Parties hereto with respect to the subject
matter covered herein and supersedes all prior oral or written understandings
and agreements with respect thereto.
14. Severability. If any provision of this Agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining provisions
shall nevertheless remain in full force and effect.
15. Notices. Any notice required hereunder to be given by either Party shall be
in writing and shall be delivered personally or sent by certified or registered
mail, postage prepaid, or by private courier, with written verification of
delivery, or by facsimile transmission to the other Party to the address or
telephone number set forth below or to such other address or telephone number as
either Party may designate from time to time according to this provision. A
notice delivered personally shall be effective upon receipt. A notice sent by
facsimile transmission shall be effective twenty-four hours after the dispatch
thereof. A notice delivered by mail or by private courier shall be effective on
the third day after the day of mailing.
(a) To Contractor at: ________________________
________________________
________________________
(b) To the Company at: 0000 Xxxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 00
Xxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
16. Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah without regard to the conflict of
laws. The Parties further agree that proper venue and jurisdiction for any
dispute under this agreement shall be the courts in the State of Utah.
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IN WITNESS WHEREOF, Contractor has signed this Agreement personally and
the Company has caused this Agreement to be executed by its duly authorized
representative.
XXXXXXXXXX.XXX CONTRACTOR
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxx Xxxxxx Xxxxxxx
Executive Vice President and
General Counsel
