CONSULTING AGREEMENT
Exhibit
10.24
This
Consulting Agreement (the “Agreement”) is made as of February 26, 2007 (the
“Effective Date”), between GoFish Corporation (hereinafter “GoFish”) and Xxxx
Xxxxxx (hereinafter “Consultant”).
1. ENGAGEMENT
OF CONSULTANT.
Consultant is hereby retained by GoFish, and Consultant hereby accepts such
engagement on the terms and conditions set forth herein.
2. SERVICES.
Consultant, as an independent contractor, agrees to provide consulting services
to GoFish in the areas of business and corporate development. Consultant will
devote 30% of his working time to providing such consulting services.
3. TERM.
The
term of the Agreement shall commence on the 26thth
day of
February 2007 and shall end on February 26, 2008 (the “Term”). This Agreement
may be extended by a mutual agreement of the parties in writing. Any such
extension shall be referred to herein as the “Renewal Term.”
4. COMPENSATION.
a. Salary.
During
the Term and any Renewal Term of this Agreement, GoFish agrees to pay Consultant
an consulting fee of $10,000 per month.
b. Stock
Options.
GoFish
hereby agrees to grant Consultant stock options on the terms and conditions
hereafter stated:
x. Xxxxx
of Options.
On the
Effective Date, the Company will grant
the
Executive an option to purchase shares of the
Company’s common voting stock (the “Option”)
under
the Company’s 2006 Stock Option Plan (the “Stock
Option Plan”).
Such
grant shall be evidenced by an Option Agreement as contemplated by the Stock
Option Plan.
ii. The
per
share
exercise price of the Option shall be the market value of a share of the Company
on the date of the grant. The term of the Option shall be ten years from the
date of grant.
iii. One-third
(1/3) of the Option shall be vested and exercisable on the first anniversary
of
the grant of the Option. Thereafter, an additional one-thirty sixth (1/36)
of
the Option shall be vested and become exercisable on the last day of each month,
subject to the provisions of Section 4(b)(iv) below.
iv. Termination
of Service; Accelerated Vesting.
A. If
this
Agreement is terminated by either party pursuant to Section 7, then any unvested
portion of the Option will expire on the date of termination. Any vested portion
of the Option, to the extent not exercised, will expire 120 days after
termination of this Agreement.
B. Upon
a
Change of Control, any unvested portion of the Option will immediately vest
and
become exercisable. For the purposes of this Section 4, “Change of Control”
means the
occurrence of, or the Company’s Board’s vote to approve: (A) any consolidation
or merger of the Company pursuant to which the stockholders
of the Company immediately before the transaction do not retain immediately
after the transaction, in substantially the same proportions as their ownership
of shares of the Company’s voting stock immediately before the transaction,
direct or indirect beneficial ownership of more than 50% of the total combined
voting power of the outstanding voting securities of the surviving business
entity;
(B) any
sale, lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange, or other transfer to any company where
the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; or (C)
the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than 50% of the voting
stock of the Company.
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c. Initial
Compensation.
As
an
incentive to formalize his existing consulting relationship with the Company,
and in recognition of Consultant’s seven months of consulting work already
completed without compensation on behalf of the Company, Consultant will
receive, and the Company agrees to pay, a cash amount of $60,000, payable within
45 days of the execution of this Agreement.
5. EXPENSES.
Consultant shall be reimbursed for all appropriately documented and pre-approved
work related expenses, telephone, mobile phone, travel, hotel, meals, and
entertainment (the “Expenses”). The Expenses will be billed when expensed and
submitted monthly to GoFish for approval and reimbursement.
6. RELATIONSHIP
OF THE PARTIES.
Consultant shall at times be acting and performing hereunder as an independent
contractor. In connection with the performance by Consultant of services, GoFish
shall not have or exercise any control or direction over the manner of delivery
of the services performed by Consultant, and will not in any way supervise
or
control Consultant’s activities. The relationship of the parties hereto is that
of independent contracting parties and is not and shall not be deemed to be
any
other relationship, including without limitation, that of joint venture,
partnership, employer/employee, or principal/agent.
7. TERMINATION.
Either
party may terminate this Agreement voluntarily upon 30 days’ written notice to
the other party.
8. OWNERSHIP
OF MATERIALS.
Consultant agrees that any and all right, title, and interest in and to any
documents, reports, memoranda, and other tangible property, as well as all
plans, ideas, concepts, innovations, materials, and designs provided by GoFish
to Consultant during the Term or any Renewal Term of this Agreement or developed
or conceived by Consultant during the course of providing services hereunder
shall be owned solely by GoFish without restrictions or liabilities of any
kind.
9. CONFIDENTIAL
INFORMATION.
All
information, whether oral, written, or in another form, obtained or developed
by
Consultant concerning GoFish, including, but not limited to, its businesses,
plans, activities, or products (the “Confidential Information”) shall be treated
by Consultant as strictly confidential. Consultant shall not (a) disclose the
Confidential Information to any third party, unless specifically directed by
GoFish in writing, or (b) use the Confidential Information except for the
benefit of GoFish in direct connection with, and as necessitated by, the
services performed under this Agreement. All Confidential Information shall
be
returned to GoFish at the earliest of the date of termination or expiration
of
this Agreement or upon the request of GoFish at any time. The term “Confidential
Information” does not include information which: (i) was known prior to its
disclosure by GoFish, provided that Consultant lawfully obtained or developed
such information; (ii) becomes generally available to the public other than
as a
result of disclosure by Consultant in violation of this Agreement; or (iii)
becomes available to Consultant from a source other than GoFish, if the source
lawfully obtained such information and is not known by Consultant to be bound
by
a written confidentiality agreement with GoFish. In the event that Consultant
becomes legally compelled to disclose any such information, Consultant will
provide GoFish with prompt written notice thereof so that GoFish may seek a
protective order or other appropriate remedy prior to disclosure thereof. In
the
event such protective order or other remedy is not obtained, or GoFish expressly
waives compliance with the provisions of this Agreement, Consultant will furnish
only that portion of the Confidential Information which is legally required
or
as to which GoFish expressly waives compliance.
10. INDEMNIFICATION.
GoFish
shall defend, indemnify and hold harmless Consultant for any loss, cost, suit,
claim, damage, action, proceeding, or expense (including reasonable attorneys’
fees) (collectively, “Losses”) that may be imposed on or incurred by Consultant
as a result of or in connection with the willful misconduct of GoFish.
Consultant shall defend, indemnify, and hold harmless GoFish for any Losses
that
may be imposed on or incurred by GoFish as a result of or in connection with
the
willful misconduct of Consultant.
11. ENTIRE
AGREEMENT.
This
Agreement shall constitute the entire agreement between Consultant and GoFish
relating to Consultant's provision of the services hereunder. This Agreement
shall supersede any prior understandings, arrangements, course of dealing,
and/or agreements between the parties.
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12.
AMENDMENT;
WAIVER.
This
Agreement shall not be amended or modified except by written agreement of the
parties hereto. The delay or failure of any party to exercise any power given
such party hereunder or to insist upon strict compliance by any party with
its
obligations hereunder shall not operate or be construed as a waiver of such
party of a provision of this Agreement and shall in no way impair the right
of
such party to avail itself, at any time, of any right or remedy hereunder.
13.
ASSIGNMENT;
BINDING EFFECT.
Consultant may not assign all or part of this Agreement or its obligations
hereunder. GoFish shall have the right to assign this Agreement to any of its
affiliates. This Agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective successors and permitted
assigns.
14. SEVERABILITY.
If any
provision of this Agreement shall be held void, illegal, unenforceable, or
in
conflict with any law, such holding shall not affect the validity or
enforceability of any other provision hereof.
15. GOVERNING
LAW.
This
Agreement shall be governed by the laws of the State of California without
regard to the conflicts of law principles of any jurisdiction.
16. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF, the parties identified herein have executed this Agreement
by
and through their duly authorized representative on the date first written
above.
GoFish Corporation | Consultant |
/s/ Xxxxxxx Downing_______ | /s/ Riaz Valani_______ |
Xxxxxxx Xxxxxxx | Xxxx Xxxxxx |
Chief Executive Officer |
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