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Exhibit 10.12
TERMINATION OF
CO-BRANDED FREE ISP AGREEMENT
This Termination of Co-Branded Free ISP Agreement amends and replaces the
Termination Agreement executed by the parties on June 12, 2000. This Agreement
is hereby dated June 14, 2000.
Spinway, Inc., (formerly Spin Media Network, Inc.) a California corporation with
its principal place of business at 925 Commercial Street, Palo Alto, CA 94303
("Spinway") and Tutopia.com, inc., a Delaware corporation with a principal place
of business at 15050 N.W. 79th Court, Miami Lakes, Florida 33016 (the "Company")
(collectively, the "Parties") entered into The Co-Branded Free ISP Agreement
(the "Agreement") as of January 24, 2000.
Whereas, Spinway is an advertising solution and free Internet Service Provider
("ISP") that owns and operates a service that allows people to receive free
access to the Internet (the "Spinway Service");
Whereas, the Company has approximately 17,000 Service Users currently using the
Spinway Client (the "Spinway Service Users");
Whereas, Company paid a $50,000 development fee to Spinway pursuant to the
Agreement;
Whereas, the Parties, pursuant to Section 12.4 of the Agreement, now mutually
desire to terminate the Agreement;
Now, Therefore, Spinway and Company hereby agree, for and in consideration of
the mutual covenants set forth herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, as
follows:
1. All capitalized terms used herein that are not otherwise defined in this
termination agreement shall have the same meanings as in the Agreement.
2. Company will provide network support the 17,000 Spinway Service Users at
least until August 1, 2000. Company will no longer be required to provide
support to the Spinway Service Users. Company and Spinway shall maintain
co-ownership rights of all user information relating to those Spinway
Service Users. Spinway shall maintain ownership rights to all Spinway
Service User information, including, but not limited to, name and email
address.
3. Company agrees to pay to Spinway (via electronic wire directly to Spinway's
bank account at Silicon Valley Bank) an additional and final development fee
of $250,000 (U.S.) on or before 5:00p.m. Pacific Standard Time on Thursday
June 15, 2000.
4. Company agrees to issue to Spinway a warrant to purchase 210,000 shares
(equal to approximately 1.5% of the total outstanding and fully diluted
shares of IFX Corporation) of IFX Corp. ("IFX") common stock (the
"Warrants"). The Warrants shall be fully vested and exercisable immediately
after pricing and shall expire four (4) years after the issuance. The
Warrants shall be priced at a price equivalent to the common stock per share
price of the next private equity round investment in IFX, but in no event
will the price exceed $14.50 per share or be lower than $9.00 per share. If
IFX does not complete a private equity round on or before August 1, 2000,
then the Warrant shall be priced at $9.00 per share. The shares issuable
upon the exercise of the Warrant shall be subject to the same piggyback and
S3 registration rights as the investors in the private equity round
referenced in this paragraph.
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Exhibit 10.12
5. The Parties hereby terminate the Agreement and except with respect to
breaches of this Termination of Co-branded Free ISP Agreement, neither the
Company nor Spinway will be liable for damages or compensation of any
kind.Spinway and Company hereby release the other from any and all claims,
demands, debts, damages, costs, losses, expenses, commissions, actions,
causes of action, rights, liabilities, obligations and chooses in action of
whatever nature or type which any of Spinway or Company may have, or may
have, or which have been, or could have been, or in the future otherwise
might have been asserted other than those that arise under this Termination
Agreement.
6. The Effective Date of this Termination of Co-Branded Free ISP Agreement is
June 14, 2000.
Spinway, Inc. ("Spinway"): Company:
By: /s/ Billy McNair By: /s/ Michael Shalom
------------------------------
Name: Billy McNair_______________ Name: Michael Shalom_____________
Title: VP, Business Development Title: CEO
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June 14, 2000 June 14, 2000
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IFX Corp.:
By: /s/ Joel Eidelstein
---------------
Name: Joel Eidelstein
Title: President
June 13, 2000
