EXHIBIT 10.4
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into as of
January 4, 2000, by and between Lifef/x Networks, Inc., a Delaware corporation
(the "Company"), and Xxx X. Xxxxxx ("Consultant"), both the Company and the
Consultant being sometimes referred to herein as the "parties," with reference
to the following facts:
A. Consultant possesses special skills, knowledge and qualifications
beneficial to the business of the Company.
B. The parties hereto desire to enter into an agreement under which
Consultant will provide services to the Company.
C. The parties intend that Consultant shall be an independent contractor
with and to the Company under this Agreement and not an employee of the Company.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Engagement and Term. The Company hereby engages the services of
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Consultant and Consultant accepts such engagement upon the terms and conditions
set forth herein for a term commencing on January 4, 2000 and terminating on the
first anniversary hereof (the "Term") unless such engagement is sooner
terminated as hereinafter provided. This Agreement may be extended for two (2)
additional one-year terms by mutual signed written agreement of the parties.
2. Duties. Consultant shall (a) provide consulting and engineering
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services for the Company to design, build and implement all aspects of the
Company's "Lifef/x" products (as more fully described in the attached
description "Addendum "A"), (b) consult on all technical matters requested by
the Company, (c) assist in the search for one or more qualified candidates for
hiring consideration by the Company as directed by the Chief Executive Officer,
(d) search for qualified candidates who may be considered by the Company for
hire as employees or engagement as independent contractors and (e) perform such
other duties pertaining to the Company's business as the Company and Consultant
may reasonably agree from time to time, including, without limitation,
participating in demonstrations and presentations of the Company's "Lifef/x"
products to potential clients, investors and other parties. In addition to
Consultant's obligations hereunder, upon the Company's request, Consultant shall
prepare and deliver to the Company written reports describing in detail the
progress of the services performed under this Agreement.
3. Nature of Services. Consultant shall perform diligently and to the best
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of its talents, skills and expertise, all of the services which Consultant is
required to perform under this Agreement and shall devote such time to the
performance of these duties on average one (1) business day per week for the
initial Term of this Agreement, plus such additional periods of time as
Consultant may reasonably determine to be necessary in order to accomplish the
assigned
tasks. In the performance of services hereunder, Consultant shall hold the title
of Senior Scientific Consultant for such period of time as may be determined by
the Company in its sole and absolute discretion; provided, however, that
Consultant shall not have the power to bind the Company under any contract,
agreement or other arrangement with any third party. Consultant shall not
delegate the performance of any such services to any other person, firm or
corporation without the prior written consent of the Company, which consent the
Company may grant or withhold in its sole and absolute discretion. Subject to
the foregoing and the provisions of Section 7, Consultant shall have the right
to engage in any other gainful activities, ventures and businesses. Consultant's
services hereunder shall be performed at the Company's offices in the greater
Boston, Massachusetts area, unless the parties hereto from time to time mutually
agree otherwise. Notwithstanding the foregoing, Consultant hereby acknowledges
and agrees that Consultant shall be required, as part of the services to be
performed by Consultant hereunder, to travel to such locations in the United
States and Canada as the Company may direct from time to time, and to such
foreign locations as are mutually agreed to from time to time. All such travel
dates shall be mutually agreed to by the parties.
The Company shall have the right, at any time and from time to time, to
hire any other person, firm or entity to provide all or any portion of the
services which Consultant has agreed to provide to the Company hereunder.
Whether or not the Company has hired any such other person, firm or entity, the
Company may, by notice to Consultant, in its sole and absolute discretion and
from time to time, cause Consultant to cease providing any one or more services
hereunder and/or withdraw and/or change any request for services theretofore
made by the Company to Consultant.
4. Compensation. For so long as Consultant is engaged by the Company, the
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Company shall pay to Consultant and Consultant shall accept as payment in full
for all services rendered by Consultant to the Company hereunder a consulting
fee (the "Consulting Fee") equal to One Hundred Fifty Thousand Dollars
($150,000) per annum, payable bi-weekly in arrears.
5. Reimbursement of Expenses. The Company shall reimburse Consultant for
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all out-of-pocket expenses authorized in advance by the Company's Board of
Directors or any Co-President of the Company and incurred by Consultant in the
performance of Consultant's duties hereunder; provided such expenses are
reasonably accounted for to the Company in a manner satisfactory to the Company.
6. Confidential Information and Inventions.
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(a) Consultant recognizes and acknowledges that during the course
of Consultant's engagement by the Company, Consultant shall have access to
Confidential Information. "Confidential Information" means all information or
material not publicly known about the Company and which the Company treats or
designates as confidential, including, without limitation, any such information
which relates to any of its products, services or any phase of its operations,
business or financial affairs. Confidential Information includes, but is not
limited to, the following types of information and other information of a
similar nature (whether or not reduced to writing): trade secrets, inventions,
drawings, file data, documentation, diagrams, specifications, know-how,
processes, formulas, models, flow charts, software in various stages of
development, source codes, object codes, research and development
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procedures, test results, marketing techniques and materials, marketing and
development plans, price lists, pricing policies, business plans, information
relating to customers and/or suppliers' identities, characteristics and
agreements, financial information and projections and employee files.
Confidential Information also includes any information described above which the
Company obtains from another party and which the Company treats and/or has an
obligation to treat as confidential or designates as Confidential Information,
whether or not owned or developed by the Company. Confidential Information shall
not include any information which is or becomes (i) generally available to the
public other than as a result of disclosure in violation of this agreement with
the Company or (ii) generally known in the industry in which the Company is or
may become involved other than as a result of disclosure in violation of this
agreement with the Company. (The term "Company," as used in this Section 6,
means not only Lifef/x Networks, Inc., but also any company, partnership or
entity which, directly or indirectly, controls, is controlled by or is under
common control with Lifef/x Networks, Inc. The term "Consultant", as used in
this Section 6, means not only Xxx X. Xxxxxx, but also all employees of Xxx X.
Xxxxxx.)
(b) Both during the term hereof and at all times thereafter, all
Confidential Information which Consultant may now possess, may obtain during or
after the term hereof, or may create prior to the end of the term hereof will be
held confidential by Consultant, and Consultant will not (nor will Consultant
assist any other person to do so), directly or indirectly, (i) reveal, report,
publish or disclose such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
(other than in the course of carrying out Consultant's duties hereunder or as
expressly authorized by the Company), (ii) render any services to any person,
firm, corporation, association or other entity to whom any such Confidential
Information, in whole or in part, has been disclosed or is threatened to be
disclosed by or at the instance of Consultant, or (iii) use such Confidential
Information except for the benefit of the Company and in the course of
Consultant's engagement by the Company; provided, however that the foregoing
will not apply to the extent Consultant is required to disclose any Confidential
Information by applicable law or legal process so long as Consultant promptly
notifies the Company of such pending disclosure and consults with the Company
prior to such disclosure concerning the advisability of seeking a protective
order or other means of preserving the confidentiality of the Confidential
Information.
(c) Any Inventions (as defined below) in whole or in part conceived,
made or reduced to practice by Consultant (either solely or in conjunction with
others) (i) during or after the Term hereof, which are made through the use of
any of the Confidential Information or any of the Company's equipment,
facilities, supplies, trade secrets or (ii) during the Term hereof, which relate
to the Company's business or the Company's actual or demonstrably anticipated
research and development, or (iii) during or after the Term hereof, which result
from any work performed by Consultant for the Company, will belong exclusively
to the Company and will be deemed part of the Confidential Information for
purposes of this Agreement, whether or not fixed in a tangible medium of
expression. The term "Inventions," as used in this Section 6, means any ideas,
designs, concepts, techniques, inventions and discoveries, whether or not
patentable or protectable by copyright and whether or not reduced to practice,
including, but not limited to, devices, processes, drawings, works of
authorship, computer programs, software, source codes, object codes, interfaces
and networks (and all components of the foregoing),
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methods and formulas together with any improvements thereon or thereto,
derivative works therefrom and know-how related thereto.
(i) Without limiting the foregoing, any such Inventions will be
deemed to be "works made for hire" and the Company will be deemed to be the
owner thereof, provided that in the event and to the extent such works are
determined not to constitute "works made for hire" as a matter of law,
Consultant hereby irrevocably assigns and transfers to the Company all right,
title and interest in and to any such Inventions, including but not limited to
all related patents, copyrights and mask works and all applications therefor and
filings and notification with respect thereto.
(ii) Consultant acknowledges that written records (in the form of
notes, sketches, drawings or such other form(s) as may be specified by the
Company) of all Inventions made by Consultant during the Term hereof or
thereafter which belong exclusively to the Company pursuant to the provisions of
this Section 6), which will be available at reasonable intervals on receipt from
the Company of notice or requests therefor to the Company at all times and will
remain the sole property of the Company. In the event that any Invention is
made, conceived of or reduced to practice by Consultant, either solely or in
conjunction with others, during the Term hereof, which belongs exclusively to
the Company pursuant to the provisions of this Section 6, Consultant will
promptly give notice and fully disclose in writing such Invention to the Co-
Presidents and the Board of Directors of the Company.
(iii) Consultant will assist the Company (at the Company's expense),
either during or subsequent to the term hereof, to obtain and enforce for the
Company's benefit, patents, copyrights, and mask work protection in any country
for any and all Inventions made by Consultant, in whole or in part, the rights
to which belong to or have been assigned to the Company pursuant to the
provisions of this Section 6. Consultant agrees to execute all applications,
assignments, instruments and papers and perform all acts as the Company or its
counsel may deem necessary or desirable to obtain any patents, copyrights or
mask work protection in such Inventions and otherwise to protect the interests
of the Company therein. In the event the Company is unable to secure
Consultant's signature on any document necessary to apply for, prosecute,
obtain, or enforce any patent, copyright, or other right or protection relating
to any Invention which is due to mental or physical incapacity, Consultant
hereby irrevocably designates and appoints the Company and each of its duly
authorized officers and agents as Consultant's agents and attorney-in-fact, to
act for and in Consultant's behalf and stead to execute and file any such
document and to do all other lawfully permitted acts to further the prosecution,
issuance, and enforcement of patents, copyrights, or other right or protections
with the same legal force and effect as if executed and delivered by Consultant.
(d) All memoranda, notes, lists, records and other documents (and all
copies thereof) constituting Confidential Information (including information
relating to all Inventions which belong exclusively to the Company pursuant to
the provisions of this Section 6) made or compiled by Consultant or made
available to Consultant during or after the Term hereof shall be the Company's
property, shall be kept confidential in accordance with the provisions of this
Section 6 and shall be delivered to the Company at any time on request and in
any event upon the termination of Consultant's engagement by the Company for any
reason.
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7. Competition and Solicitation of Business. During the Term of this
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agreement and for an additional period of one year thereafter (collectively, the
"Restricted Period"), Consultant shall not (a) engage or own any interest in any
activities, ventures or businesses which directly or indirectly conflict or
compete with, or are substantially similar to, the activities, ventures and
businesses of the Company to the extent that such activities, ventures, and
businesses are included within the Business Plan of the Company as of the date
of execution of this Agreement, and as the parties hereto may subsequently
reasonably agree as to future amendments in the scope of such Business Plan in a
signed written instrument; (b) solicit or assist any other person or entity to
solicit any business (other than for the Company) from any present or past
customer of the Company; or (c) request or advise any present or future
customer, supplier or vendor of the Company to withdraw, curtail or cancel its
business dealings with the Company; or (d) commit any other act or assist others
to commit any other act which is intended to injure the business of the Company.
Notwithstanding anything to the contrary contained herein, Consultant may own
directly or indirectly, securities of any entity which are traded on any
national securities exchange if Consultant is not a controlling person of, or
member of a group which controls, such entity, and he does not directly or
indirectly own 5% or more of any class of securities issued by such entity.
8. Solicitation of Employees. Consultant shall not during the Restricted
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Period, without the Company's prior written consent, directly or indirectly, (a)
solicit or encourage any employee of the Company to leave the employ of the
Company or (b) hire any employee or former employee of the Company if that
employee has left the employ of the Company within one year prior thereto, with
the exception of Xxxxx Xxxxxxxxxx, a current employee of the Company who may
continue his Post Doctoral fellowship under the direction of Consultant.
Notwithstanding the above, Xxxxx Xxxxxxxxxx'x fellowship may in no way compete,
interfere or diminish Xxxxxxxxxx'x responsibilities to the Company and
Xxxxxxxxxx'x employment agreement with the Company overrides and controls any
understanding in such regard contained in this Agreement.
9. Solicitation of Consultants. Consultant shall not during the Restricted
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Period, without the Company's prior written consent, directly or indirectly, (a)
solicit or encourage to cease work with the Company any consultant then under
contract with the Company or (b) hire any consultant or former consultant of the
Company if that consultant has ceased to be engaged by the Company within one
year prior thereto.
10. Use of Each Party's Name; Use of Facilities. The Company and the
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Consultant may make reasonable written use of or reference to the other party's
name in any marketing, public relations, advertising, display and for other
business purposes without the prior written consent of the other party hereto.
Consultant shall not make any use of the Company's facilities for any activity
unrelated to the business purposes and interests of the Company under this
Agreement without the Company's prior written consent, which consent may be
granted or withheld in the Company's sole and absolute discretion.
11. Survival. Consultant and Company agree that the obligations, covenants
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and agreements of Consultant and Company and the rights of the Company and
Consultant set forth in Sections 6, 7, 8, 9, 10 and 11 (the "Restrictive
Covenants") shall survive any termination or expiration of this Agreement.
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12. Rights and Remedies Upon Breach. If Consultant or Company breaches or
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threatens to commit a breach of any of the provisions of the Restrictive
Covenants, the Company or Consultant shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company or Consultant under law or in equity.
(a) Specific Performance. The right and remedy to have the
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Restrictive Covenants specifically enforced by any court having equity
jurisdiction, all without the need to post a bond or any other security or to
prove any amount of actual damage or that money damages would not provide an
adequate remedy, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company or Consultant and
that money damages will not provide adequate remedy to the Company or
Consultant.
(b) Damages. In the event any of the Restrictive Covenants are
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breached by the Consultant or the Company, the breaching party shall be liable
to the other party for all direct damages resulting therefrom, excluding,
however, any punitive and any consequential damages.
(c) Severability of Covenants/Blue Pencilling. If any court
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determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions; and
(d) Enforceability in Jurisdictions. The Company and Consultant
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intend to and do hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of any jurisdiction within the geographical scope of such
covenants. If the courts of any one or more of such jurisdictions hold the
Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the Company and Consultant that such
determination not bar or in any way affect the right of the Company or the
Consultant to the relief provided above in the courts of any other jurisdiction
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective jurisdictions, such covenants as they relate
to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
13. Termination. In addition to any other termination provisions contained
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herein, this agreement may be terminated:
(a) By either party for "cause" in the event of a material breach of
this Agreement by the other party which is not cured after thirty (30) days'
written notice from the non-breaching party specifying the nature of the breach;
(b) Upon the death or permanent disability of Consultant;
(c) At such time, if any, as the Company shall be adjudicated
insolvent or bankrupt, make an assignment for the benefit of creditors, shall
commence, approve or consent to a case or any proceeding under any bankruptcy,
reorganization or similar law, or have an involuntary case or proceeding in
bankruptcy or reorganization commenced against it, which is not dismissed within
90 days or ceases to conduct business for any reason whatsoever.
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Termination for any of these subsection (c) reasons shall be effective
automatically upon such event without notice to either party; or
(d) At the election of the Company or Consultant, by giving sixty
(60) days' written notice thereof to the other party.
Upon termination of this Agreement, Consultant shall not be obligated
to render any additional services to the Company and the Company shall not be
obligated to make any additional payments to Consultant, whether in the form of
Consulting Fees or otherwise; provided, however, the Company shall pay
Consultant for any uncompensated services theretofore rendered by Consultant.
14. Return of the Company's Property. If this Agreement is terminated for
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any of the reasons specified in Section 13, the Company shall have the right, at
its option, to require Consultant to vacate Consultant's offices, if any, on the
Company's premises prior to the effective date of termination and to cease all
activities on the Company's behalf. Upon the termination of Consultant's
engagement in any manner, Consultant shall immediately surrender to the Company
all notes, data, sketches, drawings, manuals, documents, records, data bases,
programs, computer diskettes, printouts, blueprints, memoranda, specifications,
customer lists, financial reports, equipment and all other physical forms of
expression incorporating or containing any Confidential Information, and all
lists, books and records of, or in connection with, the Company's business, and
all other property belonging to the Company, it being distinctly understood that
all such items are the property of the Company.
15. No Conflicting Agreements. Consultant represents and warrants to the
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Company that to the best of his knowledge there are no agreements, commitments
or relationships to which Consultant is a party which would prevent Consultant's
timely and complete performance of the terms and conditions of this Agreement,
and Consultant knowingly shall not enter into any such agreement, commitment or
relationship during the term of this Agreement.
16. Indemnification.
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(a) By Consultant. Consultant shall indemnify, defend and hold
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harmless the Company, its officers, directors, shareholders, employees and
agents and their respective successors and assigns, from and against any and all
claims, demands, liabilities, losses, expenses, costs, obligations, recoveries
or damages of any nature whatsoever, whether accrued, absolute, contingent or
otherwise, including without limitation court costs and reasonable attorneys'
fees (whether or not suit is brought), arising out of or resulting from or
relating to any material breach by Consultant of any of Consultant's covenants
contained in this Agreement, or by any acts or omissions of Consultant. This
indemnification obligation shall survive any termination of this Agreement.
(b) By Company. Company shall indemnify, defend and hold harmless
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the Consultant and his heirs, successors and permitted and authorized assigns,
from and against any and all claims, demands, liabilities, losses, expenses,
costs, obligations, recoveries or damages of any nature whatsoever, whether
accrued, absolute, contingent or otherwise, including without limitation court
costs and reasonable attorneys' fees (whether or not suit is brought), arising
out
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of or resulting from or relating to any material breach by Company of any of
Company's covenants contained in this Agreement, or by any acts or omissions of
the Company. This indemnification obligation shall survive any termination of
this Agreement.
17. Mediation and Arbitration. Any dispute or controversy arising under
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this Agreement or concerning Consultant's engagement by the Company (including,
without limitation, any controversy as to the availability of any dispute) which
the parties have been unable to resolve themselves shall be settled exclusively
by voluntary mediation by the parties before a jointly appointed mediator, such
appointment of the mediator by the parties to occur within 15 days after receipt
of written notice by either party from the other party hereto concerning
proceeding into mediation for such unresolved dispute. Such voluntary mediation
shall be concluded promptly in Boston, Massachusetts. In the event the parties
do not reach a voluntary agreement in mediation or in the event either party
declines to participate in mediation then such dispute shall be settled by
arbitration to be held in Boston, Massachusetts, before a single arbitrator in
accordance with the rules of the American Arbitration Association ("AAA") then
in effect relating to the arbitration of employment disputes, provided, however,
that any claims relating to the Restrictive Covenants shall be resolved through
the courts. In the event the parties fail to promptly reach agreement on the
appointment of the joint arbitrator within 30 days after receipt by either party
to this Agreement concerning such appointment, then such arbitrator shall be
chosen by the General Manager of the AAA office located in Boston,
Massachusetts. Judgment may be entered on the arbitrator's award in any court
having jurisdiction, and the parties consent to the jurisdiction of the
Massachusetts courts for that purpose.
18. Notices. All notices, requests and other communications of any kind
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which either party hereto may be required or desires to serve upon the other
party under the terms of this Agreement shall be in writing and shall be
delivered by courier or other means of personal service (including by means of a
nationally recognized courier service or a professional return receipt
requested, in all cases addressed to:
If to Consultant: Xxx X. Xxxxxx
0 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fax No. (000) 000-0000
If to Company: Lifef/x Networks, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax No. (000) 000-0000
Attention: Xxxxxxx Xxxxxxx,
CEO and Co-President
All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery to the address set forth above. In case of
service by telecopy, a copy of such notice shall be personally delivered or sent
by registered or certified mail, in the manner set forth above, within three (3)
business days thereafter. Either party hereto may from time to time by notice
in writing served as set forth above designate a different address or a
different or additional person to which all such notices or communications
thereafter are to be given.
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19. Attorneys' Fees. In the event of any action, proceeding or arbitration
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between the parties hereto to enforce any provision or right hereunder, the
unsuccessful party to such action or proceeding shall pay the successful party
all costs and expenses, including but not limited to, reasonable attorneys' fees
incurred therein by such successful party, which cost, expenses and attorneys'
fees shall be included in and as a part of any judgment or award rendered in
such action or proceeding.
20. Relationship and Authority. The relationship between the Company and
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Consultant intended to be created by this Agreement is that of two separate and
independent contractors, and nothing herein contained shall be construed as
creating a relationship of employer and employee or principal and agent between
them. Consultant shall neither act nor make any representation that Consultant
is authorized to act as an employee, agent or officer of the Company.
21. Assignment. The services to be rendered and the duties to be performed
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by Consultant hereunder are of a unique and personal nature. Nothing contained
in this Agreement shall be construed to permit the assignment by Consultant of
any right or obligation under this Agreement and any such assignment is
expressly prohibited without the prior written consent of the Company, which may
be granted or withheld in the Company's sole and absolute discretion.
22. Section Headings. The headings of the several sections and paragraphs
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of this Agreement are inserted solely for convenience of reference and are not a
part hereof and are not intended to govern, limit or aid in the construction of
any term or provision hereof.
23. Entire Agreement. This Agreement (including the exhibits hereto) and
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the agreements, documents and instruments to be executed and delivered pursuant
hereto or thereto are intended to embody the final, complete and exclusive
agreement among the parties with respect to the subject matter hereof; are
intended to supersede all prior agreements, understandings and representations
written or oral, with respect thereto; and may not be contradicted by evidence
of any such prior to contemporaneous agreement, understanding or representation,
whether written or oral.
24. Engagement at Will. Any continuance of Consultant's engagement by the
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Company and Consultant after the expiration of the Term of this Agreement shall
be deemed an engagement at will and shall be subject to termination with or
without cause by either Company or Consultant upon delivery of notice thereof to
the other party. In all other respects, any such continuance of engagement
shall be upon the terms and conditions as set forth herein or as otherwise
mutually agreed upon by the parties hereto.
25. Waiver; Modification. No provision of this Agreement may be amended,
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modified or waived except by an agreement in writing signed by the party against
whom the enforcement of any such waiver, amendment or modification is sought.
26. Severability and Interpretation. The provisions of this Agreement are
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severable, and in the event that any provision is declared invalid, this
Agreement shall be interpreted as if such invalid provision were not contained
herein. Rules of construction and interpretation and other legal fictions such
as, but not limited to, construction against the draftsman shall not be
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employed in the interpretation hereof, and all words and phrases shall be given
their common sense English language meaning.
27. Applicable Law and Venue. This Agreement shall constitute a contract
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under the internal laws of the Commonwealth of Massachusetts and shall be
governed and construed in accordance with the internal laws of said Commonwealth
and without regard to the conflicts of laws principles thereof. Subject to the
provisions of Section 17, and except as provided in Section 12, any action or
proceeding brought hereunder shall be brought in the state or federal courts
sitting in Boston, Massachusetts, the parties hereto hereby waiving any claim or
defense that such forum in not convenient or proper. Each party hereby agrees
that any such court shall have in personam jurisdiction over it, consents to
service of process in any manner authorized by Massachusetts law, and agrees
that a final judgment in any such action or proceeding, subject to any appeal
rights, shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner specified by law.
28. Further Assurances. The Company and Consultant shall, whenever and as
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often as reasonably requested to do so by the other party, execute, acknowledge
and deliver or cause to be executed, acknowledged or delivered, any and all
agreements and instruments as may be necessary, expedient or proper in the
opinion of the requesting party to carry out the intent and purposes of this
Agreement. The parties hereto acknowledge and agree in general covenants of
good faith and fair dealings with one another pursuant to the terms and
conditions of this Agreement.
29. Gender; Tense; etc. Where the context or construction herein permits
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or requires, all words applied in the plural shall be deemed to include the
singular, and vice versa; the masculine shall include the feminine and neuter,
and vice versa; and the present tense shall include the past and future tenses,
and vice versa.
30. Counterparts. This Agreement may be executed simultaneously in any
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number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same agreement, and the parties may
employ facsimile signatures.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
Lifef/x Networks, Inc.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
_______________________
Its: Chairman and Co-
President
___________________
/s/ Xxx Xxxxxx
__________________________
Xxx X. Xxxxxx
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Addendum A
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Lifef/x Standins. Lifef/x Standins are photo-realistic 3D computer models,
which can be animated in real time by text or speech files. The simplest form
of consumer level Standins can be created from 2D digital images, which the
consumer can send to us electronically via our planned Web site, or traditional
analog photo images, sent to us via the postal service. The completed digital
Standins will be delivered to users via the Web. We envision that the Standins
can be used with e-mail, Web pages, chatrooms, PC games, corporate Intranets and
extranets and many other applications. We plan to make the Lifef/x Standins
compatible for different products including PC games, operating systems as
screen saver and e-mail, chatrooms, online help, etc. All products will share
the same technology architecture and Standins will be interchangeable, serving
as the foundation for an expandable and interconnected software platform.
Alternatively, the user can get animation commands streamed in real time for the
Web at bandwidths of 28.8Kbps or more after the Standin is downloaded to the
player.
Professional Standins. More sophisticated and articulated Standins
("Professional Standins") can be created and then animated by actual human
performances that can be captured utilizing our patent pending proprietary
motion capture system that is driven by the Lifef/x technology. The captured
performance of the Professional Standin can then be reproduced on the Lifef/x
Genesis Player from downloaded Lifef/x media files. Alternatively, the user can
get animation commands streamed in real time over the Web at bandwidths of
28.8Kbps or more after the Professional Standin is downloaded to the player.
Lifef/x Genesis Player V1.0. The Lifef/x Genesis Player will be a highly
flexible, programmable player that can be used either for streaming animation
commands of captured Lifef/x Standin performances over the Internet or for
online, real time interactive content generation. It will be developed as a
flexible programming component that can be used and programmed inside a Web
browser, to read e-mail or perform a number of system interactions. When
programmed using either the Jscript of Vbscript languages inside Web sites,
Standins will be capable of complex autonomous interactions with the user.
Standins will be capable of being active or inactive, visible or not visible and
will provide autonomous behavior while waiting for user interactions or Web data
to be downloaded. The first version will allow to use Text-To-Speech to read
text messages, and the second version will use recorded voice, which could be
recorded and saved for later delivery or streamed. When played back, the
Lifef/x standin lips and face will be correctly animated from the audio signal.
Lifef/x Email interfaces. Specific interfaces will be developed to end-user
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email programs such as Microsoft Outlook Express, Microsoft Outlook, Netscape
Mail, etc. These will allow users to use their usual email program and in
addition be able to send or receive messages that are to be delivered with the
Lifef/x standins.
Lifef/x Messaging (IM) Interfaces. Interfaces and modules will be added to
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Instant Messaging systems such that users will be able to use standins in the IM
conversations. These features will be added to existing IM systems.
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Lifef/x chat Room Interfaces. Similar to IM, Lifef/x interfaces to common chat
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room interfaces will allow users to use standins in chat rooms.
Lifef/x Director. Our Lifef/x Director software will allow the additional
animation and control of Standins for uses such as sending e-mails with embedded
animation commands. Using the software, the user will be able to add four basic
emotions (happy, sad, angry, surprised) and simple motions.
Lifef/x Creator Software. Our Lifef/x Creator software will be offered to
sophisticated Web users as an advanced tool to control Stands for integration in
Web pages, e-mail or to create Lifef/x media files. This program will be a
simplified version of the Lifef/x Pro-Creator (discussed below) and this
software will be developed simultaneously with and have the same components as
the Lifef/x Pro-Creator, except for certain customizations. The Lifef/x Creator
will be expandable by adding our Lifef/x e-Motor Packs which are packages of
emotional cues.
Lifef/x Pro-Creator Software. The Lifef/x Pro-Creator software will allow the
professional Web designer to fully animate and control Lifef/x Standins using a
flexible and powerful graphical user interface. This digital studio will allow
the designer to control the position, lighting, expressions, emotions, and
movement of the Standins and how they interact.
Lifef/x SDK. We plan to develop the Lifef/x SKD as a component for software
developers to include in their applications. It will integrate Lifef/x Standins
in applications, such as PC games and other software, as computer hosts to lead
users through new programs and equipment, or for e-mail, screen savers, etc.
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LifeFX Development to be undertaken by Xxx X. Xxxxxx
1. Nonlinear System Identification (NLSYSID) for speech synchronization and
viseme generation
. Generation of NLSYSID Tools
. Preliminary test of nonlinear system identification for predicting mouth
positions
. Acquisition of accurate data for training the NLSYSID technique
. NLSYSID applied to training data set
. Verification of accuracy of NLSYSID to predict mouth opening, rounding and
position
2. NLSYSID applied to Vestibulo-Ocular Reflex
. Generation of NLSYSID GUI to test the NLSYSID technique
. Preliminary evaluation of NLSYSID for modeling the VOR
. Data acquisition of VOR data including eye and head position
. Accurate modeling of NLSYSID
. Verification of accuracy of VOR nonlinear model
3. Automation of Face Mapping
. GUI development for displaying images and controls
. Collection of anthropomorphic data for location of facial fiducial points
. Development of basic image processing functions
. Development of new cross-correlation based on hyperbolic transforms for
feature detection
. Application of NLSYSID for automating operator detection
. NLSYSID techniques for fitting basis functions (e.g. Hermite, B-Splines) to
face profile
4. Windows Media Software
. Creation of ASF streaming files from MPEG and AVI file formats
. ASX coding and embedding ASF streams with additional data (XML)
. Embedding private data in ASF streams
. Embedding commands and programs in ASF streams
5. Development of embedded behaviors and automatisms
. Module for automatic switching and time spanning of "attention" and subject
of mental focus, particularly in applications to vision control
. Generation of random head movements and rotations
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