CONSULTING AGREEMENT
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT
(“Agreement”) made effective as of the
1st day of April 2010
by and between Zoo
Publishing, Inc., a New Jersey corporation, having its principal place of
business located at Xxxxx 000 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx
00000 (the “Company”)
and Xxxx X. Xxxxx (the
“Consultant”).
0.Xxxxxxxx.
(a) The Company hereby retains Consultant,
and Consultant hereby agrees to perform for the Company, consulting services
regarding the business of the Company such as it pertains to identifying new
content available for publishing by the Company or other opportunities
consistent with the business of the Company as well as all other services
incidentally related thereto as requested by the Company (collectively the
“Services”). The Consultant, on
average, shall devote not less than 50 nor more than 75 hours per month to the
performance of his obligations hereunder. The Consultant shall
report to the Xxxx Xxxxxxx of the Company’s parent, Zoo Entertainment,
Inc. The Company acknowledges that the Consultant is prohibited from
engaging in certain activities with respect to the Company as are set forth in
that certain Board of Directors resolution and protocol dated September l7, 2008
and titled “Xxxx Xxxxx Proscribed Activities” (the
“Protocol”). Consultant shall not be required and the Company shall
not ask the Consultant to engage in, or otherwise perform, any of the activities
proscribed by the Protocol. In the event of any conflict between the
duties of the Consultant arising under this Agreement and the prohibitions set
forth in the Protocol, the provisions of the Protocol shall
control.
(b) Consultant
agrees to keep the Company updated, promptly upon the Company’s request, of any
progress, problems, and/or developments of which Consultant is aware regarding
the Services. The Company shall have the right to require such updates in
writing from Consultant in a format specified by the Company or acceptable to
the Company in its sole discretion. Consultant shall have no
authority to enter into any contracts or agreements on behalf of Company or to
otherwise bind Company to any commitments.
2.Term.This Agreement shall be
effective on the date hereof and shall continue until August 31, 2011 (the
“Term”). The Term shall
may be automatically extended by the Company for two additional terms of one (1)
year each if the Company gives written notice to the Consultant at least sixty
(60) days prior to the expiration of the then current Term.
3.Consideration/Xxxxxxxxxxxx.Xx exchange for
the full, prompt, and satisfactory performance of all Services to be rendered to
the Company hereunder, the Company shall provide Consultant, as full and
complete compensation for the Services rendered hereunder, compensation in the
amount of $25,000 per month payable in two equal installments on the first and
fifteenth day of each calendar month during the Term. The Company will reimburse
the Consultant for all reasonable, appropriately documented and pre-approved
business expenses in accordance with Company policy but including all travel
expenses from and to the Company’s place of business.
4.Confidentiality &
Non-Competition.
(a)(i) The
Company and Consultant acknowledge and agree that the services to be provided by
Consultant pursuant to this Agreement are unique and extraordinary and, as a
result of such engagement, Consultant will be in possession of Confidential
Information relating to the business practices of the Company and it Affiliates
(the “Zoo
Group”).
(ii) The
term “Confidential
Information” shall mean any and all information (verbal and written)
relating to any member of the Zoo Group, or any of their respective activities,
other than general business practices not unique to the Zoo Group but commonly
practiced in the interactive entertainment industry and such information which
can be shown by the Consultant to be in the public domain or otherwise know to
the public other than as a result of a breach of this Section 4, including but
not limited to information relating to trade secrets, personnel lists, financial
information, research projects, services used, pricing, customers, customer
lists and prospects, product sourcing, marketing, selling and servicing.
Confidential Information does not include information that is or becomes
available to the public through no fault of Consultant; or was previously known
to Consultant prior to this Agreement and his prior employment by the
Company; or is received in good faith by Consultant from a third party and is
not subject to an obligation of confidentiality owed by such the third party; or
is independently developed by Consultant without reference to information
received by Consultant from the Company, as evidenced by Consultant’s written
records; or which Consultant is required by law, regulation, or judicial or
administrative process to disclose. Consultant agrees that he will not, during
or after the termination of the engagement, directly or indirectly, use,
communicate, disclose or disseminate to any person, firm or corporation any
Confidential Information of the of the Zoo Group.
(iii) The
term “Affiliate” means, with reference to
the Company, any Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company.
(iv) The
term “Control”
(including the terms “Controlling,”
“Controlled
By” and “Under
Common Control With”) shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and/or policies
of any Person, whether through the ownership of securities or
otherwise.
(v) The
term “Person” means and includes an
individual, a corporation, a partnership, a limited liability company, a trust,
an unincorporated organization, any entity similar to any of the
foregoing.
(b) Consultant shall not,
during the Term and for one year thereafter, directly or indirectly,
employ, or solicit the employment of, or knowingly permit any other company or
business organization which is directly or indirectly controlled by him to
employ, any person who (A) is employed by the Company, or (B) who was employed
by Company during the twelve month period preceding the date of such employee’s
employment termination or in any manner seek to induce any of such persons to
leave his or her employment with the Company; induce or attempt to
induce any customer, supplier, licensee, or business relation of the Company to
cease doing business with the Company or in any way interfere with the
relationship between any customer, supplier, licensee, or business relation of
the Company.
(c) Consultant
agrees that he shall not, during the period of his engagement and for a period
of one (1) year thereafter directly or indirectly, alone or as a partner, joint
venturer, officer, director, employee, consultant, agent, independent
contractor, member or stockholder of any company or business, engage developing,
publishing and distributing gaming and packaged entertainment software for use
on gaming platforms (collectively, the “Business”).
The ownership by the Consultant of not more than one percent of the shares of
stock of any corporation having a class of equity securities registered under
the Securities Exchange Act of 1934, as amended, shall not be deemed, in and of
itself, to violate the prohibitions of this paragraph. The Company acknowledges
that the Consultant may invest in mmochi LLC (f/xx Xxxxx Screen Online, LLC);
provided that mmochi LLC is not engaged in the Business.
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(d) The
Consultant recognizes that the member of the members of the Zoo Group would
suffer irreparable damage if the Consultant were to violate the provisions of
this Section 4. In the event the Consultant shall violate any of the
terms or provisions of this Section 4, the Company and/or other members of the
Zoo Group shall have, in addition to any and all remedies of law, the right to
seek and obtain, without bond or notice, ex parte or after a hearing,
an injunction, specific performance or other equitable relief to prevent the
violation of the Consultant’s obligations hereunder and in connection therewith
shall be entitled to collect all reasonable costs and expenses of suit,
including, but not limited to, attorneys’ fees.
5. Early
Termination.
(a)The engagement of the Consultant
shall terminate prior to the end of the Term upon the occurrence of any of the
following events:
(i)the death of the
Consultant;
(ii)the termination of Consultant’s
engagement by the Company due to Consultant’s Disability pursuant to Section
5(b) hereof;
(iii)the termination of Consultant’s
engagement by Consultant for Good Reason pursuant to Section 5(c)
hereof;
(iv)the termination of Consultant’s
engagement by the Company without Cause; or
(v)the termination of Consultant’s
engagement by the Company for Cause pursuant to Section 5(e).
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(b)Disability. If Consultant is
unable to carry out his material duties pursuant to this Agreement for more than
six (6) months in any twelve (12) consecutive month period by reason of the same
or related physical or mental reasons (a “Disability”), the Company may
terminate Consultant’s engagement for Disability upon thirty (30) days prior
written notice (a “Notice of
Disability Termination”). Such termination shall not be
effective if Consultant returns to performing his material duties within such
thirty (30) day period.
(c)Termination for Good Reason.
A Termination for Good Reason means a termination by Consultant by
written notice (“Notice of
Termination for Good Reason”, as defined in Section 7(d) herein) given
within thirty (30) days after the occurrence of the Good Reason event. For
purposes of this Consulting Agreement, “Good Reason” shall mean the occurrence
or failure to cause the occurrence, as the case may be, without Consultant’s
express written consent, of any of the following circumstances, unless such
circumstances are fully corrected prior to the date of termination specified in
the Notice of Termination for Good Reason: Any breach by the Company of any
material provision of this Consulting Agreement which goes uncured for a period
of ten (10) days after written notice is delivered to the Company; or the
failure of any successor to assume the obligations of the Company hereunder in a
signed writing delivered to Consultant upon the assignee becoming such
successor.
(d) Notice of Termination for Good
Reason. A Notice of Termination for Good.Reason shall mean a written
notice that shall indicate the specific termination provision in Section 5(c)
relied upon by Consultant, and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for Termination for Good Reason.
The failure by Consultant to set forth in the Notice of Termination for Good
Reason any facts or circumstances which contribute to the showing of Good Reason
shall not waive any right of Consultant hereunder or preclude Consultant from
asserting such fact or circumstance in enforcing his rights hereunder. The
Notice of Termination for Good Reason shall provide for a date of termination
not less than ten (10) nor more than sixty (60) days after the date such Notice
of Termination for Good Reason is given.
(e)Cause. Subject to the
notification provisions of Section 5(f) below, Consultant’s engagement hereunder
may be terminated by the Company for Cause. For purposes of this Consulting
Agreement, the term “Cause” shall
mean:
(i)willful
refusal by Consultant to perform the duties required of him hereunder (other
than any such failure resulting from incapacity due to physical or mental
illness or for reasons set forth in subsection (i) above) after a written demand
for substantial performance is delivered to Consultant by the Company,
specifically identifying the manner in which it is believed that Consultant has
refused to attempt to perform his duties hereunder;
(ii)Consultant being convicted of a
felony (other than a felony involving a motor vehicle) after the date of this
Agreement; or Consultant’s dishonesty, misappropriation or fraud with regard to
the Company (other than good faith expense reimbursement disputes).
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(f) Notice of Termination for Cause.
A Notice of Termination for Cause shall mean a notice that shall indicate
the specific termination provision in Section 5(e) relied upon by the Company
and shall set forth in reasonable detail the facts and circumstances that
provide for a basis for Termination for Cause. The failure by the Company to set
forth in the Notice of Termination for Cause any facts or circumstances which
contribute to the showing of Cause shall not waive any right of the Company
hereunder or preclude the Company from asserting such fact or circumstance in
enforcing its rights hereunder. The date of termination for a Termination for
Cause shall be the date indicated in the Notice of Termination.
6. Consequences of Termination of
Engagement.
(a)Death. If the Consultant’s
engagement is terminated during the nt Term by reason of the Consultant’s death,
the engagement period under this Consulting Agreement shall terminate as of the
date of death without further obligations to the Consultant’s legal
representatives under this Consulting Agreement except for: (i) any fees earned
but not yet paid through the end of the month of the Consultant’s death; and
(ii) any unreimbursed business expenses payable which amounts shall be promptly
paid in a lump sum to Consultant’s estate.
(b) Disability.If Consultant’s
engagement is terminated by reason of Consultant’s Disability, Consultant shall
be entitled to receive, in addition to those items set forth in Paragraph 6(a)
above, payments equaling the sum of Consultant’s fees for the twelve month
period immediately prior to such termination.
(c) Termination by Consultant for Good
Reason or Termination by the Company without Cause. If (A)
Consultant terminates his engagement hereunder for Good Reason during the Term,
or (B) Consultant’s engagement with the Company is terminated by the Company
without Cause, then Consultant shall be entitled to receive the consideration
set forth in Section 6(c)(i) below.
(i) a payment equaling the
sum of Consultant’s fees for the twelve month period immediately prior to such
termination payable in a lump sum within thirty days after such termination plus
any unreimbursed business expenses, and
(ii) (A) full accelerated vesting of
all outstanding options with the right to exercise such options continuing until
the earlier of the (A) the option termination date set forth therein, or (B) the
two (2) year anniversary of the date the Consultant’s engagement terminated;
provided, however, if any Consultant of the Company is entitled to exercise his
options after termination of engagement for more than two (2) years after the
date of his engagement termination, Consultant may exercise his options for such
longer period; and (B) those items set forth in Paragraph 6(a)
above.
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(d)Termination with Cause or Voluntary
Resignation without Good Reason. If Consultant’s engagement hereunder is
terminated (i) by the Company for Cause, or (ii) by Consultant without Good
Reason, Consultant shall be entitled to receive only his fees through the date
of termination, and any restricted stock and options due Consultant following
such termination of engagement shall be determined in accordance with the plans
of the Company.
The
Company’s obligation to provide the any payments pursuant to Section 8
hereof is expressly conditioned upon the Consultant’s execution and delivery to
the Company of a release agreement in the form attached hereto as Exhibit to
Section 8(e).
(e)In the event of any termination of
engagement under Sections 5(a)(i) through
(iv) inclusive, Consultant shall be under no obligation to seek other
engagements and there shall be no offset against any amounts due Consultant
under this Consulting Agreement on account of any remuneration attributable to
any subsequent engagements that Consultant may obtain. Any amounts due under
Section 6 are in the nature of liquidated damages and are not in the nature of a
penalty.
7.Independent
Contractor.
(a)The
Company and Consultant expressly agree and understand that Consultant is an
independent contractor and nothing in this Agreement nor the nature of the
services rendered hereunder is meant, or shall be construed in any way or
manner, to create between them a relationship of employer and employee,
principal and agent, partners or any other relationship other than that of
independent parties contracting with each other solely for the purpose of
carrying out the provisions of the Agreement. Accordingly, Consultant
acknowledges that he is not entitled to any Company benefits, including, but not
limited to, health insurance, retirement plans or stock option
plans. Consultant is not the agent of the Company and is not
authorized and shall not have the power or authority to bind the Company or
incur any liability or obligation, or act on behalf of the
Company. At no time shall Consultant represent that he is an agent of
the Company, or that any of the views, advice, statements and/or information
that may be provided while performing the Services are those of the
Company.
(b)While
the Company is entitled to provide Consultant with general guidance to assist
Consultant in completing the scope of work to the Company’s satisfaction,
Consultant is ultimately responsible for directing and controlling the
performance of the task and the scope of work, in accordance with the terms and
conditions of this Agreement. Consultant shall use his best efforts,
energy and skill in his own name and in such manner as he sees fit.
8.Indemnification. Consultant
agrees to indemnify and hold the Company harmless from and against any and all
claims, demands, liabilities, damages, costs, or expenses (including without
limitation attorney’s fees, back wages, liquidated damages, penalties or
interest) resulting from Consultant’s failure to collect, withhold, or pay any
and all federal or state taxes required to be withheld or paid by employers or
employers, including, without limitation, any and all income tax, social
security, and F.U.T.A. taxes.
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9.General.
(a)This
Agreement does not create an obligation on the Company to continue to retain
Consultant beyond this Agreement’s termination. This Agreement may
not be changed unless mutually agreed upon in writing by both Consultant and the
Company’s President. Sections 4, 7 and 8 shall survive the
termination of this Agreement regardless of the manner of such
termination. Any waiver by the Company of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of such provision or any other provision hereof.
(b)Consultant
hereby agrees that each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses
herein. Moreover, if one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear.
(c)The
Company shall have the right to assign this Agreement to its successors and
assigns and this Agreement shall inure to the benefit of and be enforceable by
said successors or assigns. Consultant may not assign this Agreement
or any rights or obligations hereunder without the prior written consent of the
Company’s President and this Agreement shall be binding upon Consultant’s heirs,
executors, administrators and legal representatives. This Agreement
and all aspects of the relationship between the parties hereto shall be
construed and enforced in accordance with and governed by the internal laws of
the State of New York without regard to its conflict of laws
provisions.
(d)This
Agreement contains the entire agreement between the parties hereto with respect
to the transactions contemplated herein. All other negotiations and
agreements (written or oral) between the parties are superseded by this
Agreement and there are no representations, warranties, understandings or
agreements other than those expressly set forth herein. The language
of all parts of this Agreement will in all cases be construed as a whole in
accordance with its fair meaning and not strictly for or against either party
hereto.
(e)This
Agreement may be executed in counterparts, which together shall comprise the
entire Agreement. All counterparts shall be construed together and shall
constitute one agreement. This Agreement to the extent signed and
delivered by means of a facsimile machine or other electronic means, shall be
treated in all manner and respects as an original agreement or instrument and
shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request
of any party hereto, the other party hereto shall re-execute original forms
hereof and deliver them to the other party. No party to this
Agreement shall raise the use of a facsimile machine or other electronic means
to deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or the
internet as a defense to the formation of a contract and each such party forever
waives any such defense.
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IN
WITNESS WHEREOF, the Company and the Consultant have each executed and delivered
this Consulting Agreement effective as of the 1st day of
April, 2010.
.
Zoo Publishing, Inc.
/s/ Xxxx
Seremet____________________
Name: Xxxx
Xxxxxxx
Title:CEO
/s/ Xxxx X.
Brant___________________
Xxxx X. Xxxxx
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