exhibit101-independentco






                                                                                                                        Casper Sleep Inc.                         INDEPENDENT CONTRACTOR AGREEMENT          This Independent Contractor Agreement ("Agreement") is entered into as of the Effective Date set forth on  the signature page below between Casper Sleep Inc. and Stuart Brown ("Contractor").                                         Background          Casper Sleep Inc. and Contractor desire that, subject to the terms and conditions of this Agreement and  Work Orders executed under the terms of this Agreement, Contractor will provide to Casper Sleep Inc. certain  deliverables and/or services on an independent contractor basis.           NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged, and intending to be legally bound, Casper Sleep Inc. and Contractor hereby agree as follows:    1.    Definitions.         1.1   “Confidential  Information” shall  mean  confidential  or  other  proprietary  information  that  is  disclosed or available to Contractor in connection with the performance of this Agreement including, without  limitation,  any  strategies,  research,  methodologies,  techniques,  transportation  data,  sales  data,  financial  information,  designs,  drawings,  models,  prototypes,  product  specifications  and  documentation,  business,  marketing or promotional information, merchandising changes, product plans and data, inventory management  data, Casper Sleep Inc. current or future initiatives, information related to debt or equity offerings, pricing, vendor  lists, customer lists, flow charts, and other confidential business information.  Confidential Information shall also  include any information observed by Contractor personnel while at the facilities of Casper Sleep Inc. or in the  course  of meetings  between Casper  Sleep  Inc. and Contractor personnel. Confidential  Information  shall  not  include information that is or becomes public knowledge without any action by, or involvement of, Contractor.         1.2   "Deliverable(s)" shall mean the design(s), product(s) and/or other materials to be developed or  delivered by or on behalf of Contractor to Casper Sleep Inc. under the terms of this Agreement and/or a Work  Order.         1.3   "Derivative Works" shall mean a work that is based on one or more preexisting work(s) and  which, if prepared without authorization of the owner of the preexisting work(s), would constitute an infringement  of such owner's Intellectual Property Rights.         1.4   “Intellectual  Property  Rights" shall  mean  all  forms  of  intellectual  property  rights  and  protections, including, without limitation, all right, title and interest in and to all foreign, federal, state and common  law rights relating to: (i) Letters Patent and all filed, pending or potential applications for Letters Patent, including  any reissue, reexamination, division, continuation or continuation-in-part applications now or hereafter filed; (ii)  trade secret rights and equivalent rights; (iii) copyrights, mask works, and other literary property and authors  rights, whether or not protected by copyright or as a mask work; and (iv) trademarks, trade names, symbols, logos,  brand names and other proprietary indicia.         1.5   "Services" shall mean the services to be provided by Contractor to Casper Sleep Inc. under the  terms of this Agreement and/or a Work Order.         1.6   "Work Order" shall mean the order attached as Exhibit A to this Agreement and any subsequent  Work Order agreed upon by Casper Sleep Inc. and Contractor for individual engagements for Deliverables and/or  Services under this Agreement.    ACTIVE/103013081.2     





 






                                                                                     2.    Services.         2.1   General.  Subject to the terms and conditions of this Agreement, Contractor shall provide to  Casper Sleep Inc. the Services and Deliverables set forth in each applicable Work Order.  All work performed by  Contractor shall be documented in a Work Order signed by authorized representatives of both parties.  Each Work  Order shall set forth, at a minimum, the work to be done, and the fees for the work to be performed.  If any of the  terms of the Work Order conflict with the terms of this Agreement (other than the terms set forth in Section 9, 10  and 12 of this Agreement), the terms of the Work Order shall take precedence for purposes of the Services and  Deliverables described therein.  Nothing in this Agreement shall be construed or interpreted so as to prohibit  Casper Sleep Inc. from entering into similar agreements with other parties concerning similar Deliverables or  Services.         2.2   Work Order Changes.  A Work Order may only be modifed upon the mutual written agreement  of the parties.         2.3   Method of Performing Services.  Contractor, in conjunction with its personnel (if applicable),  will determine the method, details, and means of performing the work to be carried out for Casper Sleep Inc.  Casper Sleep Inc. shall not control the manner or determine the method of accomplishing such work.  Casper  Sleep Inc. shall, however, be entitled to exercise a broad general power of supervision over the results of work  performed by Contractor to ensure satisfactory performance.  This power of supervision shall include the right to  inspect, stop work, make suggestions or recommendations as to the details of the work, and request modifications  to the scope of the Work Order.  Contractor (and its personnel if applicable) shall observe at all times the security  and safety policies of Casper Sleep Inc.   3.    Compensation.  In consideration of the Services provided by Contractor to Casper Sleep Inc., Casper  Sleep Inc. shall pay to Contractor the fees set forth in the applicable Work Order. Unless otherwise set forth in a  Work Order, Contractor shall submit invoices to Casper Sleep Inc. bi-monthly on the first and fifteenth of each  calendar month for Services furnished hereunder.  Each invoice will provide a breakdown and distribution of  charges  for  Services,  and  an  itemization  of  any  expense  items specifically  permitted  under  the  Work  Order.   Casper Sleep Inc. shall pay each undisputed invoice within 15 days after receipt.     4.    Taxes. Contractor understands  and  agrees  that Contractor is  obligated  to  report  as  income  all  compensation received pursuant to this Agreement. Contractor shall pay, when and as due, any and all taxes  incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and if requested by Casper  Sleep Inc. in connection with any audit or inquiry from a governmental authority or agency, provide Casper Sleep  Inc. with proof of said payments.    5.    Independent Contractor Status.         5.1   Independent Contractor.  The parties agree that Contractor is an independent contractor and not  an employee, agent, joint venturer, or partner of Casper Sleep Inc.  Nothing in this Agreement shall be interpreted  or construed as creating or establishing the relationship of employer and employee between Casper Sleep Inc. and  either Contractor or any employee or agent of Contractor.   6.    Confidentiality.           6.1   General.  Contractor  agrees  that,  as  a  condition  to  the  receipt  of  Confidential  Information,  Contractor shall: (i) not disclose, directly or indirectly, to any third party (including, without limitation, any  affiliate of Contractor, any research company, analyst, any member of the media, any direct or indirect competitor  of Casper Sleep Inc., and any personnel of Contractor that do not have a need to know to perform work for Casper   ACTIVE/103013081.2     





 






                                                                                     Sleep Inc.) any portion of the Confidential Information without the prior written consent of Casper Sleep Inc.; (ii)  not  use  or  exploit  the  Confidential  Information  in  any  way  except  for  purposes  of  providing  Services  and  Deliverables to Casper Sleep Inc. in accordance with this Agreement; (iii) promptly return or destroy, at Casper  Sleep Inc.’s option, all materials and documentation containing or regarding the Confidential Information upon  expiration  or  termination  of  this  Agreement  or  upon  request  of  Casper  Sleep  Inc.;  (iv)  take  all  necessary  precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least  the same degree of care in safeguarding the Confidential Information as Contractor would with Contractor's own  confidential information, but in no event less than a diligent standard of care; and, (v) promptly advise Casper  Sleep Inc. in writing upon learning of any unauthorized use or disclosure of the Confidential Information.         6.2   Governmental Order.  If Contractor is required under a final judicial or governmental order to  disclose  any  Confidential  Information,  Contractor  may  disclose  the  Confidential  Information  provided  that  Contractor gives Casper Sleep Inc. sufficient prior notice to contest such order and that Contractor discloses only  such portions of the Confidential Information as required by such order.   7.    Ownership.  Contractor  hereby  agrees  that  all  right,  title  and  interest  in  all  Deliverables,  and  any  Derivative Works therein, including all Intellectual Property Rights in the foregoing, shall belong exclusively to  Casper Sleep Inc. and shall, to the extent possible, be considered a work made for hire for Casper Sleep Inc. within  the meaning of 17 U.S.C. § 101.  Contractor hereby assigns and agrees to assign, and shall cause its personnel to  assign  and  agree  to  assign,  at  the  time  of  creation  of  the  Deliverable,  without  any  requirement  of  further  consideration or documentation, any right, title, or interest Contractor or they may have in such Deliverable and  any Derivative Work therein, including any Intellectual Property Rights pertaining in the foregoing.  Upon the  request of Casper Sleep Inc., Contractor shall take such further actions, and shall cause its personnel to take such  further actions, including, without limitation, execution and delivery of all documents, as may be appropriate or  desirable to confirm such rights.  All Deliverables and any Derivative Works thereof shall be the Confidential  Information of Casper Sleep Inc., and Contractor shall maintain the confidentiality of such Deliverables, and  Intellectual Property Rights associated therewith, in accordance with Section 6.   8.    Limited Warranty.  Contractor represents and warrants that: (i) the Services provided hereunder will be  performed in a first class and professional manner, (ii) any Deliverables provided hereunder will conform to the  specifications and/or additional representations and warranties set forth in the applicable Work Order, (iii) the  Services provided hereunder will not infringe or misappropriate any Intellectual Property Rights of any third party,  (iv)  it shall perform the Services in a manner that complies will all applicable laws, regulations, rules, ordinances  or other applicable legal requirements, including (without limitation) federal, state and local laws, regulations  and/or ordinances, and (v) the provision of Services hereunder will not conflict with any contractual or other  obligation to which Contractor is bound.   9.    Indemnification.  Casper Sleep Inc. agrees that Contractor shall not have any liability to Casper Sleep  Inc. for or in connection with any matter referred to in this Agreement, including the Services provided hereunder,  except to the extent that any losses, claims, damages, liabilities or expenses incurred by Casper Sleep Inc. are  solely the result of the gross negligence or willful misconduct of Contractor. Furthermore, Contractor shall be  entitled  to  indemnification,  advancement  of  expenses  and  other  rights  in  accordance  with  that  certain  Indemnification  Agreement  entered  into  by  Casper  Sleep  Inc.  and  Contractor  as  of  the  date  hereof  (the  “Indemnification Agreement”).    10.   Consequential  Damages.  Under  no  circumstances  will Contractor  be  liable  for  any  lost  profits  or  revenue, business interruption, loss of business information, special, incidental, punitive, exemplary, indirect or  consequential damages or other pecuniary loss arising from or related to this agreement.  The provisions of this  section shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in    ACTIVE/103013081.2     





 






                                                                                     contract, statute, tort (including, without limitation, negligence), or otherwise, even if advised of the possibility of  such damages.   11.   Term and Termination.  This Agreement will become effective on the Effective Date and will continue  in effect for three (3) months after the Effective Date and thereafter to the extent agreed upon by the parties or as  otherwise set forth in a Work Order.  Casper Sleep Inc. and Contractor may each, at its sole option, terminate any  Work Order, or any portion thereof, upon four (4) weeks written notice to Contractor or Casper Sleep Inc.  Upon  receipt of such notice, Contractor shall advise Casper Sleep Inc. of the extent to which performance has been  completed through such date, and collect and deliver to Casper Sleep Inc. whatever work product then exists in  the manner requested by Casper Sleep Inc.  Contractor shall be paid for all work satisfactorily performed through  the date of termination.  Sections 1, 5, 6, 7, 8, 9, 10, and 11 hereof shall survive and continue in effect following  the expiration or termination of this Agreement for any reason.   12.   General Provisions.         12.1  Complete Understanding; Modification.  This Agreement and any duly executed Work Orders  and the Indemnification Agreement constitute the complete and exclusive understanding and agreement of the  parties and supersede all prior understandings and agreements, whether written or oral, with respect to the subject  matter hereof.  Except as otherwise provided in Section 2.2 hereof, any waiver, modification or amendment of  any provision of this Agreement or any Work Order will be effective only if in writing and signed by both parties  hereto.         12.2  Nonassignability;  Binding  Effect;  Subcontracting.  Neither  party  hereto  shall  assign  this  Agreement or any Work Order to any third party without the prior written consent of the other party, which may  be withheld at such other party’s sole discretion.  Subject to the foregoing, this Agreement and any Work Order  shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.   Contractor shall not subcontract this Agreement or any portion thereof to any third party without (i) the prior  written consent of Casper Sleep Inc., which may be withheld at Casper Sleep Inc.'s sole discretion, and (ii) the  prior  written  agreement  of  the  proposed  subcontractor  to  be  bound  by  the  provisions  of  this  Agreement.   Notwithstanding any such contract, Contractor shall not be relieved of Contractor's performance or obligations  under this Agreement and shall be responsible for all work performed by subcontractor.         12.3  Governing  Law.  This  Agreement,  including  any  Work  Order,  and  any  claims,  whether  in  contract, tort or otherwise, arising from this Agreement or any Work Order shall be governed by and interpreted  in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law.  The  parties agree that the state and federal courts sitting in the State of New York shall have proper and exclusive  jurisdiction and venue for any proceedings arising from this Agreement.  Contractor recognizes that breach of  Sections  5  or  6  of  this  Agreement  will  cause irreparable  harm  to  Casper  Sleep  Inc.  that  is  inadequately  compensable in damages, and that Casper Sleep Inc. is entitled to injunctive relief for such breach without posting  of bond.         12.4  Notices.  Any notices to be given hereunder by either party to the other may be effected either by  personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested.  Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this  Agreement, but each party may change such address by written notice in accordance with this Section.  Notices  delivered  personally  will  be  deemed  communicated  as  of  actual  receipt.  Mailed  notices  will  be  deemed  communicated as of two (2) days after mailing.     ACTIVE/103013081.2     





 






      12.5  Acceptance of Facsimile and Scanned Signatures.   The parties agree that any signatures of a  party  or  parties  delivered  by  facsimile  transmission  or  by  scanned  image  (e.g.  pdf  file)  as  an  attachment  to  electronic mail (email) will be treated in all respects as having the same effect as an original signature.           12.6  Counterparts.  This Agreement may be executed in one or more counterparts, each of which  shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument.     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.   CASPER SLEEP INC.                         CONTRACTOR   By: /s/ Elizabeth Wolfson                 By: /s/ Stuart Brown   Title: Chief People Officer               Title:   Date: April 21, 2020                      Date: April 21, 2020     ACTIVE/103013081.2  





 






                                     EXHIBIT A                                      WORK ORDER         This  Work  Order  ("Work  Order")  is  issued  pursuant  to  the  Independent  Contractor  Agreement  ("Agreement") between Casper Sleep Inc. ("Casper Sleep Inc.") and Stuart Brown ("Contractor"), dated April 20,  2020 (or other mutually agreeable date), and the terms and conditions of such Agreement shall be applicable to  the Services provided under this Work Order.   1.    Effective Date of Work Order:  April 20, 2020  2.    Services to be Provided.       Consultant for Casper Sleep Inc. for the period from April 21, 2020 – May 15, 2020        Interim Chief Financial Officer responsibilities for Casper Sleep Inc. for the period from May 15, 2020       to July 21, 2020        Responsibilities shall include, but not be limited to, the following:        - ROY 2020 Business Plan including strategic plan (operating committee)       - Direct and Manage Finance team to execute on approved plan (President)       - Monthly and Quarterly Financial Close       - Quarterly Earnings - content preparation and delivery (CEO)       - Board Meetings + Audit Committee - content preparation and delivery       - EU Wind-down Accounting - Direct VP/Controller / support on the ground team       - Finance Team Assessment + Talent Plan (CPO) including key hiring (ie. Asst Controller, Payroll, etc)       - Participate in OpCo meetings       -Updates to operating plans, as appropriate       -Lead Investor Relations efforts including conducting non-deal road shows with investors, as       appropriate (CEO)       -All financial regulatory filings       -Transition to permanent CFO, as appropriate  4.    Fees.       $80,000.00 per month, prorated accordingly for any month during which this Work Order is not in effect for the entire month, which shall become payable at bi-monthly at the fifteenth and the end of each  applicable month.          The Board, in its discretion, may also award Contractor one or more additional bonus fee payments up  to an aggregate amount of $20,000 per month of services hereunder.   5.    Schedule.       Subject to Section 12 of the Agreement, this Work Order shall commence on the Effective Date and continue on a month-to-month basis until terminated by either party upon four (4) weeks prior written notice to  the other party.    ACTIVE/103013081.2  





 






6.    Contractor Personnel: Stuart Brown  7.    Prime Contact: Philip Krim  8.    Supervisor over Work Order:  Philip Krim  9.    Expenses:       Casper Sleep Inc. will pay for all legitimate, reasonable, documented business expenses for the duration of the work order including, airfare, hotel, car rental, transportation to/from hotel/home, communication  services, office supplies and actual meal expenses in accordance with Casper Sleep Inc. policies. Expenses also  will be payable consistent with fees. Casper Sleep Inc. will also pay Consultant’s documented legal fees and  related expenses incurred in connection with the drafting, negotiation and execution of this Agreement and all  related matters in connection therewith, up to $15,000.   10.   Other:       Access to a Casper Sleep Inc. laptop computer for remote access to all necessary information during the engagement.     ACTIVE/103013081.2  





 






      IN WITNESS WHEREOF the parties have entered into this Work Order as of the date set forth above  on this Work Order.   CASPER SLEEP INC.    By : /s/ Elizabeth Wolfson                By : /s/ Stuart Brown   Title: Chief People Officer               Title:     ACTIVE/103013081.2