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EXHIBIT 10.12
CONSULTING AGREEMENT
This AGREEMENT ("Agreement") dated as of December 7, 1999 (the
"Effective Date") between XXXXXX X. XXXXX (the "Consultant") and Ibis
Information Services, Inc. ("Ibis"), both of which with an address at 000 Xxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000 and INFORMATION ON DEMAND, INC., a Florida
corporation ("IOD"), which has its principal office located at 0000 Xxxxxxxx
Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000
R E C I T A L S
WHEREAS, Consultant entered into an Employment Agreement with IOD as of
June 18, 1999 ("Employment Agreement") pursuant to which Consultant was employed
as President of IOD;
WHEREAS, Consultant informed the Board of Directors of IOD that he
wished to voluntarily resign effective December 7, 1999;
WHEREAS, the IOD Board of Directors accepted on December 7, 1999,
Consultant's resignation as President of IOD;
WHEREAS, IOD desires to retain Consultant immediately following his
resignation and termination of employment under the Employment Agreement to
render consulting services with respect to IOD's business; and
WHEREAS, 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) IOD 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 IOD as expressly set forth
herein.
(b) Without limiting Section 1(a), Consultant shall not be an agent
for or have authority to act on behalf of or contractually bind IOD, except for
any specific transaction which IOD 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
IOD or to otherwise bind IOD in any manner. Consultant agrees not to hold
himself itself out to others as having any authority on behalf of or related to
IOD, except as may be specifically granted to Consultant.
2. SERVICES. For the period ending one (1) year from the Effective Date
(the "Initial Term"), unless otherwise mutually extended in writing by the
Consultant and IOD, Consultant shall, at IOD's request from time to time,
consult with and advise IOD with respect to corporate, business, marketing and
promotional strategy involving IOD's business, including, without limitation,
its e-commerce opportunities, financial strategies, strategic partners and Web
sites. Consultant shall not be required, except as otherwise provided herein, to
devote any particular amount of time toward the performance of its duties
hereunder. Specifically, the Consultant agrees to: (i) participate in up to six
(6) business trips (not to exceed in the aggregate 12 travel days) with IOD
executives during the period from the Effective Date through March 31, 2000, in
regard to customer relations and other matters pertaining to existing IOD
customers/identified potential customers; (ii) up to forty (40) hours of in
person meetings at IOD's corporate office from the Effective Date through March
31, 2000; and (iii) up to ten (10) hours per month of telephone consulting with
O. F. Xxxxx and other IOD personnel designated by O. F. Xxxxx for the Initial
Term.
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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 during the one year Initial
Term twenty-four (24) semi-monthly payments each in the amount of Six Thousand
Two Hundred Fifty Dollars ($6,250). In addition, IOD shall pay to the Consultant
an amount equal to the monthly premium cost of the family health insurance
coverage under the Consultant's COBRA election following his resignation of
employment. IOD shall reimburse Consultant for all reasonable business expenses
he may incur in renderings services hereunder to IOD, which expenses IOD has
requested Consultant to incur.
4. CONSULTANT'S RESIGNATION OF EMPLOYMENT. Effective with the
Consultant's execution of this Agreement, the Consultant hereby voluntarily
resigns his employment with IOD and as President of IOD pursuant to the terms of
the Employment Agreement. Except for payment of the Consultant's Base Salary
through the date of termination (December 7, 1999), COBRA payments and the
reimbursement of all business expenses incurred by Consultant for which he has
not received reimbursement from IOD, there shall be no other amounts due from
IOD to Consultant as a result of Consultant's employment with IOD pursuant to
the Employment Agreement or otherwise. IOD hereby accepts the Consultant's
resignation and termination of his employment pursuant to the Employment
Agreement effective with IOD's execution of this Agreement. Notwithstanding
Consultant's voluntary resignation of his employment under the Employment
Agreement, IOD, Consultant and Ibis agree that the effectiveness, terms and
conditions of the Contingent Purchase Price, as defined under the Agreement for
Sale and Purchase of Assets dated June 18, 1999, between IOD, the Consultant and
Ibis shall continue to be effective as provided in said agreement.
5. TERMINATION. This Agreement also may be terminated by IOD for cause,
which shall be deemed to exist if the Consultant materially breaches any of its
material obligations under this Agreement, provided that IOD shall first have
given the Consultant written notice specifying the facts constituting the
material breach at least ten (10) days prior to the date of termination and the
Consultant shall not have cured such breach if it is capable of being cured.
6. 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 IOD.
(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,
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or may be taken or given on, the next business day.
(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 7th day of December, 1999.
INFORMATION ON DEMAND, INC.
By: /s/ X. X. Xxxxxx, Jr.
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Name: X. X. Xxxxxx, Jr.
Title: Executive Vice President
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, individually and as President
of Ibis Information Services, Inc.
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