Exhibit 10.1
CONSULTING AGREEMENT
This
Consulting Agreement (the “Agreement”) is entered into
this 1st day of April, 2009 (“ Effective Date
”), by and between EIM Capital Management, Inc. (“
Consultant ”) and Image Entertainment, Inc., (“
Image ”).
1. Term and Termination . The Board
of Directors of Image (the “ Board ”) is
retaining Consultant hereunder. This Agreement shall begin on the
Effective Date and shall end July 31, 2009 (the “
Term ”). The Compensation Committee of Image’s
Board of Directors (the “ Compensation Committee
”) has the right to extend the Term by providing Consultant
with written notice of a one-month initial extension by
June 30, 2009. Further extensions, if any, shall be on a month
to month basis at the discretion of the Compensation Committee,
with thirty (30) days prior written notice to Consultant, and
all extensions shall be in accordance with the terms and conditions
set forth in this Agreement. Moreover, Consultant and Image have
the right to terminate this Agreement upon thirty (30) days
written notice following a Change in Control , as that term
is defined in Exhibit A hereto.
2. Consulting Services . The Board
is retaining Consultant hereunder to collaborate with the Board and
management to, among other things, create a conduit and exchange of
ideas between management and the Board, reposition Image to be able
to access more — and less expensive — capital, identify
opportunities to reduce expenditures in both selling and in general
administration, identify opportunities to create additional revenue
and impact top line growth, and collaborate with the President and
the Chief Operating Officer to identify ways to streamline certain
of Image’s operations with a goal toward raising efficiency
and lowering overall cost (the “ Services ”).
Consultant will provide such services on a non-exclusive
basis.
a. Consultant shall designate Martin W.
Greenwald (“ Greenwald ”) to perform the
Services and Greenwald shall devote the majority of his business
time to the Services.
b. Subject to the fiduciary and other
duties Greenwald owes to Image in his role as Chairman of
Image’s Board of Directors, during the Term, Consultant and
Greenwald shall have the right to sell his services to persons or
entities other than Image, provided that the sale of such services
does not interfere with the performance of Consultant’s or
Greenwald’s duties hereunder and provided such services do
not compete or conflict with Image’s business in any
way.
3. Compensation .
a. Payment to Consultant . As
compensation for the Services, Image shall pay to Consultant a
monthly consulting fee of Thirty-Five Thousand and No/Cents
($35,000.00), payable in accordance with Image’s regular
payroll cycle. Image shall provide Consultant with a 1099 for the
compensation paid hereunder.
b. Consultant Responsible for Cost of
Administrative Assistant . Consultant shall hire or contract
one administrative assistant to assist with the performance of the
Services. Consultant shall be solely responsible for compensation
and expenses for this administrative assistant, whose compensation
and expenses total approximately Six Thousand Dollars and No/Cents
($6,000.00) per month. In addition to assisting with the
performance of the Services, this administrative assistant shall
also be available to provide certain administrative support to
Image during the Term and shall continue to provide services as the
assistant to the Chairman of the Board in coordinating the
activities of the Board.
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4. Expenses . Image will reimburse
Consultant for out-of-pocket expenses which are supported by proper
receipts and which have been reasonably incurred in connection with
the Services, including without limitation transportation, lodging
and meals; provided, however, that any individual expense of $500
or more incurred by Consultant and any travel expenses of $1,000 or
more incurred by Consultant must be pre-approved in writing by the
President of Image. Moreover, as set forth in more detail in
Section 3(b) above, Image shall not be responsible for any wages or
other expenses incurred with regard to Consultant’s hiring of
an administrative assistant to assist Consultant in the performance
of the Services.
5. Use of Car . Greenwald is
currently in possession of a company car from Image, which lease
shall expire on May 31, 2009. Greenwald may continue to use
this company car under the current terms and conditions until the
lease expiration date. Following the expiration of the car lease on
May 31, 2009, Greenwald shall return the company car to Image
and shall thereafter be fully responsible for his own car. After
May 31, 2009, Image shall have no responsibility whatsoever to
Greenwald with regard to providing transportation.
6. Confidential Information .
Consultant and Greenwald acknowledge that many aspects of the
business and affairs of Image are confidential and that Consultant
and Greenwald have had or will have access to certain commercial
and other confidential and non-public information relating to or
concerning Image, its business, vendors, customers and/or suppliers
(the “ Confidential Information ”). Consultant
and Greenwald acknowledge that all Confidential Information is
exclusively owned and controlled by Image.
a. Consultant and Greenwald expressly agree
that it and he shall not, directly or indirectly, verbally or
otherwise, either during or after the performance of the Services,
disclose, publish, reveal, disseminate, or cause to be disclosed,
published, revealed, or disseminated, without the prior express
written consent of the Board any Confidential Information
whatsoever.
b. Consultant and Greenwald acknowledge and
agree that any disclosure of Confidential Information will cause
irreparable harm to Image and that these damages are not
susceptible to measure. In the event of a breach or threatened
breach of this Agreement, Consultant, Greenwald and Image hereby
agree that any remedy at law for any breach or threatened breach of
this Agreement will be inadequate and, accordingly, Consultant,
Greenwald and Image each hereby stipulates that Image is entitled
to obtain injunctive relief for any such breaches or threatened
breaches, without the need to prove actual damages or for the
posting of a bond. The injunctive relief provided for in this
Section is in addition to, and is not in limitation of, any and all
other remedies at law or in equity otherwise available to
Image.
c. Consultant and Greenwald understand that
this Confidential Information provision is a material term of this
Agreement and any breach of this provision shall be considered a
material breach.
7. Work for Hire . To the fullest
extent permitted under applicable law, all work created pursuant to
this Agreement shall be deemed “works made for hire,”
as that term is defined in the United States Copyright Act, and
shall be owned by Image and may be used b
