1
Exhibit 99.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of the 29th day
of March, 2001 by and between xXxxx.xxx, Inc. ("uDate"), a Delaware corporation,
and Xxx Xxxxxx ("Consultant").
1. ENGAGEMENT OF CONSULTANT.
uDate hereby engages Consultant to provide the services to uDate
described herein, and Consultant hereby accepts such engagement, on the terms
and conditions set forth below.
2. DESCRIPTION OF SERVICES.
Throughout the term of this Agreement, Consultant shall provide
consulting services to uDate, as such services are requested by uDate from time
to time and mutually agreed upon by the parties. Nothing herein shall limit
Consultant's right to engage in employment outside of this Agreement, provided
such employment is not inconsistent with the terms herein.
3. COMPENSATION.
(a) uDate shall pay Consultant a fee of $10,000 (US) per month, which
shall be due and payable on the first day of each month during the term of this
Agreement. In addition, uDate shall reimburse Consultant for any out-of-pocket
expenses he incurs in providing services under this Agreement, provided that
such expenses have been approved in advance by uDate.
(b) In addition to the above compensation, uDate shall also provide to
Consultant for his use and/or pay for the following: (i) health insurance for
Consultant; (ii) an office; (iii) a laptop computer; (iv) a cell phone; (v) a
DSL line at Consultant's residence; (vi) authorized business expenses of up to
$500 per month (minus the costs of the cell phone and DSL line).
4. TERM OF AGREEMENT, TERMINATION.
This Agreement shall become effective on the date hereof and shall
continue in full force and effect until the promissory note of even date issued
in connection with the merger of Xxxx.xxx, Inc. with and into a wholly-owned
subsidiary of uDate is paid in full. In addition, Consultant may terminate this
Agreement upon 30 days prior written notice to uDate.
5. ASSIGNMENT OF INVENTIONS.
If deemed reasonably necessary by uDate, Consultant agrees to enter
into uDate's standard form of assignment of inventions agreement for any
intellectual property created or developed by Consultant as a result of his
services provided under this Agreement.
1
2
6. WARRANTIES.
Consultant warrants that: (a) Consultant's performance of services
pursuant to this Agreement will not violate any agreement or obligation between
Consultant and a third party; and (b) all services provided by Consultant in
connection with this Agreement shall be performed in a professional manner,
shall be of high quality, and shall be in compliance with all applicable U.S.
laws and regulations.
7. COVENANT NOT TO DISCLOSE.
7.1 Consultant recognizes that during the term of this Agreement,
Consultant shall have access to certain Confidential Information (as defined
below) relating to the business of uDate. Consultant agrees that all
Confidential Information shall remain the exclusive property of uDate. At all
times during or following the term of this Agreement, Consultant agrees not to
disclose to anyone outside uDate, nor to use for any purpose other than in
connection with the provision of services for uDate pursuant to this Agreement,
(i) any Confidential Information, or (ii) any information uDate has received
from others, including its customers, which uDate is obligated to treat as
confidential or proprietary.
7.2 "Confidential Information" means any information or material,
whether or not owned or developed by uDate, in which uDate or any third party to
whom uDate is bound by an obligation of confidentiality regarding such
information or material, has rights, and which Consultant may obtain knowledge
of through or as a result of the provision of services pursuant to this
Agreement. Without limiting the foregoing, Confidential Information means: (a)
any and all software and any and all copyrighted materials which are proprietary
to uDate; and (b) any and all business plans, marketing techniques and plans,
financial materials, cost data, customer lists, pricing policies and other
proprietary business information of uDate or its customers. Notwithstanding the
foregoing, Confidential Information shall not include information that (i)
Consultant lawfully obtains from any third party who has lawfully obtained such
information; (ii) is generally available to the public or is later published or
generally disclosed to the public by uDate; or (iii) was already known to or in
the possession of Consultant prior to disclosure by uDate.
8. NONCOMPETITION.
For a period of two (2) years from the date of this Agreement,
Consultant shall not engage in, be employed by, or work for on a contractual
basis any person, business or business entity ("Competitor") which is engaged in
internet personals and/or dating services. Notwithstanding the above, Consultant
shall not be prohibited from engaging in business activities related to adult
oriented web sites, which may include personals, that exclusively target
alternative and/or adult oriented content. Further, Consultant shall not promote
any new business venture as affiliated with Xxxx.xxx or uDate.
9. NONSOLICITATION.
For a period of two (2) years from the date of this Agreement,
Consultant shall not, directly or indirectly, (a) solicit any uDate employee to
leave his or her employment with uDate,
2
3
or (b) solicit business from clients, customers or account holders of
uDate. For purposes of the foregoing, Consultant shall not do any of the
following: (a) disclose to any third party the names, backgrounds or
qualifications of any uDate employees or otherwise identify them as potential
candidates for employment; (b) personally or through any other person approach,
recruit or otherwise solicit employees of uDate to work for any other employer;
or (c) participate in any pre-employment interviews with any person who was
employed by uDate during the term of this Agreement.
10. RETURN OF MATERIALS.
At the time of the expiration or termination of this Agreement, or
sooner at the request of uDate, Consultant shall return all papers, drawings,
notes, memoranda, manuals, specifications, designs, devices, documents,
diskettes, tapes, prototypes and products, and any other material on any media
containing or disclosing any confidential or proprietary technical or business
information. Consultant shall also return any keys, pass cards, identification
cards, or other property belonging to uDate.
11. INJUNCTIVE RELIEF.
Consultant acknowledges that any violation of this Agreement by
Consultant shall cause irreparable injury to uDate and uDate shall be entitled
to extraordinary relief in court, including, but not limited to, temporary
restraining orders, preliminary injunctions, and permanent injunctions, without
the necessity of posting bond or security. Consultant consents to uDate
notifying anyone to whom Consultant may provide services of the existence and
terms of this Agreement.
12. INDEPENDENT CONTRACTOR STATUS.
Consultant represents and agrees that he is engaged under this
Agreement as an independent contractor and not an agent, employee or
representative of uDate. Consultant has no authority to, and covenants and
agrees that it will not, transact business, enter into agreements, or otherwise
make commitments on behalf of uDate pursuant to this Agreement unless expressly
authorized in writing by an officer of uDate. Consultant shall not be entitled
to any rights or benefits under any bonus, pension, profit sharing, group
insurance, death benefit, or any other benefit plan that uDate may provide for
its employees. Notwithstanding the foregoing, the foregoing restrictions shall
not limit or restrict in any way any rights or benefits to which Consultant may
be entitled for as long as Consultant is a member of uDate's board of directors.
Consultant acknowledges and agrees that Consultant is obligated to report as
income all compensation received by Consultant pursuant to this Agreement, and
Consultant agrees to indemnify uDate and hold it harmless to the extent of any
obligation imposed on uDate to pay any withholding taxes, social security,
unemployment or disability insurance or similar items, including interest and
penalties thereon, in connection with any payments made to Consultant by uDate
pursuant to this Agreement.
3
4
13. MISCELLANEOUS
If court proceedings are required to enforce any provision of this
Agreement, the prevailing party shall be entitled to an award of reasonable
costs and expenses of litigation and any appeal, including reasonable attorneys'
fees. This Agreement shall be governed by the laws of the State of Washington.
Venue for any action arising out of this Agreement shall exist exclusively in
King County, Washington, or in the Federal District Court for the Western
District of Washington. If any provision of this Agreement is held to be
unenforceable as written, it shall be enforced to the maximum extent allowed by
applicable law. This Agreement is the final and complete expression of the
parties' agreement on these subjects, and may be amended only in a writing
signed by uDate and Consultant.
** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK**
4
5
DATED as of the day and year first set forth above.
UDATE: xXxxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Its: Executive Vice President
-------------------------------
CONSULTANT: /s/ Xxx Xxxxxx
----------------------------------
Xxx Xxxxxx
5
