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EXHIBIT 10.16
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ("Agreement") is made and entered
into by and between Calico Commerce, Inc. ("Company), having a principal place
of business at 000 Xxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, and
Xxxx X. Xxxxxxx ("Contractor"), an individual, having a principal place of
business at 00000 Xxxxx Xxxxxxxx Xxxx, Xxx Xxxxx Xxxxx, XX 00000. This Agreement
will become effective on the same date as the Separation Agreement and Release
entered into by and between the parties (the "Effective Date").
1. Retention of Services. Company hereby retains Contractor to perform
sales and marketing and executive transition consulting services when and as
requested by Company.
2. Compensation.
2.1 Fees. Company will pay Contractor aggregate amount of
$290,000 in consideration of the services rendered hereunder. The fee shall be
paid in equal monthly installments of $72,500 per month on each of August 1,
2001, September 1, 2001, October 1, 2001 and November 1, 2001.
2.2 Expenses. Contractor shall be responsible for and pay all
expenses incurred in providing services to Company under this Agreement.
3. Independent Contractor Relationship. Contractor's relationship with
Company will be that of an independent contractor, and nothing in this Agreement
is intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship. Contractor will not be entitled to any of
the benefits that Company may make available to its employees, including, but
not limited to, group health, life insurance, profit-sharing or retirement
benefits, paid vacation, holidays or sick leave. Contractor will not be
authorized to make any representation, contract or commitment on behalf of
Company unless specifically requested or authorized in writing to do so by the
Chief Executive Officer of Company. Contractor will be solely responsible for
all tax returns and payments required to be filed with, or made to, any federal,
state or local tax authority with respect to the performance of services and
receipt of fees under this Agreement. No part of Contractor's compensation will
be subject to withholding by Company for the payment of any social security,
federal, state or any other employee payroll taxes. Company will regularly
report amounts paid to Contractor by filing a Form 1099-MISC with the Internal
Revenue Service as required by law.
3.1 Workplace, Hours and Instrumentalities. Contractor may
perform the services required by this Agreement at any place or location and at
such times as Contractor and Company shall determine. Company will at its
convenience make available to Contractor suitable office space, computer
equipment, and the like, to facilitate the efficient rendering of Contractor's
services to Company. Such facilities shall be used by Contractor, if at all, at
Contractor's discretion.
3.2 Confidential Information.
(a) Definition of Confidential Information.
"Confidential Information" as used in this Agreement shall mean any and all
technical and non-technical information including patent, copyright, trade
secret, and proprietary information, techniques, sketches,
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drawings, models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programs, software source documents, and formulae related
to the current, future and proposed products and services of Company, Company's
suppliers and customers, and includes, without limitation, Company Property
(defined below), and Company's information concerning research, experimental
work, development, design details and specifications, engineering, financial
information, procurement requirements, purchasing manufacturing, customer lists,
business forecasts, sales and merchandising and marketing plans and information.
Such information will be clearly marked "Confidential" by the Company.
(b) Nondisclosure and Nonuse Obligations. Except as
permitted in this paragraph, Contractor shall neither use nor disclose the
Confidential Information. Contractor may use the Confidential Information solely
to perform services for the benefit of Company. Contractor agrees that
Contractor shall treat all Confidential Information of Company with the same
degree of care as Contractor accords to Contractor's own Confidential
Information, but in no case less than reasonable care. If Contractor is not an
individual, Contractor agrees that Contractor shall disclose Confidential
Information only to those of Contractor's employees who need to know such
information, and Contractor certifies that such employees have previously
agreed, either as a condition of employment or in order to obtain the
Confidential Information, to be bound by terms and conditions substantially
similar to those terms and conditions applicable to Contractor under this
Agreement. Contractor agrees not to communicate any information to Company in
violation of the proprietary rights of any third party. Contractor will
immediately give notice to Company of any unauthorized use or disclosure of the
Confidential Information to which he becomes aware, and agrees to assist Company
in remedying any such unauthorized use or disclosure of the Confidential
Information.
(c) Exclusions from Nondisclosure and Nonuse
Obligations. Contractor's obligations under Paragraph 4.2(b) ("Nondisclosure and
Nonuse Obligations") with respect to any portion of the Confidential Information
shall not apply to any such portion which Contractor can demonstrate: (a) was in
the public domain at or subsequent to the time such portion was communicated to
Contractor by Company through no fault of Contractor; (b) was rightfully in
Contractor's possession free of any obligation of confidence at or subsequent to
the time such portion was communicated to Contractor by Company; or (c) was
developed by employees of Contractor independently of and without reference to
any information communicated to Contractor by Company. A disclosure of
Confidential Information by Contractor, either: (a) in response to a valid order
by a court or other governmental body; (b) otherwise required by law; or (c)
necessary to establish the rights of either party under this Agreement, shall
not be considered to be a breach of this Agreement or a waiver of
confidentiality for other purposes; provided, however, that Contractor shall
provide prompt prior written notice thereof to Company to enable Company to seek
a protective order or otherwise prevent such disclosure.
3.3 Ownership and Return of Company Property. All materials
(including, without limitation, documents, drawings, models, apparatus,
sketches, designs, lists, all other tangible media of expression), equipment,
documents, data, and other property furnished to Contractor by Company, whether
delivered to Contractor by Company or made by Contractor in the performance of
services under this Agreement (collectively, the "Company Property") are the
sole and exclusive property of Company or Company's suppliers or customers, and
Contractor hereby does and will assign to Company all rights, title and interest
Contractor may have or acquire in the Company Property. Contractor agrees to
keep all Company Property at
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Contractor's premises unless otherwise permitted in writing by Company. At the
end of this Agreement, or at Company's request, and no later than five (5) days
after the end of this Agreement or Company's request, Contractor shall destroy
or deliver to Company, at Company's option: (a) all Company Property; (b) all
tangible media of expression in Contractor's possession or control which
incorporate or in which are fixed any Confidential Information; and (c) written
certification of Contractor's compliance with Contractor's obligations under
this subparagraph.
3.4 Observance of Company Rules. At all times while on
Company's premises, Contractor will observe Company's rules and regulations with
respect to conduct, health and safety and protection of persons and property.
4. No Conflict of Interest. Contractor warrants that, to the best of
Contractor's knowledge, there is no other contract or duty on the part of
Contractor that conflicts with or is inconsistent with this Agreement. This
Section 4 does not prevent Contractor from performing the same or similar
services for clients other than Company.
5. Term and Termination.
5.1 Term. This Agreement is effective as of the Effective Date
set forth above and will end on November 15, 2001.
5.2 Duties Upon Termination. Upon termination or expiration of
this Agreement, Contractor agrees to cease all work on behalf of Company. Upon
termination by the Company for any reason, all fees described in Section 2.1
above that have not yet been paid to Contractor shall become immediately due and
payable.
6. Nonsolicitation. During the term of this Agreement, and for a period
of one (1) year immediately following this Agreement's termination or
expiration, Contractor agrees not to, directly or indirectly, separately or in
association with others, interfere with, impair, disrupt or damage Company's
business by soliciting, encouraging or causing others to solicit or encourage
any of Company's employees to discontinue their employment with Company. The
foregoing shall not preclude Contractor from providing a personal employment
reference for departing employees.
7. General Provisions.
7.1 Successors and Assigns. The rights and obligations of
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of Company. Contractor may not assign its
rights, subcontract or otherwise delegate its obligations under this Agreement
without Company's prior written consent; provided, however, that upon
Contractor's death prior to termination or expiration of this Agreement, all
amounts remaining due and payable hereunder shall be paid and assigned to his
heirs.
7.2 Survival. The definitions contained in this Agreement and
the rights and obligations contained in Paragraphs 4 ("Intellectual Property
Rights"), 7 ("Noninterference with Business") and 8 ("General Provisions") will
survive any termination or expiration of this Agreement.
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7.3 Notices. Any notice required or permitted by this
Agreement shall be in writing and shall be delivered as follows, with notice
deemed given as indicated: (a) by personal delivery, when delivered personally;
(b) by overnight courier, upon written verification of receipt; (c) by telecopy
or facsimile transmission, upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
above or to such other address as either party may specify in writing.
7.4 Agreement to Arbitrate. The parties agree that any and all
disputes arising out of the terms of this Agreement, their interpretation, and
any of the matters herein released, shall be subject to arbitration in Santa
Xxxxx County, before the American Arbitration Association under its California
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The arbitrator may grant injunctions and other relief in such disputes. The
decision of the arbitrator shall be final, conclusive and binding on the parties
to the arbitration. The parties agree that the prevailing party in any
arbitration shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The parties agree that the
prevailing party in any arbitration shall be awarded its reasonable attorney's
fees and costs. Employee expressly acknowledges that he is waiving any right to
a jury trial for any and all claims covered by this Agreement.
7.5 Governing Law. This Agreement shall be governed in all
respects by the laws of the United States of America and by the laws of the
State of California, as such laws are applied to agreements entered into and to
be performed entirely within California between California residents. Each of
the parties irrevocably consents to the exclusive personal jurisdiction of the
federal and state courts located in California, as applicable, except that in
actions seeking to enforce any order or any judgment of such federal or state
courts located in California, such personal jurisdiction shall be nonexclusive.
7.6 Severability. If any provision of this Agreement is held
by a court of law to be illegal, invalid or unenforceable, (i) that provision
shall be deemed amended to achieve as nearly as possible the same economic
effect as the original provision, and (ii) the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired thereby.
7.7 Waiver; Amendment; Modification. No term or provision
hereof will be considered waived by either party, and no breach excused by
either party, unless such waiver or consent is in writing signed by the party
against whom the waiver is sought. The waiver by either party of, or consent by
either party to, a breach of any provision of this Agreement by the other party,
shall not operate or be construed as a waiver of, consent to, or excuse of any
other or subsequent breach by such party. This Agreement may be amended or
modified only by mutual agreement of authorized representatives of the parties
in writing.
7.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to this subject matter and supersedes all
prior or contemporaneous oral or written agreements concerning such subject
matter. The terms of this Agreement will govern all services undertaken by
Contractor for Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates shown below.
CALICO COMMERCE, INC. XXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
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XXXXXXX X. XXXXX, FOR AND ON XXXX X. XXXXXXX
BEHALF OF THE BOARD OF DIRECTORS
Date: July 16, 2001 Date: July 16, 2001
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