EXHIBIT 10.15
INDEPENDENT CONTRACTOR AGREEMENT
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THIS INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement"), is made and
entered into as of February 5, 1998, effective as of the Termination Date (as
defined below), by and between SQL FINANCIALS INTERNATIONAL, INC., a Delaware
corporation (hereinafter referred to as the "Company"); and XXXXXX X. XXXXXX, a
Georgia resident (hereinafter referred to as the "Contractor") (the Company and
the Contractor being sometimes referred to herein as the "parties").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the Contractor to render services to
the Company from time to time as an independent contractor; and
WHEREAS, it is the intent of the parties that this Agreement shall apply to
the Contractor's engagement by the Company for the full term thereof and, where
applicable, after such term; and shall apply regardless of the Contractor's
description and/or location, all as same may change from time to time; and
WHEREAS, the Contractor desires to perform the services set forth herein
for the Company, and the Company and the Contractor mutually desire to set forth
the terms and conditions of such arrangement, all as herein set forth;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants herein contained, the sum of $10.00 in hand paid, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. MUTUAL AGREEMENT. By the execution of this Agreement, both parties
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evidence their assent to, and agreement to abide by, each and every term and
provision hereof.
2. DEFINITIONS. As used in this Agreement, the following words (and any
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derivative form thereof) shall have the meaning set forth below:
a. AGREEMENT. This term includes this Independent Contractor
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Agreement.
b. COMPANY. SQL Financials International, Inc., a Delaware
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corporation, and any successor corporation or assignee hereof.
c. COMPENSATION. This term means any and all payments and
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remuneration provided to the Contractor by the Company, regardless of the form
thereof, including but not limited to fees, commissions, discounts, incentives,
advances and all other forms of consideration for services rendered.
d. CUSTOMERS. Those persons, corporations, firms, partnerships, or
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any other entities whatsoever, which have purchased, licensed or leased or shall
purchase, license or lease after the date hereof, any of the Products offered by
the Company.
e. PRODUCTS. All goods, property, products, systems, and programs
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now or hereafter offered for sale, license or lease by the Company to Customers
and prospective Customers.
f. TERMINATION DATE. This term means the "Termination Date" as
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defined in Paragraph 3 of the Agreement with Xxxxxx X. XxXxxx dated February 5,
1998.
3. SERVICES. The Company hereby retains the Contractor as an independent
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contractor for the Company to perform the services described on Exhibit "A"
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attached hereto and incorporated herein as well as such other services as may be
reasonably requested from time to time by the Company, subject to mutual
agreement between the Contractor and the Company, (collectively the "Services")
on the terms and conditions set forth herein; and the Contractor hereby agrees
to perform such Services for the Company. Although the Company will not dictate
the time, manner, or method for the performance of the Services, the Contractor
agrees to devote his skills and reasonable best efforts to the performance of
such Services. Such Services shall be performed in a professional manner using
as high a degree of skill and care as is necessary in the Contractor's
discretion under the circumstances.
4. COMPENSATION FOR SERVICES. The Company shall pay Contractor as full
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Compensation for the Services the amount set forth on Exhibit "B" attached
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hereto. The Contractor shall also be reimbursed for all reasonable and necessary
business expenses of the type approved by the Company and incurred by Contractor
in connection with the performance of the Services hereunder; provided that as a
condition of reimbursement, the Contractor shall submit verification of the
nature and amount of such expenses. All such expenses shall be reimbursed by the
Company within thirty (30) days of submission of invoices, vouchers, etc.,
documenting such expenses. If requested by the Contractor, any approved
anticipated expenses to be incurred by the Contractor shall be advanced by the
Company to the Contractor.
5. CONFIDENTIAL INFORMATION. For the mutual benefit of the Contractor
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and the Company, the Company may provide the Contractor such information and
training in the Products offered by the Company and give Contractor other
assistance, support and access to Confidential Information regarding the
Company's business methods, products, services and Customers, all as deemed
necessary by the Company. All information or material regarding the Company's
business, the confidentiality of which has or could have commercial value or
utility in the business in which the Company is engaged or contemplates engaging
or information which if disclosed without authorization could be detrimental to
the business of the Company, including but not limited to its business plans,
methods of operation, products, software programs, documentation of computer
programs, programming procedures, algorithms, formulas, equipment, techniques,
existing and contemplated products, services, inventions, systems, devices
(whether or not patentable), management programs, sales literature, financial
methods and practices, plans, pricing, selling techniques, lists of the
Company's Customers, credit and financial data of the Company, and the
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Company's suppliers and present and prospective Customers, particular business
requirements of the Company's present and prospective Customers, and special
methods and processes involved in the Company's business, shall be deemed
Confidential Information and trade secrets of the Company and the Company's
exclusive property; provided, however, that Confidential Information shall not
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include information that has entered the public domain other than through the
actions of Contractor. The Contractor shall not disclose any such Confidential
Information or trade secrets to any person or entity whatsoever, nor will it use
any such Confidential Information or trade secret concerning the Company,
however obtained, other than in the furtherance of the Company's business and at
its direction; provided, however, that nothing in this paragraph shall be
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construed to limit the Contractor's subsequent use of information and training
in the Products acquired during the course of performing the Services that is
not Confidential Information. The provisions of this paragraph shall continue
in full force and effect during the term hereof, and survive the termination
hereof for any reason whatsoever.
6. OWNERSHIP AND ASSIGNMENT OF COPYRIGHTS, PROCESSES, PRODUCTS, OR
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INVENTIONS.
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a. The Contractor acknowledges and agrees that any and all programs,
program modifications, documentation, works, manuals, pamphlets, instructional
materials, computer programs, program codes, files, tapes, other copyrightable
material, common law and statutory trademark rights, patent rights, or any
portions thereof, that have been or may be created, authored, written,
conceived, originated or discovered in whole or in part by Contractor in
performing the Services hereunder, are and shall be the exclusive property of
the Company, and Contractor shall cooperate with the Company in the protection
of the Company's copyrights and proprietary rights therein and, to the extent
deemed desirable by the Company, the registration of such proprietary rights in
the name of the Company.
b. The Contractor shall immediately disclose and does hereby assign
to the Company all right, title and interest in and to all systems, programs,
inventions, copyrights, patents, common law and statutory trademarks and any
other creations (all the foregoing, for purposes hereof are called "Inventions")
that the Contractor may conceive, discover, develop, or create or assist in
whole or in part in performing the Services hereunder. The Contractor shall
comply with all of the Company's instructions and sign and deliver all documents
relative to said Inventions (whether in the United States or any foreign
country) requested by the Company for the purpose of vesting, securing or
confirming the Company's title thereto.
c. Contractor represents and warrants to Company as following:
i. PERSONAL SERVICES CONTRACT. Contractor acknowledges that
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this Agreement is in the nature of a personal services contract,
and the Services to be performed hereunder must be performed by
the Contractor personally and may not be assigned to a third-
party by the Contractor.
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ii. INDEPENDENT DEVELOPMENT. Any Inventions developed by
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Contractor in connection with the engagement hereunder shall be
developed through the independent, creative efforts of
Contractor.
iii. AUTHORITY OF CONTRACTOR TO ASSIGN OR SUBLICENSE. Except as
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otherwise provided herein, Contractor has the full right and
authority to assign or sublicense to Company all proprietary
rights in the Inventions created in connection with the
engagement hereunder, free and clear from any liens, claims,
licenses or encumbrances, and such assignment will not violate
any agreement, certificate or instrument to which Contractor is a
party or by which he is bound.
7. COMPANY PROPERTY. All property and materials (whether originals or
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duplicates and including, but not in any way limited to, products, product
designs, features and functionality, catalogs, price lists, quotation guides,
books, records, manuals, sales and licensing presentation literature, training
materials, calling or business cards, Customer records, Customer files, Customer
names, Customer addresses, Company Policies, rules, directives, correspondence,
documents, contracts, orders, messages, memoranda, notes, circulars, agreements,
bulletins, invoices, receipts, keys, diskettes, equipment, programs and
software) in the possession or control of the Contractor, which in any way
relate or pertain to the Company's business, whether furnished to the Contractor
by the Company or prepared, compiled, or acquired by the Contractor while
engaged by the Company, are the sole property of the Company. The Contractor
shall at any time upon request of the Company, and in any event without request
promptly on termination of this Agreement, transfer and deliver over all such
tangible materials to the Company. The Company shall be under no obligation to
pay to the Contractor any sums of money otherwise then due the Contractor or
becoming due thereafter until the Contractor has fully and unconditionally
complied with the provisions of this paragraph.
8. CUSTOMER AND EMPLOYEE NON-SOLICITATION COVENANTS. The Contractor
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acknowledges that it is and will become intimately familiar with Customers'
names and addresses, particular needs, demands, practices, trade secrets,
methods of operation, products, services, contracts, accounts, techniques, and
other confidential information and that the protection of the Company requires
that all such knowledge and information must remain the sole and private
property of the Company not to be disclosed to any other party nor used by the
Contractor against the Company or for the Contractor's benefit, except as
expressly set forth in this Agreement; provided, however, that this paragraph
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does not apply to any such knowledge or information that has entered the public
domain other than through the actions of Contractor. Accordingly, the
Contractor does hereby further warrant, represent, covenant, and agree during
the term of this Agreement, and for a period of two (2) years thereafter, as
follows:
a. COVENANT NOT TO SOLICIT BUSINESS FROM CERTAIN CUSTOMERS. The
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Contractor acknowledges that during the course of his engagement by the Company,
Contractor may be given an opportunity to, make contact with and strengthen ties
with Customers and potential Customers of the Company. During the term of this
Agreement and for a period of two (2) years thereafter, the
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Contractor shall not, directly or indirectly, for himself or any other person or
entity, solicit any Customer for the purchase or license of any product
competitive with any of the Products which are offered by the Company. As used
in the previous sentence, "Products" shall not include products that are
dissimilar to the Products in features, functionality, technical design and
price.
A "Customer" for purposes of this subparagraph 8.a. means any Customer
or prospective Customer with whom Contractor had Material Contact, as defined
below, during the Contractor's engagement.
"Material Contact" shall be deemed to exist between the Contractor and
each Customer or potential Customer of the Company (1) with whom the Contractor
dealt; (2) whose dealings with the Company were coordinated or supervised by the
Contractor; or (3) about whom the Contractor obtained confidential information
in the ordinary course of business as a result of such Contractor's association
with the Company; within two (2) years prior to the date of the Contractor's
termination hereof.
b. COVENANT NOT TO SOLICIT EMPLOYEES. During the term of this
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Agreement and for a period of two (2) years thereafter, neither the Contractor
nor the Company shall employ or solicit the employment of any one (1) or more
employees of the other party for the purpose of causing such employee(s) to
leave such employ or to take employment with such party or a competitor of such
party, until such employee has ceased to be employed by the other party for a
period of six (6) months; provided, however, that this paragraph shall not be
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deemed to prohibit (i) employment by XxXxxx Consulting Group, Inc. ("MCG"),
Technology Ventures, L.L.C. ("Tech Ventures"), or any subsidiary of MCG or Tech
Ventures, of any employees of the Company, if such employment commences while
Contractor serves as a director of the Company or (ii) employment by the
Company, or any subsidiary of the Company, of any employees of MCG or Tech
Ventures, if such employment commences while Contractor serves as a director of
the Company.
The foregoing covenants in subparagraphs 8.a. and 8.b. on the part of
the Contractor and the Company shall be deemed covenants separate and apart from
each other and from any other provision herein contained, and the existence of
any claim or cause of action on the part of either party against the other
party, whether arising from this Agreement or otherwise, shall in no way
constitute a defense to the enforcement of these covenants by such party, nor in
any way relieve the other party from the effect of this paragraph. The separate
covenants contained in this paragraph are separate and severable and no one of
them is dependent on any other and all shall not be invalid if any one of them
is declared invalid.
It is agreed and acknowledged by both parties that the restrictions in
the foregoing covenants in subparagraphs 8.a. and 8.b., as well as paragraphs 4,
5, 6 and 7 hereof, are reasonable, are not vague, overbroad, or indefinite, and
are designed to protect legitimate business interests of each party, and that in
the event of a breach of such covenants, the damages to either party would be
difficult or impossible to ascertain, and in addition to any other remedies
which either party may have under the law for breach of any or all of said
covenants, each party shall be entitled to injunctive and/or other equitable
relief against the violation of any said covenants. In the event that
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any court of competent jurisdiction shall determine that any provision of this
Agreement or the application thereof is unenforceable because of the duration or
scope thereof, the parties hereto agree that said court in making such
determination shall have the power to reduce the duration and scope of such
provision to the extent necessary to make it enforceable, and that the Agreement
in its reduced form shall be valid and enforceable to the full extent permitted
by law.
9. TERM; TERMINATION. This Agreement shall continue in full force and
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effect for one (1) year from the effective date of this Agreement unless
terminated earlier by either party in the event of a breach by the other party
of any of the terms or conditions of this Agreement which remains uncured for a
period of seven (7) days. In the event of such earlier termination, the
terminating party shall give seven (7) days' written notice to the other party
of its intention to so terminate the Agreement. Such notice or any notice
required under this Agreement may be given to either party by delivery at the
last known business address of the other. Except for agreements and covenants
herein specifically provided to be performed or to remain in force following
termination hereof, and except for payment of any Compensation which might be
owed to the Contractor for Services performed prior to termination, neither
party hereto shall, after termination hereof, be under any further obligation to
the other; provided that Contractor shall deliver to the Company all of the
Contractor's work in progress as well as all other Company Property as set forth
in paragraph 7 hereof. Without limiting the generality of the foregoing, the
parties shall remain obligated to one another after termination hereof with
respect to each parties' agreements and covenants contained in paragraphs 4, 5,
6, 7 and 8 hereof.
10. PAYMENT OF ADVANCES. The Contractor agrees that upon the termination
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hereof, it shall repay to the Company immediately any and all advances for
expenses, compensation, or otherwise which were paid by the Company, including
the value of goods or services furnished to it or for its benefit, not offset by
earnings or other credits due. The Contractor's duty to repay advances shall
apply to all advances not fully earned, owned by, and vested in the Contractor,
whether such advances be against fees or otherwise, and whenever made and for
whatever purpose, and even if not expressly made repayable at the time of such
advance, it being the intent of the parties that all such advances shall be
covered by this paragraph. The Company shall be entitled to offset against any
amounts otherwise owed by the Company to the Contractor, the amount of any such
advances not repaid by the Contractor.
11. CONTRACTOR'S AUTHORITY. The Contractor shall not have any power or
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authority to accept any order or to enter into any contract, undertaking, or
agreement for or on behalf of the Company or to assume or create any obligation
or responsibility, express or implied, on behalf of or in the name of the
Company or to bind the Company in any manner whatsoever.
12. INDEPENDENT CONTRACTOR ARRANGEMENT. The parties agree that nothing in
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this Agreement shall be deemed to create the relationship of partnership, joint
venture, or an employer-employee relationship. It is understood by the parties
that the Contractor is an independent contractor, responsible for all of its own
local, state, and federal taxes, and as such is not under the control or
management of the Company as to how or when the Services are performed. The
Contractor hereby specifically waives any claim of rights or benefits, whether
present or future,
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under the Company's retirement plans, or fringe benefits afforded its employees,
or the Company's payment of Social Security taxes, workmen's compensation,
unemployment compensation, or like benefits normally afforded its employees;
provided further that the Contractor, in its capacity as independent contractor,
shall, if requested by the Company, give to the Company a waiver acknowledging
that he is not an employee of the Company and acknowledging further that he
waives any claim of rights or benefits normally afforded the Company's
employees.
13. GEORGIA LAW TO GOVERN. This Agreement is executed within the State of
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Georgia, although it is contemplated that performance of the duties of the
Contractor may be either within or without the State of Georgia, and as a part
of the terms hereof, the parties covenant that the laws of the State of Georgia,
without regard to the conflicts of laws provisions of said State, shall govern
this Agreement, the execution and interpretation of it, and the rights of both
parties under it, including their heirs, administrators, executors, successors,
or assigns.
14. READING OF AGREEMENT. Both parties represent that they have read and
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understand the terms and conditions of this Agreement and each party
acknowledges receipt of a copy of the same.
15. ENTIRE AGREEMENT. This Agreement contains the entire understanding
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and agreement between the parties and all promises, representations, warranties,
or inducements made by either party to the other, not contained in writing
herein or made a part hereof by reference, are expressly superseded and shall
have no force or effect whatsoever, except as to the Company Policies,
procedures, rules, regulations, or other Company notices or communications, as
referred to in this Agreement, which are incorporated by reference thereto.
16. TIME OF ESSENCE. Time is of the essence of this Agreement.
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17. ATTORNEYS' FEES. In the event it is necessary for either party to
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employ an attorney at law to represent it or present its claim for damages,
injunction, specific performance, or recovery of money due, by reason of this
Agreement or any of the terms or provisions hereof, the other party shall pay,
in addition to such sums as may be due or such other relief to which the
complaining party may be entitled, reasonable fees for said attorney in the
event that the complaining party is the prevailing party in any cause of action
relating to this Agreement.
18. SEVERABILITY. If any covenant or other provision of this Agreement is
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invalid or unenforceable by reason of any rule of law or public policy, this
Agreement shall be construed in such a manner so as to delete therefrom the
covenant or provision so held to be invalid or unenforceable; and to the extent
that any provision is invalid or unenforceable but may be valid or enforceable
by limitation thereof, then such provision shall be enforceable to the fullest
extent permitted under the law of the jurisdiction in which enforcement is
sought; and if any particular provision is held to be invalid, illegal, or
unenforceable, all of the other covenants, terms, conditions, and provisions
shall be and remain in full force and effect.
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19. BINDING EFFECT. This Agreement shall be binding upon and inure to the
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benefit of each respective party's heirs, successors, legal representatives,
executors, and assigns.
20. SUMS UNPAID AT TERMINATION. At the termination of this Agreement
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there may be sums due the Contractor by the Company for Compensation, expenses,
or otherwise. Regarding such sums otherwise due by the Company to the Contractor
for any reason whatsoever, it is hereby stipulated and agreed that no such sums
shall be due to or collectible by the Contractor, its successors or assigns, if
the Contractor breaches any of the terms or conditions of this Agreement, in
particular, those paragraphs relating to protective covenants and protection of
Confidential Information during or after termination of the Agreement.
WITNESS the hand and seal of each party, this 5th day of February, 1998.
"COMPANY":
SQL FINANCIALS INTERNATIONAL, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, President
"CONTRACTOR":
/s/ Xxxxxx X. XxXxxx
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XXXXXX X. XxXXXX, individually.
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