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EXHIBIT 10.29
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into this
____ day of November 2000 by and between TELESERVICES INTERNET GROUP INC., a
Florida corporation ("COMPANY"), and XXXXXX X. XXXXXX ("XXXXXX").
RECITALS
WHEREAS, as part of the consideration for Xxxxxx entering into that
certain Separation Agreement of even date herewith, Company desires to engage
Xxxxxx to provide: (i) assistance in procuring United Cerebral Palsy's
performance of its agreement with the Company; and (ii) assistance in working
with Xxx Xxxx to promote and close additional agreements with charitable
organizations similar to the Company's agreement with United Cerebral Palsy;
NOW, THEREFORE, in consideration of the premises, which shall be deemed
an integral part of this Agreement and not as mere recitals hereto, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. SERVICES.
1.1 Company hereby contracts with Xxxxxx to provide: (i)
assistance in procuring United Cerebral Palsy's performance of its
agreement with the Company; and (ii) assistance in working with Xxx
Xxxx to promote and close additional agreements with charitable
organizations similar to the Company's agreement with United Cerebral
Palsy (the "Services").
1.2 Xxxxxx and Company shall mutually agree as to the method
and manner of performing the Services undertaken by Xxxxxx pursuant to
this Agreement. Xxxxxx shall perform the services hereunder from his
own offices.
1.3 Xxxxxx hereby grants Company for the term of this
Agreement a right of first refusal on all deals with charitable
organizations in which he is involved that are in any way similar to
the Company's deal with United Cerebral Palsy.
1.4 Xxxxxx shall be available as necessary to perform the
Services and to provide assistance, status reports and advice in
connection with the Services.
1.5 Company is entitled at all times to be advised, at its
request, as to the status of the work being done by Xxxxxx and of the
details thereof. Xxxxxx shall collaborate and coordinate with officers
and representatives of Company as necessary and appropriate.
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2. CONSIDERATION. In consideration of the performance of the Services
undertaken by Xxxxxx pursuant to this Agreement, Company shall pay to
Xxxxxx a fee of Five Thousand ($5,000.00) Dollars per month for the
services rendered by Xxxxxx to Company.
3. TERM. The term of this Agreement shall commence on January 1, 2001
and end on March 31, 2001.
Notwithstanding the foregoing, the Company shall be entitled to
terminate this Agreement immediately, subject to a continuing obligation to make
any payments required under Section 5 below, if Xxxxxx (i) becomes disabled as
described in Section 5.2, (ii) is terminated for Cause, as defined in Section
5.3, or (iii) voluntarily terminates his engagement before the current term of
this Agreement expires, as described in Section 5.4.
4. NEGATION OF AGENT OR EMPLOYEE STATUS.
4.1 Xxxxxx shall perform this Agreement as an independent
contractor, and nothing contained herein shall in any way be construed
to constitute Xxxxxx or the assistants of Xxxxxx (other than the
secretarial assistant to be provided by the Company) as agents,
subagents, or employees of Company. Xxxxxx certifies his understanding
that Company is not required to withhold any federal income tax, social
security tax, state and local tax, to secure workers' compensation
insurance, or employee's liability insurance of any kind or to take any
other action with respect to the insurance or taxes of Xxxxxx and
assistants of Xxxxxx (other than the secretarial assistant to be
provided by the Company).
4.2 In no event and under no circumstances shall any provision
of this Agreement make the Company liable to any person or entity that
contracts with or that provides goods or services to Xxxxxx in
connection with the services Xxxxxx has agreed to perform hereunder or
otherwise, or for any debts or claims of any nature accruing to any
person or entity against Xxxxxx; and there is no contractual
relationship, either express or implied, between Company and any person
or entity supplying any work, labor, services, goods or materials to
Xxxxxx as a result of the provision of the services provided by Xxxxxx
hereunder or otherwise. This provision does not apply to the
secretarial assistant to be provided by the Company.
5. PAYMENTS UPON TERMINATION.
5.1 Involuntary Termination. If the Company terminates
Xxxxxx'x engagement hereunder during the initial term of this Agreement
or any subsequent term, Xxxxxx shall be entitled to receive his monthly
fee accrued through the end of such term.
5.2 Disability. The Company shall be entitled to terminate
this Agreement, if the Board reasonably determines that Xxxxxx has
failed to attend to his duties or has been unable to attend to his
duties for at least thirty (30) days. Upon such termination, the
Company shall pay to Xxxxxx a monthly disability benefit equal to
one-half (1/2) of his monthly fee for the balance of the term,
commencing with his monthly fee next following the date of the board's
determination.
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5.3 Termination for Cause. If Xxxxxx'x engagement hereunder is
terminated by the Company for Cause, the amount Xxxxxx shall be
entitled to receive from the Company shall be limited to his monthly
fee accrued through the date of termination.
For purposes of this Agreement, the term "Cause"
shall be limited to (i) any action by Xxxxxx involving willful
disloyalty to the Company, such as embezzlement, fraud,
misappropriation of corporate assets or a breach of the covenants set
forth in Sections 9 and 10 below; or (ii) Xxxxxx being convicted of a
felony; or (iii) Xxxxxx being convicted of any lesser crime or offense
committed in connection with the performance of his duties hereunder
and involving fraud or embezzlement or assault or sexual harassment; or
(iv) the intentional, willful and repeated or continuing failure by
Xxxxxx to substantially perform his duties hereunder as directed by the
Board or the officer of the Company to whom he reports (other than any
such failure resulting from Xxxxxx'x incapacity due to physical or
mental disability). Notwithstanding the foregoing, no termination
pursuant to subsection (iv) shall be treated as termination for cause
unless the Board has provided Xxxxxx with at least thirty (30) days
prior written notice specifying in reasonable detail the alleged breach
and giving Xxxxxx a reasonable opportunity to correct such breach.
5.4 Voluntary Termination by Xxxxxx. If Xxxxxx resigns or
otherwise voluntarily terminates his engagement hereunder before the
end of the then current term of this Agreement, the amount Xxxxxx shall
be entitled to receive from the Company shall be limited to his monthly
fee accrued through the date of termination.
6. ACCOUNTS AND RECORDS.
6.1 Xxxxxx shall keep such accounts and records as are
necessary to correctly complete the contractual obligations required
herein. Xxxxxx shall furnish such reports to Company as are necessary
to inform Company of the progress of performance by Xxxxxx of the
contractual obligations required herein, and as necessary to perform
the Services to the satisfaction of Company.
6.2 The records and accounts maintained by Xxxxxx to assure
proper accounting for the performance and rendering of the Services
hereunder will be available for audit, inspection and copying purposes
in the event the Company has a justifiable need for same. Xxxxxx shall
make available to Company for examination all of the records with
respect to all matters covered by this Agreement; and Xxxxxx will
permit same to be examined and excerpts or transcriptions made or
duplicated from such records, and audits of all contracts, invoices,
materials, records of personnel, employment and other data relating to
all matters covered by this Agreement. Company's right of inspection
and audit shall pertain likewise to any audits made by any political
subdivision or agency, whether local, state or federal. Xxxxxx shall
retain all of his records and
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supporting documentation applicable to this Agreement for the lesser of
(i) five (5) years from date hereof, or (ii) three (3) years after
receipt of final payment from Company.
7. DEATH. If Xxxxxx dies during the term of this Agreement, the Company
shall pay to Xxxxxx'x estate a lump sum payment equal to the sum of Xxxxxx'x
monthly fees and any reimbursable expenses accrued but unpaid through the date
of death.
8. WITHHOLDING. Any provision herein to the contrary notwithstanding,
the Company shall, to the extent required by law, have the right to withhold and
deduct from any payment hereunder any federal, state or local taxes of any kind
required by law to be withheld with respect to any such payment.
9. PROTECTION OF CONFIDENTIAL INFORMATION.
9.1 The Xxxxxx agrees that he will keep all confidential and
proprietary information of the Company or relating to its businesses
(including, but not limited to, information regarding the Company's
business plans, customers, pricing policies, methods of operation,
proprietary computer code and trade secrets) confidential, and that he
will not (except with the Company's prior written consent), while he is
engaged by the Company hereunder or thereafter, disclose any such
confidential information to any person, firm, corporation, association
or other entity, other than in furtherance of his duties hereunder, and
then only to those with a "need to know." Xxxxxx shall not make use of
any such confidential information for his own purposes or for the
benefit of any person, firm, corporation, association or other entity
(except the Company) under any circumstances during or after the term
of his engagement hereunder. The foregoing shall not apply to any
information that is already in the public domain, or is generally
disclosed by the Company or is otherwise in the public domain at the
time of disclosure.
9.2 Xxxxxx recognizes that because his work for the Company
may bring him into contact with confidential and proprietary
information of the Company, the restrictions of this Section 9 are
required for the reasonable protection of the Company and its
investments and for the Company's reliance on and confidence in Xxxxxx.
10. COVENANT NOT TO COMPETE.
10.1 Xxxxxx hereby agrees that he will not, during the term of
this Agreement, engage in any business activities on behalf of any
enterprise which competes with the Company in the business of marketing
any of the products or services marketed by the Company or any of its
subsidiaries. Xxxxxx will be deemed to be engaged in such competitive
business activities if he participates in such a business enterprise as
an employee, officer, director, consultant, agent, partner, proprietor,
or other participant; provided that the ownership of no more than 2
percent of the stock of a publicly traded corporation engaged in a
competitive business, shall not be deemed to be engaging in competitive
business activities.
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10.2 Xxxxxx agrees that he shall not during any period in
which he is receiving payments under Section 5 of this Agreement:
(i) solicit any employee or full-time consultant or
representative of the Company or any of its subsidiaries for
the purposes of hiring or retaining such employee,
representative or consultant, or
(ii) contact any present or prospective client of the
Company to solicit such a person to enter into a contract with
any organization other than the Company or a related entity.
If the payments due under Section 5 are made in a lump sum, Xxxxxx
nevertheless shall be considered to be receiving payments under Section
5 of this Agreement during any period for which he receives or has
received such payments.
11. DISPUTE RESOLUTION; INJUNCTIVE RELIEF.
11.1 Any dispute, claim, misunderstanding or disagreement that
arises out of or which relates to this Agreement, or to the
interpretation or breach of this Agreement, or the arbitrability of the
dispute, ("Disputed Matter") shall be resolved by arbitration. To
initiate arbitration of any Disputed Matter(s), the party seeking
arbitration shall deliver written notice of the Disputed Matter(s) to
the other party, stating the Disputed Matter(s), such party's position
on the Disputed Matter(s), and that such notice shall serve as Notice
of Submission of Disputed Matter(s) to arbitration. Arbitration of the
Disputed Matter(s) shall be submitted to a single arbitrator, if the
parties hereto agree upon one; otherwise, to a board of three
arbitrators, of whom one shall be selected by each party within twenty
(20) days after such 30 day period, and a third arbitrator shall be
selected by these two selected arbitrators. If one of the parties fails
to timely select an arbitrator, the arbitrator that was timely selected
shall be the sole arbitrator. If neither party timely selects an
arbitrator, the first arbitrator selected thereafter shall be the sole
arbitrator, no others being appointed. Where each of the parties timely
selects an arbitrator, said arbitrators will have ten (10) days from
the end of the twenty (20) day period to select the third arbitrator.
In the event the arbitrators are unable to timely agree on the third
arbitrator, either party may petition any official of the American
Arbitration Association for appointment of the third arbitrator and the
parties agree to accept any arbitrator appointed by such official
subject to the limitations hereof. Arbitration shall commence within
ten business days of the selection of the final arbitrator and shall
proceed in accordance with any private arbitration procedures and rules
of evidence specified by the rules of evidence or procedure of
commercial arbitration of the American Arbitration Association. The
arbitrators shall have all the powers permitted arbitrators under the
laws of the State of Florida. The decision and award of such single
arbitrator, if only one is used, or any two of such board if three are
used, as the case may be, shall be final and binding upon the said
parties, their heirs, legal representatives, successors and assigns
respectively, and shall have the same force and effect as though such
decision had been handed down by a court of final jurisdiction; the
cost of arbitrator(s) to be shared equally by the parties. The
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non-prevailing party shall be responsible for and shall pay for the
prevailing party's reasonable expenses of presenting its respective
case, including depositions, attorney fees and costs and witness fees.
Each of the parties hereto covenants to abide by any arbitration
decision. The arbitration shall be conducted in St. Petersburg,
Florida. In the event that it becomes necessary for either party to
this agreement to enforce the terms hereof or a decision of arbitration
through the initiation of legal proceedings, the prevailing party in
said proceedings shall be entitled to collect all costs and a
reasonable attorneys' fee from the non-prevailing party, both as to the
initial lawsuit and any appellate proceedings. Arbitrators must be
independent of the parties and their principals. Persons who are hereby
expressly disqualified to serve as arbitrators are principals of
parties, relatives of said principals, executives of parties or said
principals, persons not residing within 100 miles of St. Petersburg,
Florida, attorneys, accountants and other business persons having
professional or business relationships with the parties or said
principals. The parties shall deposit, at the beginning of the
arbitration process, with the arbitrators an amount equal to the
estimated costs (including arbitrators' time charges) of the total
arbitration. Failure to make full deposit of one half of the estimated
costs by the deadline imposed by the Arbitrator(s) shall result in a
default judgment being awarded by the Arbitrator(s) to the party who
did make a timely deposit of the full one half of the estimated costs.
Arbitrators time charges shall be at the same rate for all arbitrators.
11.2 Notwithstanding Section 11.1, Xxxxxx acknowledges and
agrees that it would be difficult to fully compensate the Company for
damages resulting from the breach or threatened breach of the covenants
set forth in Sections 9 and 10 of this Agreement and accordingly agrees
that the Company shall be entitled to temporary and injunctive relief,
including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions in any action or
proceeding instituted in the United States District Court for the
Western District of Florida or in any court in the State of Florida
having subject matter jurisdiction. This provision with respect to
injunctive relief shall not, however, diminish the Company's right to
claim and recover damages.
11.3 It is expressly understood and agreed that although the
parties consider the restrictions contained in this Agreement to be
reasonable, if a court determines that the time or territory, or any
other restriction, contained in this Agreement is an unenforceable
restriction on the activities of Xxxxxx, no such provision of this
Agreement shall be rendered void but shall be deemed amended to apply
as to such maximum time and territory, and to such extent, as such
court may judicially determine or indicate to be reasonable.
12. SEPARABILITY. If any provision of this Agreement shall be declared
to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
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13. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of Xxxxxx and the assigns and
successors of the Company, but neither this Agreement nor any rights hereunder
shall be assignable or otherwise subject to hypothecation by Xxxxxx.
14. ENTIRE AGREEMENT. This Agreement, including any and all exhibits
and schedules referenced herein and attached hereto, constitutes the entire
agreement between the parties hereto pertaining to the subject matters hereof,
and supersedes all negotiations, preliminary agreements, and all prior and
contemporaneous discussions and understandings of the parties in connection with
the subject matters hereof. Except as otherwise provided herein, no covenant,
representation or condition not expressed in this Agreement, or in an amendment
hereto made and executed in accordance with the provisions of Section 20 of this
Agreement, shall be binding upon the parties hereto or shall affect or be
effective to interpret, change or restrict the provisions of this Agreement.
15. GOVERNING LAW. This Agreement shall be construed, interpreted, and
governed in accordance with the laws of the State of Florida, other than the
conflict of laws provisions of such laws.
16. GENDER AND NUMBER. All pronouns and variations thereof shall be
deemed to refer to the masculine, feminine or neuter and to the singular or
plural as the identity of the person or entity or persons or entities may
require.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument, and in making proof
hereof, it shall not be necessary to produce or account for more than one such
counterpart.
18. NOTICES. If any notices, consents, approvals or waivers are to be
given hereunder, such notices, consents, approvals or waivers shall be in
writing, shall be properly addressed to the party to whom such notice is
directed, and shall be either actually delivered to such party or sent by
prepaid commercial courier service, such as Federal Express, Airborne Express,
or DHL Worldwide Express, to the addresses shown on the execution page hereof;
which addresses may be changed from time to time by written notice by the party
at such address to the other party.
19. WAIVER OF BREACH. The waiver of breach of any covenant, agreement
or provision contained in this Agreement shall not be construed as a waiver of
the covenant, agreement or provision itself or any subsequent breach of that
covenant, agreement or provision or any other covenant, agreement or provision
contained in this Agreement.
20. AMENDMENTS. No change, modification or termination of any of the
terms, provisions, or conditions of this Agreement shall be effective unless
made in writing and signed or initialed by all parties hereto, their successors
or assigns.
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21. HEADINGS AND CAPTIONS. The titles or captions of paragraphs and
subparagraphs contained in this Agreement are provided for convenience of
reference only, and shall not be considered a part hereof for purposes of
interpreting or applying this Agreement; and, therefore, such titles or captions
do not define limit, extend, explain, or describe the scope or extent of this
Agreement or any of its terms, provisions, representations, warranties,
conditions, etc., in any manner or way whatsoever.
22. WAIVER OF SIMULTANEOUS EXECUTION AND DELIVERY AND WAIVER OF
CHANGES. The Separation Agreement executed by and among Company, Xxxxxx, Perch,
Inc. and XxxxxxxXxxxxx.xxx, Inc. on or about November 23, 2000 contained a
provision in paragraph 2b to the effect that this Consulting Agreement was to be
executed and delivered simultaneously with the said Separation Agreement. In
fact, this Consulting Agreement was not executed and delivered simultaneously
with the execution and delivery of the said Separation Agreement on or about
November 23, 2000, but is executed and delivered on the dates shown herein.
Moreover, changes have been made to this Consulting Agreement since the
execution and delivery of the said Separation Agreement, so that this Consulting
Agreement is not exactly the same as the form of Consulting Agreement attached
to the said executed and delivered Separation Agreement. Each of the parties to
the Separation Agreement, to wit, Company, Xxxxxx, Perch, Inc. and
XxxxxxxXxxxxx.xxx, Inc. hereby waives any and all rights, objections and
defenses (a) arising under the provision of the said Separation Agreement
providing or requiring that this Consulting Agreement be executed and delivered
simultaneously with the execution and delivery of the said Separation Agreement
and/or (b) arising from the fact that this Consulting Agreement as executed and
delivered has been changed in certain respects from the form of Consulting
Agreement attached as Exhibit C to the said executed and delivered Separation
Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed, and Xxxxxx has hereunto set his hand, as of the day and year first
above written.
[SIGNATURE PAGE FOLLOWS]
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XXXXXX:
/s/ Xxxxxx X. Xxxxxx November 27, 2000
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Xxxxxx X. Xxxxxx Date
COMPANY:
TELESERVICES INTERNET GROUP INC.
By: /s/ Xxxx X. Xxxxx November 26, 2000
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Date
Its: Secretary/Director
Joined in for the sole purpose of agreeing to the provisions of paragraph 22 of
this Consulting Agreement, to wit, any and all rights, objections and defenses
arising under the provision of the said Separation Agreement providing or
requiring that this Consulting Agreement be executed and delivered
simultaneously with the execution and delivery of the said Separation Agreement.
PERCH, INC.
By: /s/ Xxxx X. Xxxxxxx November 27, 2000
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Date
Its: Vice President of Operations
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxx November 26, 2000
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Xxxxxxx X. Xxxxx, CEO Date
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