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EXHIBIT 10.2
AMENDED AND RESTATED
CONSULTANT AGREEMENT
This AMENDED AND RESTATED CONSULTANT AGREEMENT (the "Agreement") is
made effective as of this 15th day of July, 1998, by and between Xxxxxx Xxxxxx,
an independent contractor having a principal place of business at 0000 Xxxxx
Xxxx., Xxxxx, XX 00000 ("Consultant"), and Plenum Communications, Inc., a
Minnesota corporation having its principal office at 0000 00xx Xxx. X.X., Xxxxxx
Xxxxxx, XX 00000 ("Company"), and supersedes and replaces in its entirety that
certain Consultant Agreement among Consultant, Company and InfoSystems, Inc., a
Washington corporation, dated as of the 2nd day of January, 1997 and all prior
amendments thereto.
In consideration of the agreement of the parties to continue their
current relationship on different terms and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. TERM OF THE AGREEMENT. This Agreement shall terminate on January
15, 1999, unless earlier terminated according to the terms and conditions herein
(the "Term"). The Term may be extended by mutual agreement of the parties hereto
in writing. In the event the Term is extended, all other terms and conditions of
the Agreement shall continue in full force and effect during each and every
extension period.
2. SCOPE OF SERVICES.
2.1 RESPONSIBILITIES. Consultant will provide such consulting
services to the Company or its affiliates or subsidiaries as Consultant and the
Company may agree upon in writing from time to time (the "Services"). The
Services may include the following, and such other services as Consultant and
the Company may agree upon from time to time in writing, provided, however, that
Consultant shall be under no requirement to agree to perform any Services except
in his sole discretion and may discontinue any Services at any time in his sole
discretion:
a. Strategic planning.
b. Product Development.
c. Act as an intermediary between the Company and third parties in
negotiating contracts or other business arrangements with such third parties.
d. Assisting the Company in promoting its relationship with
industry trade associations or other industry participants.
During the period from August 16, 1998 through January 15, 1999, the
parties agree that Consultant will be available on a limited basis only,
primarily for facilitating or supporting the Company in negotiating and
structuring transactions with FNMA and with Xxxxx Internet Services, and for
questions related to any consulting work performed by Consultant for the Company
and any of its affiliates or subsidiaries prior to August 16, 1998.
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2.2 RIGHT TO CONTROL EFFORTS. While Consultant may confer with the
Company's management to coordinate and organize his efforts, Consultant retains
the right to control the manner, method and means by which all work is performed
on behalf of the Company and any of its affiliates and subsidiaries.
2.3 EXCLUDED SERVICES. The Company and Consultant agree that the
following services and activities shall be outside the scope of this Agreement.
Consultant will not be responsible for, or asked to perform, the following
services and activities, the responsibility for which will remain entirely with
the Company's management:
a. monitoring the Company's or any of its affiliates' or
subsidiaries' compliance with any applicable laws or regulations, whether
federal, state or local;
b. soliciting investment capital, including but not limited to
investment in the Company or its affiliates or subsidiaries;
c. decisions with regard to hiring and terminating employees;
d. identifying sources for funding of any cash flow deficits of
the Company or any of its affiliates or subsidiaries;
e. signing checks on behalf of the Company or any of its
affiliates or subsidiaries; and
f. managing any accounts payable of the Company or its affiliates
or subsidiaries.
2.4 EXPANSION OR REDUCTION OF SERVICES. The nature and scope of
the Services to be performed by Consultant pursuant to this Agreement may be:
a. expanded from time to time by mutual written agreement of the
parties hereto;
b. reduced from time to time at the Company's discretion,
provided, that the Company shall provide ten (10) days' advance notice of such
reduction of Services in writing to Consultant; or
c. reduced from time to time at the Consultant's discretion in
accordance with Section 2.1.
2.5 OBJECTION TO CONSULTANT'S ACTIVITIES. If the Company's
management believes that Consultant is performing activities that are outside
the scope of the Services, the Company may object to such activities in writing
and Consultant will discontinue the activities in question promptly upon receipt
of such notice. The Company must notify the Consultant within seven (7) business
days from the date upon which the Company becomes aware or should have been
aware of such Consultant activities. Any failure to so notify Consultant shall
be deemed to be an acceptance and approval of such activities.
3. COMPENSATION. Consultant's compensation for performance of his
duties under this Agreement shall have two elements, a consulting fee (the
"Fee") and an Incentive Compensation (the "IC").
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3.1 CONSULTING FEE. The Fee will be Two Thousand and No/100
Dollars ($2000) per week through August 16, 1998. Invoices will be submitted by
Consultant to the Company bi-monthly, and paid within seven (7) days of
submission. After August 16, 1998, the Fee, if any, will be as agreed by the
parties in writing as reflected in an Addendum in substantially the form
attached hereto as Exhibit 1.
3.2 INCENTIVE COMPENSATION. Consultant shall receive as IC (and
did receive on February 15, 1998) options to purchase shares of common stock of
the Company, in the form attached hereto as Exhibit 2 (the "Option Agreement"),
with the number of shares, exercise price, vesting date and expiry date as
described in Schedule A attached hereto, provided, however, that if the
Agreement is terminated by any party for any reason, then in addition to the
options vested according to Schedule A prior to the termination date, additional
shares shall vest pro rata through the date of termination. The number of
additional shares that will vest upon termination of this Agreement shall be
calculated by multiplying the number of shares that would have vested on the
next vesting date according to Schedule A by the percentage calculated by
dividing the number of days between the beginning of the three month period
prior to the next vesting date according to Schedule A and the date of
termination by the total number of days in the three month period prior to the
next vesting date. After August 16, 1998, the IC may be amended as agreed by the
parties in writing as reflected in an Addendum in substantially the form
attached hereto as Exhibit 1, provided, however, that no such amendment shall
decrease the number of options that are vested on or prior to the date of such
amendment.
a. Upon termination or expiration of this Agreement, the
number of options that are vested shall remain exercisable by Consultant until
February 15, 2003, provided, however, that in the event of Consultant's untimely
death, his heirs, beneficiaries or descendants will have one year from the date
of Consultant's death to exercise the options.
b. If the Company takes any actions that would make any
options issued by the Company to any person exercisable for free trading shares
rather than exercisable for shares issued as "restricted securities," the
Company will include Consultant's options provided for in the Option Agreement
in any such actions. If any such action requires reissuing Consultant's options
or replacing Consultant's Option Agreement with another document evidencing the
options, the replacement document evidencing the options will be consistent with
the terms of this Agreement and the attached Exhibit 2 in the sole judgment of
Consultant. If any of the options provided for in this Agreement are exercised
at a time when the Company may legally issue free trading shares upon such
exercise, the Company must do so and must issue the shares without any
restrictive legend. Consultant has the right to require the Company to confirm
in writing whether it will issue free trading shares immediately prior to
Consultant's exercise of any option. The Company agrees that it will respond to
such a request by Consultant within one business day.
c. Consultant agrees that upon exercise of his options, the
shares issued pursuant to the options will be subject to the volume limitations
on resale of restricted securities set forth in Rule 144 promulgated by the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, and that he will comply with such limitations even after one year
following the exercise of the option; provided, that if any of the Company's
then current or former officers or directors are permitted at any time to sell a
greater number of shares, then Consultant will be permitted to sell an equally
greater number of shares.
d. Upon exercise of any options, Consultant will be deemed to
be a shareholder of the Company as of the close of business on the date on which
he delivers his notice of exercise to the
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Company. The Company agrees that it will issue and deliver to Consultant by
overnight courier a certificate for shares upon Consultant's exercise of an
option within five (5) days of such exercise.
e. Consultant and the Company agree and stipulate that the
terms contained in this Section 3.2 are fair and reasonably necessary for the
protection of Consultant's legitimate business interests.
3.3 EXPENSE REIMBURSEMENT. The Company shall reimburse Consultant
for all out-of-pocket expenses incurred in the performance of his duties as
Consultant under this Agreement, including but not limited to meals, travel and
hotel expenses, mail, fax and phone charges, and any other incidental expenses
within seven (7) days of submission of an invoice listing the above-mentioned
expenses by Consultant.
3.4 PAYMENT OF CONSULTANT INVOICES CONSTITUTES ACKNOWLEDGMENT.
Payment of invoices submitted by Consultant shall constitute acknowledgment and
confirmation by the Company that Consultant has performed the Services under
this Agreement in a satisfactory manner in all respects through the date of each
invoice.
4. INDEPENDENT CONTRACTOR.
4.1 PERFORMANCE OF DUTIES. Consultant and the Company agree that
Consultant is hired by the Company as an independent contractor, and nothing in
this Agreement shall be deemed to create an association, partnership, joint
venture, or relationship of principal and agent, or employer and employee
between the parties hereto or any affiliates or subsidiaries thereof, or to
provide either party with the right, power or authority, whether express or
implied, to create any such duty or obligation on behalf of the other party. The
Company acknowledges and agrees that the manner, means or method by which
Consultant performs the Services pursuant to this Agreement shall be solely
within Consultant's control, subject to the terms and conditions of this
Agreement. The Company shall be entitled only to direct Consultant with respect
to the elements of the Services or tasks to be performed by Consultant and the
results to be derived by the Company, and to review and assess the performance
of such Services by Consultant for the limited purposes of ensuring that such
Services have been performed and confirming that the results obtained are
satisfactory to the Company.
4.2 BENEFITS AND TAXES. Consultant agrees that because he is an
independent contractor and not an employee of the Company, its affiliates or
subsidiaries, the Company will not withhold any sums payable under this
Agreement in order to pay Federal or state taxes or FICA or FUTA payment
obligations with respect to fees or other compensation paid to Consultant under
this Agreement, all of which obligations shall be the sole responsibility of
Consultant. Consultant also agrees that as an independent contractor he shall
not receive any of the usual and customary employee benefits that the Company
may provide from time to time to employees such as medical and dental coverage,
disability insurance, or other fringe benefits.
4.3 CONSULTANT'S REPRESENTATIONS AND WARRANTIES. Consultant
represents and warrants that Consultant is free to enter into this Agreement, to
perform work for the Company under this Agreement, and that Consultant has no
obligations, employment, or business arrangements that conflict or are
inconsistent with the Company's interests or Consultant's obligations under this
Agreement. Consultant agrees to advise the Company's management of Consultant's
position with respect to any activity, employment, or business transaction
contemplated by Consultant that may conflict or appear to conflict with the
Company's interests.
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4.4 REFERENCES TO CONSULTANT. The Company agrees that it will not
represent or permit the representation to any third party that Consultant is an
officer, director, employee or affiliate of the Company or any of its affiliates
or subsidiaries. The Company agrees that it shall refer to Consultant only as a
"Consultant to Management" and, when referring to Consultant, will accurately
describe the scope of Services under this Agreement to all third parties.
5. LODGING AND TRANSPORTATION. The Company will provide lodging in
Seattle to Consultant either by (i) paying the rent under the lease at 0000 00xx
Xxxxxx XX, Xxxxxx Xxxxxx, XX; (ii) by assuming the lease as sole Lessee for the
above-mentioned premises; or (iii) by making other housing arrangements
acceptable to Consultant. In addition, the Company shall advance all expenses of
Consultant's return to Tampa after August 15, 1998, advance or reimburse
Consultant for expenses for shipping of an automobile and household goods to
Seattle and back to Tampa, Florida.
6. TERMINATION. On or after August 16, 1998, either party may
terminate this Agreement by written notice to the other party. Termination is
effective upon receipt of such notice.
6.1 NON-COMPETE. In the event of termination of this Agreement,
Consultant shall not, without consent of the Company, be employed by or provide
consulting services to any company nor any third party that provides mortgage
rate information to mortgage brokers over the Internet for a period of two years
from the date of termination.
7. LIMITATION OF LIABILITY AND REMEDIES.
7.1 LIABILITY LIMITATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, IN NO EVENT SHALL CONSULTANT BE LIABLE TO THE COMPANY OR ANY OF ITS
AFFILIATES OR SUBSIDIARIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, DAMAGES
FOR LOSS OF GOODWILL, OR ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS MADE BY A PARTY RELATING TO ANY CONSULTING OR GENERAL MANAGEMENT
SERVICES PROVIDED BY CONSULTANT UNDER THIS AGREEMENT, EVEN IF A PARTY WAS
INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSS, EXCEPT FOR (a) DAMAGES OR LOSSES ARISING FROM CONSULTANT'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE; (b) DAMAGES TO TANGIBLE PERSONAL PROPERTY; OR
(c) PERSONAL INJURY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER SUCH DAMAGE,
CLAIM OR LOSS IS SOUGHT BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE
THEORY.
8. INDEMNITY.
8.1 Consultant shall not be liable, responsible or accountable in
monetary damages or otherwise to the Company or any of its affiliates or
subsidiaries for any act or omission performed by Consultant in good faith
pursuant to the authority granted to Consultant by this Agreement or any
previous agreement between the parties or in accordance the provisions of any
such agreement, and in a manner reasonably believed by Consultant to be within
the scope of the authority granted to Consultant and in the best interests of
the Company or its affiliates or subsidiaries; provided, that such act or
omission does not constitute fraud, misconduct, bad faith or gross negligence.
The Company shall
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indemnify, defend and hold harmless Consultant from and against any and all
suits, actions, claims, losses, liabilities, judgments, awards, expenses and
costs (including but not limited to legal fees and expenses incurred without the
filing of a judicial action) arising or relating to Services provided by
Consultant on behalf of the Company or any of its affiliates or subsidiaries and
any of their directors, officers, employees, successors, and authorized assigns,
or acts undertaken in furtherance of the Company's interests prior to, on or
after the effective date of this Agreement.
8.2 The Company shall, at its own expense, defend any legal
proceedings arising out of the foregoing; provided that Consultant shall have
the exclusive right to control the defense of all such claims, litigation or
other proceedings, and that Consultant shall have the sole right to select his
own legal defense counsel. The Company may, at its expense, engage legal counsel
to participate in any such claims, litigation or other proceedings and
Consultant and Consultant's legal counsel shall cooperate fully with the Company
or Company's legal counsel. Notwithstanding any other provisions of this
Agreement, in no event: (i) shall the Company settle any such claims, litigation
or proceedings without Consultant's prior written consent; nor (ii) shall
Consultant have any liability or be responsible under this Section 8.2 for any
indemnifiable loss which arises from the Services or any part thereof provided
by Consultant which was not either done by Consultant or an agent or contractor
of Consultant, or expressly approved in writing by Consultant.
8.3 Any indemnification required to be made by the Company shall
be made promptly following the fixing of the liability, loss, damage, cost or
expense incurred or suffered by a final judgment of any court, settlement,
contract or otherwise. In addition, the Company shall advance funds to
Consultant for legal expenses and other costs incurred as a result of a legal
action brought against Consultant only if: (i) the legal action relates to the
performance of duties or services by Consultant on behalf of the Company or any
of its affiliates or subsidiaries; (ii) the legal action is initiated by a party
other than the Company's management; and (iii) Consultant undertakes to repay
the advanced funds to the Company if it is determined that Consultant is not
entitled to indemnification pursuant to the terms of this Agreement.
9. MISCELLANEOUS PROVISIONS.
9.1 FORCE MAJEURE. Consultant shall not be liable to the Company
for failure or delay of performance of any obligations under this Agreement
where such failure or delay shall have been wholly or principally caused by acts
or events beyond his control, including but not limited to acts of God, acts of
civil or military authority, fire, floods, earthquakes or other natural
disasters, wars, riots, strikes, applicable law or regulation imposed after the
effective date of this Agreement, lock-outs, communication link failures,
computer viruses and third-party software or hardware failures or defects.
9.2 SURVIVAL. The obligations contained in Sections 3.2, 6.1, 7
and 8 shall survive the termination or expiration of this Agreement. In
addition, the termination or expiration of this Agreement shall not affect any
of the rights or obligations of either party arising prior to or at the time of
the termination or expiration of this Agreement or which may arise by any event
causing the termination of this Agreement.
9.3 ATTORNEY FEES. In the event a party shall be required to bring
any action to enforce any of the provisions of this Agreement, or shall be
required to defend any action brought by any other party with respect to this
Agreement, the prevailing party in such action shall be entitled to reasonable
attorneys' fees, in addition to costs and necessary disbursements. "Action"
shall include an
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arbitration proceeding and shall include attorneys fees incurred without the
necessity of commencing a lawsuit or of participating in arbitration.
9.4 NO ASSIGNMENT. No party hereto may assign or transfer this
Agreement or any performance rights or obligations hereunder, in whole or in
part, by any party without prior written consent of the other parties.
9.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington, except that
body of law relating to choice of law.
9.6 COMPLETE AGREEMENT. This Agreement, together with its
Exhibits, Schedules and Appendices, contains the entire agreement of the parties
with respect to the subject matter herein, and no other previous agreement,
statement or promise made by either party to this Agreement that is not
contained in this Agreement, together with its Exhibits, Schedules and
Appendices, shall be binding or valid. In the event of any inconsistency between
this Agreement and the option agreement attached hereto as Exhibit 2, the terms
of this Agreement shall control. Any amendment to this Agreement with respect to
the terms of Consultant's options referred to herein shall be deemed to be an
amendment to the option agreement attached hereto as Exhibit 2.
9.7 ARBITRATION. All disputes, breaches, or controversies arising
out of or under this Agreement which cannot be settled by agreement of the
parties shall be submitted to arbitration by a single arbitrator mutually
selected by the parties. In the event the parties are unable to agree on a
choice of arbitrator, American Arbitration Association ("AAA") will provide a
list of three available panel members and each party may strike one; the
remaining person will serve as the arbitrator, or alternatively the parties may
request the Presiding Judge of King County Superior Court to appoint or select
an arbitrator.
Such arbitrator shall have knowledge and experience of management
incentive compensation systems. The arbitrator selected shall not be related to
or affiliated with either party. The arbitration shall be conducted under AAA
rules to be heard in King County, Washington, under the rules then in force, or
such other rules or venue agreed upon by the parties, at a place and time
mutually convenient to the parties. All arbitrations must be commenced within
two (2) months of the time when the dispute, breach or controversy arose, or
when the parties had reason to know of its existence. If an arbitration is not
commenced within such two month period, then the requirements of this Section
9.7 will no longer apply and either party may, at its election, begin an action
in litigation. The prevailing party in any dispute, breach or controversy shall
be reimbursed all of its reasonable costs, including reasonable attorney's fees
by the other party. The arbitrator may, at a minimum, hear summary motions, make
such procedural rulings as he or she may deem appropriate, and resolve all
questions of fact or law. The arbitrator may make monetary awards consistent
with the terms of this Agreement and award commercially reasonable interest
thereon. The arbitrator has the authority to award reasonable attorneys' fees,
arbitrator's fees, costs and other reasonable expenses to the prevailing party
in the dispute or as the arbitrator determines is just and equitable, provided
each party to the dispute must pay its own witness fees. The decision of the
arbitrator shall be in accordance with the terms and conditions of this
Agreement and shall be binding upon the two parties and non-appealable, and the
parties shall comply with said decision in good faith. The parties hereby agree
and shall instruct the arbitrator to expedite the arbitration process. Either
party may apply to any court with proper jurisdiction for enforcement of the
arbitration decision.
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Consultant acknowledges that he has carefully read this arbitration
agreement and understands it, and is entering into the Agreement voluntarily
after a reasonable period of time to consider it and review it with personal
legal counsel. Consultant also acknowledges he may be giving up the opportunity
to bring claims before a court or jury, and does so in order to gain the
benefits of a speedy, impartial and cost-effective resolution procedure.
9.8 AMENDMENTS. The terms and provisions of this Agreement shall
not be waived, changed, modified, or amended, unless set forth in writing and
duly executed by or on behalf of both parties. Notwithstanding the foregoing,
the parties hereto reserve the right to amend this Agreement, including all
schedules and exhibits attached hereto, by mutual consent in writing.
9.9 HEADINGS/CAPTIONS. The headings and captions contained in this
Agreement are for convenience and reference purposes only and do not in any way
modify, interpret, construe or affect the intent of the parties or the meaning
or interpretation of this Agreement.
9.10 COUNTERPARTS. This document may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute the same document, whether or not all parties execute
each counterpart.
9.11 SEVERABILITY. Wherever possible each term and provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any term or provision of this Agreement shall be
prohibited by or invalid under any such law, such term or provision shall be
limited to the minimum extent necessary to render the same valid or shall be
excised from this Agreement, as the circumstances require, and this Agreement
shall be construed as if said term or provision had been incorporated herein as
so limited, or as if said term or provision had not been included herein, as the
case may be, and enforced to the maximum extent permitted by law. In the event
any agreements or covenants of this Agreement are held to be over-broad as
written, such agreements or covenants shall be deemed to be amended to narrow
their application to the extent necessary to make the agreements or covenants
enforceable according to applicable law. All provisions, terms, agreements and
covenants contained herein are severable, and in the event any of them shall be
held to be invalid by any competent court or arbitrator and incapable of
reformation, this Agreement shall be interpreted as if such invalid provisions,
terms, agreements or covenants were not contained herein.
9.12 NOTICE. All notices and demands hereunder to any party shall
be in writing and shall be served by personal delivery, or by registered or
certified mail, return receipt requested, and shall be deemed complete upon
receipt. If receipt of such notice or demand is refused or a party has changed
his or its address without informing the other, the notice shall be deemed to
have been given and received upon the seventh (7th) day following the date upon
which it is first postmarked.
If to Consultant:
Xx. Xxxxxx Xxxxxx
0000 Xxxxx Xxxx.
Xxxxx, XX 00000
With a required copy to Consultant's legal counsel as follows:
Xxxxxx & Xxxxx LLP/Xxxxxxx Xxxxxxxx X.X.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
If to the Company:
Xx. Xxxxx X. Xxxxxx, President
Plenum Communications, Inc.
0000 - 00xx Xxx X.X.
Xxxxxx Xxxxxx, XX 00000
With a copy to the Company's legal counsel as follows:
L.O. Xxxx, Esq.
00000 X. Xxxxxx Xxxxxx, X0
Xxxxxxx, XX 00000
Any party may change its address for purposes of this paragraph by
giving notice of such change of address to the other party in the manner herein
provided for giving notice.
9.13 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall be
construed as conferring a benefit upon third parties, nor is it intended that
any provision shall be for the benefit of any third party.
9.14 PRESUMPTION. This Agreement or any portion thereof shall not
be construed against any party due to the fact that the Agreement or portion
thereof was drafted by said party.
9.15 SUCCESSORS AND ASSIGNS. Subject to the terms and conditions
hereof, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors, and assigns, to the extent any assignment is provided for and
permitted hereunder.
9.16 LATE FEES/NONPAYMENT PENALTIES. In the event that any payment
or payments due to Consultant under this Agreement are not paid to Consultant in
accordance with the terms and conditions of this Agreement, in whole or in part,
and Consultant is required to resort to legal action to collect such payment,
interest shall accrue on the unpaid amount at the rate of twelve (12) percent
per annum from the date such unpaid compensation becomes due under the terms of
this Agreement until full payment of same. For purposes of this Section 9.16,
"legal action" shall include, but not be limited to, mediation, arbitration or
other non-judicial proceedings.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first set forth above.
SIGNATURES OF THE PARTIES
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Xxxxx X. Xxxxxx Xxxxxx Xxxxxx
President Consultant
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Plenum Communications, Inc.
The undersigned hereby agrees to the above Amended and Restated Consultant
Agreement, which, among other provisions, removes the undersigned as a party to
the Agreement.
LION, Inc., formerly known as
Infosystems, Inc.
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Xxx Xxxxxx
President
LION, Inc.
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SCHEDULE A
# of Shares Exercise Price Vesting On Expiry Date
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300,000 $0.01 02/15/98 02/15/03
187,000 $0.01 05/15/98 02/15/03
187,000 $0.01 08/15/98 02/15/03
26,000 $0.01 11/15/98 02/15/03
161,000 $0.75 11/15/98 02/15/03
187,000 $0.75 02/15/99 02/15/03
187,000 $0.75 05/15/99 02/15/03
187,000 $0.75 08/15/99 02/15/03
78,000 $0.75 11/15/99 02/15/03
109,000 $1.50 11/15/99 02/15/03
187,000 $1.50 02/15/00 02/15/03
187,000 $1.50 05/15/00 02/15/03
17,000 $1.50 08/15/00 02/15/03
175,000 $3.00 08/15/00 02/15/03
187,000 $3.00 11/15/00 02/15/03
143,000 $3.00 02/15/01 02/15/03
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EXHIBIT 1
ADDENDUM NO. __ TO AMENDED AND RESTATED CONSULTANT AGREEMENT
This Addendum No. __ amends the Amended and Restated Consultant Agreement dated
July __, 1998 by and between Xxxxxx Xxxxxx and Plenum Communications, Inc., as
amended to date.
Dated: ______________________
1. Amendment to Consulting Fee
The Consulting Fee provided for in Section 3.1 shall amended to be $_________
per week for the period ____________________ through _______________________.
2. Amendment to Vesting Dates
Schedule A is hereby amended and replaced with the attached Schedule __.
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Xxxxx X. Xxxxxx
President
Plenum Communications, Inc.
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Xxxxxx Xxxxxx
Consultant
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ADDENDUM NO. 2 TO AMENDED AND RESTATED CONSULTANT AGREEMENT
This Addendum No. 2 amends the Amended and Restated Consultant Agreement dated
July 15, 1998 by and between Xxxxxx Xxxxxx and Plenum Communications, Inc., as
amended to date.
Dated: ______________________
1. Amendment to Consulting Fee
The Consulting Fee provided for in Section 3.1 shall amended to be $ 0.00 per
week for the period August 16, 1998 through January 15, 1999.
2. Amendment to Vesting Dates
Schedule A is hereby amended and replaced with the attached Schedule C.
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Xxxxx X. Xxxxxx
President
Plenum Communications, Inc.
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Xxxxxx Xxxxxx
Consultant
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SCHEDULE C
Options granted February 15, 1998:
# of Shares Exercise Price Vesting On Expiry Date
----------------------------------------------------------
300,000 $0.01 02/15/98 02/15/03
187,000 $0.01 05/15/98 02/15/03
187,000 $0.01 08/15/98 02/15/03
26,000 $0.01 12/31/98 02/15/03
Options to be granted contingent upon the following events:
In the event that LION and Consultant enter into an employment agreement under
which Consultant becomes an employee of LION on or after January 1, 1999, the
following employee options will be granted. The vesting dates in the schedule
below assume that such employment agreement is entered into as of January 1,
1999. If such employment agreement is entered into effective as of a date later
than January 1, 1999, the vesting dates in the schedule below shall be adjusted
by adding to them the number of days between January 1, 1999 and the date as of
which the employment agreement is effective.
# of Shares Exercise Price Vesting On Expiry Date
------------------------------------------------------------------
161,000 $0.75 03/31/99 02/15/03
187,000 $0.75 06/30/99 02/15/03
187,000 $0.75 09/30/99 02/15/03
187,000 $0.75 12/31/99 02/15/03
78,000 $0.75 03/31/00 02/15/03
109,000 $1.50 06/30/00 02/15/03
187,000 $1.50 09/30/00 02/15/03
187,000 $1.50 12/31/00 02/15/03
17,000 $1.50 03/31/01 02/15/03
175,000 $3.00 06/30/01 02/15/03
187,000 $3.00 09/30/01 02/15/03
138,000 $3.00 12/31/01 02/15/03
Provided, however, that in the event that LION signs an agreement or agreements,
of the kind described below or of any kind if there is no description, with one
or more of the following third parties, a number of options on the schedule
above that would have vested after 12/31/98, in the order that they appear in
the schedule, equal to the number next to the name of the third party below will
vest on the date each such agreement is signed instead of the vesting date on
the schedule above.
FNMA 25,000
Xxxxx Internet Services - purchase or merger 25,000
Netscape 50,000
Initials: AR _____ HB _____
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