Exhibit 99.2
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of September 16, 2004, by and between 110 MEDIA
GROUP, INC. ("110"), a Delaware corporation with offices at 00 Xxxxx Xxxxxx
Xxxx, Xxxxxxxx, XX 00000 and CONSULTANT, a XXXXXX BUSINESS MANAGEMENT SERVICES
("CONSULTANT") with offices at 00 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000.
W I T N E S S E T H:
WHEREAS, 110 and the CONSULTANT wish to enter into an agreement where
110 desires to retain the CONSULTANT as a CONSULTANT and CONSULTANT desires to
act as a CONSULTANT to 110, subject to and upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. CONSULTANCY. 110 hereby retains CONSULTANT and CONSULTANT hereby agrees
to act as a CONSULTANT to 110. CONSULTANT shall perform such services
for 110 as agreed with the Board of Directors of 110 from time to time
(the "CONSULTING SERVICES") including, but not limited to, the services
specified in Appendix A to this agreement. CONSULTANT agrees to cause
Xxxxxx X. Xxxxxx to perform the Consulting Services on behalf of the
CONSULTANT. The CONSULTANT shall exercise its own reasonable judgment
and employ such means as it, in good faith, determines are reasonable
in performing the Consulting Services, and 110 will not exercise any
control over the methods or means employed by the CONSULTANT in
performing the Consulting Services. The Consulting Services shall be
performed at such times and at such locations as CONSULTANT shall
determine.
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2. INDEPENDENT CONTRACT OR STATUS. It is understood and agreed that in the
performance of the Consulting Services by the CONSULTANT hereunder, it
is acting as an independent contractor and not in any way as an
employee or agent of 110. The CONSULTANT will determine the hours of
work of its employees and the CONSULTANT's employees are not required
to work any specified number of hours in any week. Any time off,
including weekends and vacation, will be solely and entirely at the
discretion of the CONSULTANT. The CONSULTANT may be required upon
request of the Board to submit to 110 written or oral reports regarding
its activities. Employees of the CONSULTANT and others retained by the
CONSULTANT are not employees of 110 for purposes of worker's
compensation, unemployment insurance, medical; disability and group
life insurance and they are not eligible to participate in any welfare,
pension, profit sharing or fringe benefit plan or arrangement of 110.
3. CONSULTING FEES. During the Term, as full compensation for the
Consulting Services, 110 shall pay to the CONSULTANT a consulting fee
as described in Appendix A to this document. In addition to the Base
Fee, the CONSULTANT shall be paid such additional compensation as shall
be determined from time to time by the Board of Directors of 110 and
approved by the Board of Directors of 110 as provided for in Appendix
A. It is understood that 110 will not withhold any income taxes,
unemployment taxes or other taxes and that the CONSULTANT is solely
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responsible for paying and reporting all taxes, including income taxes
and estimates thereof for itself and all employees, agents or
contractors. 110 will report to the appropriate tax authorities the
amounts paid to the CONSULTANT and, even though the CONSULTANT is an
independent contractor, if 110 is required by law, or is advised by its
accountants or attorneys that it is required by law to deduct for
withholding, or other taxes, it shall be free to do so, which taxes if
not previously deducted shall be reclaimable from the CONSULTANT.
4. EXPENSES. In addition to the consulting fees provided for in Section 3
above, 110 shall reimburse the CONSULTANT for reasonable costs and
expenses incurred by the CONSULTANT in performing the Consulting
Services, subject to review by the Board of Directors of 110 or a
senior officer of 110 designated by the Board of Directors of 110.
5. USE OF 110'S FACILITIES. Employees of the CONSULTANT are not required
to use the office facilities of 110 in performing the Consulting
Services hereunder.
6. TERM. The term of this Agreement shall commence as of September 16,
2004 and shall continue for a period of three (3) months (the "TERM").
At the option of the CONSULTANT and in agreement with 110, exercisable
by written notice delivered by the CONSULTANT to 110 not less than
thirty (30) days prior to the end of the Initial Term, this Agreement
shall be renewed for an additional three (3) months (the "RENEWAL
TERM").
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7. TERMINATION.
8.1 110 or CONSULTANT may terminate this Agreement in the event the other
party fails to perform in accordance with the provisions of this
Agreement.
8.2 110 may terminate this Agreement, at any time, upon thirty (30) days
written notice, to CONSULTANT for any reason whatsoever.
8.3 Upon termination CONSULTANT shall cease all provision of services and
no invoice shall be made for services performed after notice of
suspension or termination. Upon termination, for any reason except
breach of this agreement by CONSULTANT, of this Agreement or a portion
of the services covered hereunder, 110 shall pay to CONSULTANT an
amount equal to the Severance Amount as provided in Section 9 of this
Agreement.
8.4 Termination of this Agreement or a portion of any services hereunder
except for breach of this agreement by CONSULTANT shall not prejudice
or affect the rights or remedies of either 110 or CONSULTANT against
the other in respect of any breach of the Agreement which occurred
before the effective date of termination and shall not prejudice the
rights and remedies of CONSULTANT in respect of any sum or sums of
money owed or owing from 110.
8. SEVERANCE PAYMENT. Upon termination of this Agreement by 110 or a
change in control of 110, in addition to earned but unpaid Consulting
Fees payable in accordance with Section 3, 110 shall pay to CONSULTANT
severance as identified in Appendix A.
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9. DISCLAIMERS AND LIMITATIONS OF LIABILITY. It is expressly understood
and agreed that 110 shall NOT be responsible nor liable for any loss,
damage, penalty, or the like, financial or otherwise, caused by: (i)
failure by any CONSULTANT, advisor, contractor, supplier, or any other
persons, individuals or firms NOT employed by 110 to discharge its
contractual obligations; or (ii)any delay, modification, or suspension
of the time schedule for performing the services hereunder whether
agreed or not agreed with CONSULTANT, which is NOT the responsibility
of 110, its agents, or CONSULTANTs; or (iii) any negligent work carried
out by the CONSULTANT or by any third party other than 110, its agents,
or sub-CONSULTANTs, or employees; or (iv)the failure of any person NOT
employed or contracted with by 110 to discharge any legal duty or
obligation whatsoever.
10. CONFIDENTIALITY. The CONSULTANT hereby agrees that during and after the
term of this Agreement, neither it nor any of its employees nor others
retained by the CONSULTANT to perform some or all of the services to be
performed hereunder, will divulge any confidential or proprietary
information belonging to 110 or any company associated with 110 or to
any customer of 110 and neither the CONSULTANT nor any employee of the
CONSULTANT nor any other person retained by the CONSULTANT will make
available to others any 110 or account list, price list, business plan,
trade secret, document, file, paper or data of any kind, in whatever
form embodied, concerning the business or financial affairs of 110, its
associated companies, or its customers or remove any of the foregoing
from the premises of 110.
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11. ASSIGNMENT. Except as otherwise provided herein, the CONSULTANT may not
assign this Agreement or delegate any of its obligations hereunder,
without the prior written consent of 110 and 110 may not assign this
Agreement, or delegate any of its obligations hereunder, without the
prior written consent of the CONSULTANT. Any assignment or delegation
in violation of the provisions hereof shall be void and of no effect.
13. ENTIRE AGREEMENT; MODIFICATION; BINDING EFFECT. This Agreement
constitutes the entire agreement between the CONSULTANT and 110 and
supersedes all prior understandings and agreements concerning the
subject matter hereof. This Agreement (including this provision against
oral modification) may not be changed or terminated, and no provision
hereof may be waived orally. No modification, waiver or termination
hereof shall be binding upon either party unless in writing and signed
by or on behalf of the party against which the modification, waiver or
termination is asserted. This Agreement shall be binding upon and shall
enure to the benefit of the CONSULTANT and 110, their successors and
permitted assigns.
14. NOTICES. Any notice or other communication required or permitted
hereunder shall be sufficiently given if delivered personally, or, if
sent by registered or certified mail, postage pre-paid, return receipt
requested, addressed to the party intended to receive such notice at
the address set forth above, or such other address as such party may
indicate in the manner provided for notices herein. Any notice or
communication shall be deemed to have been given upon the date
personally delivered or, if mailed, the earlier of the date it is
received and three (3) days after the date so mailed.
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15. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date above
written.
110 MEDIA GROUP, INC.
BY: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Position: C.E.O.
XXXXXX BUSINESS MANAGEMENT SERVICES
BY: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Position: President
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APPENDIX A
App. 1: The Base Fee for the Term of the Agreement shall be $ 15,000,
payable in equal installments of during regular payroll cycle
of 110.
App. 2: In addition to the Base Fee the CONSULTANT shall be paid such
additional compensation as shall be determined from time to
time by the Board of Directors of 110 and approved by the
Board of Directors of 110.
App. 3: In determining the amount of the additional compensation The
Board of Directors will take into consideration the attainment
of specific criteria as agreed with the CONSULTANT from time
to time.
App. 4: The CONSULTANT shall provide services to 110 which shall
include, but not be restricted to, those functions commonly
associated with the role of CHIEF FINANCIAL OFFICER.
App. 5: STOCK OPTIONS. CONSULTANT shall be entitled to participate in
the 110 MEDIA GROUP, INC. 2004 Equity Incentive Plan.
App. 6: SEVERANCE AND OTHER PAYMENTS.
a. If CONSULTANT'S agreement pursuant to this Agreement is
terminated for "cause" (as herein defined), the Company shall
not be obligated to pay or provide any severance compensation
or benefits to CONSULTANT.
b. If CONSULTANT'S agreement with the Company is terminated under
Paragraph 8.2 of this Agreement or the Company elects not to
continue the Agreement under Paragraph 7 above, the Company
agrees to pay to Consultant an amount equal to twenty-five
percent (25%) of Consultant's then current annual base
compensation (or, if this Agreement has expired, an amount
equal to twenty-five percent (25%) of Consultant's annual base
compensation on the last effective day of this Agreement's
term). ("Severance Payment"). Such Severance Payment shall
only be owed to Consultant and paid by the Company following
the execution of a mutually agreeable severance agreement by
Consultant and the Company that shall be written within 15
days of the date of Consultant's termination. In addition to
the foregoing Severance Payment.
App. 7: TRAVEL, ENTERTAINMENT, AND LIVING EXPENSES. CONSULTANT is
authorized to Incur reasonable travel, entertainment, and cell
phone business expenses on behalf of the Company. These
expenses shall be reimbursed by the Company.
App. 8: CONSULTANT under this Agreement, the Company shall issue to
Consultant (or its designees) 50,000 shares ("Shares") of
common stock, par value $0.01 per share ("Common Stock").
Issued upon the signing of this agreement.
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