CONSULTING AGREEMENT
This Agreement (the 'Agreement'), dated as of January 1, 1998, is made
by and between Interactive Imaginations, Inc., a New York corporation
('Interactive'), and Neterprises, Inc., a Delaware corporation (the
'Consultant').
WHEREAS, Interactive and the Consultant desire to enter into an
agreement whereby the Consultant will provide certain management consulting
services for Interactive on the terms and conditions hereinafter set forth; and
WHEREAS, the Consultant is willing to provide such management
consulting services for Interactive.
NOW, THEREFORE, the parties hereto agree as follows:
1. Engagement. The Consultant hereby agrees to provide such management
consulting services for Interactive as may be reasonably requested by the Board
of Directors of Interactive in connection with the identification and evaluation
of potential strategic relationships and potential acquisition targets for
Interactive.
2. Extent of Services. The Consultant agrees to perform such services
to the best of its ability and in a diligent and conscientious manner and to
devote appropriate time, energies and skill to those duties called for hereunder
during the term of this Agreement and in connection with the performance of such
duties to act in a manner consistent with the primary objective of maximizing
the profitability of Interactive. The Consultant agrees to devote such time as
is reasonably required to fulfill his duties hereunder.
3. Term. The engagement of the Consultant hereunder by Interactive
shall commence as of the date hereof and shall continue through December 31,
1998, unless earlier terminated pursuant to Section 6 hereof.
4. Compensation.
(a) As compensation for the services contemplated herein and for
performance rendered by the Consultant of its duties and obligations hereunder,
Interactive shall pay to the Consultant an aggregate fee equal to $150,000 (the
'Consulting Fee'), earned and payable in 24 equal installments of $12,500 on the
15th day and the last day of each calendar month during the Term set forth in
Section 3. In addition to, and notwithstanding the foregoing, at the Effective
Time contemplated by the Agreement and Plan of Merger, dated as of February 2,
1998, among the Interactive, Petry Interactive, Inc. and Advercomm, Inc.,
Interactive shall pay Consultant the sum of $180,000 (the 'Lump Sum Payment').
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(b) Interactive's sole obligation shall be to pay to the Consultant
the amounts described in Section 4(a) of this Agreement, and the Consultant is
not and shall not be deemed an employee of Interactive for any purpose.
5. Reimbursement for Expenses. Interactive shall pay or reimburse the
Consultant for all expenses reasonably incurred by it in furtherance of its
duties hereunder including, without limitation, expenses for traveling, meals,
hotel accommodations, telephone charges and the like, provided however, such
expenses (other than for telephone charges for calls to Interactive executives
and advisors) shall have been authorized by Interactive prior to the date on
which they are incurred by the Consultant, which authorization may be withheld
by Interactive in its sole discretion. Interactive shall be under no obligation
to pay or reimburse any expense of the Consultant which has not been authorized
by Interactive in accordance with the terms of this Section 5. Interactive will
make reimbursement for authorized expenses within fourteen days of presentation
by the Consultant from time to time of appropriate documentation evidencing such
expenditures.
6. Termination. This Agreement shall be terminated as follows:
(a) 30 days after written notice of termination is given by either
party at any time after June 15, 1998, provided however, that if Interactive
shall terminate this Agreement pursuant to this Section 6(a) for any reason
other than Consultant's material breach of this Agreement (having given prior
notice of, and reasonable opportunity for Consultant to cure, any such breach),
Interactive shall pay to consultant in one lump sum an amount equal to that
portion of the aggregate Consulting Fee which has not been paid to Consultant as
of the effective date of such termination.
(b) On such date as is mutually agreed by the parties in writing.
(c) Upon expiration of the Term as set forth in Section 3.
Upon termination of this Agreement pursuant to this Section 6, except as
contemplated by Section 6(a) in the event Interactive terminates this Agreement
in the absence of continuing material breach hereof by Consultant, Consultant
shall be entitled to payment of only that portion of the Consulting Fee earned
through the effective date of such termination and any portion of the Lump Sum
Payment which has not be paid to Consultant as of the effective date of such
termination.
7. Confidential Information. The Consultant shall not, at any time
during or following expiration or termination of its engagement hereunder
(regardless of the manner, reason, time or cause thereof) directly or indirectly
disclose or furnish to any person not entitled to receive the same for the
immediate benefit of Interactive any trade secrets or confidential information
including, without limitation, information as to the business methods,
operations and affairs of Interactive or its affiliates, the names, addresses or
requirements of any of its customers and suppliers, or the credit and other
terms extended by and to Interactive. All such trade secrets and confidential
information including, without limitation, information as to the names,
addresses or requirements of any of Interactive's customers and suppliers, or
the credit and other terms extended
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by and to Interactive, acquired or compiled by Interactive or the Consultant
during the term of this Agreement shall be the exclusive property of
Interactive.
8. Covenants. Consultant agrees to (a) faithfully and diligently do
and perform the acts and duties required in connection with its engagement
hereunder, and (b) not engage in any activity which is or likely is contrary to
the welfare, interest or benefit of the business now or hereafter conducted by
Interactive.
9. Binding Effect. This Agreement will inure to the benefit of and
shall be binding upon the parties hereto and their respective successors or
assigns (whether resulting from any re organization, consolidation or merger of
either of the parties or any assignment to a business to which all or
substantially all of the assets of either party are sold).
10. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof,
supersedes all prior agreements and understandings with respect thereto and
cannot be modified, amended, waived or terminated, in whole or in part, except
in writing signed by the party to be charged.
11. Construction. While the parties hereto believe that the terms
hereof are fair, reasonable and enforceable in all respects, it is agreed that
any provision of this Agreement which is held to be prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. In addition to any other remedy which Interactive may have
at law or in equity, Interactive shall be entitled to injunctive relief for a
breach of Sections 7 and 8 (b) of this Agreement by the Consultant.
12. Notices. All notices required to be given under the terms of this
Agreement or which any of the parties desires to give hereunder shall be in
writing and personally delivered or sent by registered or certified mail, return
receipt requested, or sent by facsimile transmission, addressed as follows:
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(a) To the Consultant. If to the Consultant addressed to:
Neterprises, Inc.
233 West 77th Street, #12F
New York, New York 10024
Attn: Michael P. Paolucci
(b) To Interactive. If to Interactive addressed to:
Interactive Imaginations, Inc.
915 Broadway, Suite 1608
New York, New York 10010
Attention: Mr. David J. Moore
Chief Executive Officer
Facsimile Transmission No.: (212) 995-2394
Any party may designate a change of address at any time by giving
written notice thereof to the other parties.
13. Miscellaneous. This Agreement:
(a) shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns;
(b) may not (except as provided in Section 9 hereof) be assigned
by either party hereto without the prior written consent of the other party (any
purported assignment hereof in violation of this provision being null and void);
(c) may be executed in any number of counterparts, and by any
party on separate counterparts, each of which as so executed and delivered shall
be deemed an original but all of which together shall constitute one and the
same instrument, and it shall not be necessary in making proof of this Agreement
as to any party hereto to produce or account for more than one such counterpart
executed and delivered by such party;
(d) may be amended, modified or supplemented only by a written
instrument executed by all of the parties hereto;
(e) embodies the entire agreement and understanding of the
parties hereto in respect of the transactions contemplated hereby and supersedes
all prior agreements and understand ings among the parties with respect thereto;
and
(f) shall be governed by and construed in accordance with the
laws of the State of New York without regard to the conflict of laws principles
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INTERACTIVE IMAGINATIONS, INC.
By: /s/ David J. Moore
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David J. Moore, Chief Executive Officer
NETERPRISES, INC.
By: /s/ Michael P. Paolucci
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Michael P. Paolucci, President
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Consulting Agreement - Interactive Imaginations Inc. and Neterprises Inc.
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