Mohen Entertainment Portals, LLC Garden City, New York 11530
Exhibit
10.4
Mohen
Entertainment Portals, LLC
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14
Cedar
Place
Garden
City, New York 1 1530
Dear
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This
letter agreement (this “Agreement”) sets forth the terms of your engagement as a
consultant to Mohen Entertainment Portals, LLC (“MEP”). It is agreed as
follows:
1.
Scope
of Work
You
agree
to provide to MEP consulting and related services (the “Consulting Services”) as
described generally in this Agreement. During your engagement, specific
assignments may be mutually agreed to by you and by MEP’s managing member or
such other person as lie may designate. Your services shall generally include
providing consulting services to MEP in connection with its design and creation
of software and products, marketing and capital raising activities. The location
and time the work will be performed will be determined by tile Consultant.
The
services may be performed by consultant himself or designated persons, and
need
not be integrated into the business operation, and Consultant, at his option,
may furnish his own tools; Consultant will address the order and sequence in
which the work will be done.
2.
Consulting
Fee
(a)
In
consideration for the Consulting Services, for the term of your engagement
you
shall be entitled to receive a fee equal to $360,000 annually, payable monthly
in advance, plus other fees as may be negotiated between the parties for
particular consulting projects. Any such other fees shall be subject to the
approval of MEP’s board of directors.
(b)
Upon
submission of appropriate documentation, MEP will reimburse you for any
reasonable out-of-pocket expenses incurred by you in connection with the
Consulting Services in accordance with the policies of MEP then in effect;
these
will specifically include, among others, travel, charges related to
telecommunications and internet research, such as broadband and wireless
internet access, video-on-demand, radio, television, cable, satellite,
multimedia (including audio, motion picture, games, and other software), and
telecommunications (terrestrial, cellular, and satellite).
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2
3.
Nature
of Relationship
During
your engagement, and for all purposes hereunder, you shall act solely as an
independent contractor, and nothing herein shall at any time be construed to
create a relationship of employer and employee, partnership, principal and
agent
or joint venture as between you and MEP by virtue of this Agreement or the
consulting services contemplated hereby. As an independent contractor, you
shall
not be entitled to any of the customary employee benefits provided by MEP to
its
employees by virtue of your service to MEP under this Agreement. You and MEP
acknowledge and agree that MEP will not take any deductions of any kind from
the
Consulting Fee provided for herein, and you further acknowledge and agree that
you solely are responsible for any tax liabilities or employee benefit
obligations that may arise from the payments made under this Agreement. In
that
respect, you agree to indemnify and hold MEP harmless from any tax liabilities
or employment benefit obligations arising from the payments made cinder this
Agreement.. Consultant is able to pursue other activities, provided they do
not
interfere with his obligations under this agreement, and is free to offer his
services to the public; Consultant and Company will communicate in manner
mutually convenient, but no specific written or oral reports are required.
The
Consultant is not obligated to perform training of Company staff.
4.
Confidential
Information
During
your engagement, you acknowledge that you shall have access to information
that
is confidential and proprietary to MEP. You agree that you will not, during
or
after your engagement, disclose such information to any person or use it for
your benefit or that of any third party, other than pursuant to legal
process.
5.
MEP
Property
At
the
end of your engagement, or at any other time on request by MEP, you agree to
promptly deliver all property and equipment of MEP of any kind that you may
have
in your control or possession.
6.
Term
of Engagement; Termination Rights
This
Agreement shall be in effect from October 1, 2003 until December 31, 2009.
After
such date, the term hereof shall automatically be extended annually unless
MEP
has delivered to you, oil or prior to November 30 in the relevant year, a
written termination notice to the addresses listed on page one of this
Agreement. If Consultant terminates the agreement before completion, he is
liable for a $1,000 penalty.
7.
Entire
Agreement
This
Agreement contains the entire understanding between the parties on the subjects
covered herein and supersedes all prior agreements between the parties and
any
prior discussions, understandings and arrangements, whether written or oral,
are
merged into and governed by this Agreement. This Agreement may not be changed
orally, but only in writing signed by both parties.
8.
Governing
Law
The
parties agree that this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding principles of
conflicts of laws.
9.
Dispute
Resolution
In
the
event a dispute arises concerning this Agreement, the performance of the
Consulting Services or the relationship established hereunder, the parties
agree
to submit the dispute to arbitration before a panel of three (3) arbitrators
at
the American Arbitration Association (the “AAA”) in New York, New York, which
will determine the dispute in accordance with the then-prevailing Commercial
Rules of the AAA. For injunctive relief, it is agreed that any court of
competent jurisdiction also may entertain an application by any party. The
parties further agree that no demand for punitive or consequential damages
shall
be made in any such arbitration proceeding and the arbitrators shall not have
the power to award such damages. Any award of the arbitrators shall be final
and
binding, subject only to any rights of appeal that may be as a matter of
law.
10.
Waiver
No
failure by any party hereto at any time to give notice of any breach by the
other party, or to require compliance with, any condition or provision of this
Agreement shall be deemed a waiver of a similar or dissimilar provision or
condition at the time or at any prior or subsequent time.
11.
Effect
of Partial Invalidity
In
the
event that any provision or term of this Agreement is held to be invalid,
prohibited or unenforceable for any reason, such provision or term shall be
deemed severed from this Agreement, without invalidating the remaining
provisions, which shall remain in full force and effect.
12.
Confidentiality
The
parties agree to keep this Agreement confidential and not disclose its terms
to
any third parties unless required to do so by law or regulation, without the
prior written consent of MEP. You may, however, disclose the terms of the
Agreement to members of your immediate family, and the parties may disclose
to
tax, accounting and legal advisors, provided that assurance is received that
such person will not disclose those matters to any third party.
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13.
Binding,
Effect; Assignment
This
Agreement and all rights and obligations hereunder shall be binding upon and
shall inure to the benefit of your heirs, executors, representatives and
administrators and MEP’s successors in interest or its assigns. Because of the
personal nature of the services to be rendered by you, you may not assign your
rights or obligations under this Agreement, without tile prior written consent
of MEP.
Please
indicate your acceptance of the terms of this Agreement by signing and returning
to me a copy of this letter.
Very
truly yours,
| MEP, LLC | ||
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| By: | /s/ [illegible signature] | |
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Tax
Matters Partner, for
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ACCEPTED
AND AGREED TO:
/s/
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Date:
January
15, 2004