EXHIBIT 10.38
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of May 10, 1999
by and between Nettaxi, Inc. (the"Company") of 0000 X. Xxxxxx Xxx., Xxxxxxxx,
Xxxxxxxxxx 00000 and Fontenelle LLC ("Consultant") having a place of business at
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
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A. The Company is in the business of providing entertainment, education
and information services over the World Wide Web through its Internet Website at
xxx.xxxxxxx.xxx.
B. Consultant has certain skills, experience and abilities with respect
to the Company's business.
C. The Company desires to retain Consultant as an independent
contractor to perform consulting services (the "Services") for the Company from
time to time and Consultant is willing to perform such services, on the basis
set forth more fully below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises contained herein,
the Company and Consultant agree as follows:
1. Services. Consultant agrees to perform the Services described in
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mutually agreed upon Project Assignment attached hereto in a workmanlike manner
according to the schedule of work set forth therein. A copy of the form of
Project Assignment is attached hereto as Exhibit A ("Project Assignment").
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Consultant agrees that the terms of this Agreement will apply to all services
performed by Consultant for the Company even if a Project Assignment form has
not been completed for a special assignment.
2. Payment for Services. The Company shall pay Consultant the fee set
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forth in the Project Assignment for the performance of the Services, together
with reimbursement for Consultant's direct costs, as provided therein.
3. Relationship of Parties. Consultant shall perform the Services
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under the general direction of the Company and agrees to devote his or her best
efforts to the Services and to the reasonable satisfaction of the Company.
Notwithstanding, Consultant shall determine, in Consultant's sole discretion,
the manner and means by which the Services are accomplished, subject to the
express condition that Consultant shall at all times comply with applicable law.
Consultant is an independent contractor and Consultant is not an agent or
employee of the Company, and has no authority whatsoever to bind the Company by
contract or otherwise.
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4. Company Rules. Consultant shall observe the working hours, working
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rules and holiday schedules of the Company while working on the Company's
premises.
5. Taxes and Benefits. Consultant acknowledges and agrees that it
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shall be the obligation of Consultant to report as income all compensation
received by Consultant pursuant to this Agreement and Consultant agrees to
indemnify the Company and hold it harmless to the extent of any obligation
imposed on the Company to pay any taxes or insurance, including without
limitation, withholding taxes, social security, unemployment, or disability
insurance, including interest and penalties thereon, in connection with any
payments made to Consultant by the Company pursuant to this Agreement.
6. Inventions. All inventions, discoveries, concepts and ideas whether
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patentable or not, including but not limited to hardware, software, processes,
methods, techniques as well as improvements thereto conceived, made, conceived
or developed by Consultant and its agents, alone or with others, which (i)
directly relate to or reference to the services of the Company; or (ii) which
Consultant or its agents may receive from the Company while performing the
Services (collectively referred to as "Developments"). Consultant hereby
assigns his or her entire right, title and interest in and to all such
Developments and any intellectual property rights arising therefrom. Consultant
shall further cooperate with the Company in connection with any applications,
filings or documents prepared and or filed related to the Developments.
However, the Company shall have no rights to any products or information owned
or developed by Consultant or its suppliers prior to the execution of this
Agreement or modifications to such products or information in connection with
the Project Assignment.
7. Confidentiality. Consultant and its agents agree to hold the
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Company's Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. Consultant and its agents
further agree to deliver promptly all written Confidential Information in
Consultant's or its agents possession to the Company at any time upon the
Company's request. For purposes hereof, "Confidential Information" shall
include all confidential and proprietary information disclosed by the Company
including but not limited to software source code, technical and business
information relating to the Company's current and proposed products, research
and development, production, manufacturing and engineering processes, costs,
profit or margin information, finances, customers, suppliers, marketing and
production, personnel and future business plans. "Confidential Information"
also includes proprietary or confidential information of any third party who may
disclose such information to the Company or Consultant and its agents in the
course of the Company's business. In such case, Consultant must be aware from
the content of the disclosure or notice by the Company or request of the third
party that such information is Confidential. The above obligations shall not
apply to Confidential Information which is already known to the Consultant or
its agents at the time it is disclosed, or which before being divulged either
(a) has become publicly known through no wrongful act of the Consultant or its
agents; (b) has been rightfully received from a third party without restriction
on disclosure and without breach of this Agreement or other Agreements entered
into by the Company; (c) has been independently developed by the Consultant or
its agents; (d) has been approved for release by written authorization of the
Company; (e) has been disclosed pursuant to a requirement of a governmental
agency or of law.
8. Non-Solicitation. Consultant shall not for a period of two years
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after the termination of his Services for whatever reason, solicit for hire, or
hire any employee of the Company, or any person who was employed by the Company
at any time within six months of the termination of Consultant's Services with
the Company, to work for Consultant or any other person or entity.
9. Termination. This Agreement shall commence on the date first
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written below and shall continue for a period of two (2) years or until
terminated as follows:
(a) Either party may terminate the Agreement in the event of a breach
by the other party of any of its obligations contained herein if such breach
continues uncured for a period of ten (10) days after written notice of such
breach to the other party;
(b) Either party may terminate this Agreement upon written notice to
the other party if either party is adjudicated bankrupt, files a voluntary
petition of bankruptcy, makes a general assignment for the benefit of creditors,
is unable to meet its obligations in the normal course of business as they fall
due or if a receiver is appointed on account of insolvency;
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(c) Nettaxi may terminate this Agreement for its convenience upon ten
(10) days written notice to Consultant.
Upon the termination of this Agreement for any reason, each party
shall be released from all obligations and liabilities to the other occurring or
arising after the date of such termination, except that any termination shall
not relieve Consultant or the Company of their obligations under Paragraph 5
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("Taxes and Benefits"), Paragraph 6 ("Inventions"), Paragraph
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7("Confidentiality"), Paragraph 8 ("Non-Solicitation") and Paragraph 10
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("General"), nor shall any such termination relieve Consultant or the Company
from any liability arising from any breach of this Agreement. In addition, any
security card keys for the Company's facilities issued to Consultant during
Consultant's tenure at the Company shall be relinquished immediately upon
termination.
10. General.
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(a) Pre-Existing Obligations. Consultant represents and warrants
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that Consultant is not under any pre-existing obligation or obligations
inconsistent with the provisions of this Agreement.
(b) Assignment. The rights and liabilities of the parties hereto
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shall bind and inure to the benefit of their respective successors, executors
and administrators, as the case may be, provided that, as the Company has
contracted for Consultant's services, Consultant may not assign or delegate its
obligations under this Agreement either in whole or in part without the prior
written consent of the Company.
(c) Equitable Relief. Because the Services are personal and unique
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and because Consultant shall have access to and become acquainted with the
Confidential Information of the Company, Consultant agrees that the Company
shall have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or any other equitable relief without prejudice
to any other rights and remedies that the Company may have for the breach of
this Agreement.
(d) Attorney's Fees. If any action at law or in equity is necessary
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to enforce the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and expenses in addition to any other
relief to which such prevailing party may be entitled.
(e) Governing Law; Severability. This Agreement shall be governed by
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and construed in accordance with the laws of the State of California as such
laws are applied to Agreements to be entered into and to be performed entirely
within California between California residents. The parties agree that the
United Nations Conventions on Contracts for the International Sale of Goods is
specifically excluded in its entirety from application to this Agreement. If
any provision of this Agreement is for any reason found by a court of competent
jurisdiction to be unenforceable, the remainder of this Agreement shall continue
in full force and effect.
(f) Counterpart. This Agreement may be executed in counterparts,
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each of which shall constitute an original and all of which shall be one and the
same instrument.
(g) Complete Understanding Modification. This Agreement
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constitutes the full and complete understanding and Agreement of the parties
hereto and supersedes all prior understandings and agreements. Any waiver,
modification or amendment of any provision of this Agreement shall be effective
only in writing and signed by the parties thereto.
(h) Waiver. The failure of either party to insist upon strict
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compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power at any
one time be deemed a waiver or relinquishment of that right or power for all or
any other time.
(i) Incorporation by Reference. Any exhibits referred to within
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this Agreement shall be considered as incorporated into, and part of, this
Agreement.
(j) Notices. Any notices required or permitted hereunder shall be
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given to the appropriate party at the address specified below or at such other
address as the party shall specify in writing and shall be by personal delivery,
facsimile transmission or certified or registered mail. Such notice shall be
deemed given upon personal delivery to the appropriate address or upon receipt
of electronic transmission or, if sent by certified or registered mail, three
days after the date of the mailing.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date written below.
THE COMPANY: NETTAXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx., Secretary
CONSULTANT: FONTENELLE LLC
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Manager
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EXHIBIT A
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Project Assignment # 1
under Consultant Agreement, dated as of May 10, 1999
Duties: Consultant shall render such services as the Company may from time to
time request in connection with the financial planning, capital structure,
development of a business plan and the evaluation of financing alternatives and
including without limiting the foregoing:
(1) advising the Company regarding the existing and possible alternative
financial structures of the Company;
(2) advising the Company regarding the formulation of business and
financing goals and plans;
(3) advising the Company concerning strategic issues, including alliance
partnerships and joint ventures;
(4) advising the Company concerning short and long range financial
planning;
(5) exposing the Company to business opportunities;
(6) advising the Company regarding the implementation of the Company's
goals and plans.
Schedule: The work will commence on the date of this Agreement (the
"Commencement Date") and shall be effective for a period of thirty (30) months.
Fee: As compensation for Consultant's Services to the Company, Consultant shall
receive fully vested options (the "Options") to purchase up to one hundred and
fifty thousand (150,000) shares of the Common Stock of the Company under the
Company's stock option plan. The exercise price for the Options shall be
$14.875 dollars per share. The options shall have certain "piggy back"
registration rights as more fully set forth in the option agreement.
Reimbursement of Costs: The Company shall reimburse Consultant for the
following, as approved in advance by the Company: (i) outside services at cost;
(ii) direct charges at cost; (iii) travel and subsistence at cost.
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