EXHIBIT 4.4
CONSULTING AGREEMENT
This Consulting Agreement is effective as of the 8th day of
January, 1997 (the "Effective Date"), by and between EarthLink
Network, Inc. ("EarthLink") and New Media Group, Inc. (the
"Consultant").
RECITALS
EarthLink develops and provides to its customers a broad
range of Internet access services. The Consultant provides
consulting services in, among other fields of expertise,
electronic commerce. EarthLink desires to retain the consulting
services of the Consultant and the Consultant desires to provide
consulting services to assist EarthLink in developing new product
and service offerings in order to expand EarthLink's business
services and develop new sources for obtaining customers.
NOW THEREFORE, in consideration of the foregoing recitals
and the covenants and obligations set forth below and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Definitions.
"Cause" means conduct by the Consultant in connection with
this Agreement or the Consulting Services that amounts to
fraud, dishonesty, gross negligence or willful misconduct in
the performance of its duties and responsibilities under
this Agreement.
"Change in Control Event" means the occurrence of any of the
following events: (a) the execution of an agreement for the
sale of all, or a material portion, of the assets of the
Company to an unrelated third party; or (b) the execution of
an agreement for a merger, consolidation or other
transaction constituting a business combination in which
more than fifty percent (50%) of the Company's issued and
outstanding shares of voting stock is acquired by a single
entity or a group of affiliated entities (other than those
individuals who may be Company directors or their affiliates
as of the Effective Date). Notwithstanding the foregoing, a
recapitalization of the Company for the purpose of changing
its state of incorporation will not be considered a "Change
in Control Event."
"Confidential Information" means any and all proprietary
business information of EarthLink or of third parties that
is treated as confidential or secret by EarthLink and that
does not constitute a Trade Secret (as defined below)
including any and all proprietary business information of
EarthLink, about which the Consultant becomes aware as a
result of this Agreement and the relationship established
thereby.
"Consulting Services" means the consulting services to be
performed hereunder by the Consultant for and on EarthLink's
behalf as described on Schedule I hereto as same may be
amended from time to time.
"Deliverable" means any Invention, Work or other item,
document, information, data, device or physical embodiment
of any Consulting Service deliverable by the Consultant to
EarthLink hereunder.
"EarthLink Information" means EarthLink's Confidential
Information and Trade Secrets.
"Effective Date" means the date set forth above.
"Invention" means any idea, invention, discovery, improvement,
innovation, design, process, method, formula, technique,
machine, manufacture, algorithm or computer program, as well
as improvements thereto.
"Trade Secrets" means information related to the business or
services of EarthLink or of third parties in the possession
of EarthLink which (a) derives economic value, actual or
potential, from not being generally known to or readily
ascertainable by other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of
efforts by EarthLink and such third parties that are
reasonable under the circumstances to maintain its secrecy,
including without limitation (1) marking any information
reduced to tangible form clearly and conspicuously with a
legend identifying its confidential or proprietary nature;
(2) identifying any oral presentation or communication as
confidential immediately before, during or after such oral
presentation or communication; or (3) otherwise treating
such information as confidential. If the criteria in (a)
and (b) above are met, Trade Secrets include, without
limitation, technical and non-technical data related to the
designs, programs, inventions, finances, actual or potential
customers and suppliers, research and development efforts,
marketing programs, and existing and future products of
EarthLink and such third parties.
"Work" means a copyrightable work of authorship including,
without limitation, any technical descriptions for products,
user's guides, illustrations, advertising materials,
computer programs (including the contents of read only
memories) and any contribution to such materials.
2. Consulting Services. The Consultant shall perform the
Consulting Services for and on behalf of EarthLink as generally
described on Schedule I hereto. The Consultant shall commit the
staff, facilities and resources necessary to timely and
satisfactorily perform the Consulting Services, and shall perform
the Consulting Services in a professional and workmanlike manner
and in accordance with all laws, regulations and ordinances
applicable to the performance and delivery of the Consulting
Services.
3. Meetings; Reports.
(a) Meetings. The Consultant shall meet with EarthLink as
frequently as EarthLink may reasonably request from time to
time. The purpose of the meetings shall be to review the
status and progress of the Consulting Services and
Deliverables associated therewith, compliance with this
Agreement and any other aspects of the Consultant's
performance hereunder.
(b) Reports. The Consultant shall provide EarthLink with
certain periodic reports regarding matters related to the
Consulting Services and associated Deliverables as EarthLink
may reasonably request.
4. Compensation. For the Consulting Services to be rendered by
the Consultant, EarthLink will issue to the Consultant up to
20,000 shares of Common Stock (the "Restricted Stock"), which
Restricted Stock will, subject to Section 9(f) hereof, be issued
to the Consultant in two equal increments of 10,000 shares on
each of the first and second anniversary from the Effective Date.
The Consultant will receive no compensation for its services
hereunder other than as set forth in this Section 4, and, without
limiting the generality of the foregoing, will not be entitled to
participate in any benefit program (however described) now
maintained or hereafter established for any employee, director or
agent of EarthLink. EarthLink will not be liable for any debts,
accounts, obligations or other liabilities of the Consultant,
including without limitation, the Consultant's obligation to
withhold social security and income taxes. Unless specifically
authorized by EarthLink's President or his designee, the
Consultant shall bear all of his own costs and expenses incurred
in performing the Consulting Services, including without
limitation, facilities, management, clerical, supplies and the
like.
5. Warranties. The Consultant represents and warrants that:
(a) Non-Infringement of Works. Any and all Deliverables
delivered to EarthLink in conjunction with the Consulting
Services that are works of authorship will be original
works of authorship and the internal use or commercial
exploitation of such Deliverables will not subject EarthLink
to any claim of copyright or patent infringement by a third
party or for infringement in any way of the proprietary
rights of any other person or entity, whether such rights
are afforded by the laws of the United States or of any
other country.
(b) Non-Infringement of Consulting Services; Compliance
with Laws. The Consulting Services will not violate or in
any way infringe upon the rights of third parties (including
without limitation, contractual, employment, proprietary,
information and nondisclosure rights) or be in violation of
any applicable law, rule or regulation, and the Consultant
will have obtained all permits required to comply with such
laws, rules and regulations.
(c) Performance Standards. The Consultant will perform the
Consulting Services in accordance with the highest
professional standards for such services, and will strictly
comply with the descriptions and representations regarding
the Consulting Services that are set forth in this
Agreement.
(d) Beneficial Ownership. The Consultant's beneficial
ownership of capital stock of EarthLink, as of the Effective
Date, consists solely of (1) 37,500 shares of Common Stock,
and (2) 45,454 shares of Series A Convertible Preferred
Stock held in the name of Internet Technology Ventures.
6. Inventions. The Consultant hereby assigns all right, title
and interests in and to all Inventions resulting from the
Consultant's performance hereunder, encompassed in any
Deliverables and/or embodying any of the Consulting Services.
7. Copyrights. All Works resulting from the Consultant's
performance hereunder, the Consulting Services and the
Deliverables are deemed to be "works made for hire" under the
copyright laws of the United States and will be and remain the
sole and exclusive property of EarthLink. All right, title and
interest to copyrights in all Works prepared by the Consultant
within the scope of this Agreement will be the property of
EarthLink. However, to the extent the provisions of Title 17 of
the United States Code do not vest in EarthLink the copyrights to
any Works, the Consultant hereby assigns to EarthLink all right,
title and interest to copyrights in the Works.
8. Confidentiality.
(a) Protection. The Consultant will not reproduce, use,
distribute, disclose or otherwise disseminate EarthLink
Information or any physical embodiments thereof and may in
no event take any action causing, or fail to take any action
necessary to avoid causing, any EarthLink Information to
lose its character as EarthLink Information. Moreover, the
Consultant will not use EarthLink Information except to
perform and fulfill its duties, obligations and
responsibilities under this Agreement.
(b) Exceptions. Notwithstanding the foregoing, this
Section 8 will not apply to any information which was:
(i) at the time of disclosure to the Consultant, in the
public domain; (ii) after disclosure to the Consultant,
published or otherwise becomes part of the public domain
through no fault of the Consultant; (iii) without a breach
of duty owed to EarthLink, is in the Consultant's possession
at the time of disclosure to the Consultant; (iv) received
after disclosure to the Consultant from a third party who
had a lawful right to and, without a breach of duty owed to
EarthLink, did disclose such information to the Consultant;
or (v) independently developed by the Consultant without
reference to EarthLink Information.
(c) Term of Confidentiality Obligations. The covenants of
confidentiality set forth herein (a) will apply after the
date hereof to any EarthLink Information disclosed to the
Consultant and (b) will continue and must be maintained from
the date hereof until termination of this Agreement, plus
(1) with respect to Trade Secrets, at any and all times
after termination of this Agreement during which such Trade
Secrets retain their status as such under applicable law;
and (2) with respect to Confidential Information, for a
period equal to the shorter of two (2) years after
disclosure of such Confidential Information or until such
Confidential Information no longer qualifies as confidential
under applicable law.
(d) Return of EarthLink Information. Upon termination of
this Agreement for whatever reason, the Consultant will
promptly deliver to EarthLink all property belonging to
EarthLink including without limitation all EarthLink
Information then in its possession or control.
9. Term and Termination.
(a) Term. This Agreement shall commence on the Effective
Date for a period of two (2) years unless sooner terminated
as provided herein.
(b) Termination for Convenience. Consultant may terminate
this Agreement by giving the other party 60 days advance
written notice; provided, however, that for purposes of
Section 9(f), the date of the giving of such notice shall be
deemed to be the termination date.
(c) Termination upon Breach. Either party may terminate
this Agreement upon a breach by the other party and failure
by the breaching party to cure such breach within 30 days
receipt of written notice.
(d) Termination for Cause. EarthLink may terminate this
Agreement for Cause immediately upon written notice to the
Consultant.
(e) Survival. Notwithstanding anything contained herein to
the contrary, the obligations set forth in Sections 6, 7 and
8 shall survive the termination of this Agreement.
(f) Effect of Termination. If this Agreement is terminated
during the first six months following the Effective Date,
the Consultant shall not be deemed to have earned any shares
of Restricted Stock hereunder. Except as set forth in the
following sentence, if this Agreement is terminated as of
any date after the date six months from the Effective Date
hereof but prior to the first anniversary of such Effective
Date, the Consultant shall be deemed, at the end of the
first year of this Agreement, to have earned the 10,000
shares of Restricted Stock otherwise issuable on the first
anniversary of the Effective Date. If this Agreement is
terminated during the first six months following the first
anniversary of this Agreement, the Consultant shall not be
deemed to have earned any shares of Restricted Stock
otherwise payable upon the second anniversary of this
Agreement. If this Agreement is terminated after the date
18 months from the Effective Date hereof but prior to the
second anniversary of the Effective Date, the Consultant
shall be deemed, at the end of the second year of this
Agreement, to be have earned the additional 10,000 shares of
Restricted Stock otherwise issuable on the second
anniversary of the Effective Date. However, if this
Agreement is terminated by EarthLink either for Cause or
upon a breach by the Consultant of this Agreement, the
Consultant shall not have earned, nor shall the Consultant
be deemed to be have earned, any of shares of Restricted
Stock other than those as to which the applicable stock
earning date, as set forth in Section 4 hereof, has already
passed.
10. Indemnification. During the term of this Agreement and for a
period of two (2) years following the termination of this
Agreement, each party shall indemnify and hold harmless the other
party from and against any and all claims, losses, costs,
expenses, damages, liabilities, actions and attorneys' fees which
arise as a result of the breach of this Agreement by the
indemnifying party.
11. S-8 Registration Rights. Subject to approval by the
requisite number of stockholders party to the Company's Amended
and Restated Registration Rights Agreement (which approval the
Company will exert good faith efforts to obtain), the Company
hereby agrees to exert good faith efforts register, over once and
only once, on Form S-8, or its successor form, upon request by
the Consultant such number of shares of Restricted Stock as is
issued at the time of such request. The Consultant's rights and
obligations under the Amended and Restated Registration Rights
Agreement are unaltered by this Agreement and shall continue in
full force and effect.
12. Change in Control. Notwithstanding anything contained
herein to the contrary, upon a Change in Control Event, all
shares of Restricted Stock will immediately and fully vest.
13. Miscellaneous.
(a) Severability. The parties agree that each of the
provisions included in this Agreement is separate, distinct
and severable from the other provisions of this Agreement,
and that the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of any other
provision of this Agreement. Further, if any provision of
this Agreement is ruled invalid or unenforceable by a court
of competent jurisdiction because of a conflict between the
provision and any applicable law or public policy, the
provision shall be redrawn to make the provision consistent
with and valid and enforceable under the law or public
policy.
(b) Assignment. This Agreement and the rights and
obligations of the parties stated in this Agreement may not
be assigned without the prior written approval of the other
party. The rights and obligations of the parties will inure
to the benefit of and will be binding on the parties' lawful
successors and assigns.
(c) Strict Performance; Waiver. The failure of either
party to insist on strict performance by the other party of
any provision of this Agreement or to exercise any right
under this Agreement shall not be construed as a waiver or
relinquishment of such party's right to assert or rely on
any such provision or right in that or any other instance;
rather, same shall be and remain in full force and effect.
A waiver by either party of any breach of this Agreement by
the other party shall not be effective unless in writing,
and no waiver shall operate or be construed as a waiver of
the same or another breach on a subsequent occasion.
(d) Amendments. This Agreement embodies the entire
agreement of the parties on the subject matter stated in the
Agreement. No amendment or modification of this Agreement
shall be valid or binding unless made in writing and signed
by both parties. All prior understandings and agreements
relating to the subject matter of this Agreement are hereby
expressly terminated.
(e) Notices. Any notice required or permitted to be given
hereunder must be given in writing and personally delivered
or mailed to the other party by certified mail, return
receipt requested, by personal delivery or by facsimile if
the receiving party acknowledges in writing the receipt of
such fax transmission. Notices shall be given at the
addresses set forth on the signature page to this Agreement.
(f) Independent Contractors. The parties are independent
contractors, and nothing in this Agreement shall be
construed to constitute either party as a partner, joint
venturer, employee, employer or agent of the other.
(g) Choice of Law; Forum. This Agreement shall be governed
by and construed in accordance with the laws of the State of
California. The parties consent to the personal
jurisdiction and venue of the federal and state courts
having jurisdiction with respect to Pasadena, California
with respect to all matters and disputes which may arise out
of or result from this Agreement.
WHEREAS, the parties have executed this Agreement as of the
Effective Date.
EARTHLINK NETWORK, INC. NEW MEDIA GROUP, INC.
/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx, President Xxxxxx Xxxxxxxxx, President
0000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
SCHEDULE I
CONSULTING SERVICES
The Consultant will perform the following Consulting Services at,
and in accordance with, EarthLink's direction and request:
NMG shall render business, financial, marketing and
other consulting services in the area of electronic
commerce and such other areas as the parties may from
time to time agree. The consulting services shall
include, without limitation, identifying, targeting,
contacting and negotiating suitable business
arrangements with retail stores (as well as other
avenues of distribution) for the development of new,
and expansion of existing, business of EarthLink and as
a means of providing new dial-up customers for
EarthLink's services.
The parties may, from time to time, augment these Consulting
Services by agreement.
