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EXHIBIT 10.11
CONSULTING AGREEMENT
This CONSULTING AGREEMENT dated as of December 15, 1999 (the "Effective
Date") between XXXXXX XXXXX (the "Consultant"), with an address at 0000 Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000 and XXXXXXXXXX.XXX, INC., a Florida corporation
("DSI"), which has its principal office located at 0000 Xxxxxxxx Xxxx, Xxxxx X,
Xxxxxxxx, Xxxxxxx 00000
R E C I T A L S
A. DSI desires to retain Consultant to render consulting services with
respect to its Internet business; and
B. Consultant is willing to render such services on the terms and
conditions hereinafter provided.
P R O V I S I O N S
NOW, THEREFORE, in consideration of the mutual agreements set forth in
this Agreement and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT.
(a) DSI hereby engages and retains Consultant to render the
consulting services described in Section 2 hereof. Nothing contained in this
Agreement shall be deemed to create or evidence any partnership, joint venture
or employment arrangement by or between the parties, it being understood that
the relationship established hereunder is limited to that of Consultant as an
independent contractor acting for and on behalf of DSI as expressly set forth
herein.
(b) Without limiting Section 1(a), other than as specifically
required in connection with the performance of his duties as a director of DSI,
Consultant shall not be an agent for or have authority to act on behalf of or
contractually bind DSI, except for any specific transaction which DSI may
authorize Consultant to do in writing. In the absence of specific written
authorization, Consultant shall have no authority to enter into any
understanding, commitment or agreement on behalf of DSI or to otherwise bind DSI
in any manner. Consultant agrees not to hold himself itself out to others as
having any authority on behalf of or related to DSI, except as may be
specifically granted to Consultant.
2. SERVICES. For a period not to exceed three (3) years from the
Effective Date (the "Initial Term"), unless otherwise mutually extended in
writing by the Consultant and DSI, Consultant shall, at DSI's request from time
to time and at Consultant's reasonable convenience, consult with and advise DSI
with respect to corporate, business, marketing and promotional strategy
involving DSI's business, including, without limitation, its e-commerce
opportunities, financial strategies, strategic partners and Web sites.
Consultant shall perform the services required hereunder on a limited-time
basis, which shall not be more than one hundred (100) hours per year or more
than eight (8) hours per month. In the event that Consultant shall be required
to perform services in excess of eight (8) hours in any particular month,
Consultant shall receive additional compensation from DSI in an amount equal to
$1,000 per day. Consultant shall use his reasonable efforts, and devote
sufficient time as may be necessary, to become familiar with and knowledgeable
about DSI's products, services and business plans, and to render his services
with due regard for the prompt, efficient and economical operation of the
business of DSI. This Agreement expressly excludes the Consultant from providing
any and all capital formation and/or public relations services to
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DSI inclusive of, but not limited to (i) direct or indirect promotion of the
DSI's securities, and (ii) assistance in making of a market in the DSI's
securities.
In the event that DSI shall desire to engage the services of the
Consultant in excess of 100 hours in any annual period during the term of this
Agreement, such additional services may be provided by the Consultant subject to
the Consultant's availability (determined in his sole discretion) and the mutual
agreement of DSI and the Consultant as to compensation therefor.
3. PAYMENT FOR SERVICES AND EXPENSES. In full consideration for the
Consultant's willingness to enter into this Agreement and to perform the
services described herein, Consultant shall receive options (the "Options") to
purchase an aggregate of 90,000 shares of DSI's common stock, par value $.0001
per share (the "Common Stock"), at an exercise price of $1.00 per share. Options
to purchase 22,500 shares of Common Stock shall vest immediately upon the
execution of this Agreement and Options to purchase an aggregate of 67,500
shares of Common Stock shall vest in equal thirds on the first three anniversary
dates of the execution of this Agreement; provided, however, that vesting will
be accelerated in the event of a Change of Control (as defined in DSI's 1999
Employee Incentive Compensation Plan governing the Options) or if DSI terminates
this Agreement without cause (as defined in Section 7 of this Agreement). The
Options shall be evidenced by a separate stock option agreement and shall be
subject to the terms and conditions of such agreement and DSI's 1999 Employee
Incentive Compensation Plan.
4. NONEXCLUSIVITY OF THIS AGREEMENT. DSI understands and agrees that,
except as set forth in the next sentence, Consultant shall not be prevented or
barred from rendering services of any nature for or on behalf of any other
person, firm, corporation or entity, subject to Consultant's obligation to
maintain confidentiality of DSI's confidential information pursuant to Section 5
below. Consultant understands and agrees that DSI shall not be prevented or
barred from retaining other persons or entities to provide services of the same
nature or similar nature as those described herein or of any nature whatsoever.
5. CONFIDENTIALITY. During the term of this Agreement and for a period
of two (2) years thereafter, Consultant will not disclose to any other person,
firm or corporation, nor use for his own benefit, during or after the term of
this Agreement, any trade secrets or other confidential information of DSI which
is acquired by Consultant in the course of performing services hereunder. For
purposes of this Agreement, a "trade secret" is information not generally known
to the public which gives DSI an advantage over its competitors, including all
data, ideas, information, knowledge and papers pertaining to DSI's affairs,
including all products or services under development, production methods and
processes, subscriber or customer lists, marketing plans and information
involving DSI. Any information, which (i) at or prior to the time of disclosure
by DSI to Consultant was generally available to the public through no breach of
this Agreement, (ii) was available to the public on a nonconfidential basis
prior to its disclosure by DSI to Consultant or (iii) was made available to
Consultant from a third party (provided that Consultant did not know that such
party obtained or disseminated such information in breach of any legal
obligation to DSI) shall not be deemed confidential information of DSI for
purposes hereof. The Consultant shall also treat all information pertaining to
the affairs of all existing and future or prospective customers or strategic
partners of DSI as confidential trade secrets of such customers and partners.
6. REPRESENTATIONS AND WARRANTIES.
(a) DSI represents and warrants that (i) DSI is in good standing
under the laws of the State of Florida (ii) this Agreement has been authorized
by all necessary corporate action of DSI and constitutes a valid and binding
obligation of DSI enforceable in accordance with its terms and (iii) all Options
and all shares to be issued pursuant thereto have been duly authorized and all
shares issuable pursuant to the Options shall, upon tender of the exercise price
thereof, be fully paid and nonassessable.
(b) Consultant represents and warrants that: (i) this Agreement is
a valid and binding obligation of Consultant, enforceable in accordance with its
terms; (ii) it is not a party to any agreement or instrument which would prevent
it from entering this agreement or performing its obligations hereunder or
otherwise conflicts with this Agreement; and (iii) Consultant shall not offer or
make payment of any consideration
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to brokers, dealers or others for purposes of inducing the purchase, making of a
market or recommendation for the purchase of DSI's securities.
7. TERMINATION. This Agreement may be terminated by either Consultant
or DSI at anytime on sixty (60) day's notice. This Agreement also may be
terminated by DSI for "cause," which shall be deemed to exist if the Consultant
materially breaches any of its material obligations under this Agreement,
provided that DSI shall first have given the Consultant written notice
specifying the facts constituting the material breach at least thirty (30) days
prior to the date of termination and the Consultant shall not have cured such
breach if it is capable of being cured.
8. CONSULTANT'S LIABILITY. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
any term of this Agreement, the Consultant shall not be liable to DSI or to any
officer, director, employee, shareholder or creditor of DSI, for any act or
omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of any terms of
this Agreement is alleged and proven, DSI agrees to defend, indemnify, and hold
the Consultant harmless from and against any and all reasonable costs, expenses
and liability (including reasonable attorney's fees paid in the defense of the
Consultant) which may in any way result from services rendered by the Consultant
pursuant to or in connection with this Agreement. This indemnification expressly
excludes any and all damages as a result of any actions or statements, on behalf
of DSI, made by the Consultant without the prior approval or authorization of
DSI.
9. DSI'S LIABILITY. The Consultant agrees to defend, indemnify, and
hold DSI harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorney's fees paid in defense of DSI) which
may in any way result pursuant to its gross negligence or willful misconduct or
in any connection with any actions taken or statements made, on behalf of DSI,
without the prior approval or authorization of DSI or which are otherwise in
violation of the term of this Agreement.
10. MISCELLANEOUS.
(a) No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge is
agreed to in writing and signed by each of the parties hereto or a duly
authorized representative thereto. No waiver by any party hereto at any time of
any breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
(b) If any provision of this Agreement shall be determined by
any court of competent jurisdiction to be unenforceable or invalid to any
extent, the remainder of this Agreement shall not be affected thereby, and this
Agreement shall be construed to the fullest extent possible as to give effect to
the intentions of the provision found unenforceable or invalid.
(c) This Agreement may not be assigned by Consultant without the
prior written consent of DSI.
(d) This Agreement shall be binding upon the parties hereto and
all permitted successors and assigns.
(e) All notices and other communications provided for hereunder
shall be in writing and shall be delivered to each party hereto by hand or sent
by reputable overnight courier, with receipt verified, or registered or
certified mail, return receipt requested, addressed to the addresses set forth
in the beginning of this Agreement, or at such other address as either party may
specify by notice to the other party given as aforesaid. Such notices shall be
deemed to be effective when the same shall be deposited, postage prepaid, in the
mail and/or when the same shall have been delivered by hand or overnight
courier, as the case may be. If any action or notice is to be taken or given on
or by a particular calendar day, and such calendar day is not a business day,
then such action or notice may be deferred until, or may be taken or given on,
the next business day.
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(f) The validity, interpretation, construction and performance of
this Agreement shall be governed by and construed in accordance with the laws of
the State of Florida without regard to its conflicts of law principles. Any
action or proceeding involving the parties hereto shall be adjudicated in a
Court located in Orange County, Florida. The parties hereto hereby irrevocably
consent to the jurisdiction and venue of such Courts.
(g) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
(h) All headings contained in this Agreement are for reference
purposes only and shall not in any way effect the meaning or interpretation of
any provision or provisions of this Agreement.
(i) This Agreement, and the documents to be delivered in connection
therewith, and the exhibits and schedules thereto, if any, set forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersede all prior and contemporaneous agreements, promises,
covenants, arrangements, understandings, communications, representations or
warranties, whether oral or written, by any party hereto; and any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled. No agreements or representations,
whether written, oral, express or implied, with respect to the subject matter
hereof have been made by either party that are not set forth expressly in this
Agreement and the other documents to be delivered in connection herewith and
therewith.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the 15th day of December, 1999.
XXXXXXXXXX.XXX, INC.
By: /s/ O. F. Xxxxx
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Name: O. F. Xxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
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