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EXHIBIT 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 20th day of April, 1999, by and between Internet America, Inc., a Texas
corporation (the "Company"), and Xxxx X. Xxxxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to retain Consultant as provided herein,
and Consultant desires to be so retained; and
WHEREAS, Consultant shall, as a consultant to the Company, have access
to confidential information with respect to the Company;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. DUTIES. Consultant is hereby retained to serve as a consultant to
the Company to identify and contact potential acquisition candidates of the
Company and to provide other related consulting, advisory and management
services on behalf of the Company as the Chief Executive Officer of the Company
may from time to time reasonably request (collectively, the "Duties").
Consultant agrees to devote his attention, skills, benefits and reasonable
efforts to the performance of the Duties and to the promotion of the business
and interest of the Company.
2. TERM. The term of this Agreement shall commence on the date hereof
and shall continue for a period of four (4) years thereafter (the "Term");
provided, however, that this Agreement may be terminated by either party hereto
at any time upon at least thirty (30) days prior written notice to the other
party.
3. COMPENSATION. As compensation for rendering the Duties, the Company
shall grant Consultant options to purchase 75,000 shares of the Company's common
stock, par value $.01 per share, on the terms and conditions to be set forth in
that certain Nonqualified Stock Option Agreement of the Company, a copy of which
is attached hereto as Exhibit A. Additionally, during the Term, the Company
shall reimburse Consultant for all reasonable and necessary out-of-pocket travel
and other expenses incurred by Consultant in performing the Duties, such
reimbursement to be on a monthly basis, within thirty (30) days after submission
of a detailed monthly statement and reasonable supporting documentation. The
compensation set forth in this Section 3 will be the sole compensation payable
to Consultant for performing the Duties, and no additional compensation or fee
will be payable by the Company to Consultant by reason of any benefit gained by
the Company directly or indirectly through Consultant's performing the Duties,
nor shall the Company be liable
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in any way for any additional compensation or fee for performing the Duties
unless the Company shall have expressly agreed thereto in writing.
4. INDEPENDENT CONTRACTOR STATUS. The Company and Consultant agree that
Consultant is an independent contractor under this Agreement and shall in no way
be considered to be an agent or employee of the Company and, accordingly,
Consultant shall not be entitled to any benefits, coverages or privileges made
available to employees of the Company, including without limitation, social
security, unemployment, medical or pension payments. Consultant shall only
consult and render advice, and shall not undertake to commit the Company to any
course of action in relation to third persons, except as requested in writing by
the Company. The Company shall not deduct any social security or income taxes
from Consultant's payments set forth in Section 3.
5. CONFIDENTIALITY.
(a) ACKNOWLEDGMENT OF PROPRIETARY INTEREST. Consultant recognizes the
proprietary interest of the Company in any Confidential and Proprietary
Information (as hereinafter defined) of the Company. Consultant acknowledges and
agrees that any and all Confidential and Proprietary Information communicated
to, learned of, developed or otherwise acquired by the Consultant during the
course of his engagement by the Company after the date hereof, whether developed
by Consultant alone or in conjunction with others or otherwise, shall be and is
the property of the Company. Consultant further acknowledges and understands
that his disclosure of any Confidential and Proprietary Information will result
in irreparable injury and damage to the Company. As used herein, "Confidential
and Proprietary Information" means, but is not limited to, information derived
from reports, investigations, experiments, research, work in progress, drawings,
designs, plans, proposals, codes, marketing and sales programs, client lists,
client mailing lists, financial projections, cost summaries, pricing formula,
contracts analyses, financial information, projections, maps, confidential
filings with any state or federal agency, and all other concepts, ideas,
materials or information prepared or performed for, by or on behalf of the
Company by its employees, officers, directors, agents, representatives or
consultants (including, without limitation, acquisition strategies, acquisition
candidates, acquisition contacts and proposed terms of acquisitions).
(b) COVENANT NOT-TO-DIVULGE CONFIDENTIAL AND PROPRIETARY INFORMATION.
Consultant acknowledges and agrees that the Company is entitled to prevent the
disclosure of Confidential and Proprietary Information. As a portion of the
consideration for the retainment of Consultant and for the compensation being
paid to Consultant by the Company, Consultant agrees at all times during the
term of this Agreement and thereafter to hold in strictest confidence and not to
disclose to any person, firm or corporation, other than to persons engaged by
the Company to further the business of the Company, and not to use except in the
pursuit of the business of the Company, Confidential and Proprietary
Information, without the prior written consent of the Company, including
Confidential and Proprietary Information developed by Consultant during the
course of his engagement hereunder; provided, however, that notwithstanding the
foregoing, Consultant shall not
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be obligated to keep secret and not to disclose Confidential and Proprietary
Information generally known to the public through no wrongful act of Consultant.
(c) RETURN OF MATERIALS. In the event of any termination of this
Agreement for any reason whatsoever, or at any time upon the request of the
Company, Consultant will promptly deliver to the Company all documents, data and
other information pertaining to Confidential and Proprietary Information.
Consultant shall not take any documents or other information, or any
reproduction or excerpt thereof, containing or pertaining to any Confidential
and Proprietary Information, unless as otherwise authorized in writing by the
President of the Company.
6. REMEDIES. Consultant recognizes and acknowledges that in the event
of any default in, or breach of any of, the terms, conditions or provisions of
this Agreement (either actual or threatened) by Consultant, the Company's
remedies at law shall be inadequate. Accordingly, Consultant agrees that in such
event, the Company shall have the right of specific performance and/or
injunctive relief in addition to any and all other remedies and rights at law or
in equity, and such rights and remedies shall be cumulative.
7. NOTICES. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other shall be deemed to have been duly given in writing and personally
delivered or sent by facsimile or mail, registered or certified, postage prepaid
with return receipt requested, as follows:
If to the Company: Internet America, Inc.
One Dallas Centre
000 X. Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
If to Consultant: Xxxx X. Xxxxxx
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Notices delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of three days after
mailing.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. No modification or
amendment of any of the terms, conditions or provisions herein may be made
otherwise than by written agreement signed by the parties hereto.
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9. GOVERNING LAW. This agreement and the rights and obligations of the
parties hereto shall be governed, construed and enforced in accordance with the
laws of the State of Texas (except the choice of law rules).
10. PARTIES BOUND. This Agreement and the rights and obligations of the
parties hereto shall be binding upon and inure to the benefit of the Company and
Consultant and their respective heirs, personal representatives, successors and
assigns. No person or entity shall be deemed a third party beneficiary of this
Agreement. Consultant may not assign any of his rights, obligations or duties
hereunder without the prior written consent of the Company.
11. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a wavier of any
subsequent breach by any party.
13. CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
14. COSTS. If it is necessary to enforce or interpret the terms of this
Agreement by action at law or in equity, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which he or it may be entitled.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument, but only one of which need be produced.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
INTERNET AMERICA, INC.
By: /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
/s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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