CONSULTING AGREEMENT
Exhibit 10.2
This Consulting Agreement (“Agreement”) is made and entered into as of the nineteenth (19th)
day of March 2010 by and between Outdoor Channel Holdings, Inc. (the “Company”) and Xxxx X. Xxxxx
(“Consultant”) (collectively referred to as the “Parties” or individually referred to as a
“Party”).
WHEREAS, 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;
WHEREAS, even if Consultant makes a concerted effort to respect his continuing obligations to
protect the confidentiality of the Company’s trade secrets and proprietary information, it simply
will not be possible for him to perform any consulting or job responsibilities at the Company’s
Competitors, as defined herein, and protect the confidentiality of the Company’s trade secrets and
proprietary information;
NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as
follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to make himself available for up to a maximum of 4 days per month to
perform such assignments as may reasonably be assigned by the Company (the “Services”). Company
agrees to provide Consultant with two (2) business days’ notice for performing any Services
requiring air travel and one (1) business day’s notice for performing any other Services. In all
cases, Consultant shall not be required to perform Services for the Company in an amount which
would exceed twenty percent (20%) of the average level of services Consultant provided to Company
as an employee prior to the date of this Agreement.
(b) As consideration for the Services, the Company agrees to pay Consultant the severance and
other consideration set forth in the Separation Agreement and Release between the Company and
Consultant dated March 19, 2010 (the “Separation Agreement”).
(c) The Company further agrees to reimburse the reasonable travel expenses incurred by
Consultant in performing the Services except for travel between Consultant’s home and the Company’s
Temecula office, up to 60 miles each way.
2. CONFIDENTIALITY
(a) Definition. “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.
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(b) Non-Use and Non-Disclosure. 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. 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 identical to Sections 2, 3,
and 4 of this Agreement. 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) Former Employer’s Confidential Information. 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, 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. Consultant will indemnify the Company and hold it harmless from and
against all claims, liabilities, damages, and expenses, including reasonable attorneys’ fees and
costs of suit, arising out of or in connection with any violation or claimed violation of a third
party’s rights resulting in whole or in part from the Company’s use of the work product of
Consultant under this Agreement.
(d) Third Party Confidential Information. 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) Return of Materials. 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 that Consultant may have in Consultant’s possession or control.
3. OWNERSHIP
(a) Assignment. Consultant agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments, discoveries, and trade secrets
conceived, made, or discovered by Consultant, solely or in collaboration with the Company, 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 while performing the Services hereunder (collectively, “Inventions”), are the sole
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property
of the Company. Consultant
further agrees to assign (or cause to be assigned) and does hereby assign fully to the Company
all Inventions and any copyrights, patents, or other intellectual property rights relating thereto.
(b) Further Assurances. 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, 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 right, title, and interest in and to such Inventions, and any copyrights,
patents, 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) Pre-Existing Materials. Consultant agrees that if in the course of performing the
Services, Consultant incorporates into any Invention developed hereunder any invention,
improvement, development, concept, discovery, or other proprietary information owned by Consultant
or in which Consultant has an interest, (i) Consultant shall inform Company, in writing before
incorporating such invention, improvement, development, concept, discovery, or other proprietary
information into any Invention; and (ii) the Company is hereby granted and shall have a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify,
use, and sell such item as part of or in connection with such Invention. Consultant shall not
incorporate any invention, improvement, development, concept, discovery, or other proprietary
information owned by any third party into any Invention without Company’s prior written permission.
(d) Attorney in Fact. 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 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 and copyright registrations thereon with
the same legal force and effect as if executed by Consultant.
4. CONFLICTING OBLIGATIONS
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. Further, Consultant acknowledges
that he is subject to and will abide by the xxxxxxx xxxxxxx policy of Outdoor Channel Holdings,
Inc. regarding blackout periods for trading securities, including the normal blackout periods and
any additional blackout periods implemented by Outdoor Channel Holdings, Inc.
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5. TERM AND TERMINATION
(a) Term. This Agreement will commence on the date first written above and will
terminate on March 18, 2011, unless it is terminated before that time as provided below (the
“Consulting Term”).
(b) Termination of Services.
(i) Voluntary Termination. Consultant shall have the right to terminate Services
under this Agreement at any time for any reason (or no reason), with or without cause, upon written
notice thereof to the Company. If Consultant terminates the Services pursuant to the foregoing
sentence, then the Company shall cease the payment of severance specified in the Separation
Agreement.
(ii) Involuntary Termination by the Company. The Company shall be entitled to
terminate Consultant’s Services under this Agreement at any time, provided that if the Company
terminates this Agreement for any reason other than upon Consultant’s material breach of any
material provision of this Agreement, then the Company shall be obligated to continue to pay the
severance amounts specified in the Separation Agreement.
(c) Survival. Upon such termination, all rights and duties of the parties toward each
other shall cease except Sections 2 (Confidentiality), 3 (Ownership), 8 (Independent Contractor),
and 9 (Benefits) shall survive termination of this Agreement.
6. DUTY OF LOYALTY AND CONFIDENTIALITY
(a) Given Consultant’s detailed access to and knowledge of the Company’s Confidential
Information, Consultant acknowledges and agrees that Consultant cannot work as an employee or
consultant at any of the following of the Company’s competitors in the cable television industry:
the Sportsman Channel, Versus (formally known as Outdoor Life Network), Country Adventure Network,
The Pursuit Channel, Maximum Adventure Network (the “Company’s Competitors”). Consultant
acknowledges and agrees that, even if Consultant makes a concerted effort to respect his continuing
obligations to protect the confidentiality of the Company’s Confidential Information, it simply
will not be possible for him to simultaneously: (i) perform any consulting or job responsibilities
at any of the Company’s Competitors and (ii) protect the confidentiality of the Company’s
Confidential Information. The Company’s Confidential Information would inevitably be disclosed in
the performance of Consultant’s consulting or job duties at any of the Company’s Competitors to the
severe detriment of the Company. Accordingly, as consideration for the Consulting Agreement,
Consultant agrees that during the Consulting Term, Consultant shall not become an employee or
consultant to any of the Company’s Competitors.
(b) Given Consultant’s detailed access to and knowledge of the Company’s Confidential
Information, and as further consideration for the Consulting Agreement, Consultant agrees that,
during the Consulting Term, he shall not either directly or indirectly, solicit, call upon, or
encourage any of the Company’s customers to do business with any of the Company’s Competitors.
Consultant further agrees that, during the Consulting Term, he shall not either directly or
indirectly, solicit, induce, recruit, or encourage any of the Company’s employees to leave their
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employment, or take away such employees, or attempt to solicit, induce, or recruit employees of the
Company, either for himself or for any of the Company’s Competitors.
7. 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.
8. INDEPENDENT CONTRACTOR
It is the express intention of the parties that Consultant is an 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. Consultant agrees to furnish (or reimburse the Company for) all tools
and materials necessary to accomplish this contract, and shall incur all expenses associated with
performance. 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 and
acknowledges the obligation to pay all self-employment and other taxes thereon. Consultant further
agrees to indemnify and hold harmless the Company and its directors, officers, and employees from
and against all taxes, losses, damages, liabilities, costs, and expenses, including attorney’s fees
and other legal expenses, arising directly or indirectly from (i) any negligent, reckless, or
intentionally wrongful act of Consultant or Consultant’s assistants, employees, or agents, (ii) a
determination by a court or agency that the Consultant is not an independent contractor, or (iii)
any breach by the Consultant or Consultant’s assistants, employees, or agents of any of the
covenants contained in this Agreement.
9. BENEFITS
Except for the consideration identified in section 1 of the Separation Agreement entered into
between Consultant and the Company, Consultant acknowledges and agrees and it is the intent of the
parties hereto that Consultant receive no Company-sponsored benefits from the Company either as a
Consultant or employee. Such benefits include, but are not limited to, paid vacation, sick leave,
medical insurance, and 401(k) participation. If Consultant is reclassified by a state or federal
agency or court as an employee, Consultant will become a reclassified employee and will receive no
benefits except those mandated by state or federal law, even if by the terms of the Company’s
benefit plans in effect at the time of such reclassification Consultant would otherwise be eligible
for such benefits. Nothing in this Agreement modifies or supersedes the consideration identified
in section 1 of the Separation Agreement entered into between Consultant and the Company.
10. ARBITRATION AND EQUITABLE RELIEF
THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF, RELATING TO, OR RESULTING FROM THE
TERMS OF THIS AGREEMENT AND THEIR INTERPRETATION SHALL BE SUBJECT TO BINDING ARBITRATION IN SAN
DIEGO COUNTY, CALIFORNIA BEFORE JAMS, PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES
(“JAMS RULES”). THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH
CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND
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THE ARBITRATOR SHALL APPLY
SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANY
CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH
CALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE ARBITRATOR MAY GRANT INJUNCTIONS AND
OTHER RELIEF IN SUCH DISPUTES. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND
BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES AGREE THAT THE
PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF
COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE ARBITRATOR SHALL AWARD ATTORNEYS’
FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TO
WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
11. GOVERNING LAW
This Agreement shall be governed by the internal substantive laws, but not the choice-of-law
rules, of the State of California.
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12. ENTIRE AGREEMENT
This Agreement represents the entire agreement and understanding between the Company and
Consultant concerning Consultant’s relationship with the Company and the termination of that
relationship and the events leading thereto and associated therewith, and supersedes and replaces
any and all prior agreements and understandings concerning Consultant’s relationship with the
Company, with the exception of the Separation Agreement which shall remain in full force and
effect.
13. MODIFICATION
This Agreement may only be amended in a writing signed by Consultant and the Company’s
President.
14. ATTORNEYS’ FEES
In the event that either Party brings an action to enforce or effect its rights under this
Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including the
costs of mediation, arbitration, litigation, court fees, and reasonable attorneys’ fees incurred in
connection with such an action.
15. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement, or any terms thereof,
shall not affect the validity of this Agreement as a whole, which shall at all times remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
| CONSULTANT |
||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx | ||||
| OUTDOOR CHANNEL HOLDINGS, INC. |
||||
| By | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx | ||||
| COO | ||||
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