Exhibit 10.1


 


SCOTT
A. FRISONI CONSULTING AGREEMENT


 


This Consulting Agreement
(this “Agreement”) is made and entered into as of this 11th day of
January, 2008 (the “Effective Date”) by and between InnerWorkings, Inc.,
a Delaware corporation (the “Company”), and Scott A. Frisoni, an
individual residing in the State of Illinois (the “Consultant”).


 


RECITALS


 


WHEREAS, the Consultant
has served as the Company’s Executive Vice President of Sales since March 2002;


 


WHEREAS, the Consultant
has resigned from his position as the Company’s Executive Vice President of
Sales effective as of the Effective Date; and


 


WHEREAS, the Board of
Directors of the Company, in order to secure the continued benefit of the
Consultant’s perspective and insights, desires that the Company enter into an
independent contractor relationship with the Consultant, and the Consultant
desires to enter into an independent contractor relationship with the Company,
upon the terms and conditions hereinafter contained, effective as of the
Effective Date;


 


NOW, THEREFORE, in
consideration of the covenants and agreements set forth herein and the mutual
benefits accruing to the Company and the Consultant from the independent
contractor relationship to be established between the parties by the terms of this
Agreement, the parties hereby agree as follows:


 


1.             Term
of Agreement.  This Agreement shall
have a term of one (1) year commencing on the Effective Date (the “Term”).  The Term may be extended on a monthly or
annual basis upon the mutual written consent of the Company and the Consultant.


 


2.             Scope
of Engagement.  The Consultant will,
during the Term and as requested by the Company, provide part-time services to
the Company consistent with those performed as the Company’s Executive Vice
President of Sales (the “Consulting Services”).   The Consultant agrees to devote at least
fifty percent (50%) of his working time and efforts (which the Consultant
agrees will be at least twenty (20) hours per week) to the Consulting Services.  The Consulting Services shall
be performed by the Consultant, and the Consultant shall not be required to
employ others to perform the Consulting Services.


 


3.             Compensation.  As compensation for the Consulting Services
provided pursuant to this Agreement, the Consultant shall receive compensation
of One Hundred Forty-Seven Thousand Five Hundred Dollars ($147,500) per year
during the Term of this Agreement (the “Fee”). 
The Fee shall be payable on a monthly basis by check or via wire
transfer on the last business day of each month (or on a prorated basis for any
partial month, calculated using a 30-day month) beginning on the Effective
Date. In the discretion of the Company, the fee may be modified to a commission
based compensation arrangement in order to secure the continued benefit of the
consultant’s perspective and insights. Until such time, other than the Fee and
as provided in Sections 4 and 11 hereof, under no circumstances shall the
Company be liable to the Consultant for any other payments or commissions of
any kind.


 


 





















 


4.             Expense Reimbursement.  The Consultant shall be eligible to receive
reimbursement for reasonable out-of-pocket expenses incurred in connection with
the performance of the terms of this Agreement, provided that such
reimbursement is directly related to the Consulting Services.  The Consultant shall provide the Company with
documentation evidencing all requests for reimbursement of such expenses.


 


5.             Assignment
of Rights.  The rights and
obligations of the Consultant under this Agreement are personal rights and
obligations of the Consultant, including the obligations to have all Consulting
Services performed by the Consultant, and may not be assigned or transferred to
any other person, firm, corporation, or other entity without the prior written
consent of the Company.  The Company may
assign or transfer its rights under this Agreement to any entity of which the
Company owns more than fifty (50%) percent of the voting interests, provided
that (i) the Company shall remain jointly and severally liable with such assignee
or transferee for the payment of the Fee and (ii) any such assignee or
transferee expressly assumes the obligations of the Company provided under this
Agreement.


 


6.             Termination.  The Company or the Consultant may terminate
this Agreement at any time upon thirty (30) days written notice to the other
party.


 


7.             Rights and Obligations Upon Termination.  Upon termination of this Agreement the
Company’s obligation to pay any amounts to the Consultant, except for any
portion of the Fee earned or reimbursement of any expenses incurred, prior to
such termination, shall cease.


 


8.             Acknowledgments by the Consultant.  The Consultant hereby acknowledges that:


 


(a)           The Consultant’s sole remuneration
for the services described herein will be the amounts described in Sections 3
and 4 above, and the Consultant agrees that he shall not be entitled to any
other payments for his services, including, without limitation, salary,
bonuses, commissions or benefits.


 


(b)           The Consultant shall be solely
responsible for all taxes (including employment and income taxes) and fees
lawfully due as a result of the performance of his duties hereunder.  No part of the Consultant’s compensation
under this Agreement will be subject to withholding for any Federal, State,
social security, worker’s compensation or other taxes or payments.  The Company will report all fees paid to the
Consultant to the Internal Revenue Service and any other applicable taxing
authorities on Form 1099 or other appropriate forms.  The Consultant agrees that he will be
obligated to report as income, and to pay all taxes upon, all amounts received
by the Consultant pursuant to this Agreement. 
The Consultant agrees to indemnify and hold the Company harmless from
and against any taxes, penalties or interest that may be assessed by the
Internal Revenue Service or any state department of revenue in connection with
the payments made by the Company to the Consultant pursuant to this Agreement.


 


(c)           The Consultant is not authorized to
enter into contracts or agreements on behalf of the Company or to otherwise
create obligations of the Company or to third parties in performing the
Consulting Services under this Agreement.


 


 


 


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(d)           The Consultant acknowledges and
agrees that Section 8 (entitled Covenants Not to Compete or Solicit) of
that certain Employment Agreement, dated as of January 1, 2005, between
the Consultant and the Company, as amended (the “Employment Agreement”),
shall remain in full force and effect and is hereby verified and confirmed in
all respects.


 


9.             Covenants,
Representations and Warranties.  The
Consultant hereby covenants, represents and warrants that:


 


(a)           The
Consultant is not under any pre-existing obligation inconsistent with the
provisions of this Agreement.


 


(b)           The
Consultant has the right, power and authority to enter into and perform this
Agreement without violating or infringing any third party rights.


 


(c)           During
the Term of this Agreement, the Consultant will comply with all laws and
regulations in the course of his performance of this Agreement, and the
Consulting Services performed hereunder will be performed, to the best of the
Consultant’s ability, in a timely, complete, professional and workmanlike
manner, in accordance with industry standards and in the best interests of the
Company.


 


(d)           During
the Term of this Agreement, the Consultant will not defame, disparage, libel or
slander, or make any negative or derogatory statements concerning, the Company
or any of its stockholders, directors, officers, employees, representatives,
agents or affiliates (including any of their respective products, services,
customers, suppliers, licensors, employees or agents).


 


10.           Confidential Information.


 


(a)           The Consultant acknowledges and
agrees that in the course of the performance of the Consulting Services
pursuant to this Agreement the Consultant may be given access to, or come into
possession of, secret or confidential information of the Company, which
information may consist of proprietary data or other confidential information
relative to the activities of the Company (collectively, “Confidential
Information”).  The Consultant
further acknowledges and agrees that he will not use, distribute, duplicate,
divulge or disclose in any manner, or permit any third party access to, any
such Confidential Information, except in connection with the performance of the
Consulting Services under this Agreement and so long as the secret or
confidential nature of such Confidential Information is preserved.


 


(b)           The Consultant must notify the
Company immediately upon discovering any breach of this Agreement or
unauthorized use of Confidential Information, and must use his best efforts,
and aid the Company, to recover possession of the Confidential Information, and
to prevent further dissemination and unauthorized use.


 


(c)           The Consultant agrees that a
violation by the Consultant of this Section 10 will cause
irreparable injury to the Company and that the Company shall be entitled
(without the posting of bond or any other form of security) to seek both
preliminary and permanent injunctive relief enjoining and restraining the
Consultant from doing or continuing to do any such act and any other violations
or threatened violations of this Section 10.  The remedies set 


 


 


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forth in this Section 10
shall be in addition to, rather than in lieu of, any other rights and remedies
the parties may have at law or in equity.


 


11.           Indemnification.


 


(a)           The
Company agrees to indemnify and hold harmless the Consultant (including his
affiliates) from and against, and pay or reimburse the Consultant and such
other indemnified persons for, any and all actions, claims, demands,
proceedings, investigations, inquiries, liabilities, obligations, fines,
deficiencies, costs, expenses, royalties, losses and damages (whether or not
resulting from third party claims) related to or arising out of the execution,
delivery or existence of this Agreement or the performance by the Consultant of  the Consulting Services pursuant to this
Agreement, and to reimburse the Consultant and any other such indemnified
person for out-of-pocket expenses and reasonable legal and accounting expenses
incurred by him, her or it in connection with or relating to investigating,
preparing to defend, defending, asserting or prosecuting any actions, claims or
other proceedings (including any investigation or inquiry) arising in any
manner out of or in connection with the execution, delivery or existence of
this Agreement or the Consultant’s performance of the Consulting Services
pursuant to this Agreement (whether or not such indemnified person is a named
party in such proceeding); provided, however, that the Company
shall not be responsible under this Section 11 for any claims, liabilities,
losses, damages or expenses to the extent that they are finally judicially
determined to have resulted from the Consultant’s (or any other indemnified
person’s) gross negligence, willful misconduct, bad faith or knowing violation
of applicable law.


 


(b)           Limitation
on Liability.  The Company also
agrees that the Consultant (or any other indemnified person) shall not have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with the retention of the Consultant pursuant to
this Agreement or the performance by the Consultant of his obligations under
this Agreement, except to the extent that any such liability is finally
judicially determined to have resulted from the Consultant’s (or such other
indemnified person’s) gross negligence, willful misconduct, bad faith or
knowing violation of applicable law, in which case the Consultant’s aggregate
liability to the Company shall be limited to an amount equal to the aggregate
Fee received by the Consultant pursuant to this Agreement.


 


(c)           Contribution.  If and to the extent that the indemnification
provided for in this Section 11 is not enforceable for any reason,
the Company agrees to make the maximum contribution possible pursuant to
applicable law to the payment and satisfaction of any actions, claims,
liabilities, losses and damages incurred by the Consultant or any other
indemnified persons for which they would have otherwise been entitled to be
indemnified hereunder.


 


12.           Return
of Materials.  The Consultant agrees
that all tangible property in whole or part used, compiled or created by
Consultant, or made available to the Consultant, during the Term of this
Agreement and relating to the Consultant’s independent contractor relationship
with the Company as set forth in this Agreement shall be returned promptly to
the Company if this Agreement is terminated for any reason, or at any other
time at the request of the Company.


 


 


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13.           Independent
Contractor.  The Consultant
acknowledges that he is acting as an independent contractor with respect to the
Company for the purposes of performing the Consulting Services, that the
Consultant is solely responsible for his actions or inactions, and that nothing
in this Agreement shall be construed to create a partnership, joint venture or
employment relationship with the Company for any purpose, including, without
limitation: (i) for federal, state or local income or employment tax,
withholding or reporting purposes, or (ii) for eligibility or entitlement
to any benefit under any Company employee benefit plans, including, without
limitation, any health, life, long-term disability, or retirement plan or
program.  The Consultant hereby expressly
waives his rights to pursue any claim for benefits under an employee benefit
plan.


 


14.           No
Undue Hardship.  The Consultant
represents that his experience and abilities are such that observance of this
Agreement will not cause the Consultant any undue hardship or unreasonably interfere
with the Consultant’s ability to earn a livelihood.


 


15.           Miscellaneous.


 


(a)           Notice.  Any notices, requests, demands or other
communication required or permitted hereunder will be in writing and may be (i) sent
by registered or certified mail, postage prepaid, return receipt requested, (ii) served
by personal delivery, (iii) made by facsimile transmission (with
confirmation of receipt), or (iv) sent by overnight courier service to the
receiving parties as follows:


 


	
   

  	
  If to the Company:

  	
   

  	
  InnerWorkings, Inc.

  
	
   

  	
   

  	
   

  	
  600 West Chicago Avenue

  
	
   

  	
   

  	
   

  	
  Suite 850

  
	
   

  	
   

  	
   

  	
  Chicago, Illinois 60610

  
	
   

  	
   

  	
   

  	
  Facsimile:
  312-604-0022

  
	
   

  	
   

  	
   

  	
  Attention: Steven E.
  Zuccarini

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  If to the Consultant:

  	
   

  	
  Scott A. Frisoni

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


Any such notice or
communication shall be deemed to be given, (i) if sent by registered or
certified mail, on the fifth (5) business day after the mailing thereof; (ii) if
delivered in person, on the date delivered; (iii) if made by facsimile
transmission, on the date transmitted; or (iv) if sent by overnight courier
service, on the date delivered as evidenced by the bill of lading.  Any party sending a notice or other
communication by facsimile transmission shall also send a hard copy of such
notice or other communication by one of the other means of providing notice set
forth in this Section 15(a).


 


(b)           No
Waiver. 
The failure of any party to this Agreement to insist upon the
performance of any of the terms and conditions of this Agreement, or the waiver
or any breach of any of the terms and conditions of this Agreement, shall not
be construed as thereafter waiving any such terms and conditions, but the same
shall continue and remain in full force and effect as if no such forbearance or
waiver had occurred.


 


 


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(c)           Binding
Effect. 
This Agreement shall be binding on and inure to the benefit of the
respective heirs, successors and permitted assigns of the parties.


 


(d)           Governing
Law. 
The validity, interpretation, performance, and enforcement of this
Agreement will be governed by the laws of the State of Illinois, without regard
to conflicts of laws principles.  Each of
the parties hereto (i) agrees that any suit, action or proceeding arising
out of or relating to this Agreement shall be brought solely in the state or federal
courts of the State of Illinois; (ii) consents to the exclusive
jurisdiction of each such court in any suit, action or proceeding relating to
or arising out of this Agreement; (iii) waives any objection that it may
have to the laying of venue in any such suit, action or proceeding in any such
court; and (iv) agrees that service of any court paper may be made in such
manner as may be provided under applicable laws or court rules governing
service of process.


 


(e)           Waiver of Jury Trial.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY; PROVIDED,
HOWEVER, THAT THE PARTIES HERETO AGREE THAT SUCH WAIVER SHALL NOT BE DEEMED TO
CONSTITUTE A WAIVER OF ADJUDICATION  BY A
COURT HAVING APPROPRIATE JURISDICTION.


 


(f)            Entire
Agreement. 
Subject to the following sentence of this Section 15(f), this
Agreement shall constitute the entire agreement between the parties and any prior
written or oral agreement between the parties shall not be binding upon either
party.  Notwithstanding the foregoing
sentence, this Agreement shall not in any way affect the continued application
of the Employment Agreement, which shall remain in full force and effect and is
hereby verified and confirmed in all respects.


 


(g)           Interpretation.  Notwithstanding any
provisions in this Agreement to the contrary, the parties agree that this
Agreement shall be interpreted without giving effect to any principle of
construction that would otherwise require this Agreement to be construed
against a party that drafted it solely because such party drafted this
Agreement.


 


(h)           Modification.  Any modification of
this Agreement or additional obligation assumed by any party in connection with
this Agreement shall be binding only if placed in writing and signed by the
parties.


 


(i)            Paragraph
Headings. 
The titles to the paragraphs of this Agreement are solely for the
convenience of the parties and shall not be used to explain, modify or
simplify, or aid in the interpretation of the provisions of this Agreement.


 


(j)            Severability.  If a court of
competent jurisdiction finds any provision of the Agreement to be invalid or
unenforceable as to any person or circumstance, such finding shall not render
that provision invalid or unenforceable as to any other persons or
circumstances.  If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in
all other respects shall remain valid and enforceable.


 


 


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(k)           Legal
Counsel.  Each party hereby acknowledges
that he or it has had full opportunity to consult with counsel and tax advisors
of his or its selection in connection with the preparation and negotiation of
this Agreement.


 


(l)            Counterparts.  This Agreement may be executed in
counterparts, including counterparts transmitted by facsimile or electronic
transmission, each of which shall be an original as against any party whose
signature appears thereon and both of which together shall constitute one and
the same instrument.


 


[signature page follows]


 


 


 


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IN WITNESS WHEREOF, the
Consultant and the Company have executed and delivered this Agreement as of the
Effective Date.


 




	
   

  	
   

  	
   

  
	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INNERWORKINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven E. Zuccarini

  
	
   

  	
  Name:

  	
  Steven E. Zuccarini

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CONSULTANT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Scott A. Frisoni

  
	
   

  	
  Scott A. Frisoni