EXHIBIT 10.16
iBEAM BROADCASTING CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is effective as of the 25th day of
January, 2000 (the "Effective Date") by and between iBEAM Broadcasting
Corporation, a Delaware corporation (the "Company"), and Xxxxxxxx Xxxxxx
("Consultant"). The Company desires to retain Consultant as an independent
contractor to perform consulting services for the Company and Consultant is
willing to perform such services, on terms set forth more fully below. In
consideration of the mutual promises contained herein, the parties agree as
follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services
("Services") described in Exhibit A, attached hereto.
(b) The Company agrees to pay Consultant the compensation set forth
in Exhibit A for the performance of the Services.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed by the Company
either directly or indirectly in writing, orally or by drawings or inspection
of parts or equipment.
(b) Consultant will not, during or subsequent to the term of this
Agreement, use the Company's Confidential Information for any purpose
whatsoever other than the performance of the Services on behalf of the Company
or disclose the Company's Confidential Information to any third party, and it
is understood that said Confidential Information shall remain the sole property
of the Company. Consultant further agrees to take all reasonable precautions
to prevent any unauthorized disclosure of such Confidential Information
including, but not limited to, having each employee of Consultant, if any, with
access to any Confidential Information, execute a nondisclosure agreement
containing provisions in the Company's favor substantially similar to Sections
2, 3 and 4 of this Agreement. Upon Company's request, Consultant shall provide
copies of such non-disclosure agreements to Company. Confidential Information
does not include information which (i) is known to Consultant at the time of
disclosure to Consultant by the Company as evidenced by written records of
Consultant, (ii) has become publicly known and made generally available through
no wrongful act of Consultant, or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such disclosure.
(c) Consultant agrees that Consultant will not, during the term of
this Agreement, improperly use or disclose any proprietary information or trade
secrets of any former or current employer or other person or entity with which
Consultant has an agreement or duty to keep in confidence information acquired
by Consultant in confidence, if any, and that Consultant will not bring onto
the premises of the Company any unpublished document or proprietary information
belonging to such employer, person or entity unless consented to in writing by
such employer, person or entity.
(d) Consultant recognizes that the Company has received and in the
future will receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to
maintain the confidentiality of such information and to use it only for certain
limited purposes. Consultant agrees that Consultant owes the Company and such
third parties, during the term of this Agreement and thereafter, a duty to hold
all such confidential or proprietary information in the strictest confidence
and not to disclose it to any person, firm or corporation or to use it except
as necessary in carrying out the Services for the Company consistent with the
Company's agreement with such third party.
(e) Upon the termination of this Agreement, or upon Company's
earlier request, Consultant will deliver to the Company all of the Company's
property or Confidential Information in tangible form that Consultant may have
in Consultant's possession or control (including without limitation,
Confidential Information in the possession or control of Consultant's
employees).
3. OWNERSHIP
(a) Consultant agrees that all copyrightable material, notes,
records, drawings, designs, inventions, improvements, developments, discoveries
and trade secrets (collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others, during the period of this
Agreement which relate in any manner to the business of the Company that
Consultant may be directed to undertake, investigate or experiment with, or
which Consultant may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder, are the sole property of the Company. In addition, any Inventions
which constitute copyrightable subject matter shall be considered "works made
for hire" as that term is defined in the United States Copyright Act.
Consultant further agrees to assign (or cause to be assigned) and does hereby
assign fully to the Company all such Inventions and any copyrights, patents,
mask work rights or other intellectual property rights relating thereto.
(b) Consultant agrees to assist Company, or its designee, at the
Company's expense, in every proper way to secure the Company's rights in the
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries, including the
disclosure to the Company of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths, assignments
and all other instruments which the Company shall deem necessary in order to
apply for and obtain such rights and in order to assign and convey to the
Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to be executed,
when it is in Consultant's power to do so, any such instrument or papers shall
continue after the termination of this Agreement.
(c) Consultant agrees that if the Company is unable because of
Consultant's unavailability, dissolution, mental or physical incapacity, or for
any other reason, to secure Consultant's signature to apply for or to pursue
any application for any United States or foreign patents or mask work or
copyright registrations covering the Inventions assigned to the Company above,
then Consultant hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Consultant's agent and attorney in fact,
to act for and in Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work registrations
thereon with the same legal force and effect as if executed by Consultant.
4. CONFLICTING OBLIGATIONS
(a) Consultant certifies that Consultant has no outstanding
agreement or obligation that is in conflict with any of the provisions of this
Agreement, or that would preclude Consultant from complying with the provisions
hereof, and further certifies that Consultant will not enter into any such
conflicting Agreement during the term of this Agreement.
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(b) In view of Consultant's access to the Company's trade secrets
and proprietary know-how, Consultant further agrees that Consultant will not,
without Company's prior written consent, perform identical or substantially
similar Services as those under this Agreement for any third party during the
term of this Agreement.
(c) Consultant agrees not to solicit the services of or employ of any
of the Company's employees during the term of this Agreement and for a period of
one (1) year thereafter without the Company's prior written consent.
5. TERM AND TERMINATION
(a) This Agreement will commence on the date first written above and
will continue until final completion of the Services or termination as provided
below.
(b) Either the Company or Consultant may terminate this Agreement
upon two (2) days prior written notice thereof to the other party for any
reason or no reason, with or without cause. Any such notice shall be addressed
to Consultant at such facsimile address as either party may notify the other of
and shall be deemed given upon delivery when delivered by facsimile with
confirmation by mail. The Company may terminate this Agreement immediately and
without prior notice if Consultant refuses to or is unable to perform the
Services or is in breach of any material provision of this Agreement.
(c) Upon such termination all rights and duties of the parties
toward each other shall cease except Sections 2 (Confidentiality), 3
(Ownership) and 7 (Independent Contractors) shall survive termination of this
Agreement.
6. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may
be assigned or transferred by Consultant without the express written consent of
the Company.
7. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed to constitute
Consultant as an agent, employee or representative of the Company, but
Consultant shall perform the Services hereunder as an independent contractor.
8. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of
the State of California, without reference to its conflict of law principles.
9. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes
any prior agreements between them, whether written or oral, with respect to the
subject matter hereof. No waiver, alteration, or modification of any of the
provisions of this Agreement will be binding unless in writing and signed by
duly authorized representatives of the parties hereto. In the event of any
conflict between the terms of this Agreement and any exhibit hereto, the terms
of this Agreement shall govern.
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10. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement,
or any terms thereof, will not affect the validity of this Agreement as a whole,
which will at all times remain in full force and effect.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Agreement below to indicate their acceptance of its terms.
iBEAM BROADCASTING CORPORATION XXXXXXXX XXXXXX ("CONSULTANT")
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Chief Executive Office
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EXHIBIT A
SERVICES AND COMPENSATION
1. Contact. Consultant's principal Company contact:
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Name: Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
2. Services. Consultant will render to the Company the following Services to
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the reasonable satisfaction of the Company:
Consultant agrees to assist the Company in financing plans and
strategies and perform such other business and marketing services as
may from time to time be reasonably requested by the Company.
3. Compensation.
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As the only consideration due to the Consultant for the Services,
Consultant shall have the right to purchase 660,000 shares of common
stock of the Company at a purchase price of $6.66 per share. Such
shares shall be subject to the Company's right of repurchase as
further set forth in that certain Restricted Stock Purchase Agreement
dated as of January 25, 2000.
