Exhibit 10.2


 


CONSULTING AGREEMENT


 


This Consulting Agreement (the “Agreement”) is entered
into as of the 9th day of January 2006, by and among HRH Consulting LLC (“Consultant”),
Harold R. Herbst (“Herbst”) and InfoNow Corporation, a Delaware corporation (the
“Company”).


 


RECITALS


 


WHEREAS, Herbst has served as the Company’s Interim
Chief Executive Officer pursuant to the terms of an Employment Agreement, dated
September 27, 2005 and effective September 1, 2005, between the
Company and Herbst (the “Employment Agreement”);


 


WHEREAS, the Company has elected to terminate the
Employment Agreement pursuant to Section 5(d) of the Employment
Agreement; and


 


WHEREAS, the Company now desires to engage the
services of Consultant, and Consultant is willing to render services to the
Company, each upon the terms and conditions herein set forth.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual
promises set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.             Employment Agreement.  Herbst acknowledges that the Employment
Agreement has been terminated by the Company pursuant to Section 5(d) of
the Employment Agreement and Herbst is no longer employed as the Company’s
Interim Chief Executive Officer. 
Notwithstanding the termination of the Employment Agreement, Herbst
acknowledges that he continues to be bound by his obligations under Sections 6
and 7 of the Employment Agreement.


 


2.             Title and Services.  During the term of this Agreement, as set
forth in Section 5, Consultant shall serve as the Company’s “Consultant to
the Board of Directors and Merger Executive” and shall be available to perform
and shall provide the Company with services to facilitate the consummation of the merger of the Company with WTH
Merger Sub, Inc., a wholly-owned subsidiary of Warp Technology Holdings,
operating under the name, Halo Technology Holdings, pursuant to that certain
Agreement and Plan of Merger, dated as of December 23, 2005.  Herbst shall personally provide all of the
services provided by Consultant under this Agreement.


 


3.             Payment and
Severance.


 


(a)           Payment.               In
consideration of Consultant’s performance of the consulting services described
in Section 2, the Company shall pay Consultant on the first (1st)
and fifteenth (15th) day of each month at the rate of Herbst’s
previous annual base salary 


 





















 


received in connection with Consultant’s previous position with the
Company until such time as this Agreement is terminated pursuant to Section 6.  For illustrative purposes, if this Agreement
is terminated on the fourteenth (14th) day of the month, Consultant’s
last payment pursuant to this Section 3(a) shall be on the fifteenth
(15th) day of the month, and if this Agreement is terminated on the
sixteenth (16th) day of the month, Consultant’s last payment
pursuant to this Section 3(a) shall be on the first (1st)
day of the following month.  All
compensation paid under this Section 3(a) shall be a gross amount
without any deductions or withholdings by the Company.  The Company shall pay Herbst’s cellular
telephone service, Internet service and fees for parking in the garage located
at the Company’s offices until the termination of this Agreement.


 


(b)           Severance.            The
Company acknowledges that it shall, in addition to the payment described in Section 3(a) above,
pay Herbst severance in accordance with Section 4(b) of the
Employment Agreement.


 


4.             Expenses.   Consultant
shall be reimbursed for Consultant’s expenses in accordance with the Company’s
policies that were previously applicable to Consultant in his previous position
as the Company’s Interim Chief Executive Officer. Consultant shall keep
adequate records of such expenses that shall be available to the Company upon
request.


 


5.             Term
and Termination.


 


(a)           Term. Subject to the early
termination provisions set forth in this Section 6, this Agreement shall terminate
upon consummation of the merger of the Company with WTH Merger Sub, Inc.,
a wholly-owned subsidiary of Warp Technology Holdings, operating under the
name, Halo Technology Holdings, pursuant to the Agreement and Plan of Merger,
dated as of December 23, 2005. 
Notwithstanding the termination of this Agreement, the Company shall
continue to pay Consultant severance in accordance with Section 3(b) of
the Employment Agreement.


 


(b)           Early
Termination.


 


(i)            This
Agreement may be terminated for any reason by the Company upon thirty (30) days
prior written notice to Consultant.


 


(ii)           This
Agreement may be terminated by Consultant by written notice to the Company at
any time upon a breach by the Company of any of the provisions of this
Agreement.


 


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6.             Relationship of
the Parties.


 


(a)           Independent Status.  The relationship of Consultant to the Company
hereunder shall be that of an independent contractor.  Nothing in this Agreement is intended or
shall be construed to constitute Consultant an employee, agent or partner of
the Company nor shall Consultant have authority to bind the Company in any
respect.  The Company hereby acknowledges
that Consultant shall rely upon the accuracy of all information provided by the
Company and that Consultant is not responsible to independently verify that any
of such information is accurate.  The
Company assumes complete responsibility and liability for financial and other
information furnished for its use on the Company’s behalf and for all written
material developed for Company’s use. 
The Company shall indemnify and hold harmless Consultant from and against
any demands, claims or liabilities relating to the form or content of any
information released by the Company, approved by company or used on the Company’s
behalf including all attorney’s fees that Consultant may incur, in accordance
with the Company’s indemnity policies for corporate officers under its
certificate of incorporation and bylaws.


 


(b)           Tax and Benefit Matters.  Consultant will not be entitled to receive
any vacation or illness payments, or to participate in any plans, arrangements,
or distributions by Company pertaining to any bonus, stock option, profit
sharing, insurance or similar benefits for Company’s employees.


 


7.             Representations and Warranties by Consultant. Consultant represents and warrants to the Company that (i) the
execution, delivery and performance of this Agreement by Consultant does not
and will not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which Consultant
is a party or by which Consultant is bound, (ii) Consultant is not a party
to or bound by any employment agreement, covenant not to compete or
confidentiality agreement with any other person or entity, and (iii) upon
the execution and delivery of this Agreement, this Agreement shall be valid and
binding obligations of Consultant.


 


8.             Miscellaneous.


 


(a)           Governing
Law.  This Agreement, and all other disputes or
issues arising from or relating in any way to Company’s relationship with
Consultant, shall be governed by the internal laws of the State of Colorado, irrespective of the choice
of law rules of any jurisdiction.


 


(b)           Withholdings. 
All
payments made or payable under this Agreement shall be subject to customary or
legally required withholdings.


 


(c)           Severability. If any court of competent jurisdiction
declares any provision of this Agreement invalid or unenforceable, the
remainder of the Agreement shall remain fully enforceable.  To the extent that any court concludes that
any provision of this Agreement is void or voidable, the court shall reform
such provision(s) to render the provision(s) enforceable, but only to the
extent absolutely necessary to render the provision(s) enforceable.


 


(d)           Integration. 
This
Agreement constitutes the entire agreement of the parties and a complete merger
of prior negotiations and agreements, and except as provided in 


 


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Section 11(d) above,
this Agreement shall not be modified by word or deed, except in a writing
signed by Consultant and Company’s President.


 


(e)           Waiver.  No provision of this Agreement shall be deemed
waived, nor shall there be an estoppel against the enforcement of any such
provision, except by a writing signed by the party charged with the waiver or
estoppel.  No
waiver shall be deemed continuing unless specifically stated therein, and the
written waiver shall operate only as to the specific term or condition waived,
and not for the future or as to any act other than that specifically waived.


 


(f)            Construction.  Headings in this Agreement are for convenience
only and shall not control the meaning of this Agreement.  Whenever applicable, masculine and neutral
pronouns shall equally apply to the feminine genders; the singular shall
include the plural and the plural shall include the singular.  The parties have reviewed and understand this
Agreement, and each has had a full opportunity to negotiate the Agreement’s
terms and to consult with counsel of their own choosing.  Therefore, the parties expressly waive all
applicable common law and statutory rules of construction that any
provision of this Agreement should be construed against the Agreement’s
drafter, and agree that this Agreement and all amendments thereto shall be
construed as a whole, according to the fair meaning of the language used.


 


(g)           Assignment.  Consultant shall not assign this agreement,
in whole or in part, whether by operation of law or otherwise, to any party
without the prior written consent of the Company, and any such assignment
contrary to the terms hereof shall be null and void and of no force and
effect.  Company, its successors and
assigns may in their sole discretion assign this Agreement to any person or
entity, without Consultant’s consent. 
This Agreement thereafter shall bind, and inure to the benefit of,
Company’s successor or assign.


 


(h)           Execution in Counterparts.  To facilitate execution, this Agreement may
be executed in as many counterparts as may be required.  It shall not be necessary that the signatures
of, or on behalf of, each party, or that the signatures of all persons required
to bind any party, appear on each counterpart; but it shall be sufficient that
the signature of, or on behalf of, each party, or that the signatures of the
persons required to bind any party, appear on one or more of the counterparts.  All counterparts shall collectively constitute
a single agreement.  It shall not be
necessary in making proof of this Agreement to produce or account for more than
a number of counterparts containing the respective signatures of, or on behalf
of, all of the parties hereto.


 


(i)            Notices.  All notices, demands, requests, or other
communications that may be or are required to be given, served, or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be hand delivered, sent by overnight courier or mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by telegram, telecopy or telex, addressed as follows:


 


If to the Company:


 


InfoNow Corporation


1875 Lawrence Street, Suite 1100


Denver, CO 
80202


 


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Telephone: (303) 292-0212


Facsimile: (303) 293-0213


Attention: Corporate Secretary


 


If to Consultant or Herbst:


 


HRH Consulting LLC


4450 E. Prentice Place


Greenwood Village, CO 80121


Telephone: (303) 796-0187


Facsimile: (303) 796-0819


Attention: Harold R. Herbst


 


Each
party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or
sent.  Each notice, demand, request, or
communication that shall be hand delivered, sent, mailed, telecopied or telexed
in the manner described above, or that shall be delivered to a telegraph
Company, shall be deemed sufficiently given, served, sent, received or delivered
for all purposes at such time as it is delivered to the addressee or at such
time as delivery is refused by the addressee upon presentation.


 


[Signature Page to Follow]


 


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IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed by its duly authorized officer
and Consultant has hereunto set his hand as of the date first above written.


 


 


	
   

  	
  INFONOW CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  Jeffrey D. Peotter

  	
   

  
	
   

  	
   

  	
  Name:
  Jeffrey D. Peotter

  
	
   

  	
   

  	
  Title:
  Chairman of the Board of Directors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HRH CONSULTING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  Harold R. Herbst

  	
   

  
	
   

  	
   

  	
  Name:
  Harold R. Herbst

  	
   

  
	
   

  	
   

  	
  Title:
  Managing Member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  With respect to Sections 1 and 2 of this Agreement

  only:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  Harold R. Herbst

  	
   

  
	
   

  	
   

  	
  Harold
  R. Herbst

  	
   

  
					



 


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