TERMINATION AGREEMENT
AGREEMENT,
dated as of the 8th day of March 2004, among XNH Consulting
Services, Inc., a Florida corporation
("XNH"), MediaBay, Inc., a Florida
Corporation ("MediaBay" or the "Company"),
and Norton Herrick ("Herrick").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS,
XNH, Herrick and the Company entered into a Consulting
Agreement
dated May 1, 2003 (the "Consulting
Agreement"); and
WHEREAS,
subject to the terms and conditions herein contained, the
parties
hereto wish to terminate the Consulting
Agreement effective as of December 31,
2003;
NOW,
THEREFORE, in consideration of the covenants herein contained,
the
parties hereto hereby agree as follows:
1.
TERMINATION OF CONSULTING AGREEMENT. Effective as of December 31,
2003
("Termination Date"), and except as
expressly set forth herein, the Consulting
Agreement is terminated and is of no
further force or effect.
2.
ADVISORY SERVICES. XNH will cause Herrick to provide advisory
services
to the Company, from time to time upon
request by MediaBay, as determined by XNH
in its sole discretion, and in accordance
with Herrick's availability, by
telephone, e-mail, or scheduled
appointment. It is understood and agreed that
while providing advisory services, if any,
to the Company hereunder, XNH and
Herrick may engage in any business or
employment activities in any field either
for his own account or for the account of
others subject to the provisions of
Section 3 below.
3.
NONCOMPETITION COVENANT. Herrick and XNH agree that the
Noncompetition
Covenant in Section 3 of the Consulting
Agreement will survive the termination
of the Consulting Agreement for a period of
three years from the Termination
Date.
4.
NONDISCLOSURE OBLIGATION. Herrick and XNH agree that the
Nondisclosure
Covenant in Section 4 of the Consulting
Agreement will survive the termination
of the Consulting Agreement for a period of
three years from the Termination
Date.
5.
TERMINATION PAYMENT AND INSURANCE. In consideration for the
advisory
services that may be provided by Herrick
and XNH and the extensions of the
noncompetition covenant and nondisclosure
obligation agreed to by Herrick and
XNH, as set forth in Sections 2 through 4
of this Agreement, and as
consideration for the Company's termination
of the Consulting Agreement, the
Company agrees to pay to XNH a fee at the
rate of $7,500 per month for 16 months
commencing on January 1, 2004. In addition,
Herrick shall remain entitled to
receive insurance and employee benefits
applicable to officers of the Company,
to the extent permitted by any benefit plan
now or hereinafter in effect and, if
health insurance benefits for Herrick are
not permitted by any such plan, the
Company shall reimburse Herrick for COBRA
cover
