CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of February 8, 2005, 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.
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 responsible for paying and reporting all
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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 December 16, 2004 and
shall continue for a period of six (6) 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
-----------------------
Name: Xxxxxxx Xxxxxx
Position: C.E.O.
XXXXXX BUSINESS MANAGEMENT SERVICES
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
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 $ 30,000, 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) 100,000 shares ("Shares") of S-8 free trading
common stock, par value $0.01 per share ("Common Stock"). Issued upon
the signing of this agreement.
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