BUSINESS CONSULTING AGREEMENT
Exhibit 10.8
This Business Consulting Agreement (the “Agreement”) is entered into effective this
28th day of September, 2009 (the “Effective Date”) by and between Xxxx X. Xxxxxxxx d/b/a
Xxxxxxxx Consulting, 0000 Xxxxxxxxx Xxxxx, Xxxxx, XX 00000 (the “Consultant”) and Xxxxx Media
Company, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000 (the “Company” with reference to
the following facts:
| A. | The Company desires to receive certain consulting services from the Consultant. |
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| B. | The Consultant desires to provide those consulting services to the Company
under the terms and conditions of this Agreement. |
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be
legally bound, the parties hereto agree as follows:
1. Consulting Services. The Company hereby engages the Consultant to perform special studies,
due diligence and other services (collectively, the “Services”) in accordance with the terms and
conditions set forth in this Agreement. Consultant will provide the Services pursuant to project
work statements (each an “SOW”), which shall describe the details of the Services the Company has
requested for any particular project. Any of the Company’s chief executive officer, chief operating
officer and chief financial officer may request for the Consultant to perform Services. Each SOW
shall be incorporated in and made a part of this Agreement. To the extent there are any conflicts
or inconsistencies between this Agreement and any SOW, this Agreement shall govern and control
unless the parties have expressly agreed otherwise in the SOW that a specific provision of this
Agreement is amended, in which case this Agreement shall be so amended, but only with respect to
such SOW.
2. Term of the Agreement. This term of this Agreement will begin on the Effective Date and
will remain in effect until terminated as provided in this Section 2.
| a. | Either party may terminate this Agreement on 10 days’ notice to
the other party in writing, by certified mail or personal delivery, provided
that in the case of a termination by Xxxxxxxx, this Agreement will not be
terminated until Xxxxxxxx has provided all the Services described under any
active SOW. |
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| b. | Either party may terminate this Agreement if the other party
materially breaches any provision of this Agreement and such party fails to
cure its breach within ten (10) days after written notice from the
non-breaching party. |
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| c. | Upon termination of this Agreement or expiration of the term
hereof: (a) each party shall remain liable to the other for any breach of this
Agreement prior to such expiration or termination; and (b) the Consultant will
be entitled to all amounts due from the Company under this Agreement up to the
date of termination or expiration. |
3. Time Devoted by Consultant. It is anticipated the Consultant will spend the amount of time
reasonably necessary to provide the Services by the deadlines set by the Company, recognizing that
the particular amount of time may vary from day to day and from week to week.
4. Place Where Services Will be Rendered. The Consultant will perform most Services at a
location to be determined in Consultant’s sole discretion. In addition, the Consultant will
perform Services by telephone and at such other places as reasonably necessary to perform the
Services, including the Company’s offices and the offices of potential acquisition targets.
5. Payment to Consultant. The Company will pay the Consultant at a rate of $200.00 per hour as
consideration for the Services. The Company will also reimburse the Consultant for his reasonable
out-of-pocket expenses incurred in providing the Services; provided that any such expenses have
been previously approved in writing by the Company. Promptly after the end of each calendar month,
the Consultant will submit an itemized monthly invoice setting forth the hours for which Consultant
provided Services and the type of services provided, along with the out-of-pocket expenses incurred
in the preceding month with original receipts. The Company will pay the Consultant the amounts due
as indicated by invoices submitted by the Consultant within 30 days of receipt.
6. Independent Contractor. By this Agreement, the parties intend to create the relationship of
independent contractor and not that of an employer-employee and hereby acknowledge that, with
respect to the Services, the Consultant has been engaged as an independent contractor and not an
employee of the Company. Accordingly, the Consultant shall be responsible for payment of all taxes
including U.S. Federal, State and local taxes arising out of the Consultant’s activities in
accordance with this Agreement, including by way of illustration but not limitation, Federal and
State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or
business license fee or insurance as required. Neither party is the agent of the other and neither
party shall have the right to bind the other by contract or otherwise, except as expressly provided
in this Agreement.
7. Work for Hire. Work Product (as defined below) is “work made for hire” for purposes of the
copyright laws of the United States and will be the Company’s sole and exclusive property. Further,
to the extent that (i) any Work Product may not by operation of law be deemed works made for hire,
or (b) ownership rights with respect to any Work Product may not vest in Client as contemplated by
this Agreement, then, in each case, this Agreement will automatically operate as an irrevocable
grant, transfer, sale and assignment by Consultant to Company of all right, title and interest in
such Work Product. The term “Work Product” means all original material created by the Company for
Xxxxxxxx under this Agreement, including ideas, concepts, drawings, information, works of
authorship, documents and tangible items.
8. Employment of Others. The Company may from time to time request that the Consultant arrange
for the services of others. All costs to the Consultant for those services will be paid by the
Company but in no event shall the Consultant employ others without the prior authorization of the
Company.
9. Confidentiality. The terms and conditions of that certain mutual nondisclosure agreement
between the Company and Xxxxxxxx dated September 28, 2009 is incorporated herein by reference as if
such terms and conditions were fully set forth in this Agreement.
10. No Assignment. Subject to the immediately following sentence, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns, each of which such successors and permitted assigns shall be deemed to be a
party hereto for all purposes hereof. No party may assign, delegate or otherwise transfer either
this Agreement or any of his or its rights, interests, or obligations hereunder without the prior
written approval of the other parties.
11. Miscellaneous. This Agreement, together with each statement of work now or hereinafter
executed, constitutes the entire agreement and understandings of the parties concerning the
Services to be provided by Xxxxxxxx to the Company. This Agreement expressly supersedes all prior
agreements and commitments of the parties, whether oral or written, regarding the Services. Nothing
contained in this Agreement shall constitute a commitment by the Company or any of its affiliates
to into any other arrangement or agreement relating to the Services. This Agreement may not be
amended, supplement or modified, except in a writing signed by both of the parties. This Agreement
shall be governed by and construed in accordance with the laws of the State of Minnesota, without
giving effect to its choice of law principles. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective heirs, legal representatives, successors and assigns.
The terms and conditions of paragraphs 7 and 9 shall survive the termination of this Agreement.
This Agreement may be executed by facsimile or email transmission and in one or more counterparts,
each of which shall constitute an original and all of which together shall constitute one
instrument. The parties agree to execute such other document or instruments and take such other
actions as are necessary to consummate the transactions contemplated by this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO THE BUSINES CONSULTING AGREEMENT BETWEEN
XXXX X. XXXXXXXX AND XXXXX MEDIA COMPANY DATED SEPTEMBER 28, 2009]
XXXX X. XXXXXXXX AND XXXXX MEDIA COMPANY DATED SEPTEMBER 28, 2009]
| Xxxxx Media Company |
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| /s/ Xxxxx X. Xxxxxx | ||||
| By: | Xxxxx X. Xxxxxx, its Executive Vice | |||
| President and Chief Operating Officer | ||||
| /s/ Xxxx X. Xxxxxxxx | ||||
| XXXX X. XXXXXXXX D/B/A XXXXXXXX CONSULTING | ||||
