Consulting Agr


    Exhibit
      10.6

     

    

      


      


      FLUID
        AUDIO NETWORK, INC.

      January
        1, 2005

      


      Justin
        Beckett

      President,
        Vizx Corporation 

      3717
        S.
        La Brea Ave. #629 

      Los
        Angeles, CA 90016

      


      Re:     Consulting
        Agreement 

      


      Dear
        Justin:

      


      We
        are
        pleased to provide Vizx Corporation ("Vizx") with this consulting agreement.
        This letter sets forth
        the
        terms of Vizx's consulting relationship with Fluid Audio Network, Inc. (the
        "Company") as well as our understanding with respect to any termination of
        this
        consulting relationship.

      


      1. Position
        and Duties. Vizx
        will
        provide the Company with the services of Justin Beckett ("Beckett")
        as its Chief Executive Officer ("CEO"), who will report to the Board of
        Directors of the Company (the "Board"). Vizx accepts that Beckett shall devote
        the majority of his business time, energy and skill to the Company.
        His duties will include, but not be limited to, dose duties normally performed
        by a CEO, as well as
        any
        other reasonable duties that may be assigned to him from time to
        time.

      


      2. Term.
        Vizx's
        consulting relationship with the Company will start on January 1, 2005, will
        be
        for no
        specified term, and may be terminated by Vizx or the Company at any time,
        with
        or without Cause, subject
        to the provisions of Paragraph 4 below.

      


      3. Compensation.
        Vizx
        will be compensated by the Company for its consulting services as
        follows:

      


      (a) Salary:
        Vizx
        will be paid monthly compensation of $8,833.33 on the first of each
        month.

      


      (b) Benefits:
        Beckett
        will have the right, on the same basis as if he were an employee of
        the
        Company, to participate in and to receive benefits under any Company medical,
        disability or other group
        insurance plans, as well as under the Company's business expense reimbursement
        and other policies. Vizx, on behalf of Beckett, will be entitled to no less
        than
        fifteen (15) days of paid vacation, which Vizx, on behalf
        of
        Beckett, will accrue in accordance with the Company's vacation policy. In
        addition, Vizx, on behalf
        of
        Beckett, shall be entitled to all increases in vacation days according to
        the
        Company's vacation policy.

      


        (c) Bonus:Vizx,
        on
        behalf of Beckett, will be entitled to a performance based bonus for
        each
        fiscal year during Vizx's consulting relationship. Prior to the start of
        each
        fiscal year, the Board's Compensation Committee will set a gross revenue
        target
        for the Company, and if the Company meets and/or exceeds that revenue target
        during the applicable fiscal year, Vizx will be entitled to receive a bonus
        subject to the decision of the Board's Compensation Committee, payable within
        the last week of the applicable fiscal year.


      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      


      


        (d)
        Expenses:The
        Company will reimburse Vizx for all business expenses within thirty
        (30) days of receipt of Vizx's invoice, provided Vizx has furnished such
        documentation as the Company
        may reasonably request.

      


      4. Termination.

      


        (a) Death: 
        In
        the
        event that Vizx's consulting relationship terminates as a result of Beckett's
        death, Vizx shall be entitled to receive all compensation and benefits earned
        and all reimbursements due
        under
        Paragraph 3 through the effective date of termination.

      


        (b) Disability: 
        In
        the
        event that Vizx is no longer able to provide the consulting services
        due to illness, accident or other physical or mental condition of Beckett,
        and
        such disability is expected
        to continue with or without interruption for a period of ninety (90) days
        or
        longer, the Company may
        terminate this Agreement and the Term. Upon such termination, Vizx shall
        be
        entitled to receive all compensation
        and benefits earned and all reimbursements due under Paragraph 3 through
        the
        effective date of
        termination.

      


        (c) With
        Company Cause:
        The
        Company may terminate this Agreement and the Term
        for
        Company Cause (as defined herein) upon written notice to Vizx. "Company Cause"
        shall mean: (i)
        gross
        negligence or willful misconduct by Vizx in the performance of the consulting
        services which has
        continued for a period of thirty (30) days following written notice by the
        Board
        (which notice has been
        approved by a majority decision of the Board) of the need to cure such
        non-performance; and (ii) the breach
        by
        Vizx of a material covenant in this Agreement, which breach is uncured for
        a
        period of thirty (30) days following written notice by the Board (which notice
        has been approved by a majority decision of
        the
        Board) of the need to cure such breach. Upon a termination for Company Cause,
        Vizx shall be entitled
        to receive all compensation and benefits earned and all reimbursements due
        under
        Paragraph 3 through
        the effective date of termination.

      


        (d) Without
        Company Cause:
        This
        Agreement and the Term may be terminated without
        Company Cause by the Company at any time upon written notice to Vizx. Upon
        a
        termination by the
        Company without Company Cause, Vizx shall be entitled to receive all
        compensation and benefits earned
        and all reimbursements due under Paragraph 3 through the effective date of
        termination, as well as a
        severance payment equal to eighteen (18) months of Vizx's compensation at
        the
        time of such termination.

      


        (e) Constructive
        Termination:
        Vizx may
        terminate this Agreement and the Term for Constructive
        Termination (as defined herein) upon written notice to the Company.
        "Constructive Termination"
        in this Paragraph 4(e) shall mean: (i) the breach by the Company of a material
        covenant, agreement
        or condition contained in this Agreement which breach is uncured for a period
        of
        ten (10) business days
        following written notice by Vizx of the need to cure such breach; (ii) a
        change
        in Beckett's title or reporting
        relationship, or a diminution in corporate or signature authority; or (iii)
        a
        requirement that Beckett relocate his residence from Los Angeles, California.
        Upon a termination of this Agreement and the Term for Constructive Termination,
        Vizx shall be entitled to receive all compensation and benefits earned and
        all
reimbursements
        due under Paragraph 3 through the effective date of termination, as well
        as a
        severance payment
        equal to eighteen (18) months of Vizx's compensation at the time of such
        termination.

      


        (f) Voluntary
        Termination Without Cause:
        This
        Agreement and the Term may be terminated
        by Vizx at any time without Cause upon thirty (30) days prior written notice
        to
        the Company. Upon
        a
        voluntary termination by Vizx without Cause, Vizx shall be entitled to receive
        all compensation and benefits earned and all reimbursements due under Paragraph
        3 through the effective date of termination.

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      



      5. Repurchase
        of Stock. The
        Company may repurchase for nominal consideration up to fifteen
        percent (15%) of the stock then owned (directly or indirectly) by Vizx in
        the
        event that, on or before the second anniversary of the Closing Date of the
        Offering of Preferred Shares of the Company, pursuant to the
        Subscription Agreement for Preferred Shares (the "Closing Date" is defined
        therein as February 4, 2005 or
        such
        other dates as determined by the Company), (a) Vizx has voluntarily terminated
        its consulting relationship
        with the Company as per Paragraph 4(f) above; or (b) at least one of the
        following events has not occurred with respect to the Company: (i) generation
        of
        revenues of at least One Million Dollars ($1,000,000) or
        generation of a run rate of at least One Million Dollars ($1,000,000) for
        not
        less than one quarter, (ii) the receipt
        of a bona fide third party offer to acquire the Company (shares or assets)
        at a
        price per share or deemed
        price per share of not less than Two Dollars ($2), or (iii) the completion
        of a
        subsequent round of financing at a price per share of not less than Two Dollars
        ($2).

      


      6. First
        Right of Refusal.
        In the
        event that the Board elects to sell the Company and/or any technology related
        thereto, Vizx shall have the exclusive right for a period of ninety (90)
        days to
        enter into negotiations
        with the Company to purchase the Company and/or such technology. In the event
        that the parties
        are unable to reach an agreement with respect thereto within the ninety (90)
        day
        period, the Company shall
        have the right to enter into negotiations with a third party; provided that
        the
        Company shall not enter into
        any
        agreement with such third party with terms more favorable than those last
        offered to Vizx.

      


      7. Confidential
        and Proprietary Information.
        As a
        condition of Vizx's consulting relationship with the Company, Beckett, on
        behalf
        of himself and Vizx, agrees to sign the Company's standard form of employee
        confidentiality and assignment of inventions agreement which is attached
        hereto.

      


      8. Dispute
        Resolution.
        In the
        event of any dispute or claim relating to or arising out of Vizx's
        consulting relationship with the Company, this agreement, or the termination
        of
        Vizx's consulting relationship
        with the Company for any reason (including, but not limited to, any claims
        of
        breach of contract, wrongful termination or age, sex, race, national origin,
        disability or other discrimination or harassment),
        all such disputes shall be submitted to mediation between the parties. In
        the
        event that the parties are unable to resolve any such disputes within thirty
        (30) days thereafter, either party shall have the
        right
        to bring any action in the State and Federal courts located in Los Angeles,
        California, The parties hereby accept service of process as per the notice
        provisions herein and neither party will contest the such service
        or the venue set forth herein. In addition, the prevailing party in any such
        action shall be entitled to
        recover attorneys' fees from the other party.

      


      9. Indemnification.
        The
        Company shall indemnify, defend and hold Vizx and Beckett harmless
        from and against all claims against the Company and/or Vizx and Beckett.
        In
        addition, the Company
        shall carry directors and officer insurance with a policy limit of no less
        than
        One Million Dollars ($1,000,000), and the Company shall add Vizx and Beckett
        as
        an insured under such policy.

      


      10. Severability.
        If any
        provision of this Agreement is deemed invalid, illegal or unenforceable,
        such
        provision shall be modified so as to make it valid, legal and enforceable,
        and
        the validity, legality and enforceability of the remaining provisions of
        this
        Agreement shall not in any way be affected.

      


      11. Notice.
        Any
        notice required or permitted by this Agreement shall be in writing and shall
        be
        delivered as follows with notice deemed given as indicated: (i) by personal
        delivery when delivered personally;
        (ii) by overnight courier upon written verification of receipt; (iii) by
        telecopy or facsimile transmission
        upon acknowledgement of receipt of transmission and copy sent by either of
        the
        aforesaid means;
        or
        (iv) by certified or registered mail, return receipt requested, upon
        verification of receipt. Notice shall
        be
        sent to the address set forth above or such other address as either party
        may
        specify in writing.

      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      


      12.
        Successors
        and Assigns. Vizx
        may
        not assign, transfer or otherwise delegate its obligations under
        this Agreement without the Company's prior written consent. Subject to the
        foregoing, this Agreement will be for the benefit of the Company's successors
        and assigns, and will be binding on Vizx's assignees. The Company's successors
        and assigns shall be bound by the terms and conditions of this
        Agreement.

      


      13. Entire
        Agreement.
        This
        Agreement and the agreements referred to above constitute the entire
        agreement between Vizx and the Company regarding the terms and conditions
        of the
        consulting relationship, and they supersede all prior negotiations,
        representations or agreements between Vizx and the Company regarding Vizx's
        consulting relationship with the Company, whether written or oral.

      


      14. Governing
        Law.
        This
        Agreement will be governed by and construed in accordance with the laws of
        the
        United States and the State of California. Each party consents to the
        jurisdiction and venue of the State
        or
        Federal courts in Southern California, if applicable, in any action, suit,
        or
        proceeding arising out of or relating
        to this Agreement.

      


      15. Modification.
        This
        Agreement may only be modified or amended by a supplemental written agreement
        signed by Vizx and an authorized representative of the Company.

      


      We
        look
        forward to working with Vizx. Please sign and date this letter on the spaces
        provided below to acknowledge Vizx's acceptance of the terms of this
        Agreement.

      


      
        	
                 

              	
                Sincerely,

              
	
                 

              	
                Fluid
                  Audio Network, Inc.

              
	
                 

              	
                By:
                  /s/ Justin Beckett 
                  

                

              
	
                 

              	
                Name:
                  Justin Beckett 

              
	
                 

              	
                Title:
                  President

              


      

      


      On
        behalf
        of Vizx, I agree to and accept the consulting relationship with Fluid Audio
        Network, Inc. on the terms and conditions set forth in this
        Agreement.

      


      
        	
                Date:
                  January 1, 2005

              	 	
                Vizx
                  Corporation

              
	
                 

              	
                 

              	
                By:
                  /s/ Justin Beckett 
                  

                

              
	
                 

              	
                 

              	
                Name:
                  Justin Beckett

              
	
                 

              	 	
                Title:
                  President

              


      

      
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