Exhibit 10.13
INDEPENDENT CONSULTING AGREEMENT
This AGREEMENT dated this 23rd day of December, 1997 and made effective January
1, 1998, is between CSG Systems, Inc., a Delaware corporation with its principal
place of business at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx
00000 (hereinafter referred to as "CSG") and Xxxxxx X. Xxxxxx, whose residence
is located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred
to as "Xxxxxx").
WITNESSETH:
WHEREAS, CSG is engaged in the development, marketing and support of computer
programs and related systems associated with providing billing systems and
services for the communications industry;
WHEREAS, Xxxxxx is engaged in the business of providing certain services to
businesses such as that of CSG and customers of CSG;
WHEREAS, Xxxxxx has retired from his position as President and Chief Technology
Officer of the Company, and pursuant to his understanding with the Board of
Directors of CSG, as more fully described in his Separation Agreement and
Releases dated December 31, 1997 ("Separation Agreement"), Xxxxxx has agreed to
provide to CSG consultation services at significantly reduced rates in exchange
for the consideration contained in the Separation Agreement; and
WHEREAS, Xxxxxx desires to be retained as an advisor and consultant to CSG and
CSG desires to retain Xxxxxx on all of the terms and conditions hereof.
NOW, THEREFORE, in consideration of the promises, covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. APPOINTMENT
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CSG hereby retains Xxxxxx, and Xxxxxx hereby agrees to serve, as an advisor
and consultant to CSG during the term of this Agreement in accordance with
its terms.
2. TERM AND TERMINATION
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(A) The term of this Agreement shall be that term specified on Schedule A
attached hereto, unless sooner terminated as hereinafter provided or
unless extended in writing by mutual consent of the parties.
(B) Notwithstanding any other provision hereof:
1) Xxxxxx may terminate this Agreement for cause, immediately upon
written notice to CSG, if Xxxxxx shall have determined that: (i)
CSG has committed a material breach of any provision of this
Agreement; or (ii) there shall have occurred the insolvency,
bankruptcy or dissolution of CSG.
2) CSG may terminate this Agreement for cause, immediately upon
written notice to Xxxxxx if: (i) Xxxxxx is convicted of, or
enters a plea of guilty or no contest to a charge of theft, fraud
or embezzlement involving a loss of money or other property of
CSG, or of any customer or client of CSG; or (ii) Xxxxxx is
convicted of committing a crime involving moral turpitude.
(C) Termination of this Agreement in accordance with any of the provisions
of this Section 2 shall be without prejudice to any other remedy to
which either party may be entitled either at law, in equity or under
this Agreement; provided, however, that CSG's exclusive liability to
Xxxxxx shall be the payment of fees earned by Xxxxxx through the
effective date of termination.
3. DUTIES OF XXXXXX; EXCLUSIVITY
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(A) Xxxxxx shall provide such consultation, advisory services and
assistance regarding the technical management, operations and
administration of CSG, and such other services not inconsistent with
the position of an advisor and consultant as directed by an authorized
representative of CSG from time to time. Those duties are described
generally on Schedule A.
(B) During the term of this Agreement, Xxxxxx shall not provide any
consulting or other services to any competitor of CSG.
4. COMPENSATION
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For all services provided by Xxxxxx under the terms of this Agreement, CSG
shall pay Xxxxxx a consulting fee as specified on Schedule X. Xxxxxx shall
invoice CSG monthly, in arrears, for services rendered hereunder.
5. BUSINESS EXPENSES
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Xxxxxx shall be reimbursed by CSG for all reasonable expenses incurred by
Xxxxxx associated with his performance under this Agreement, including, but
not limited to, costs of transportation, meals and lodging. Xxxxxx shall
maintain receipts and other documentary evidence which establish the date,
place, amount and other character of the
expenditure to be reimbursed by CSG, and shall not, in performing his
duties hereunder, make any expenditure which would violate any statute, be
against public policy or subject either CSG or Xxxxxx to civil or criminal
liability.
6. OWNERSHIP OF WORK PRODUCT
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All Work Product created or developed by Xxxxxx during the term of this
Agreement is and shall be the exclusive property of CSG, and all title and
interest therein shall vest in CSG and shall be deemed to be a work made
for hire and made in the course of the services rendered hereunder. To the
extent that title to any such Work Product may not, by operation of law,
vest in CSG or such Work Product may not be considered works made for hire,
all rights, title and interest therein are hereby irrevocably assigned to
CSG for the purposes of the United States copyright laws and the laws of
any other country in which the work is to be performed. Additionally, to
the extent permitted by law, Xxxxxx waives any moral rights he may have in
the Work Product. All such materials shall belong exclusively to CSG, with
CSG having the right to obtain and to hold in its own name, copyrights,
patents, registrations or such other protection as may be appropriate to
the subject matter, and any extensions and renewals thereof. During the
term of this Agreement and thereafter, Xxxxxx agrees to provide CSG and any
person designated by CSG, such assistance as CSG, in its sole discretion,
deems necessary to perfect the rights defined in this paragraph. CSG will
pay Xxxxxx for such assistance at double the daily rate of compensation
that is set forth on Exhibit A attached hereto. "Work Product" includes,
but is not limited to, all information, reports, studies, object or source
code, flow charts, diagrams and other tangible or intangible material of
any nature whatsoever produced as a result of the performance of this
Agreement, as well as all copies thereof.
Xxxxxx agrees to sign all papers, take all rightful oaths and perform all
acts necessary to make this Agreement effective as to any particular ideas
or applications for letters, patents covering same, domestic or foreign,
and including any extensions, division or reissues thereof, and Xxxxxx
agrees to do all lawful acts to protect CSG's rights and interests and
those of any parent or affiliated companies, including the giving of
testimony. Xxxxxx will be compensated for time spent fulfilling these
obligations at double the rate as for performing his services hereunder.
Unless otherwise requested by CSG, upon the completion of the services to
be performed under each Schedule of this Agreement or upon the earlier
termination of each such Schedule, Xxxxxx shall immediately turn over to
CSG all materials and deliverables developed pursuant to such Schedule.
7. INDEMNIFICATION
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If Xxxxxx becomes a party to or other participant in, or is threatened to
be made a party to or witness or other participant, in a suit, proceeding
or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (a "Claim") by reason of Xxxxxx'x
position as an advisor or consultant to CSG or by reason of any action or
inaction on the part of Xxxxxx at the request of CSG, CSG shall indemnify
Xxxxxx for any expenses (including attorneys' fees) incurred in defending
such Claim(s). This Section shall not apply with respect to acts or
omissions from which Xxxxxx may not be relieved of liability under
applicable law, or any Claim(s) initiated or brought voluntarily by Xxxxxx
and not by way of defense.
8. CONFIDENTIALITY
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Xxxxxx shall not, upon termination of this Agreement, publish or disclose,
without the prior written consent of CSG, any business record, memorandum,
paper or document, any correspondence, product specification or code, cost
data, customer list, estimate, market survey or any other document
containing any information or trade secret relating to CSG's business, or
that of its customers, subsidiaries, parents or affiliates.
9. RELATIONSHIP AND TAXES
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Each party to this Agreement shall be and act as an independent contractor
and not as an agent or partner of, or joint venturer with, the other party
for any purpose, and neither party by virtue of this Agreement shall have
any right, power or authority to act or create any obligation, expressed or
implied, on behalf of the other party. Xxxxxx acknowledges and agrees
that, under no circumstances, shall he be considered an employee of CSG
within the meaning or application of any national or state unemployment
insurance law, old age benefit law, workmen's compensation or industrial
accident law, or other industrial or labor law, any tax law, or any CSG
employee benefit plan. Xxxxxx shall be solely responsible for the payment
of any and all taxes associated with his performance under this Agreement.
10. XXXXXX'X REPRESENTATIONS, COVENANTS AND WARRANTIES
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Xxxxxx hereby represents, covenants and warrants to CSG that Xxxxxx has
full power and authority to enter into this Agreement and to render the
services contemplated hereby. Xxxxxx represents, covenants and warrants
that his entering into this Agreement and performance hereunder shall not,
for any reason whatsoever, constitute a breach by Xxxxxx of any duty owed
to a third party, including, but not limited to, a former employer. Xxxxxx
further represents, covenants and warrants that he shall not,
throughout the term of this Agreement, utilize any proprietary information
not belonging to Xxxxxx which would result in a breach of any such duty.
11. DESIGNATED REPRESENTATIVE
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CSG's representative who shall serve as the CSG contact with Xxxxxx is
designated on Schedule A. All work produced by Xxxxxx, whether of a
tangible or intangible form, shall be submitted to this individual for
review and consideration.
12. ENTIRE AGREEMENT
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This Agreement and any schedules or agreements referred to or incorporated
herein constitutes and expresses the entire agreement and understanding
between the parties hereto with respect to all matters herein contained and
supersedes all prior agreements between the parties. There is no
statement, promise, agreement or obligation in existence which conflicts
with the terms of this Agreement or may modify, enlarge or invalidate this
Agreement or any provisions hereof.
13. SUCCESSORS AND ASSIGNS
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All covenants, stipulations and promises in this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, executors, representatives, successors and permitted assigns.
Neither party shall have the right to assign or otherwise transfer any
right or obligation under this Agreement except with the written consent of
the other party; provided, however, that a successor in interest by merger,
operation of law, assignment, purchase or otherwise of the entire business
of CSG shall acquire the entire interest of CSG hereunder without Xxxxxx'x
prior written consent; and further provided that CSG may assign its rights
and obligations hereunder or any portion thereof without Xxxxxx'x prior
written consent to any subsidiary, agent, licensor or other affiliated
party of CSG.
14. WAIVERS
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No failure on the part of either party to exercise, and no delay in the
exercising of, any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or future exercise thereof or the exercise of
any other right or remedy granted hereby or by any related document or by
law.
15. AMENDMENTS
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This Agreement may not be and shall not be deemed or construed to have been
modified, amended, rescinded, canceled or waived in whole or in part,
except by written instrument signed by the parties hereto.
16. GOVERNING LAW
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This Agreement shall be deemed to be a contract made under the laws of the
United States, State of Nebraska and any dispute or controversy which may
arise out of or in connection with this Agreement shall be construed in
accordance with and governed by the laws of such State, without regard to
any conflict of laws rules.
17. CONSTRUCTION
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Throughout this Agreement the use of the singular number shall be construed
to include the plural; the plural the singular; and the use of any gender
shall include all genders whenever required by the context.
18. FURTHER ASSURANCES
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Each party will give its full cooperation to the other in achieving and
fulfilling the terms of this Agreement, and to that end each party shall
give all consents and information and execute all such documents as may be
reasonably required to fulfill and achieve these purposes, including such
as may be required by governmental laws or regulations.
19. SEVERABILITY
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Whenever possible, each provision of this Agreement is to be effective and
valid under applicable law. If any provision of this Agreement or any
related document shall be prohibited by or deemed invalid or enforceable
under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remaining
provisions of this Agreement or such related document.
20. NOTICES AND WRITTEN CONSENTS
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All notices, requests, demands and written consents given to or made upon
the parties hereto shall, except as otherwise specified herein, be in
writing and be delivered by hand or by registered mail to the parties at
the addresses appearing above.
Any party may, by written notice hereunder to all parties, designate a
changed address for such party. Notice shall be considered communicated
and consent shall be considered given as of the date it is received.
21. SURVIVING SECTIONS
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The following Sections shall survive the termination of this Agreement:
Sections 6, 7 and 8.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CSG SYSTEMS, INC. XXXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
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Signature Signature
Xxxx X. Xxxxxx
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Print Name
Chairman & CEO
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Title
SCHEDULE A
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TO INDEPENDENT CONSULTING AGREEMENT
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BETWEEN XXXXXX X. XXXXXX AND CSG SYSTEMS, INC.
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DATED
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SECTION 2: TERM OF AGREEMENT. This Agreement shall commence on the date of its
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execution and shall terminate on its second anniversary, unless terminated
sooner in accordance with the terms of this Agreement.
SECTION 3: DUTIES OF XXXXXX.: The Scope of Work and Statement of Work to be
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provided by Xxxxxx under the Agreement shall consist of the following:
Xxxxxx shall be chiefly responsible for advising CSG's CFO, COO, CEO and General
Counsel in the technical management and administration of the Company. Special
Projects shall be assigned from time to time by any and all of these
individuals.
The parties agree that additional Schedules may be added to this Agreement from
time to time upon the mutual written consent of the parties, which supplement or
amend this initial statement describing the duties of Xxxxxx.
SECTION 4: COMPENSATION. Xxxxxx shall be paid a consulting fee at a rate of
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$3,000 per calendar year quarter on a retainer basis, inclusive of all costs,
expenses and taxes, for the provision of services provided hereunder. For this
quarterly consulting fee, Xxxxxx will be expected to work three (3) days per
calendar quarter. CSG may not require Xxxxxx to work additional days, but shall
compensate Xxxxxx at a daily rate of $1,000 for each day worked (based on an 8
hour work day) in excess thereof. Xxxxxx will be entitled to receive a pro-
rated amount of such daily rate for any partial days worked in excess of one (1)
day per month. Xxxxxx and CSG agree and understand that the compensation paid
hereunder is significantly less than the market rate Xxxxxx may demand in the
open marketplace. The parties agree that this reduced rate is in partial
consideration of the benefits granted to Xxxxxx pursuant to the Separation
Agreement, which agreement is hereby incorporated into this Agreement by
reference, and which benefits include, but are not limited to, the vesting of
9,800 Incentive Stock Options on December 30, 1997. Regardless of the actual
amount of work expected of or performed by Xxxxxx during the term of this
Agreement, the restriction on Xxxxxx providing consulting services to any
competitor of CSG as set forth in Section 3(B) of this Agreement shall remain in
full force and effect throughout the term hereof.
SECTION 11: DESIGNATED REPRESENTATIVE. The CSG Designated Representative for
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purposes of this Agreement, whom shall be responsible for review Xxxxxx'x Work
Product, as well as approving all reimbursable expenses, shall be Xxxx Xxxxxx.
