CONSULTING AGREEMENT
Consulting Agreement ("Agreement") by and between Software Publishing
Corporation Holdings, Inc., a Delaware corporation (the "Company"), and Xxxxxxx
Xxxxxxxx ("ML")as of the 17th day of December, 1998 (the "Effective Date").
In consideration of the mutual covenants hereinafter set forth, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. TERMS.
1.1 Services. The Company hereby retains ML to provide investor relations
and public relations consulting services within the European Union and the
United Kingdom for and during the term hereof, subject to the direction of the
Board of Directors of the Company and the terms and conditions hereof. ML hereby
accepts such retention under the terms and conditions set forth in this
Agreement.
1.2 Duties of ML. ML shall provide consulting services for the Company and
shall have such duties as may be reasonably assigned to him from time to time by
the Board of Directors of the Company. ML agrees to devote part of his business
time and services to the faithful performance of the duties, responsibilities,
and authorities which may be reasonably assigned to him hereunder. It is
understood that ML will not be providing his services on a full-time basis.
1.3 Term. Unless sooner terminated as provided in Section 1.5 hereof, this
Agreement has become effective as of the date set forth above and shall continue
in force and effect until the fifth anniversary of the date hereof, unless
extended as further described as follows:
1.4 Compensation. Subject to provisions of Section 1.5 hereof as
compensation for services rendered by ML as a consultant under this Agreement,
subject to ratification by the Board of Directors of the Company, the Company
shall grant to ML 600,000 warrants, each such warrant to purchase one share of
common stock at an exercise price of $.75, 500,000 of which warrants being
exercisable immediately and 100,000 of such warrants being exercisable on June
17, 1999, and all of such warrants expiring on the seventh anniversary of the
date of this agreement. A form of Warrant is attached as Exhibit "A" hereto. The
Company may also grant such other stock options and other incentives as the
Company's Board of Directors may determine in its sole discretion.
1.5 Termination. Notwithstanding any other provisions in this Agreement:
(a) Death. If ML dies during the term of this Agreement, this
Agreement shall automatically terminate as of the date of ML's death; and
the Company shall have no further obligation to ML or his estate, except to
pay ML any accrued, but unpaid compensation under Section 1.4 hereof.
(b) Voluntary Termination by ML. In the event that during the
term hereof, ML shall voluntarily terminate this Agreement, or ML shall
refuse to perform the services required hereunder, then, in such event,
this Agreement shall automatically be terminated and ML shall have the
right to receive any unpaid compensation to the date of termination, but no
other compensation.
1.6 Expense Reimbursement and Travel Advances. ML shall be entitled to
reimbursement for any and all reasonable expenses, including travel and
entertainment, incurred by ML in the performance of this Agreement. ML will take
all actions necessary to maintain the tax deductibility of any such expenses by
the Company and shall submit vouchers prior to reimbursement for expenses. All
expense report vouchers of ML shall be approved by the President of the Company.
Expenses in excess of $1,000.00 per occurrence must be approved in advance by
the President of the Company.
1.7 Protection from Liability. The Company may provide ML with appropriate
insurance coverage as necessary to protect ML from any and all personal
liability incurred in the normal performance of ML's designated duties. The
Company agrees to indemnify ML to the fullest extent permitted by law for any
liabilities in connection with the lawful performance of services hereunder.
2. PROTECTIVE COVENANTS. Because (i) ML will become fully familiar with all
aspects of the Company's business during the period of this Agreement with the
Company, (ii) certain information of which ML will gain knowledge during this
Agreement is proprietary and confidential information which is of special and
peculiar value to the Company, (iii) if any such proprietary and confidential
information were imparted to or became known by any persons, including ML,
engaging in a business in competition with that of the Company, hardship, loss
and irreparable injury and damage could result to the Company, the measurement
of which would be difficult if not impossible to ascertain, and (iv) it is
necessary for the Company to protect its business from such damage, the
following covenants constitute a reasonable and appropriate means, consistent
with the best interests of ML and the Company, to protect the Company against
such damage and shall apply to and be binding upon ML as provided herein:
2.1 Non-Competition by ML. ML covenants that, during the term of this
Agreement and for a period of one year thereafter, ML will not engage in or
participate in any business which is in competition with the business of the
Company on the date of termination and which continues during the period of
non-competition.
2.2 Trade Secrets, Proprietary and Confidential Information. ML recognizes
that his position with the Company is one of the highest trust and confidence by
reason of ML's access to and contact with trade secrets and confidential and
proprietary information of the Company. ML shall use his best efforts and
exercise utmost diligence to protect and safeguard the trade secrets and
confidential and proprietary information of the Company. ML covenants that
during the term of this Agreement and thereafter, he will not disclose
disseminate or distribute to another, nor induce any other person to disclose,
disseminate, or distribute, any trade secret or proprietary or confidential
information of the Company, directly or indirectly, ML's own benefit or for the
benefit of another, whether or not acquired, learned, obtained or developed by
ML use or cause to be used, any trade secret, proprietary or confidential
information in any way except as is required in the course of the services to
the Company hereunder. The foregoing shall not apply to information which
becomes public or other than as a result of the prohibited acts of ML. All
confidential information relating to the business of the Company, whether
prepared by ML or otherwise coming into their possession, shall remain the
exclusive property of the Company and shall not, except in the furtherance of
the business of the Company, be removed from the premises of the Company under
any circumstances whatsoever without the prior written consent of the Company.
2.3 Remedies. In the event of breach or threatened breach by ML of any
provision of this Section 2, the Company shall be entitled to apply for relief
by temporary restraining order, temporary injunction, or permanent injunction
and to all other relief to which it may be entitled, including any said breach,
violation or threatened breach or violation. The Company may pursue any remedy
available to it concurrently or consecutively in any order as to any breach,
violation, and the pursuit of any one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any other of
such remedies as to such breach, violation, or as to any other breach,
violation, or threatened breach or violation.
3. MISCELLANEOUS.
3.1 Notices. All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered
(i) on the date personally delivered or (ii) two days after the date deposited
in a receptacle maintained by the United States Postal Services for such
purpose, addressed as set forth below, or (iii) one day after properly sent by
Federal Express, addressed as set forth below:
If to ML: 000 Xxx Xxxxxxxxxxxx
00000 Xxxxx
Xxxxxx
Fax: 000 000 00000
If to the Company: Software Publishing Corporation Holdings, Inc.
0X Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxxx & Xxxxxxxx, LLC
50 Xxxxxxx Xxxxxxxxx Boulevard - Suite 000
Xxxxxxx Xxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto as provided above.
3.2 Severability. If any provision contained in this Agreement is
determined to be void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and effect as if
the provision which was determined to be void, illegal, or unenforceable had not
been contained herein.
3.3 Waiver, Modification and Integration. The waiver by any party hereto of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach of any party. This instrument, and the
documents referred to herein, contain the entire agreement of the parties and
supersede any and all other agreements either oral or in writing, between the
parties hereto with respect to services of ML to the Company and contain all of
the covenants and agreements between the parties with respect to such services
in any manner whatsoever. This Agreement may not be modified, altered or amended
except by written agreement of all parties hereto.
3.4 Binding Effect. This Agreement shall be binding and effective upon the
Company and its successors and permitted assigns, and upon ML, his successors,
heirs, representatives, and assigns, as the case may be.
3.5 Governing Law. This Agreement shall be governed by the internal laws of
the State of New York, without regard to its conflicts of law principles.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
SOFTWARE PUBLISHING CORPORATION
HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, President
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
