EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made as of June __, 1999
("Effective Date"), by and between Interactive Network, Inc., a corporation
having its principal place of business at 1161 Old County Road, Belmont,
California 94002 ("Company") and _____________________________, an individual,
with a principal place of business at
_________________________________________________ ("Consultant").
In consideration of the mutual covenants herein contained, the parties
hereby agree as follows:
1. Services. Consultant agrees to provide the services ("Services")
specified in the Statement of Work (the "Statement of Work"). The Statement of
Work has been attached hereto as Exhibit A. The Statement of Work shall be
subject to all of the terms and conditions contained in this Agreement and shall
become binding upon execution by each of the parties hereto and, upon execution,
is hereby incorporated in this Agreement by reference. Consultant shall devote
Consultant's best efforts to the performance of the Services set forth in each
Statement of Work. Subject to compliance with Consultant's obligations
hereunder, Consultant retains the discretion to determine appropriate methods by
which Consultant performs the above Services; provided that the Services may not
be subcontracted or otherwise transferred by Consultant, in whole or part,
without the prior written consent of Company.
2. Payment for Services; Benefits; Expenses; Taxes; Equipment.
2.1. Payment for Services. As full compensation for the Services to
be provided by Consultant pursuant to the Statement of Work, Company agrees to
pay Consultant in such amounts, at such times and in such manner as is set forth
in such Statement of Work.
2.2. Benefits. Other than the compensation specified in Section 2.1,
neither Consultant nor any employee or agent of Consultant shall be entitled to
any direct or indirect compensation for Services performed hereunder. Without
limitation of the generality of the foregoing, Consultant shall not be entitled
to, and waives all rights to, any benefits provided by Company to its employees.
2.3. Expenses. Consultant is responsible for paying all ordinary and
necessary expenses arising from Consultant's performance of the Services,
including travel expenses and any expenses incurred in negotiating the terms of
any Project (as defined in Exhibit A). The Company shall, however, reimburse
Consultant for all travel expenses reasonably incurred by Consultant to attend
any meeting with the Company, in accordance with the Company's general policies,
as they may be amended from time to time.
2.4. Taxes. Consultant acknowledges and agrees that it shall be
Consultant's obligation to report as income all compensation received by
Consultant pursuant to this Agreement and to pay any withholding taxes, self-
employment taxes, social security, unemployment or disability insurance or
similar items, including interest and penalties thereon,
1
in connection with any payments made to the Consultant by the Company pursuant
to this Agreement. The Company will make no deductions from any of the payments
due to Consultant hereunder for state or federal tax purposes. Consultant agrees
to indemnify and hold harmless the Company from any liability, including any
taxes, interest and penalties the Company may be required to pay as a result of
Consultant's failure to report such compensation or make such payments.
2.5. Equipment. Unless otherwise agreed by the parties, Consultant
shall furnish, at Consultant's sole expense, all equipment and materials used to
perform the Services, including but not limited to, telephone lines, personal
computers and modems.
3. Proprietary Information.
3.1. Proprietary Information. Consultant understands that its work
as a consultant to Company will involve access to and creation of confidential,
proprietary, and trade secret information of Company and its affiliates,
licensors, suppliers, vendors, clients and/or customers (collectively,
"Proprietary Information"). Proprietary Information includes, without
limitation, any information, ideas and materials, in whatever form, tangible or
intangible, (i) which may be marked or otherwise identified, orally or in
writing, as confidential or proprietary, prior to, upon or promptly after
receipt by Consultant or (ii) which Consultant should recognize from the
circumstances surrounding the disclosure as Proprietary Information.
Proprietary Information further includes, without limitation, (a) information,
ideas or materials of a technical or creative nature, such as technical know-
how, research and development results, data, formulas, files, designs and
specifications, computer source and object code, patent applications, and other
materials and concepts relating to Company's products and processes and other
intellectual property rights; (b) information, ideas or materials of a business
nature, such as non-public financial information; information regarding profits,
costs, marketing, purchasing, sales, customers, suppliers, contract terms,
employees, and salaries; product development plans; business and financial plans
and forecasts; and marketing and sales plans and forecasts; (c) all personal
property, including, without limitation, all books, manuals, records, reports,
notes, contracts, lists, blueprints, and other documents, or materials, or
copies thereof, and equipment furnished to or prepared for the Company, or any
affiliate, licensor, supplier, vendor, client or customer of the Company, or
received by Consultant, in the course of Consultant's rendering of Services to
the Company, including, without limitation, records and any other materials
pertaining to Creations (as defined below); and (d) any other trade secrets,
information, ideas or materials of or relating in any way to the past, present,
planned or foreseeable business, products, developments, technology or
activities of Company (or its affiliates, employees, licensors, suppliers,
vendors, clients, customers or any other third parties to whom the Company owes
a duty of confidentiality).
3.2. Restrictions on Use and Disclosure. Consultant (i) shall hold
all Proprietary Information in strict confidence and will use and reproduce such
information only to the extent reasonably required to fulfill Consultant's
obligations hereunder and for no other purpose, and only for the benefit of
Company (and not for the benefit of Consultant or any third party) and (ii)
shall not disclose, deliver, provide, disseminate or otherwise make available,
2
directly or indirectly, any Proprietary Information to any third party, in
either case without the express written permission of the Company. Consultant
may disclose Proprietary Information only to Consultant's employees and agents
who have a need to know such Proprietary Information, and who are each obligated
by a written agreement to comply with terms and conditions no less restrictive
than those set forth in this Agreement. Consultant shall take all reasonable
measures, but in any event no less than the same degree of care that it uses to
protect its own confidential and proprietary information of similar nature and
importance, to protect the confidentiality and avoid the unauthorized use,
disclosure, publication, or dissemination of Proprietary Information.
3.3. Scope. The foregoing obligations in Section 3.2 shall not apply
to any Proprietary Information to the extent such Proprietary Information (i) is
or becomes generally known or available by publication, commercial use or
otherwise through no act or omission of Consultant; (ii) can be demonstrated to
be known by Consultant prior to the time of disclosure to Consultant and is not
subject to restriction; (iii) can be demonstrated to be independently developed
by Consultant without the use of Proprietary Information; or (iv) is lawfully
obtained from a third party who has the right to make such disclosure without
restriction. In addition, Consultant may use or disclose Proprietary
Information to the extent (a) is approved by Company or (b) Consultant is
legally compelled to disclose such Proprietary Information, provided that
Consultant shall use reasonable efforts to give advance notice of such compelled
disclosure to Company, and shall cooperate with Company in connection with any
efforts to prevent or limit the scope of such disclosure and/or use of the
Proprietary Information.
3.4. No Insider Trading. In addition, Consultant shall abide by all
federal securities laws and the insider trading policies of the Company.
4. Ownership.
4.1. Creations. "Creations" shall include, without limitation, all
works of authorship, materials, software programs, writings, patent applications
(and contributions thereto), designs, discoveries, ideas, inventions, processes,
formulas, technology and other creations (and any related improvements or
modifications to the foregoing) that are conceived of, created or otherwise
developed by or for Consultant (alone or with others), or result from or are
suggested by any work performed by or for Consultant (alone or with others), (i)
for Company or any affiliates thereof prior to the Effective Date, (ii) in
connection with Consultant's activities for Company during the period in which
Consultant provides the Services to Company, whether or not conceived of,
created or otherwise developed during regular business hours and (iii) if based
on Proprietary Information, after termination of Consultant's Services.
Creations shall include, without limitation, all materials delivered to Company
in connection with this Agreement.
4.2. Assignment; Waiver of Rights.
(i) Subject to Section 4.3, Consultant hereby irrevocably
assigns, and agrees to assign irrevocably, without additional compensation, all
right, title and interest in and to all Creations (whether currently existing or
conceived, created or otherwise developed later) to Company, effective upon the
inception, conception, creation or development thereof. All such
3
Creations shall be deemed Proprietary Information and the sole property of
Company, with Company having the right to obtain and hold in its own name any
applications, registrations, patents and/or such other protection as may be
appropriate to the subject matter, and any renewals and extensions (including,
without limitation, any continuations, continuations-in-part, divisionals,
reissues, substitutions and reexaminations) thereof. To the extent permitted by
applicable law, any copyrightable Creation shall be deemed a work made for hire.
Consultant will promptly inform Company of any such Creations. Consultant will
(whether during or after the period of its consulting arrangement with Company)
give the Company and any person designated by the Company any reasonable
assistance to perfect Company's rights in and to the Creations, including,
without limitation, executing such written instruments as prepared by Company
and doing such other acts as may be necessary in the opinion of Company to
obtain a patent, register a copyright, or otherwise enforce Company's rights in
such Creations (and Consultant hereby irrevocably appoints Company and any of
its officers as its attorney in fact to undertake such acts in its name).
(ii) To the extent, if any, that a Creation is unassignable or
that Consultant retains any right, title or interest with respect to any
Creation that is delivered to Company or relates to Services performed for
Company, Consultant hereby grants to the Company a perpetual, irrevocable, fully
paid-up, royalty-free, transferable, sublicensable, worldwide right and license
to use, reproduce, distribute, display and perform (whether publicly or
otherwise), prepare derivative works of and otherwise modify all or any portion
of such Creations, including, without limitation, the right and license to make
additions to or deletions from such Creations, regardless of the medium (now or
hereafter known) into which such Creations may be modified and regardless of the
effect of such modifications on the integrity of such Creations, and to identify
Consultant, or not to identify Consultant, as one or more authors of or
contributors to such Creations or any portion thereof, whether or not such
Creations or any portion thereof have been modified. Consultant further waives
any "moral" rights, or other rights with respect to attribution of authorship or
integrity of such Creations, Consultant may have under any applicable law,
whether under copyright, trademark, unfair competition, defamation, right of
privacy, contract, tort or other legal theory.
4.3. Exclusions.
4.3.1. The assignment obligations in Section 4.2(i) shall not
apply to any works of authorship, materials, software programs, writings, patent
applications (and contributions thereto), designs, discoveries, ideas,
inventions, processes, formulas, technology and other creations (and any related
improvements or modifications to the foregoing) conceived of, created or
otherwise developed by or for Consultant (alone or with others), to the extent
that any such creations (i) that Consultant can demonstrate were conceived of,
created or otherwise developed by or for Consultant (alone or with others) prior
to commencement of Consultant's consulting services for Company or any
affiliates thereof and without the use of any Proprietary Information and (ii)
that Consultant can demonstrate are created by Consultant for itself or other
clients not affiliated with the Company (collectively, "Other Creations"). In
addition, Consultant understands that the assignment obligations in Section
4.2(i) shall not apply to Creations that
4
qualify fully under Sections 2870(a) of the California Labor Code, if
applicable, which is set forth on Exhibit B.
4.3.2. To the extent that the provision of the Services
requires the use of any Other Creation, or other confidential or proprietary
information or materials of Consultant or any third party (collectively,
"Consultant Proprietary Information"), Consultant shall obtain the prior written
authorization of Company for the use thereof, and Consultant agrees to notify
the Company in writing before Consultant makes any disclosure to, or performs
any work on behalf of, the Company that appears to conflict with proprietary
rights which Consultant or any third party claims in any Other Creation or
Consultant Proprietary Information. If Consultant fails to obtain such
authorization or give such notice, Consultant agrees that it will make no claim
against the Company with respect to any such Other Creation or Consultant
Proprietary Information and shall indemnify, defend and hold harmless Company
from any third party claim relating to any such Other Creation or Consultant
Proprietary Information. To the extent any Creations or deliverables hereunder
use, include, incorporate, or otherwise depend upon the use of, any Other
Creation or any Consultant Proprietary Information, Consultant hereby grants to
Company a worldwide, perpetual, freely assignable, fully paid, royalty-free
license (including the right to sublicense others) to use, make, sell,
reproduce, distribute, export, modify, create derivative works based on, perform
and display publicly and disclose any and all such Other Creations and
Consultant Proprietary Information, in any form, without any obligation to
account to Consultant or any third party. Consultant hereby represents, warrants
and covenants that it has and will have full right, power and authority to
control the use and disposition of (including, without limitation, the right to
grant licenses with respect to) any such Other Creations and Consultant
Proprietary Information.
5. Return of Company Property. On termination of this Agreement, or at any
time the Company so requests, Consultant will deliver immediately to the Company
all property belonging to the Company, whether given to Consultant by Company or
created by Consultant (alone or with others) in the course of providing the
Services, and all information and material containing or constituting
Proprietary Information, including any copies in Consultant's possession or
control, whether prepared by Consultant or by others.
6. Representations and Warranties of Consultant.
6.1. Original Development. Consultant represents, warrants and
covenants that (i) during Company's retention of Consultant, Consultant will not
disclose to Company, or use, or induce Company to use, any confidential,
proprietary or trade secret information of others; and (ii) performance of the
terms of this Agreement will not breach any obligation of Consultant to keep any
information or materials in confidence or in trust prior to being retained by
Company.
6.2. Warranty of Expertise. Consultant represents, warrants and
covenants that Consultant is highly skilled and experienced in providing the
Services required under the Statement of Work that Consultant enters into
hereunder. Consultant acknowledges that Company is relying on Consultant's
skill and expertise in the foregoing for the performance of
5
this Agreement, and agrees to notify Company whenever Consultant does not have
the necessary skill and experience to fully perform hereunder.
6.3. Other Agreements. Consultant represents, warrants and covenants
that Consultant's signing of this Agreement and the performance of Consultant's
Services hereunder is not and will not be in violation of or conflict with any
other oral or written contract, agreement or understanding to which Consultant
is a party or by which Consultant is bound.
6.4. Non-Infringement. Consultant represents, warrants and covenants
that (i) Consultant has the full power to enter into this Agreement and to
perform its obligations hereunder; (ii) Consultant has the sole and exclusive
right to grant the rights and assignments granted herein, without the need for
any assignments, releases, consents, approvals, immunities or other rights not
yet obtained; (iii) the Services and the Creations (and the reproduction,
distribution, modification, display, performance and use thereof) do not and
will not infringe or misappropriate any patent, copyright, trademark, trade
secret, publicity, privacy or other rights of any third party, and are not and
will not be defamatory or obscene; and (iv) each of Consultant's employees and
contractors (if any, pursuant to Section 2.1) involved in the performance of the
Services have executed (or prior to any such involvement, will execute) a
written agreement with Consultant in which such persons (a) assign to Consultant
all right, title, and interest in and to the Creations in order that Consultant
may fully grant the rights to Company as provided herein and agree that they
will have no claim against the Company for contingent compensation or broker
fees and (b) agree to be bound by confidentiality and non-disclosure obligations
no less restrictive than those set forth in this Agreement.
7. Indemnification. Consultant will indemnify, hold harmless and, at
Company's option, defend Company (and the officers, directors, employees and
agents of Company and its successors, licensees and assigns) from and against
any and all liabilities, losses, damages, costs and expenses (including
reasonable legal fees, costs and expenses) associated with any claim, action or
proceeding brought against the Company by a third party ("Liability Claims")
arising out of or relating to (i) any breach (or claim that, if true, would be a
breach) of any of the provisions of this Agreement, including, without
limitation, the representations and warranties of Consultant contained herein
and (ii) any infringement, misappropriation or violation by the Creations or the
Services of any patent, copyright, trademark, trade secret, publicity, privacy
or other rights of any third party ("Claim"). The Company shall notify
Consultant promptly of any Claim, provided, however, that the failure to give
such notice shall not relieve Consultant of Consultant's obligations hereunder
except to the extent that Consultant was actually and materially prejudiced by
such failure. Company may, at its option and expense, participate and appear on
an equal footing with Consultant in defending any Claim. Consultant may not
settle any Claim without the prior written approval of Company, which approval
shall not be unreasonably withheld or delayed. The Company will indemnify, hold
harmless, and defend Consultant from and again any and all Liability Claims
arising out of or relating to any breach of this Agreement and as a direct
result of any false or misleading information provided by the Company to
Consultant. The Company may not settle any such Liability Claims without the
consent of Consultant.
6
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER
ANY LEGAL THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR
INCIDENTAL DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THIS
AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OR ACTION GIVING RISE TO SUCH
LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE FEES PAID OR
PAYABLE BY COMPANY HEREUNDER.
9. Equitable Relief. Consultant recognizes that (i) the Services
contemplated by this Agreement are special, unique and extraordinary in
character and (ii) the covenants contained in Sections 3, 4, 5 and 10 hereof are
reasonable and necessary to protect the legitimate interests of the Company,
that the Company would not have entered into this Agreement in the absence of
such covenants, and that Consultant's violation or threatened violation of such
covenants will cause Company irreparable harm and significant injury, the amount
of which will be extremely difficult to estimate and ascertain, thus, making any
remedy at law or in damages inadequate. Therefore, Consultant agrees that
Company shall have the right to apply to any court of competent jurisdiction for
an order restraining any breach or threatened breach of this Agreement and for
any other relief Company deems appropriate, without the necessity of posting of
any bond or security. This right shall be in addition to any other remedy
available to Company in law or equity.
10. Business Relationships. Consultant acknowledges that Company's
relationships with its employees, agents, suppliers, customers and vendors are
valuable business assets. Accordingly, Consultant agrees that, during the
period of this consulting arrangement with Company and for one (1) year
thereafter Consultant will not (for itself or for any third party) divert or
attempt to divert from Company any business, employee, agent, supplier, client,
customer or vendor, through solicitation or otherwise. Consultant further
acknowledges that its engagement or participation, directly or indirectly, in
any business in competition with the Company would inherently involve the
unauthorized use or disclosure of Proprietary Information. Accordingly, to
prevent any such unauthorized use or disclosure, Consultant agrees that it will
not, during the term of this Agreement engage or participate, directly or
indirectly, in any such competitive business unless it can demonstrate to
Company's reasonable satisfaction that there is no reasonable possible risk of
such unauthorized use or disclosure. Prior to any such engagement or
participation in any such competitive business, Consultant will notify Company
and will give Company a reasonable opportunity to determine the degree of any
such risk of unauthorized use or disclosure.
11. Term and Termination.
11.1. Term. This Agreement shall continue until the earlier of (i)
two years from the date hereof, or (ii) termination by either party in
accordance with Section 11.2.
7
11.2. Termination for Convenience. This Agreement may be terminated
by the Company upon thirty (30) days' written notice.
11.3. Termination for Cause. If either party materially defaults in
any of its obligations under this Agreement, the non-defaulting party, at its
option shall have the right to terminate this Agreement by written notice unless
the defaulting party remedies the default within thirty (30) calendar days after
receipt of written notice of such default.
11.4. Effect of Termination. Upon termination of this Agreement,
Consultant shall immediately cease performing any Services under this Agreement.
Unless this Agreement has been terminated by Company for material breach of
Consultant, the Company agrees to pay Consultant compensation due for Services
pursuant to Section 2.1, to the extent performed by Consultant prior to the
effective date of termination, and such amounts shall be in full satisfaction of
any obligation or liability of the Company to Consultant for payments due to
Consultant under this Agreement. Sections 2.2, 2.4, 2.5, 3-10, 11.4 and 12
shall survive the expiration or termination of this Agreement. Termination of
this Agreement by either party shall not act as a waiver of any breach of this
Agreement and shall not act as a release of either party from any liability for
breach of such party's obligations under this Agreement. Neither party will be
liable to the other for damages of any kind solely as a result of terminating
this Agreement in accordance with its terms, and termination of this Agreement
by a party will be without prejudice to any other right or remedy of such party
under this Agreement or applicable law.
12. General Provisions
12.1. Relationship of Parties. It is understood and agreed that
Consultant shall perform the Services as an independent contractor and
consultant, and Consultant shall not be deemed to be an employee of Company.
Nothing contained in this Agreement shall be deemed or construed as creating a
joint venture, partnership, agency, employment or fiduciary relationship between
the parties. Neither party nor its agents have any authority of any kind to
bind the other party in any respect whatsoever, and the relationship of the
parties is, and at all times shall continue to be, that of independent
contractors.
12.2. Notices. Any notice, request, demand, or other communication
required or permitted hereunder shall be in writing, shall reference this
Agreement and shall be deemed to be properly given: (i) when delivered
personally; (ii) when sent by facsimile, with written confirmation of receipt;
(iii) five (5) business days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or (iv) two (2) business days
after deposit with a private industry express courier, with written confirmation
of receipt. All notices shall be sent to the address set forth in the Preamble
on the first page of this Agreement and to the notice of the person executing
this Agreement (or to such other address or person as may be designated by a
party by giving written notice to the other party pursuant to this Section
12.2):
12.3. Assignment. Consultant shall not assign, sell, transfer,
delegate or otherwise dispose of, whether voluntarily or involuntarily, or by
operation of law, any obligations under this Agreement without Company's prior
written consent (which consent may be withheld in Company's sole discretion).
Consultant may assign its rights to payment with
8
prior written notice to the Company. Except as provided herein, any purported
assignment, transfer, or delegation by Consultant shall be null and void.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective successors and permitted
assigns.
12.4. Governing Law. This contract will be governed by and construed
in accordance with the laws of the State of California, without giving effect to
its conflicts of laws rules. Any dispute regarding this Agreement shall be
subject to the exclusive jurisdiction of the California state courts in and for
San Francisco County, California, U.S.A. (or, if there is federal jurisdiction,
the United States District Court for California), and the parties agree to
submit to the personal and exclusive jurisdiction and venue of these courts.
12.5. Dispute Resolution. The parties agree that, should any dispute
of any nature arise between them during the term of this Agreement, they first
attempt to resolve any such dispute amicably through discussion and negotiation.
If a dispute cannot be resolved informally, the parties will exchange their
views in writing and will meet and confer in person or by telephone and attempt
in good faith to resolve the dispute prior to commencing any legal action before
any court, administrative agency or other tribunal. If the foregoing process
fails, any controversy or claim arising out of or relating to this Agreement
shall be settled by arbitration in San Francisco, California, in accordance with
the then-prevailing Commercial Arbitration Rules of the American Arbitration
Association, and applying California state law, or if applicable, U.S. federal
law. Notwithstanding the foregoing, either party may seek injunctive or other
equitable relief in a court of competent jurisdiction pending the outcome of
such arbitration. Judgment upon the decision rendered by such arbitration may
be entered in any court having competent jurisdiction.
12.6. Construction. This Agreement has been negotiated by the
parties and shall be interpreted fairly in accordance with its terms and without
any construction in favor of or against either party.
12.7. Waiver of Statute of Limitations. Consultant hereby waives the
benefit of any statute of limitations affecting Consultant's liability under
this Agreement or the enforcement of the Agreement to the full extent permitted
by law.
12.8. Attorneys' Fees. If any legal action, including, without
limitation, an action for arbitration or injunctive relief, is brought relating
to this Agreement or the breach hereof, the prevailing party in any final
judgment or arbitration award, or the non-dismissing party in the event of a
dismissal without prejudice, shall be entitled to the full amount of all
reasonable expenses, including all court costs, arbitration fees and actual
attorney fees paid or incurred in good faith.
12.9. Waiver. The waiver by either party of a breach of or a default
under any provision of this Agreement, shall not be effective unless in writing
and shall not be construed as a waiver of any subsequent breach of or default
under the same or any other provision of this Agreement, nor shall any delay or
omission on the part of either party to exercise or avail itself
9
of any right or remedy that it has or may have hereunder operate as a waiver of
any right or remedy.
12.10. Severability. If the application of any provision of this
Agreement to any particular facts or circumstances shall be held to be invalid
or unenforceable by an arbitration panel or a court of competent jurisdiction,
then (i) the validity and enforceability of such provision as applied to any
other particular facts or circumstances and the validity of other provisions of
this Agreement shall not in any way be affected or impaired thereby and (ii)
such provision shall be enforced to the maximum extent possible so as to effect
the intent of the parties and reformed without further action by the parties to
the extent necessary to make such provision valid and enforceable.
12.11. Captions and Section Headings. The captions and section and
paragraph headings used in this Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement.
12.12. Counterparts. This Agreement may be executed (including,
without limitation, by facsimile signature) in one or more counterparts, with
the same effect as if the parties had signed the same document. Each counterpart
so executed shall be deemed to be an original, and all such counterparts shall
be construed together and shall constitute one Agreement.
10
12.13. Entire Agreement. This Agreement, including any Exhibits
attached hereto which are incorporated herein by reference, constitutes the
entire agreement between the parties concerning the subject matter hereof and
supersedes all prior or contemporaneous representations, discussions, proposals,
negotiations, conditions, agreements and communications, whether oral or
written, between the parties relating to the subject matter of this Agreement
and all past courses of dealing or industry custom. No amendment or
modification of any provision of this Agreement shall be effective unless in
writing and signed by a duly authorized signatory of the party against which
enforcement of the amendment or modification is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
AGREED TO BY:
COMPANY CONSULTANT
________________________________ _________________________________________
By: By:
------------------------------------ -----------------------------------
Title: Title:
--------------------------------- --------------------------------
Date: Date:
---------------------------------- ---------------------------------
11
EXHIBIT A
---------
STATEMENT OF WORK
General Responsibilities: Consultant shall be reasonably available at all
times to perform any services requested by the Company. Such services may
include research and development of the Company's intellectual property,
providing advice to the Company's board of directors or management and
performing such other duties as may be requested by the Company's board of
directors or management. From time to time, such services may require
substantially all of Consultant's time.
Meetings: Consultant is expected to attend periodic meetings with the
Company, when and as requested by the Company. Consultant must attend at least
75% of the meetings held in person. There will be at least six (6) meetings
each year at the Company's offices, or at such other place deemed reasonable by
the Company. Scheduled meetings will have thirty day advance notice to members
and the Company will make reasonable efforts to coordinate meeting dates to
accommodate Consultant's schedule.
Additional Responsibilities: In addition to the above responsibilities,
Consultant shall perform the following tasks:
1. Identify potential strategic partners and/or licensing or other joint
venture projects ("Projects") which Consultant feels to be profitable to the
Company
2. Present the potential Project to the Company's management for
discussion prior to contacting such partner.
3. Discuss strategic planning for negotiation of any project with the
Company and comply with management directives regarding such negotiation. If
management is pursuing its own negotiations with any potential partner or
otherwise feels that pursuing any Project is not in the best interest of the
Company, Consultant shall refrain from contacting such persons or pursuing such
negotiations.
4. Negotiate the provisional terms of any Project on behalf of the
Company. Management of the Company shall be apprised of all developments in any
negotiation and shall have the right to comment on any document prepared.
Consultant shall have no right to bind the Company to any transaction or
agreement.
Excluded Projects:
1. Any project, business venture or agreement which is not specifically
authorized by the Company to be negotiated by Consultant , or for which
Consultant does not follow the terms of this Exhibit A or the agreement to which
this Exhibit A is attached, shall not be considered a Project for purposes of
this Agreement and the compensation listed hereunder.
12
2. Management of the Company shall have the right to stop any
negotiations between Consultant and any third party upon request at any time if
it believes that such cessation is in the best interest of the Company.
3. The Company shall have the right to designate certain projects outside
the scope of the payment schedule of this Agreement, which may include all
projects which the Company is currently actively negotiating.
4. In addition to the foregoing exclusions, if Consultant does not
present a fully negotiated and documented transaction within six (6) months
after first being authorized to begin such negotiation, the Company shall have
the right to notify Consultant that it intends in 90 days after the date of such
notice to negotiate the and consummate the terms of any Project, whether or not
Consultant (a) initially identified such Project or (b) has begun negotiations
or discussions with respect to such Project, and such transaction or agreement
shall no longer be considered a Project for purposes of this Agreement.
Company Responsibilities: The Company shall provide Consultant with all
information reasonably requested by it and shall make its officers and
professionals available to them at reasonable times and upon reasonable notice.
The Company shall provide reasonable cooperation and assistance to Consultant in
connection with the performance of Consultant's duties hereunder.
Compensation:
1. The Company shall grant Consultant an option to purchase the Company's
common stock in form attached hereto as Exhibit 1.
2. In addition Consultant shall receive a bonus (the "Bonus") of 1.25% of
all amounts over one hundred million dollars ($100,000,000) received by the
Company on one or more Projects entered into by the Company in the two year
period after the Effective Date of the Agreement to which this Exhibit A is
attached. All Bonus payments shall be in the same form of consideration as is
received by the Company for the Project (unless otherwise agreed in writing
between the Company and Consultant). Payment of any Bonus shall be made at the
end of the first fiscal quarter in which the Company has received in excess of
$100,000,000 from all qualified Projects. If there are any unpaid Bonus amounts
due under the terms of any Project at the time of payment of the first Bonus
payment hereunder, an amount equal to 1.25% of any later received amounts shall
be paid to each member when such amounts are received by the Company. The
Company shall have no responsibility for reallocating any Bonus payment paid to
Consultant among Consultant and other consultants or employees working with
Consultant. The right to receive Bonus payments only (and not any obligations
hereunder) may be assigned by Consultant on prior written notice to the Company.
3. Upon termination of the Agreement, Consultant will have the right to
receive, for a period of three (3) months after such term, any Bonus payment
received by the Company for Projects consummated if such Project was first
authorized by the Company prior to termination
13
of the Agreement. Nothing in this section shall be construed to give Consultant
any greater rights to payment than if the Agreement were not terminated.
Other Agreement: In addition to the other agreements hereunder, Consultant
agrees that it will not beneficially own or have the right to acquire more than
7.0% of the Company's common stock.
14
EXHIBIT B
CALIFORNIA LABOR CODE SECTION 2870(a)
Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to any invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information, except for those inventions
that either (1) relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer, or (2) result from any work performed
by the employee for the employer.
15
EXHIBIT 1 TO EXHIBIT 10.2
INTERACTIVE NETWORK, INC. 1999 STOCK OPTION PLAN
NOTICE OF STOCK OPTION AWARD
----------------------------
(Consultant Award)
Grantee's Name and Address: _______________________________
_______________________________
_______________________________
You have been granted an option to purchase shares of Common Stock of the
Company, subject to the terms and conditions of this Notice of Stock Option
Award (the "Notice"), the Plan and the Stock Option Award Agreement (the "Option
Agreement") attached hereto, as follows:
Award Number ____________________________________
Date of Award ____________________________________
Exercise Price per Share $___________________________________
Total Number of Shares subject
to the Option 250,000
Total Exercise Price $___________________________________
Type of Option: Non-Qualified Stock Option
Expiration Date: Second Anniversary of the Date of Award
Post-Termination Exercise Period: Three (3) Months
Vesting Schedule:
- ----------------
Subject to the limitations set forth in this Notice, the Plan and the
Option Agreement, all Shares subject to the Option are fully vested and may be
exercised, in whole or in part, at any time until the Expiration Date.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice
and agree that the Option is to be governed by the terms and conditions of this
Notice, the Plan, and the Option Agreement.
Interactive Network, Inc.,
a California corporation
By: ________________________________
Title: _____________________________
THE GRANTEE ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE OPTION
AGREEMENT, OR THE COMPANY'S 1999 STOCK OPTION PLAN SHALL CONFER UPON THE GRANTEE
ANY RIGHT WITH RESPECT TO CONTINUATION OF GRANTEE'S CONTINUOUS SERVICE, NOR
SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE GRANTEE'S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE.
The Grantee acknowledges receipt of a copy of the Plan and the Option
Agreement, and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts the Option subject to all of the terms
and provisions hereof and thereof. The Grantee has reviewed this Notice, the
Plan, and the Option Agreement in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Notice, and fully
understands all provisions of this Notice, the Plan and the Option Agreement.
The Grantee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising
under this Notice, the Plan or the Option Agreement. The Grantee further agrees
to notify the Company upon any change in the residence address indicated in this
Notice.
Dated: ______________________ Signed: __________________________________
Grantee
Award Number: ___________
INTERACTIVE NETWORK, INC. 1999 STOCK OPTION PLAN
STOCK OPTION AWARD AGREEMENT
----------------------------
1. Grant of Option. Interactive Network, Inc., a California corporation
---------------
(the "Company"), hereby grants to the Grantee (the "Grantee") named in the
Notice of Stock Option Award (the "Notice"), an option (the "Option") to
purchase the Total Number of Shares of Common Stock subject to the Option (the
"Shares") set forth in the Notice, at the Exercise Price per Share set forth in
the Notice (the "Exercise Price") subject to the terms and provisions of the
Notice, this Stock Option Award Agreement (the "Option Agreement") and the
Company's 1999 Stock Option Plan (the "Plan") adopted by the Company, which are
incorporated herein by reference. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Option
Agreement.
2. Exercise of Option.
------------------
(a) Right to Exercise. The Option shall be fully exercisable
-----------------
during its term as set out in the Notice and with the applicable provisions of
the Plan and this Option Agreement. The Option shall be subject to the
provisions of Section 11 of the Plan relating to the exercisability or
termination of the Option in the event of a Corporate Transaction or Related
Entity Disposition. No partial exercise of the Option may be for less than the
lesser of five percent (5%) of the total number of Shares subject to the Option
or the remaining number of Shares subject to the Option. In no event shall the
Company issue fractional Shares.
(b) Method of Exercise. The Option shall be exercisable only by
------------------
delivery of an Exercise Notice (attached as Exhibit A) which shall state the
election to exercise the Option, the whole number of Shares in respect of which
the Option is being exercised, such other representations and agreements as to
the holder's investment intent with respect to such Shares and such other
provisions as may be required by the Administrator. The Exercise Notice shall be
signed by the Grantee and shall be delivered in person or by certified mail to
the Secretary of the Company accompanied by payment of the Exercise Price. The
Option shall be deemed to be exercised upon receipt by the Company of such
written notice accompanied by the Exercise Price, which, to the extent selected,
shall be deemed to be satisfied by use of the broker-dealer sale and remittance
procedure to pay the Exercise Price provided in Section 4(c), below.
No Shares will be issued pursuant to the exercise of the Option unless
such issuance and such exercise shall comply with all Applicable Laws. Assuming
such compliance, for income tax purposes, the Shares shall be considered
transferred to the Grantee on the date on which the Option is exercised with
respect to such Shares.
(c) Taxes. No Shares will be delivered to the Grantee or other
-----
person pursuant to the exercise of the Option until the Grantee or other person
has made arrangements
1
acceptable to the Administrator for the satisfaction of foreign, federal, state
and local income and employment tax withholding obligations.
3. Method of Payment. Payment of the Exercise Price shall be by any of
-----------------
the following, or a combination thereof, at the election of the Grantee;
provided, however, that such exercise method does not then violate any
Applicable Law.
(a) cash;
(b) check; or
(c) through a broker-dealer sale and remittance procedure pursuant
to which the Grantee (A) shall provide written instructions to a Company
designated brokerage firm to effect the immediate sale of some or all of the
purchased Shares and remit to the Company, out of the sale proceeds available on
the settlement date, sufficient funds to cover the aggregate exercise price
payable for the purchased Shares and (B) shall provide written directives to the
Company to deliver the certificates for the purchased Shares directly to such
brokerage firm in order to complete the sale transaction.
4. Restrictions on Exercise. The Option may not be exercised if the
------------------------
issuance of the Shares subject to the Option upon such exercise would constitute
a violation of any Applicable Laws. In addition, the Option, if an Incentive
Stock Option, may not be exercised until such time as the Plan has been approved
by the stockholders of the Company.
5. Termination or Change of Continuous Service. In the event the
-------------------------------------------
Grantee's Continuous Service terminates, the Grantee may, to the extent
otherwise so entitled at the date of such termination (the "Termination Date"),
exercise the Option during the Post-Termination Exercise Period. In no event
shall the Option be exercised later than the Expiration Date set forth in the
Notice. In the event of the Grantee's change in status from Employee, Director
or Consultant to any other status of Employee, Director or Consultant, the
Option shall remain in effect and, except to the extent otherwise determined by
the Administrator, continue to vest. Except as provided in Sections 6 and 7
below, to the extent that the Grantee is not entitled to exercise the Option on
the Termination Date, or if the Grantee does not exercise the Option within the
Post-Termination Exercise Period, the Option shall terminate.
6. Disability of Grantee. In the event the Grantee's Continuous
---------------------
Service terminates as a result of his or her Disability, the Grantee may, but
only within twelve (12) months from the Termination Date (and in no event later
than the Expiration Date), exercise the Option to the extent he or she was
otherwise entitled to exercise it on the Termination Date. To the extent that
the Grantee is not entitled to exercise the Option on the Termination Date, or
if the Grantee does not exercise the Option to the extent so entitled within the
time specified herein, the Option shall terminate.
7. Death of Grantee. In the event of the termination of the Grantee's
----------------
Continuous Service as a result of his or her death, or in the event of the
Grantee's death during the Post-Termination Exercise Period or during the twelve
(12) month period following the Grantee's
2
Termination of Continuous Service as a result of his or her Disability, the
Grantee's estate, or a person who acquired the right to exercise the Option by
bequest or inheritance, may exercise the Option, but only to the extent the
Grantee could exercise the Option at the date of termination, within twelve (12)
months from the date of death (but in no event later than the Expiration Date).
To the extent that the Grantee is not entitled to exercise the Option on the
date of death, or if the Option is not exercised to the extent so entitled
within the time specified herein, the Option shall terminate.
8. Non-Transferability of Option. The Option may not be transferred in
-----------------------------
any manner other than by will or by the laws of descent or distribution and may
be exercised during the lifetime of the Grantee only by the Grantee.
9. Term of Option. The Option may be exercised no later than the
--------------
Expiration Date set forth in the Notice or such earlier date as otherwise
provided herein.
10. Tax Consequences. Set forth below is a brief summary as of the date
----------------
of this Option Agreement of some of the federal tax consequences of exercise of
the Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE GRANTEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE
SHARES.
(a) Exercise of Non-Qualified Stock Option. On exercise of a Non-
--------------------------------------
Qualified Stock Option, the Grantee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the Fair Market Value of the Shares on the date of exercise over the
Exercise Price. If the Grantee is an Employee or a former Employee, the Company
will be required to withhold from the Grantee's compensation or collect from the
Grantee and pay to the applicable taxing authorities an amount in cash equal to
a percentage of this compensation income at the time of exercise, and may refuse
to honor the exercise and refuse to deliver Shares if such withholding amounts
are not delivered at the time of exercise.
(b) Disposition of Shares. In the case of a Non-Qualified Stock
---------------------
Option, if Shares are held for more than one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes and subject to tax at a maximum rate of 20%.
11. Entire Agreement: Governing Law. The Notice, the Plan and this Option
-------------------------------
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and the Grantee with respect to the subject matter
hereof, and may not be modified adversely to the Grantee's interest except by
means of a writing signed by the Company and the Grantee. These agreements are
to be construed in accordance with and governed by the internal laws of the
State of California (as permitted by Section 1646.5 of the California Civil
Code, or any similar successor provision) without giving effect to any choice of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of California to
3
the rights and duties of the parties. Should any provision of the Notice or this
Option Agreement be determined by a court of law to be illegal or unenforceable,
the other provisions shall nevertheless remain effective and shall remain
enforceable.
12. Headings. The captions used in the Notice and this Option Agreement
--------
are inserted for convenience and shall not be deemed a part of the Option for
construction or interpretation.
13. Interpretation. Any dispute regarding the interpretation of the
--------------
Notice, the Plan, and this Option Agreement shall be submitted by the Grantee or
by the Company forthwith to the Administrator, which shall review such dispute
at its next regular meeting.
4
EXHIBIT A
---------
INTERACTIVE NETWORK, INC. 1999 STOCK OPTION PLAN
EXERCISE NOTICE
---------------
Interactive Network, Inc.
1161 Old County Road
Belmont, CA 94002
Attention: Secretary
1. Exercise of Option. Effective as of today, ______________, ___ the
------------------
undersigned (the "Grantee") hereby elects to exercise the Grantee's option to
purchase ___________ shares of the Common Stock (the "Shares") of Interactive
Network, Inc. (the "Company") under and pursuant to the Company's 1999 Stock
Option Plan (the "Plan") and Stock Option Award Agreement (the "Option
Agreement") and Notice of Stock Option Award (the "Notice") dated June __, 1999.
2. Representations of the Grantee. The Grantee acknowledges that the
------------------------------
Grantee has received, read and understood the Notice, the Plan, and the Option
Agreement and agrees to abide by and be bound by their terms and conditions.
3. Rights as Stockholder. Until the stock certificate evidencing such
---------------------
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to the Shares, notwithstanding the exercise of the Option. The Company
shall issue (or cause to be issued) such stock certificate promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as provided in Section 10 of the Plan.
4. Delivery of Payment. The Grantee herewith delivers to the Company
-------------------
the full Exercise Price for the Shares, which, to the extent selected, shall be
deemed to be satisfied by use of the broker-dealer sale and remittance procedure
to pay the Exercise Price provided in Section 4(c) of the Option Agreement.
5. Tax Consultation. The Grantee understands that the Grantee may
----------------
suffer adverse tax consequences as a result of the Grantee's purchase or
disposition of the Shares. The Grantee represents that the Grantee has consulted
with any tax consultants the Grantee deems advisable in connection with the
purchase or disposition of the Shares and that the Grantee is not relying on the
Company for any tax advice
6. Taxes. The Grantee agrees to satisfy all applicable federal, state
-----
and local income and employment tax withholding obligations and herewith
delivers to the Company the full amount of such obligations or has made
arrangements acceptable to the Company to satisfy such
1
obligations. If the Company is required to satisfy any federal, state or local
income or employment tax withholding obligations as a result of such an early
disposition, the Grantee agrees to satisfy the amount of such withholding in a
manner that the Administrator prescribes.
7. Successors and Assigns. The Company may assign any of its rights
----------------------
under this Exercise Notice to single or multiple assignees, and this agreement
shall inure to the benefit of the successors and assigns of the Company. This
Exercise Notice shall be binding upon the Grantee and his or her heirs,
executors, administrators, successors and assigns.
8. Headings. The captions used in this Exercise Notice are inserted for
--------
convenience and shall not be deemed a part of this agreement for construction or
interpretation.
9. Interpretation. Any dispute regarding the interpretation of this
--------------
Exercise Notice shall be submitted by the Grantee or by the Company forthwith to
the Administrator, which shall review such dispute at its next regular meeting.
10. Governing Law; Severability. This Exercise Notice is to be construed
---------------------------
in accordance with and governed by the internal laws of the State of California
(as permitted by Section 1646.5 of the California Civil Code, or any similar
successor provision) without giving effect to any choice of law rule that would
cause the application of the laws of any jurisdiction other than the internal
laws of the State of California to the rights and duties of the parties. Should
any provision of this Exercise Notice be determined by a court of law to be
illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable.
11. Notices. Any notice required or permitted hereunder shall be given in
-------
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
12. Further Instruments. The parties agree to execute such further
-------------------
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this agreement.
2
13. Entire Agreement. The Notice, the Plan, and the Option Agreement are
----------------
incorporated herein by reference, and together with this Exercise Notice
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and the Grantee with respect to the subject matter
hereof, and may not be modified adversely to the Grantee's interest except by
means of a writing signed by the Company and the Grantee.
Submitted by: Accepted by:
GRANTEE: INTERACTIVE NETWORK, INC.
By:____________________________________________________
_______________________________________ Title:_________________________________________________
(Signature)
Address: Address:
- --------------------------------------- -------------------------------------------------------
- --------------------------------------- -------------------------------------------------------
3