Exhibit 10.2
CONSULTING
AGREEMENT
This Consulting
Agreement (“Agreement”) is made and entered into as of
the fifteenth (15th) day of December 2007 by and between
Outdoor Channel Holdings, Inc. (the “Company”) and
William A. Owen (“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,
Consultant’s performance of consulting services for the
Company will allow Consultant to continue vesting in the Owen
Equity Agreements (as defined in the Separation Agreement and
Release between the Company and Consultant dated on or about
December 14, 2007); and
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.
(b) As partial consideration for the Services, the
Company agrees to pay Consultant a lump-sum of Forty-Eight Thousand
Dollars ($48,000) on or before March 15, 2008
(“Consulting Fees”). As additional consideration,
the Company shall accelerate the vesting of the second traunch of
10,000 shares of common stock under that certain Restricted Shares
Award Agreement dated January 24, 2007 so that such shares
vest on December 15, 2008 (instead of January 24, 2009)
provided that Consultant has provided the Services as requested by
the Company until such date.
(c) Except for travel between Consultant’s
home and the Company’s Temecula office, the Company further
agrees to reimburse the reasonable travel expenses incurred by
Consultant in performing the
Services.
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.
(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
2
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 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
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