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EXHIBIT 10.1
Form of Consultant Agreement for Simon Westbrook
CONSULTING AGREEMENT
This Consulting Agreement ("AGREEMENT") is entered into on September 1, 2011 by
SIMON WESTBROOK ("CONSULTANT"), of 10 Timber Ridge Lane, Scotts Valley, CA 95066
and IN MEDIA CORPORATION., a Delaware corporation, having a mailing address of
4920 El Camino Real, Suite 100, Los Altos, CA 94022 ("COMPANY"), based on the
following mutual understanding:
WHEREAS, the Consultant has been providing services since February 1, 2010
without receiving compensation; and
WHEREAS, the Company and the Consultant wish to memorialize compensation owed,
an ex-gratia bonus, and memorialize compensation going forward;
THEREFORE, In consideration of the mutual promises contained herein and on the
terms and conditions hereinafter set forth, the Consultant and the Company agree
as follows:
ARTICLE 1 - DESCRIPTION OF CONSULTING SERVICES
The nature and scope of the consulting services to be performed hereunder are as
set forth in EXHIBIT A, STATEMENT OF WORK, attached hereto.
ARTICLE 2 - TERM OF AGREEMENT
This Agreement commences on the date first set forth above and expires pursuant
to the termination provisions herein.
ARTICLE 3 - OVERSIGHT OF CONSULTING SERVICES AND CONTRACTUAL AUTHORITY
The Consultant agrees that it will generally provide the specified consulting
services through during the term specified herein within the scope of EXHIBIT A,
STATEMENT OF WORK.
ARTICLE 4 - COMPENSATION, BILLING AND PAYMENT
The Company recognizes that, for bona fide services rendered from January 1,
2011 through August 31, 2011, the Consultant has accrued $64,000 in unpaid
compensation. In addition, in recognition of the services provided by the
Consultant and as consideration for deferring payment of accrued compensation,
Consultant shall receive an ex-gratis bonus of $88,000. In consideration for the
services to be rendered for the benefit of and accepted by Company under this
Agreement, the Consultant will receive the sum of Eight Thousand Dollars
($8,000) per calendar month during the term of this Agreement. The Consultant
will submit statements to the Company on a monthly basis. The Consultant agrees
to continue, unless this Agreement is terminated, to defer payments of prior,
current, and ongoing consideration until such time as the Company is financially
able to provide all or part of the deferred compensation. The Consultant agrees,
at the Consultants discretion, to receive shares of the Company common stock in
lieu of compensation at any time during the term of this Agreement.
ARTICLE 5 - ENTIRE AGREEMENT
This Agreement (including all exhibits hereto) constitutes the entire
understanding and agreement between Company and the Consultant with respect to
the subject matter hereof, and supersedes all prior negotiations,
representations or agreements, either oral or written. No modification,
recession, waiver or termination of this Agreement, or any of its terms and
conditions, shall be binding on Company, unless agreed to in writing by the
Board of Directors of the Company.
ARTICLE 6 - PERFORMANCE
If the Consultant fails in any respect to prosecute the work and services with
promptness or diligence, Company may terminate this Agreement for cause in part
or in its entirety without any liability for the terminated part(s), in
accordance with the provisions of ARTICLE 25, TERMINATION FOR CAUSE, hereof.
ARTICLE 7 - INDEPENDENT CONTRACTOR RELATIONSHIP
The Consultant is an independent contractor of Company and, except to the extent
specified in this Agreement, Company may not control or direct the details and
means by which Consultant performs its duties under this Agreement. This
Agreement shall not create the relationship of employer and employee, a
partnership or a joint venture. Neither the Consultant nor Company shall be
deemed an agent of the other on account of this Agreement or the performance of
any of their obligations hereunder. The Consultant does not have any authority
to bind Company to any agreement or contract.
ARTICLE 8 - ASSIGNMENT
Consultant may not assign or transfer this Agreement, any rights hereunder, nor
any payment due or to become due hereunder. Any such assignment(s) or attempt at
any such assignment is void and not binding upon Company. The Consultant
acknowledges that this Agreement is one for personal services for the benefit of
Company and is therefore not assignable in whole or in part.
ARTICLE 9 - SUBCONTRACTING
Company retains the exclusive right to approve all subcontractors of the
Consultant, and the Consultant agrees that it will not subcontract any work and
services under this Agreement without the prior written approval of Company.
ARTICLE 10 - ACCESS TO WORK
Company shall, at all reasonable times, have free access to the services and
facilities of the Consultant and its subcontractors for purposes of inspecting
same and determining that the work and services are being performed in
accordance with the terms of this Agreement.
ARTICLE 11 - COMPLIANCE WITH THE LAW
The Consultant will comply with all applicable federal, state and local laws,
rules and regulations.
ARTICLE 12 - APPLICABLE LAW
The rights and obligations arising from this Agreement are governed by the laws
of the state of California.
ARTICLE 13 - TAXES
Any and all taxes applicable to the performance of the Consultant hereunder and
its incurrence of cost therefor are included in the Consultant's fee payable
hereunder (except as otherwise expressly provided herein) and that the
Consultant is wholly responsible for the necessary filing of income tax returns
to the proper taxing authorities and for payment of all such taxes. The
Consultant is wholly responsible for withholding and payment of all federal,
state and local taxes of whatever nature.
ARTICLE 14 - WARRANTY
The Consultant will perform the services under this Agreement using the
Consultant's best skill, diligence and attention and warrants that the services
shall be performed with that degree of skill, care, and judgment customarily
accepted as sound, quality, professional practice and procedure in the field or
discipline represented by the Consultant.
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ARTICLE 15 - OWNERSHIP OF WORK PRODUCT
All technical data, correspondence, and other work of the Consultant hereunder
produced under or pursuant to this Agreement is and will at all times remain the
property of Company and are to be delivered to Company when so requested. In
addition, upon the expiration or termination (regardless of the reason for
termination) of this Agreement, the Consultant shall deliver to Company any and
all drawings, notes, memoranda, specifications and documents in the Consultant'S
possession or control relating to the performance by the Consultant of its
obligations hereunder or relating to any Third Party Information or Company'S
Information (as such terms are defined in Article 21 below), excluding computer
software owned by Consultant and used in connection with the performance of its
duties hereunder.
ARTICLE 16 - DISSEMINATION OF WORK PRODUCT
Use, publication or teaching of information directly derived from work and
services performed, or data obtained in connection with the work and services
rendered under this Agreement other than for Company's benefit is prohibited
unless expressly approved in writing by Company, which approval Company may
withhold in its sole and absolute discretion.
ARTICLE 17 - CUMULATIVE REMEDIES
Every right or remedy herein conferred upon or reserved to Company is cumulative
and in addition to every right and remedy now or hereafter existing at law or in
equity, and the pursuit of any right or remedy shall not be construed as an
election.
ARTICLE 18 - DELAYS
The Consultant expressly agrees to the schedule provided for in this Agreement,
if any, and such schedule includes allowances for all foreseeable hindrances and
delays incident to the work and services.
ARTICLE 19 - SUSPENSION OF WORK
Any instructions for suspension of this Agreement will be issued by Company to
the Consultant and be confirmed in writing. Under no circumstances shall the
Consultant be entitled, nor shall Company give any consideration to claims for
loss of anticipated revenue(s), including overhead and profit, due to any such
suspension.
ARTICLE 20 - FORCE MAJEURE
Any delay in, or failure of performance of either party does not constitute
default hereunder or give rise to any claim for damage if and to the extent such
delay or failure is caused by occurrences beyond the control of the party
affected and which by the exercise of reasonable diligence, such party is unable
to prevent, including but not limited to, acts of God or the public enemy,
expropriation or confiscation of facilities or compliance with any order or
request of a governmental authority affecting to a degree not presently
existing, the supply, availability, or use of materials or labor, acts of war
public disorders, rebellion or sabotage, floods, riots or strikes. A party which
is prevented from performing for any reason shall immediately notify the other
party, in writing, of the cause for such nonperformance, and the anticipated
extent of the delay. The Consultant is not entitled to any additional
compensation as a result of FORCE MAJEURE that may delay the Consultant's
performance of services under this Agreement.
ARTICLE 21 - CONFIDENTIALITY
The Consultant shall keep all work and services carried out hereunder for
Company and all trade secrets, data and other proprietary information of
Company, including all information gathered or becoming known to the Consultant
arising out or in connection with the services performed under this Agreement,
(collectively, "COMPANY'S INFORMATION") entirely confidential, and not use,
publish, or make known, without Company's written approval, any of Company'S
Information or any other information developed by the Consultant or furnished by
Company to any persons other than personnel of the parties of this Agreement.
However, the foregoing obligations of confidentiality, secrecy and nonuse do not
apply to any information that was in the Consultant's possession prior to
commencement of work under this Agreement, or which is available to the general
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public in a printed publication and provided further that the foregoing
obligation in no way limits the Consultant's internal use of any such work.
Any public statements or publicity regarding Company or its business are to be
made solely by Company, and any requests for information made to the Consultant
by the news media, or others, are to be referred to Company. Additionally, the
Consultant shall not reference Company nor the work performed for Company
(including, but not limited to, listing Company as a customer of the Consultant
on a resume or other marketing materials) without prior written approval by
Company.
The Consultant understands, in addition, that Company may receive from third
parties confidential or proprietary information ("THIRD PARTY INFORMATION")
subject to a duty on Company'S part to maintain the confidentiality of such
information and to use it only for certain limited purposes. The Consultant
agrees to hold any Third Party Information in the strictest confidence and will
not disclose to anyone other than Company personnel, or use except in connection
with any work to be performed by the Consultant for Company, any Third Party
Information unless expressly authorized by an officer of Company in writing.
ARTICLE 22 - CHANGES AND/OR AMENDMENTS
Company shall have the right, from time to time during the term of this
Agreement, by written notice to the Consultant, to make changes to the work and
services covered by this Agreement and described on EXHIBIT A attached hereto,
including the right to expand, decrease or limit the scope and nature of the
work and services to be undertaken, or to redirect work and services already in
progress. In the event changes are made to EXHIBIT A and are material, the
parties shall negotiate in good faith to amend the fees and compensation to
reflect the changes.
ARTICLE 23 - AUDIT
The Consultant shall, at its own expense, keep and maintain complete records and
books of account of its costs and expenses relating to the work and services in
accordance with generally accepted accounting practices. Should a dispute arise
between Company and the Consultant regarding amounts and/or credits under this
Agreement, the Consultant hereby grants Company permission to audit, at
reasonable times, and at its expense, such records and books of account at the
Consultant's usual place of business.
ARTICLE 24 - WAIVER
In the event Company fails to insist on performance of any of the terms and
conditions, or fails to exercise any of its rights or privileges hereunder, such
failure shall not constitute a waiver of such terms, conditions, rights or
privileges.
ARTICLE 25 - TERMINATION FOR CAUSE
Company, upon written notice, may terminate this Agreement, or any part hereof,
as a result of the Consultant's failure to perform the work and/or services as
stated in EXHIBIT A, including progress of the work and services, or to
otherwise adhere to the direction of Company within the scope of this Agreement,
provided Company shall at the time of such termination, pay to the Consultant
the full amount of fees due for all completed and accepted work as outlined in
EXHIBIT A. Company shall be the sole determinate in all termination for cause
issues. The Consultant shall not be entitled, nor shall Company give any
consideration to claims for loss of anticipated revenue(s), including overhead
and profit, due to the termination of this Agreement, or any part hereof, by
Company for cause. Upon termination for any reason Consultant shall be entitled
to fees for all work or services completed and accepted as outlined in EXHIBIT A
of this Agreement. If the Company is unable to reasonably provide such
remuneration in whole or in part, at the time of termination, any outstanding
compensation will be payable in a twelve (12) month promissory note (carrying an
8% per annum interest). The Consultant may also be provided, in the Company's
discretion, with shares of common stock in lieu of all or part of the promissory
note; such shares to be valued at the average trading price of the common stock
for the prior thirty (30) says in which the stock was listed (and, if not
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listed, then at the last sale price of the stock in any private transaction). In
the event Consultant and Company are unable to mutually agree upon the amounts
due by either upon termination for convenience within 30 days after the notice
of termination is received, then Company and Consultant shall submit such
dispute to binding arbitration accordance with the expedited rules for
arbitration of the American Arbitration Association, and a judgment upon any
award may be entered in any court having jurisdiction. Either the Consultant or
Company shall have a right to initiate arbitration upon notice to the other
party. Any such arbitration shall be conducted in the San Jose, California
metropolitan area.
ARTICLE 26 - TERMINATION FOR CONVENIENCE
Company or the Consultant, upon fourteen (14) days prior written notice to the
other, may terminate this Agreement, or any part hereof, for the sole
convenience of Company or the Consultant. Upon receipt of written notification
from the terminating party that this Agreement, or any part hereof, is to be
terminated, the Consultant shall immediately cease operation of the work and
services stipulated, and assemble all material that has been prepared,
developed, furnished or obtained under the provisions of this Agreement that may
be in its possession or custody, and shall transmit the same to Company on or
before the fourteenth day following the receipt or delivery by the Consultant,
as the case may be, of the above written notice of termination, together with
its invoice of the fees due for completed work and/or services as outlined in
EXHIBIT A of this Agreement. The Consultant shall be entitled to just and
equitable payment for all completed and accepted work or services satisfactorily
performed prior to such notice and in conjunction with such notice, as described
above, which amount shall be paid to Consultant upon termination. In the event
Consultant and Company are unable to mutually agree upon the amounts due by
either upon termination for convenience within 30 days after the notice of
termination is received, then Company and Consultant shall submit such dispute
to binding arbitration accordance with the expedited rules for arbitration of
the American Arbitration Association, and a judgment upon any award may be
entered in any court having jurisdiction. Either the Consultant or Company shall
have a right to initiate arbitration upon notice to the other party. Any such
arbitration shall be conducted in the San Jose, California metropolitan area.
If the Company is unable to reasonably provide such remuneration in whole or in
part, at the time of termination, any outstanding compensation will be payable
in a 12 month promissory note (carrying an 8% per annum interest). The
Consultant may also be provided, in the Consultant's discretion, with shares of
common stock in lieu of all or part of the promissory note; such shares to be
valued at the closing trading price of the common stock on the date of grant
(and, if not listed, then at the last sale price of the stock in any private
transaction). The Company recognizes that the Consultant faces considerable risk
that he may not be paid for his services on a timely basis, if at all, and
further recognizes that the Consultant is prevented from selling any common
stock received as remuneration for the term prescribed under Rule 144, and that
the cash proceeds eventually received therefrom may not match the monetary
amount of remuneration to be paid. Accordingly, the Parties agree that any
shares granted to Consultant in lieu of cash payments for services provided
under this Agreement shall be applied against the amount of accrued compensation
payable, or Note therefor, based on the net cash received from sales.
The Company values the commitment of the Consultant in performing services for
the Company, and recognizes that the remuneration plan does not provide any
equity upside for the Consultant. In order to align the interests of Consultant
and shareholders of the Company, the Company agrees to grant Consultant 800,000
options to purchase shares of common stock of the Company. The options shall
vest in equal monthly installments over the 24 months starting January, 2011.
In determining the amount of compensation due the Consultant, the Consultant
shall not be entitled, nor shall Company give any consideration to the
Consultant for claims for loss of anticipated revenue(s), including overhead and
profit, which the Consultant might have reasonably expected to make on the
uncompleted portion of the work and services.
ARTICLE 27 - INDEMNIFICATION
To the fullest extent permitted by law, the Consultant shall defend, indemnify
and hold Company, its officers, directors, shareholders, agents and employees
free and harmless from and against any and all claims, losses, demands, causes
of action, suits or other litigation (including attorney's fees and all other
costs thereof) of every kind and character, including, but not limited to
damages or loss from bodily injuries, death, damage to tangible or intangible
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property in any way occurring incident to, arising out of or in connection with
the work and services performed or to be performed by the Consultant hereunder
or occurring incident to, arising out of or in connection with the presence of
employees of the Consultant or any subcontractor on the work premises, all
regardless of whether or not Company is negligent in whole or in part.
ARTICLE 28 - INSURANCE
Insurance appropriate to work performed, in accord with standards for the field
or discipline, and acceptable to Company, including worker's compensation, if
applicable, shall be maintained at all times by the Consultant, at its own
expense, during performance of the Agreement. At a minimum, the Consultant shall
carry at its own cost and expense comprehensive general liability insurance,
including contractual liability and automobile liability, with a minimum
limitation of liability of $1,000,000.
ARTICLE 29 - COMPLETION
This Agreement or any portions of the services rendered by the Consultant for
Company will not be considered complete until all work and services,
specifications, and requirements have been satisfied and accepted by Company.
ARTICLE 30 - ELECTRONIC REPRODUCTION OF AGREEMENT
The parties agree that a scanned or electronically reproduced copy or image of
this fully executed Agreement is to be deemed an original and may be introduced
or submitted in any action or proceeding as competent evidence of the execution,
terms and existence hereof notwithstanding the failure or inability to produce
or tender an original, fully executed version of this Agreement and without the
requirement that the unavailability of such original of this Agreement first be
proven.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first set forth above:
CONSULTANT IN MEDIA CORPORATION
By:/s/ Simon Westbrook By: /s/ Nitin Karnik
------------------------------- --------------------------------
Name: Simon Westbrook Name: Nitin Karnik
Title: CEO
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EXHIBIT A
TO CONSULTING AGREEMENT
Statement of Work
The nature and scope of the work/services to be performed by the Consultant
under this Agreement are as follows:
Provision of services as Acting CFO of In Media Corporation
