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Exhibit 10.12
CONSULTING AGREEMENT
This Consulting Agreement (the "AGREEMENT") is made and entered into as
of June 1, 1996 by and between Xxxxxx X. Xxxxx ("CONSULTANT") and Merge
Technologies Incorporated, a Wisconsin corporation (the "COMPANY").
R E C I T A L S:
A. Consultant has provided extensive consulting and advisory
service to the Company over the past six years.
B. The Company desires to continue to avail itself from time to
time of Consultant's extensive experience in business and financing matters by
continuing to engage Consultant in the capacity of a consultant to the Company
on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
covenants and conditions contained herein, Consultant and the Company hereby
agree as follows:
ARTICLE I
CONSULTING SERVICES
SECTION 1.1 Position; Term; Responsibilities. The Company shall
retain Consultant to perform the services described in Section 1.2 for a term
commencing on the date hereof and ending on the three-year anniversary of the
date hereof or such earlier date upon which this Agreement may be terminated
(the "CONSULTING PERIOD"). The Company shall have the right to terminate this
Agreement following sixty (60) days written notice by the Company for
Consultant's refusal to perform, or his substantial neglect of, the duties
assigned to Consultant hereunder, but such termination shall not relieve the
Company of the obligation to pay the amounts due to the Consultant under
Section 2.1(a).
SECTION 1.2 Performance of Consulting Services. During the
Consulting Period, Consultant shall perform and faithfully discharge such
consulting services to the Company as the Company may assign to him, on an
as-needed basis, when mutually convenient.
SECTION 1.3 Consultant's Relationship to the Company. Consultant's
relationship hereunder to the Company is one of independent contractor and
nothing contained in this Agreement shall be construed to imply that he is an
agent or employee of the Company for any purpose, including, without
limitation, withholding for purposes of Social Security or income taxes, or
entitlement to any insurance, retirement or other employee benefits offered by
the Company. Consultant shall have no right, power or authority to create any
obligation, expressed or implied, or to make any representation on behalf of
the Company, except as may be expressly authorized in writing from time to time
by the Company and then only to the extent of such authorization.
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ARTICLE II
COMPENSATION
SECTION 2.1 Compensation.
(a) The Company, in consideration for Consultant's consulting and
advisory services performed prior to the date of this Agreement, shall pay to
Consultant or his designee the amount of $160,000 on January 1, 1997. Company
and Consultant agree that the amount of $160,000 is a reasonable amount for the
services performed by Consultant prior to the date of this Agreement.
(b) The Company, in consideration for Consultant's consulting
services performed pursuant to Article I, shall pay to Consultant or his
designee the amount of $3,500 per month, provided that Consultant has continued
to provide the services required in Article I. Company and Consultant agree
that the amount of $3,500 per month is a reasonable amount for the services to
be performed by Consultant pursuant to Article I.
SECTION 2.2 Expenses. The Company shall reimburse Consultant for
all of his out-of-pocket expenses incurred by him related to his services
hereunder that were authorized or subsequently approved by the Company;
provided, that Consultant shall have submitted an expense report in form
satisfactory to the Company with such receipts or other substantiation as
required by the Company.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Conflicts. Consultant hereby warrants and represents
that he is not under any legal or contractual obligation that would conflict in
any manner with the obligations and duties he is undertaking herein, and that
the execution of this Agreement will not breach any agreement to which he is now
a party.
SECTION 3.2 Notices. All notices or other communications required
or permitted hereunder shall be in writing and shall be deemed given, delivered
and received (a) when delivered, if delivered personally, (b) four days after
mailing, when sent by registered or certified mail, return receipt requested
and postage prepaid, and (c) one business day after delivery to a private
courier service, when delivered to a private courier service providing
documented overnight service, in each case addressed as follows:
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If to Consultant:
Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Company:
Merge Technologies Incorporated
0000 Xxxxx 00xx Xxxxxx
Xxxxx X000X
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, President
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
or to such other address as the recipient party may indicate by a notice
delivered to the sending party (such change of address notice to be deemed
given, delivered and received only upon actual receipt thereof by the recipient
of such notice).
SECTION 3.3 Assignment and Succession. Consultant hereby acknowledges
that the services to be rendered by him hereunder are unique and personal.
Accordingly, Consultant may not assign any of his rights or delegate any of his
duties or obligations under this Agreement. The rights and obligations of the
Consultant and Company under this Agreement shall inure to the benefit of and
be binding upon its successors and permitted assigns.
SECTION 3.4 Applicable Law. This agreement shall at all times be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of Wisconsin without regard to the law of conflicts thereof.
SECTION 3.5 Entire Agreement: Amendments. This Agreement contains the
entire understanding of the parties hereto with regard to the subject matter
contained herein, and supersedes all prior or contemporaneous agreements,
understandings or intents between the partis hereto or any related parties,
whether oral or written. This Agreement may be amended, modified or
supplemented only by a writing signed by both parties hereto.
SECTION 3.6 Waivers. Any term of this Agreement may be waived by the
party or parties entitled to the benefits thereof but only by a writing executed
by such party. No
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waiver or any breach of this Agreement shall be held to constitute a waiver of
any other or subsequent breach.
SECTION 3.7 Interpretation. Article titles and headings to
Sections herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction will be applied against any party.
SECTION 3.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered an original instrument,
but all of which shall be considered one and the same agreement, and shall
become binding when one or more counterparts have been signed and delivered by
each of the partners hereto.
SECTION 4.0 Partial Invalidity. Wherever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
/s/ Xxxxxx X. Xxxxx
---------------------------------
XXXXXX X. XXXXX
MERGE TECHNOLOGIES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
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Merge Technologies Incorporated
0000 Xxxxx 00xx Xxxxxx
Xxxxx X000X
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Termination of Consulting Agreement with Merge Technologies
Incorporated (the "Company")
Ladies and Gentlemen:
This letter is to advise you that I hereby agree to terminate the
Consulting Agreement entered into between the Company and me and dated as of
June 1, 1996, effective upon the closing of the public offering of 1,900,000
shares of the Company's Common Stock in an offering underwritten by X.X.
Xxxxxxxxxx & Co., Inc.
I also agree to execute any additional documents that may be needed to
effect the termination of the Consulting Agreement.
Please acknowledge the termination of the Consulting Agreement on the
conditions described above by signing this letter where indicated below.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Acknowledged, Agreed to, and Accepted:
MERGE TECHNOLOGIES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
