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Exhibit 10.09
AMENDED AND RESTATED
INDEPENDENT CONTRACTOR AGREEMENT
This Amended and Restated Independent Contractor
Agreement (the “Agreement”) is entered into this as of
this 7 day of November, 2007, by and between NEW FRONTIER MEDIA,
INC., a Colorado corporation (“Company”), with its
principal place of business at 7007 Winchester Circle, Suite 200,
Boulder, CO 80301, and MATTHEW PULLAM (“Contractor”),
whose address is 13806 Lexington Place, Broomfield, CO 80023 and
amends and replaces the Independent Contractor Agreement dated
October 16, 2007 by and between the parties hereto. Company and
Contractor hereby agree as follows:
1.
Contracting Period. Unless earlier terminated as provided herein, this Agreement
shall commence on November 8, 2007 and end on March 15, 2008,
unless either party provides thirty (30) days prior written notice
of termination to the other party.
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2.
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Contracting Services and
Relationship.
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(a)
Services. During the
Contracting Period, Contractor shall provide to Company the
services set forth on the Scope of Work, which is attached hereto
as Exhibit A and incorporate herein by this reference, as well any
related responsibilities and duties as may be assigned by Company
and agreed to by Contractor (collectively, the
“Services”). It is expected that Contractor shall be
available to provide the Services to Company at such times as may
be reasonably requested by Company and mutually agreed to by
Contractor. Contractor shall use his best efforts to perform
faithfully and efficiently the Services assigned under this
Agreement.
(b)
Relationship .
Contractor shall be an independent contractor, and not an employee
of Company, within the meaning of all federal, state and local laws
and regulations governing employment insurance, workers'
compensation, industrial accident, labor and taxes. Company shall
not be liable for employment or withholding taxes respecting
Contractor. Contractor shall not, by reason of this Agreement,
acquire any benefits, privileges or rights under any benefit plan
operated by Company or its subsidiaries or affiliates for the
benefit of their employees, including, without limitation, (i) any
pension or profit-sharing plans or (ii) any plans, coverages or
benefits providing worker’s compensation, medical, dental,
disability or life insurance protection. Notwithstanding the
foregoing, Company shall obtain an endorsement to its D&O
Insurance Policy to specifically add Contractor in his capacity as
Company’s independent financial consultant. Contractor agrees
and acknowledges that Contractor is not authorized to enter into
any contract or assume any obligation on behalf of Company without
the prior written consent of Company. All of the acknowledgements
and restrictions set forth in this Section 2(b) shall equally apply
to anyone Contractor has engaged to perform any portion of the
Services.
3.
Compensation . In
consideration for Contractor’s full and timely performance of
the Services throughout the Contracting Period, Company shall pay
Contractor pursuant to the payment terms set forth in the Scope of
Work. Such amount shall be payable no more frequently than
bi-weekly in arrears upon Contractor’s submission of an
invoice to the Company’s Accounts
Payable Department. Each such invoice shall include:
Contractor’s name and address, the Services provided and the
dates and hours worked. Contractor agrees to complete and return to
Company a W-9 as a condition of receiving timely payment. In
addition to the foregoing, Company shall reimburse Contractor for
Contractor’s reasonable expenses actually incurred in
performing the Services so long as such expenses were pre-approved
in writing by Company.
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4.
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Events of Termination .
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(a)
Cessation/Death/Incapacity . This Agreement shall terminate automatically upon the
cessation of business of Contractor or upon the death or incapacity
of Contractor.
(b) Notice
. This Agreement may be terminated without cause by
Company upon three (3) days advance written notice to
Contractor.
(c)
Breach . This Agreement
may be terminated by either party upon a breach of a material term
or condition of this Agreement which breach is not cured within
five (5) days from written notice from the non-breaching
party.
5.
Obligations upon Termination
. Upon termination of this Agreement pursuant to
Section 4: (i) neither Contractor nor Company shall have any
further obligations under this Agreement, except for the obligation
to pay Contractor for any unpaid Services rendered and any approved
and unpaid expenses incurred prior to the termination, as well as
any obligations under Sections 5 through 10 of this Agreement; (ii)
Contractor shall return all Company equipment, Work Product and
Confidential Information within five (5) days at Company’s
expense.
6.
Ownership . "Work
Product" shall mean all deliverables and all
intermediate and partial versions thereof, and all documentation,
analysis, flowcharts, notes, outlines, formulas, processes,
algorithms, ideas, inventions, know-how or techniques, and any
other information, or materials generated by Contractor in the
performance of the Services. Contractor acknowledges that all Work
Product is work made for hire and is the property of Company,
including any copyrights, trademarks, patents, or other
intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire,
Contractor hereby assigns to Company all of Contractor's right,
title, and interest, including all rights of copyright, patent, and
other intellectual property rights, to or in such Work
Product.
7.
Confidential Information . Contractor agrees to keep secret and to not disclose any of
the terms of this Agreement to any third parties, with the limited
exception of disclosures to Contractor’s accountant or legal
counsel who are required to have such confidential Company
information in connection with the performance of the services they
provide to Contractor. Additionally, it is mutually recognized that
the business of Company and the nature of the Services Contractor
will perform will permit Contractor access to confidential
information of Company and persons and entities with whom Company
conducts business or from whom Company obtains information. As used
in this Agreement, "information" shall mean any information or
knowledge, including matters of a technical nature such as
studi
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