Consulting Agreement - Media Arts Group Inc. and Mike Kiley
MEDIA ARTS GROUP, INC.
CONSULTING AGREEMENT
This Consulting Agreement, including the attached Exhibits
("Agreements") is made and entered into as of the 1st day of April, 1997, by
and between MEDIA ARTS GROUP, INC.("MAGI"), a Delaware company, and Mike
Kiley ("Consultant"). MAGI desires to retain Consultant as an independent
contractor to perform consulting services for MAGI as set forth below and
Consultant is willing to perform such services, on terms set forth more fully
below. In consideration of the mutual promises contained herein, the parties
agree as follows:
1. SERVICES AND COMPENSATION any proprietary information or
trade secrets of any former or
(a) Consultant agrees to current employer or any other
perform for MAGI the services person or entity with which
described in the attached Consultant has an agreement or a
EXHIBIT A ("Services"). duty to keep in confidence
information acquired by
(b) MAGI agrees to pay Consultant Consultant in confidence and
the compensation set forth in that Consultant will not bring
the attached EXHIBIT B for the onto the premises of MAGI any
performance of the Services. unpublished document or
proprietary information
2. CONFIDENTIALITY belonging to such an employer,
person, or entity unless
(a) "Confidential Information" consented to in writing by such
means any MAGI proprietary employer, person, or entity.
information, technical data, Consultant will indemnify MAGI
trade secrets or know-how, and hold it harmless from and
including, but not limited to, against all claims, liabilities,
research, product plans, damages and expenses, including
products, services, suppliers, reasonable attorneys' fees and
supplier lists, customers, costs of suit, arising out of or
customer lists, markets, in connection with any violation
software, developments, or claimed violation of a third
Developments, processes, party's rights resulting in
formulas, technology, designs, whole or in part from MAGI's use
drawings, engineering, of the work product of
marketing, finances or other Consultant under this Agreement.
business information disclosed
by MAGI either directly or (d) Consultant recognizes that
indirectly in writing, orally, MAGI has received and in the
electronically, or by drawings future will receive from third
or inspection of parts or parties their confidential or
equipment. proprietary information subject
to a duty on MAGI's part to
(b) Consultant will not, during maintain the confidentiality of
or subsequent to the term of such information and use it
this Agreement, use Confidential only for certain limited
Information for any purpose purposes. Consultant agrees
whatsoever other than the that Consultant owes MAGI and
performance of the Services on such third parties, during the
behalf of MAGI or disclose term of this Agreement and
Confidential Information to any thereafter, a duty to hold all
third party. Consultant agrees such confidential or
that Confidential Information proprietary information in the
shall remain the sole property strictest confidence and not to
of MAGI. Consultant agrees to disclose it to any person, firm
take all reasonable precautions or corporation or to use it
to prevent unauthorized except as necessary in carrying
disclosure of Confidential out the Services for MAGI
Information. Notwithstanding consistent with MAGI's
the above, Consultant's agreement with such third party.
obligation under this Section
2(b) relating to Confidential (e) Upon the termination of
Information shall not apply to this Agreement, or upon MAGI's
information which earlier request, Consultant
will deliver to MAGI all of
(i) is known to Consultant MAGI's property relating to,
at the time of disclosure to and all tangible and electronic
Consultant by MAGI as evidenced embodiments of, Confidential
by written records of Information in Consultant's
Consultant, possession or control.
(ii) has become publicly (f) Consultant represents and
known and made generally warrants that each employee of
available through no wrongful Consultant, and each
act of Consultant, or independent contractor of
Consultant, if any, has
(iii) has been rightfully executed an agreement with
received by Consultant from a Consultant containing
third party authorized to make provisions in MAGI's favor
such a disclosure. substantially similar to this
Section 2.
(c) Consultant agrees that
Consultant will not, during the 3. OWNERSHIP
term of this Agreement,
improperly use or disclose Consultant agrees that all
copyrightable material, notes,
records, drawings, designs,
developments,
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improvements, developments, (f) Consultant represents and
discoveries and trade secrets warrants that each employee of
(collectively, "Developments") Consultant, and each independent
conceived, made or discovered by contractor of Consultant, if
Consultant in performing the any, has executed an agreement
Services, solely or in with Consultant containing
collaboration with others, provisions in MAGI's favor
during the term of this substantially similar to this
Agreement relating to the Section 3.
business of MAGI shall be the
sole property of MAGI. In (g) Notwithstanding any other
addition, to the extent allowed provision of this Section 3, the
by law, any Developments which provisions of this Section 3
constitute copyrightable subject shall not apply to any Invention
matter shall be considered that qualifies in all respects
"works made for hire" as that under Section 2870 of the
term is defined in the United California Labor Code, which
States Copyright Act. provides: "(a) Any provision in
Consultant further agrees to an employment agreement which
assign (or cause to be assigned) provides that an employee shall
and does hereby assign fully to assign, or offer to assign, any
MAGI all such Developments and of his or her rights in an
any copyrights, patents, mask invention to his or her employer
work rights, or other shall not apply to an invention
intellectual property rights that the employee developed
relating thereto. entirely on his or her own time
without using the employer's
(b) Upon the termination of equipment, supplies, facilities
this Agreement, or upon MAGI's or trade secret information,
earlier request, Consultant will except for those Developments
deliver to MAGI all of MAGI's that either:
property relating to, and all
embodiments of, Developments in (1) Relate at the time of
Consultant's possession and conception or reduction to
control. practice of the invention to the
employer's business, or actual
(c) Consultant agrees to assist demonstrably anticipated
MAGI, or its authorized research or development of the
representative, at MAGI's employer.
expense, to obtain and from time
to time enforce and defend (2) Result from any
MAGI's rights in the work performed by the employee
Developments and any copyrights, for the employer. (b) To the
patents, mask work rights or extent a provision in an
other intellectual property employment agreement purports to
rights relating thereto in any require an employee to assign an
and all countries, and to invention otherwise excluded
execute all documents reasonably from being required to be
necessary for MAGI to do so. assigned under subdivision (a),
the provision is against the
(d) MAGI agrees that if in the public policy of this state and
course of performing the is unenforceable." Consultant
Services, Consultant shall advise MAGI promptly and
incorporates into any in writing of any of his or her
Development developed hereunder previous or future works or
any invention, improvement, Developments which he believes
development, concept, discovery qualify under the California
or other proprietary information Labor Code Section 2870. MAGI
owned by Consultant or in which agrees to receive such
Consultant has an interest information in confidence.
("Item"), MAGI is hereby granted
and shall have a nonexclusive, 4. CONFLICTING OBLIGATIONS
royalty-free, perpetual,
irrevocable worldwide license to (a) Consultant certifies that
make, have made, modify, Consultant has no outstanding
reproduce, display, use and sell agreement or obligation that is
such Item as part of or in in conflict with any of the
connection with such Invention. provisions of this Agreement, or
that would preclude Consultant
(e) Consultant agrees that if from complying with the
MAGI is unable because of provisions hereof, and further
Consultant's unavailability, certifies that Consultant will
dissolution, mental or physical not enter into any such
incapacity, or for any other conflicting agreement during the
reason, to secure Consultant's term of this Agreement.
signature to apply for or to
pursue any application for any (b) Consultant represents and
United States or foreign patents warrants that each employee of
or mask work or copyright Consultant, and each independent
registrations covering the contractor of Consultant, if
Developments assigned to MAGI any, has executed an agreement
above, then Consultant hereby with Consultant containing
irrevocably designates and provisions in MAGI's favor
appoints MAGI and its duly substantially similar to this
authorized officers and agents Agreement.
as Consultant's agent and
attorney-in-fact, to act for and 5. TERM AND TERMINATION
in Consultant's behalf and stead
to execute and file any such (a) This Agreement will
applications and to do all other commence on the date first
lawfully permitted acts to written above and will continue
further the prosecution and for twelve (12) months or
issuance of patents, copyright termination as provided below.
and mask work registrations
thereon with the same legal (b) MAGI, upon a majority vote
force and effect as if executed by its Board of Directors, may
by Consultant. terminate this Agreement upon
giving sixty (60) days prior
written notice thereof to
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Consultant. Any such notice jurisdiction. In the event that
shall be addressed to Consultant any legal action or arbitration
at the address shown below or is brought by any party
such address as Consultant may hereunder, the prevailing party
notify MAGI of and shall be shall be entitled to recover
deemed given upon delivery if from the other party all
personally delivered, or reasonable costs, expenses and
forty-eight (48) hours after attorneys fees incurred therein.
being deposited in the United
States mail, postage prepaid, (b) Consultant agrees that it
registered or certified mail, would be impossible or
return receipt requested. MAGI inadequate to measure and
may terminate this Agreement calculate MAGI's damages from
immediately and without prior any breach of the covenants set
notice if Consultant refuses or forth in Sections 2 or 3 herein.
is unable to perform the Accordingly, Consultant agrees
Services, or is in breach of any that if Consultant breached
material provision of this Section 2 or 3, MAGI has, in
Agreement. addition to any other right or
remedy available, the right to
(c) Upon such termination all obtain from any court of
rights and duties of the parties competent jurisdiction an order
shall cease except: (i) that restraining such breach or
MAGI shall be obligated to pay, threatened breach and specific
within thirty (30) days of the performance of any such
effective date of termination, provision. Consultant further
all amounts owing to Consultant agrees to the extent provided by
for unpaid services and related law that no bond or other
expenses, if any, in accordance security shall be required in
with the provisions of Section 1 obtaining such equitable relief
(Services and Compensation and Consultant hereby consents
hereof; and (ii) Sections 2 to the issuance of such
(Confidentiality), 3 injunction and the ordering of
(Ownership), 7 (Independent such specific performance.
Contractors) shall survive
termination of this Agreement. 9. GOVERNING LAW
6. ASSIGNMENT This Agreement shall be governed
by, and construed and
Neither this Agreement nor any interpreted under, the laws of
right hereunder or interest the State of California without
herein may be assigned or reference to conflict of laws
transferred by Consultant principles.
without the express written
consent of MAGI. 10. ENTIRE AGREEMENT
7. INDEPENDENT CONTRACTORS This Agreement and the Exhibits
hereto form the entire agreement
Nothing in this Agreement shall of the parties and supersedes
in any way be construed to any prior agreements between
constitute Consultant as an them with respect to the subject
agent, employee or matter hereof.
representative of MAGI, but
Consultant shall perform the 11. WAIVER
Services hereunder as an
independent contractor. Waiver of any term or provision
Consultant acknowledges and of this Agreement or forbearance
agrees that Consultant is to enforce any term or provision
obligated to report as income by either party shall not
all compensation received by constitute a waiver as to any
Consultant pursuant to this subsequent breach or failure of
Agreement, and Consultant agrees the same term or provision or a
to indemnify MAGI and hold it waiver of any other term or
harmless to the extent of any provision of this Agreement.
obligation imposed on MAGI (i)
to pay withholding taxes or 12. MODIFICATION
similar items or (ii) resulting
from Consultant's being No modification to this
determined not to be an Agreement, nor any waiver of any
independent contractor. rights, shall be effective
unless assented to in writing by
8. ARBITRATION, EQUITABLE the party to be charged.
RELIEF AND ATTORNEYS FEES
13. COUNTERPARTS
(a) Except as provided in
Section 8(b) below, MAGI and This Agreement may be executed
Consultant agree that any in counterpart, each of which
dispute or controversy arising shall be deemed an original, but
out of or relating to any both of which together shall
interpretation, construction, constitute one and the same
performance or breach of this instrument.
Agreement, shall be settled by
arbitration to be held in San 14. INTERPRETATION
Jose, California, by the
American Arbitration Association Consultant and MAGI agree that
and in accordance to the then this Agreement was the product
current rules thereof. The of negotiation, with each party
arbitrator may grant injunctions having the
or other relief in such dispute
or controversy. The decision of
the arbitrator shall be final,
in any court of competent
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opportunity to propose 15. SEVERABILITY
modification of terms. Should any provision of this
Accordingly, any ambiguity in Agreement be found to be void
this Agreement shall not be or unenforceable, the remainder
construed for or against any of this Agreement shall remain
party based upon who prepared in full force and effect.
such terms; the parties hereby
expressly waive California Civil
Code Section 1654 with respect
thereto.
IN WITNESS WHEREOF, the undersigned are duly authorized to execute this
Agreement on behalf of Consultant and MAGI as of the day and year written
above.
CONSULTANT: MEDIA ARTS GROUP INC.
521 Charcot Ave.
San Jose, CA 95131
By: /s/ Mike Kiley By: /s/ Kenneth Raasch
------------------------------- --------------------------------
Mike Kiley Print Name: Kenneth Raasch
------------------------
Title: Chairman/CEO
Address: 6415 Beusy Ct. -----------------------------
San Jose,CA 95123
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EXHIBIT A
Services to be performed by Consultant:
a. Act as a liaison between Thomas Kinkade and Company management
b. Interface with Company employees in any or all areas to identify issues
c. Work with the management team to develop a Company mission statement
d. Evaluate performance of various departments and/or Company divisions
e. Advise Company and Thomas Kinkade on issues relating to Company
f. Perform other functions as directed by the Company's Board of Directors
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EXHIBIT B
Compensation of Consultant:
(a) Rate of Pay: $6,000.00 per month, with payment to be made on the
first day of every month
(b) Options: Grant of 25,000 options at $3.75, vesting pro rata
over the term of this agreement. Should this agreement be terminated
without cause, the balance of the options shall immediately vest.
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