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EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made August 4, 2000 between
Xxxxx Aberele ("Consultant"), MicroBiz, Inc., a New York corporation ("Employer
") and CAM Commerce Solutions, Inc., a Delaware corporation ("Buyer").
RECITALS
A. Consultant has acted as the president of and is familiar with its
business and operations of Employer.
B. Concurrently with the execution hereof, Buyer is acquiring all of
Consultant's shares of capital stock in Employer pursuant to a Stock Purchase
Agreement between Consultant and Employer, dated August __, 2000 (the "Stock
Purchase Transaction").
C. Following the closing of the Stock Purchase Transaction, Consultant
will continue as a full-time, at-will employee of Employer ("At-Will
Employment").
D. Employer, Consultant, and Buyer mutually desire to enter into this
Agreement whereby Consultant will render services to Employer following
expiration of the At-Will Employment as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties hereto agree as
follows:
1. CONSULTATION
1.1. Employer hereby hires Consultant, and Consultant hereby
accepts such consulting assignment upon the terms and conditions set forth
herein.
1.2 Consultant hereby represents and warrants to Employer that
he is free to enter into this Agreement and has no prior or other obligations or
commitments of any kind whatsoever to any third party which would or might in
any way hinder of interfere with the performance of its duties hereunder.
1.3 Commencing upon the termination of the At-Will Employment,
Consultant shall assist Employer in a consulting capacity for a period of 12
months with respect to the business of MicroBiz acquired by Employer. Consultant
shall provide his services during such period and each renewal thereof (the
"Consulting Period(s)") at such times and for such periods as Employer may
reasonably request in order to give Employer the benefit of
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Consultant's knowledge and advice with respect to the business of MicroBiz, and
shall use Consultant's best efforts to further the interests of Employer in
connection with such business; provided, however, that Consultant shall not be
required to provide more than 12 hours of consulting service per month during
any Consulting Period. Consulting will be performed in Mahwah, N.J., at
Consultant's home, personal office, or at Employer's current place of business
during the hours 8:00 a.m. - 6:00 p.m., Monday through Friday. No traveling will
be required unless mutually agreed upon. Consultant must be given two weeks
notice for any mandatory on site meetings at Employer's offices. Any consulting
hours performed beyond 12 hours per month will be compensated at the rate of
$150 per hour, payable 15 days from receipt of the invoice.
2. TERM
The term of this Agreement shall commence on the date hereof
and terminate at the expiration of the first Consulting Period. Thereafter, upon
agreement of the parties, the term of this Agreement may be extended at the end
of each Consulting Period for a period of one additional year from the date of
the expiration of the then current Consulting Period. After the first six-months
of the initial Consulting Period, this Agreement can be cancelled by either
party with 30 days written notice.
3. COMPENSATION
3.1. As full and complete compensation to Consultant for the
performance of his duties and agreements hereunder, Employer shall pay to
Consultant (a) the sum of $1,500 per month for each month in which consulting
services are provided, payable at the beginning of each month, and (b) Buyer
shall issue to Consultant at the commencement of the Consulting Period and at
each renewal, if any, stock options to purchase 5,000 shares of Buyer's common
stock at an exercise price equal to the fair market value of Buyers' common
stock on the date the options are to be granted. The fair market value of
Buyer's stock shall be determined in accordance with the following provisions:
(a) If the shares are traded on the Nasdaq National
Market or the Nasdaq Small Cap Market, then the fair market value shall be the
closing selling price per share on the date in question, as such price is
reported by the National Association of Securities Dealers on the applicable
market. If there is no closing selling price for the shares on the date in
question, then the fair market value shall be the closing selling price on the
last preceding date for which such quotation exists.
(b) If the shares are listed on any stock exchange,
then the fair market value shall be the closing selling price per share on the
date in question on the stock exchange determined by the Buyer's Chief Financial
Officer to be the primary market for the shares, as such price is officially
quoted in the composite tape of transactions on such exchange. If there is no
closing selling price for the shares on the date in question, then the fair
market value shall be the closing selling price on the last preceding date for
which such quotation exists.
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(c) If the shares are traded over-the-counter on the
NASDAQ System, then the fair market value shall be the closing price if one is
available, or the mean between the bid and asked prices on said System at the
close of business on the date of valuation; and
(d) If neither (a), (b) nor (c) applies, the fair
market value shall be determined by the Buyer's Board of Directors in good
faith. Such determination shall be conclusive and binding on all persons.
The options shall be become fully exercisable on the date of grant.
3.2 Employer will pay for Consultant's medical insurance
coverage under COBRA for the first six months of the initial Consulting Period.
Thereafter, Consultant may continue medical insurance coverage under COBRA at
his cost.
4. TERMINATION.
4.1 For Cause. Employer shall have the right to terminate this
Agreement for cause, immediately upon written notice to Consultant, at any time
on or after the occurrence of any of the following events:
(a) Consultant's death, adjudication as mentally
incompetent, or mental or physical disability preventing Consultant from
performing his duties under this Agreement for a period of 60 consecutive days;
(b) Disclosure by Consultant of material confidential
information of Employer in an unauthorized manner;
(c) Consultant's willful and unreasonable failure or
refusal to perform specific directives of Employer.
(d) Dishonesty of Consultant affecting Employer;
(e) Drunkenness or use of drugs which interferes with
the performance of Consultant's duties and responsibilities under this
Agreement;
(f) Consultant's conviction of a felony or of any
crime involving moral turpitude, fraud or misrepresentation;
(g) Any gross or willful conduct of Consultant
resulting in substantial loss to Employer, or substantial damage to Employer's
reputation;
(h) Incompetence on the part of Consultant in the
performance of the duties and responsibilities under this Agreement; or
(i) Any material breach of any of the provisions of
this Agreement by Consultant.
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In the event of termination for cause, Employer and Buyer shall pay Consultant
the compensation and benefits otherwise payable to Consultant hereunder through
the date of termination.
4.2 Consultant's Duties on Termination. Upon termination of
his employment with Employer for any reason, Consultant agrees to deliver
promptly to Employer all equipment, notebooks, documents, memoranda, reports,
files, samples, books, correspondence, lists, computer disks, or other written
or graphic records, and the like, relating to Employer's business, which are or
have been in his possession or under his control.
5. CONFIDENTIALITY.
Consultant agrees that he will not at any time, whether during
or subsequent to the term of Consultant's employment by Employer, unless
specifically consented to in writing by Employer, either directly or indirectly
divulge, disclose or communicate to any person, firm, or corporation, any
confidential, trade secret or proprietary information of Employer or Buyer.
Confidential, trade secret, or proprietary information of Employer or Buyer
means any information not generally known in Employer's or Buyer's industry
which is of a sensitive nature or commercial value to Employer or Buyer
(collectively "'Confidential Information") including, without limitation, the
names, buying habits, or practices of any of Employer's or Buyer's clients or
customers, Buyer or Employer's marketing methods and related data, the names of
any of the vendors or suppliers of either entity, the costs of materials or
services for either entity, the prices either entity obtains or has obtained or
at which it sells or has sold its services, any lists or other written records
used in the business of either entity, compensation paid to employees and other
terms of employment for either entity, or any other information of, about, or
concerning the business of Employer or Buyer, their respective manner of
operation, or other confidential data of any kind, nature, or description.
Consultant agrees that as between him and Employer and Buyer, all of the
Confidential Information constitutes important and material, trade secrets of
Employer or Buyer and affect the successful conduct of the their respective
businesses, and goodwill, and that any breach of any term of this section is a
material breach of this Agreement. All equipment, notebooks, documents,
memoranda, reports, files, samples, books, correspondence, lists, other written
and graphic records, and the like, affecting or relating to the business of
Employer or Buyer, which Consultant shall prepare, use, construct, observe,
possess, or control in connection with his employment shall be and remain the
sole property of such entity.
6. CONSULTANT NOT AN EMPLOYEE.
This Agreement does not constitute a hiring by any party. It
is the parties' intention for Consultant to be an independent contractor and not
Employer's employee. Consultant shall retain sole and absolute discretion and
judgment in the manner and means of performing his activities, responsibilities,
or services under this Agreement. Consultant is under the control of Employer as
to the result of Consultant's work only and not as to the means by which such
result is accomplished. This Agreement shall not be construed as a partnership,
and Employer shall not be liable for any obligation incurred by Consultant.
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7. PRIOR EMPLOYMENT.
Consultant hereby represents and warrants that he is not subject to any
confidentiality, secrecy or similar agreement with any prior employer which
would interfere with his ability to perform his obligations under this
Agreement. Consultant further covenants that, in the course of his employment
with Employer, he will not use or disclose any trade secrets or proprietary
information acquired from or learned from any prior employer. Consultant hereby
agrees to indemnify and hold harmless Employer from any claims by prior
employers of Consultant.
8. MISCELLANEOUS.
8.1 Severability. If any provision of this Agreement shall be
found by any court of competent jurisdiction to be invalid or unenforceable,
then the parties hereby waive such provision to the extent that it is found to
be invalid or unenforceable and to the extent that to do so would not deprive
one of the parties of the substantial benefit of its bargain. Such provision
shall, to the extent allowable by law and the preceding sentence, be modified by
such court so that it becomes enforceable and, as modified, shall be enforced as
any other provision hereof, all the other provisions continuing in full force
and effect.
8.2 Remedies. Consultant acknowledges that the service to be
provided by him is of a special, unique, unusual, extraordinary and intellectual
character, which gives it peculiar value the loss of which cannot be reasonably
or adequately compensated in damages in an action at law. Accordingly,
Consultant hereby consents and agrees that for any breach or violation by
Consultant of any of the provisions of this Agreement including, without
limitation, Section 5, a restraining order and/or injunction may be issued
against Consultant, in addition to any other rights and remedies Employer or
Buyer may have.
8.3 No Waiver. The failure by either party at any time to
require performance or compliance by the other of any of its obligations or
agreements shall in no way affect the right to require such performance or
compliance at any time thereafter. The waiver by either party of a breach of any
provision hereof shall not be taken or held to be a waiver of any preceding or
succeeding breach of such provision or as a waiver of the provision itself. No
waiver of any kind shall be effective or binding, unless it is in writing and is
signed by the party against whom such waiver is sought to be enforced.
8.4 Assignment. This Agreement and all rights hereunder are
personal to Consultant and may not be transferred or assigned by Consultant at
any time. Employer may assign its rights, together with its obligations
hereunder, to any parent, subsidiary, affiliate or successor, or in connection
with any sale, transfer or other disposition of all or substantially all of its
business and assets; provided, however, that any such assignee assumes
Employer's obligations hereunder. Consultant has the right to cease providing
consulting services upon 30 days written notice if this Agreement is assigned.
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8.5 Withholding. All sums payable to Consultant hereunder
shall be reduced by all federal, state, local and other withholding and similar
taxes and payments required by applicable law.
8.6 Entire Agreement. This Agreement, and the other agreements
referred to herein, constitute the entire and only agreement between the parties
relating to employment of Consultant with Employer, and this Agreement
supersedes and cancels any and all previous contracts, arrangements or
understandings with respect thereto.
8.7 Amendment. This Agreement may be amended, modified,
superseded, canceled, renewed or extended only by an agreement in writing
executed by both parties hereto.
8.8 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and hand delivered, sent by
facsimile, sent by certified first class mail, postage pre-paid, or sent by
nationally recognized express courier service. Such notices and other
communications shall be effective upon receipt if hand delivered or sent by
facsimile, five (5) days after mailing if sent by mail, and one (1) day after
dispatch if sent by express courier, to Employer at its principal place of
business and to Consultant at his home address last shown on the records of
Employer, or at such other addresses as either party may hereafter designate in
writing to the other.
8.9 Binding Nature. This Agreement shall be binding upon, and
inure to the benefit of, the successors and personal representatives of the
respective parties hereto.
8.10 Headings. The headings contained in this Agreement are
for reference purposes only and shall in no way affect the meaning or
interpretation of this Agreement. In this Agreement, the singular includes the
plural, the plural included the singular, the masculine gender includes both
male and female referents, and the word "for" is used in the inclusive sense.
8.11 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which, taken together, constitute one and the same agreement.
8.12 Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be construed in accordance with the laws
of the State of New Jersey, without giving effect to the principles of conflict
of laws.
8.13 Remedies Not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy. The election of any one or more remedies by Employer
shall not constitute a waiver of the right to pursue other available remedies.
8.14 Jurisdiction. Any action to enforce the provisions of
this Agreement shall be brought and maintained in any state or federal court of
competent jurisdiction in Orange County, California, and the parties hereby
irrevocably consent to the jurisdiction of such courts.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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Xxxxx Xxxxxx
MICROBIZ, INC.
By
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CAM Commerce Solutions, Inc.
By
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