Exhibit 10.13
FORM OF
CONSULTING AGREEMENT
(Xxxxxxx X. X'Xxxxxxx)
This CONSULTING AGREEMENT is made as of January 1, 2000, by and between
Spider Technologies, Inc., a Delaware corporation (the "Company"), and Xxxxxxx
X. X'Xxxxxxx ("Consultant").
WHEREAS, Consultant has previously been employed by the Company as its
Chief Executive Officer pursuant to that certain Management Employment Agreement
dated as of May 4, 1999 by and between Consultant and the Company (the
"X'Xxxxxxx Employment Agreement"); and
WHEREAS, Consultant and the Company wish to terminate the X'Xxxxxxx
Employment Agreement and replace it in its entirety with this Agreement, which
shall constitute the sole and entire agreement among the parties hereto.
NOW, THEREFORE, in consideration of the mutual covenants herein, the
parties agree as follows:
1. Consulting Arrangement. Consultant shall serve as a consultant and
Chairman of the Board of Directors of the Company to perform the duties
described in Section 2 below from the date hereof on and through the period
ending May 4, 2001, at a consulting fee of $7,500 per month payable in
accordance with the customary practices of the Company plus such additional
remuneration as shall be approved by the Board of Directors from time to time.
The monthly consulting fee, as in effect from time to time, is referred to as
the "Base Fee". After such two year period, this Agreement will automatically
continue on a month to month basis until terminated as provided herein.
Consultant agrees to accept the above amounts and the benefits described in
Section 5 in full payment for the services to be rendered by him hereunder. The
Company, by action of a majority of its Board of Directors and the consent of
The Beacon Group III - Focus Value Fund, L.P. and Conning Insurance Capital
Limited Partnership V, L.P., so long as each has a right to appoint a director
to the Company's Board of Directors pursuant to the Stockholders' and Voting
Agreement (the "Stockholders Agreement") may adopt additional compensation
arrangements with Consultant.
2. Duties. The Consultant shall during the term of this Agreement:
A. perform such duties as they may be established from time to time by
the Board of Directors consistent with Consultant's role as Chairman and
consultant; provided, however, that in setting any work requirements,
Consultant's required service to Intek Information, Inc. ("Intek") shall be
taken into account for purposes of this Agreement [and Consultant shall not be
required to devote an excessive hours per month to such activities].
Consultant's services hereunder shall be performed solely as an independent
contractor. Nothing contained herein shall be construed in any manner as
appointing Consultant as an employee of
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the Company. Consultant is an independent contractor, engaged in an independent
business from Company, and is free from Company's control and direction in the
performance of services. Consultant is not required to work exclusively for
Company at any time. Company shall not provide Consultant with any professional
training for completions of his services. Consultant is not entitled to workers'
compensation benefits through Company, and is obligated to pay federal and state
income tax on any moneys paid pursuant to this Agreement. Consultant is not
entitled to unemployment insurance benefits through Company.
B. comply with all reasonable rules, regulations and administrative
directions now or hereafter established by the Company;
C. be reimbursed by the Company from time to time (but at least
monthly) for all reasonable and necessary business expenses incurred by him in
the performance of his duties hereunder, provided that Consultant shall render
to the Company such accounts and vouchers covering expenditures as the Company
reasonably requires and as are necessary for tax purposes, and shall follow
normal Company policy on expenses; and
D. not engage in any activity or employment which would reasonably be
expected to materially conflict with or have a material adverse affect on, the
present or prospective business of the Company.
3. Termination.
A. Mutual Agreement. This Agreement may be terminated at any time by
the mutual agreement of the Company and Consultant, expressed in writing.
B. Voluntary. Consultant may terminate this Agreement with or without
the consent of the Company by giving written notice of his intent to terminate
with the effective date of termination at least one hundred (100) days after the
effective date of the notice of termination. After such notice the Company may
accelerate the date of termination without being in breach hereof.
C. Without Cause. The Company may terminate this Agreement at any
time without Cause upon twenty (20) days prior notice.
D. Disability or Death. The Company may terminate this Agreement upon
the death or disability of Consultant. For purposes of this Agreement,
Consultant shall be considered disabled if he is unable to perform his duties
under this Agreement as a result of injury, illness or other disability for a
period of one hundred eighty (180) consecutive days, or one hundred eighty (180)
days in a three hundred sixty-five (365) day period, and the Board of Directors
of the Company reasonably determines that Consultant has been unable to perform
his duties for the one hundred eighty (180) day period as a result of injury,
illness or other disability.
E. For Cause by the Company.
The Company may terminate this Agreement for "Cause", as defined
below, immediately upon written notice to Consultant. "Cause" shall mean:
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(i) If Consultant materially violates any term of this Agreement
and such action or failure is not substantially remedied or reasonable steps to
effect such substantial remedy are not commenced within twenty (20) days of
written notice from the Company to Consultant.
(ii) Dishonesty which is not the result of an inadvertent or
innocent mistake of Consultant with respect to the Company or any of its
subsidiaries;
(iii) Willful misfeasance or nonfeasance of duty by Consultant
intended to injure or having the effect of injuring in some material fashion the
reputation, business or business relationships of the Company or any of its
subsidiaries or any of their respective officers, directors or employees;
(iv) Conviction of Consultant upon a charge of any crime
involving moral turpitude or a crime other than a vehicle offense which could
reflect in some material fashion unfavorably upon the Company or any of its
subsidiaries; or
(v) Willful or prolonged absence from work by the Consultant
(other than by reason of disability due to physical or mental illness) or
failure, neglect or refusal by the Consultant to perform his duties and
responsibilities without the same being corrected upon twenty (20) days prior
written notice.
F. For Cause by the Consultant. If the Company (i) materially
violates any term of this Agreement, (ii) materially alters Consultant's duties,
title or responsibilities (including reporting responsibilities) without his
consent; provided, however, that Consultant shall not be permitted to terminate
this Agreement pursuant to this clause (ii) for so long as he is either Chairman
or a consultant of the Company, (iii) reduces or seeks to reduce any of
Consultant's compensation or benefits hereunder, or (iv) requires Consultant
without his consent to move from the Denver, Colorado metropolitan area as a
condition of his continued service under this Agreement and in each case such
action or failure is not remedied after twenty (20) days written notice,
Consultant may terminate this Agreement immediately upon written notice to the
Company. Such termination is a termination by Consultant for Cause.
4. Payments at Termination.
A. Upon (i) termination of this Agreement by the Company under
Subsection 3.C. titled "Without Cause" or (ii) termination of this Agreement by
Consultant under Subsection 3.F. titled "For Cause by the Consultant,"
Consultant shall receive monthly payments equal to his last Base Fee prior to
termination ("Applicable Base Fee") for a period of eighteen (18) months
beginning in the month next following such termination. In either case
Consultant shall receive all accrued compensation and unreimbursed expenses to
the date of termination as provided herein. The monthly payments provided for in
this Subsection shall be paid on a monthly basis on the first of each month and
shall not be reduced by compensation the Consultant may receive from other
sources. In either such case of termination, all unexercised options granted
pursuant to the Company's 1999 Stock Option/Stock Issuance Plan (the "1999
Plan") shall vest and become exercisable on the day of termination. For any such
non-statutory stock option or incentive stock option, the period for exercise of
the option shall continue for the shorter of the
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maximum length of time the option is exercisable under the Company's 1999 Plan
as though the service of Consultant had not terminated, and three (3) years
after the date of termination of service, provided, however, that if the
existence of this sentence would cause any incentive stock option not to qualify
as an incentive stock option pursuant to Section 422 of the Internal Revenue
Code of 1986, as amended, ("Section 422") at any time prior to ninety (90) days
after termination of employment as provided in Section 422, this sentence shall
be null and void as to such incentive stock option.
B. If Consultant terminates this Agreement without cause under
Subsection 3.B., titled "Voluntary", or if this Agreement is terminated under
Subsection 3.A., titled "Mutual Agreement," or if this Agreement is terminated
by the Company under Subsection 3.E. titled "For Breach or Cause by the
Company," Consultant shall not be entitled to any further payments except
unreimbursed expenses to the date of termination as provided herein and any
accrued compensation and as provided in Section 4.C.
C. In each of the foregoing cases, termination is the date of actual
termination, not the date notice of termination is given. All payments for
reimbursement shall be made within forty-five (45) days after the end of the
month following the month in which termination occurred.
D. Unless specified otherwise in the bonus plan or bonus agreement, if
termination occurs during the bonus period pursuant to Subsection 3.C. titled
"Without Cause" or Subsection 3.F. titled "For Cause by the Consultant," or
Subsection 3.D. titled "Disability or Death," and based upon the results of the
full bonus period the bonus would have been earned, any bonus which would have
been earned shall be based upon the number of calendar days in such bonus period
which have elapsed at the date of termination. Unless specified otherwise in
the bonus plan or bonus agreement, if Consultant is terminated "For Cause by the
Company," or Consultant terminates without Cause or Consultant after
termination violates a confidentiality, covenant not to compete, or "no hire" or
"no raid" agreement with the Company, its parent (if any) or a direct or
indirect Company subsidiary or affiliate, then the Company shall have no
obligation to pay any earned or unearned bonus or the payments provided for in
the first sentence of Section 4.A. hereof.
E. If this Agreement is operating under the month-to-month provision
of Section 1, any payment for unpaid future compensation shall in any case be
limited to the remainder of the month in which termination occurs, except as
provided in Subsection 4.D.
F. The foregoing rights in this Section 4 are Consultant's exclusive
rights to payment from the Company in the event of termination of this Agreement
except for amounts which the Company is required to pay under applicable statute
or regulation, payments under insurance policies, and payments owing under other
written agreement(s) (if any) between the Company and Consultant.
5. Options.
A. Consultant acknowledges and agrees that all of his non-issued and
vested options in the Company which are not exercised within 90 days of the date
of this Agreement
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shall no longer qualify as incentive sstock options pursuant to Section 422 of
the Internal Revenue Code of 1986.
B. If this Agreement is in effect at and for six (6) months after the
time of the Company's initial public offering or at the time the Company is a
reporting company, pursuant to the Securities and Exchange Act of 1934, under
circumstances that would permit mandatory conversion of the Company's Series A
Preferred Stock pursuant to the Company's Amended and Restated Certificate of
Incorporation as in effect on the date hereof, then all options granted pursuant
to the Option Agreements (as defined above) shall vest and become exercisable
one day after the end of such six (6) month period.
6. Non-Competition.
A. The Company and Consultant recognize that the Consultant has been
retained to occupy a position that constitutes part of the professional,
management and executive staff of the Company, whose duties will include the
formulation and execution of management policy. The Consultant, for and in
consideration of the payments, rights and benefits provided herein, agrees that
for so long as this Agreement is in effect and during the 18 month period
immediately thereafter, Consultant shall not, anywhere within the continental
United States or in any other market in which the Company is conducting business
at the time this Agreement is terminated, (i) work, (ii) assist, (iii) own any
interest, directly or indirectly and whether individually or as a joint
venturer, partner, member, officer, director, shareholder, consultant, employee
or otherwise, in or (iv) make a financial investment, whether in the form of
equity or debt, in any business that is in the business of (i) direct to
customer order entry software and/or (ii) such other business of the Company as
Consultant is actively involved in, at or within six months before termination
of this Agreement, (the "Business"). The parties agree that, during such
period, they shall not make public statements in derogation of each other,
except as may be required by law. For the purposes of this Section 6 and
Sections 7, 8, 9 and 10, the term "the Company" shall be deemed to include
subsidiariesand parents of the Company. This Subsection 6.A. shall no longer
apply if both (i)(A) Consultant has terminated this Agreement for Cause under
Subsection 3.F, or if the Company has terminated this Agreement and (B) the
Company has obligations to make post-termination payments under this Agreement
and (ii) after twenty (20) days notice by Consultant to the Company that the
Company has failed to make such post-termination payments, the Company has not
cured such failure to make payments. In recognition of Consultant's existing
service to Intek, for purposes of this Agreement, Intek, its parents and direct
and indirect subsidiaries are not considered engaged in competitive activities
with the Company as of the date hereof.
B. Notwithstanding the foregoing, nothing herein shall prohibit the
Consultant from holding 5% or less of any class of voting securities of any
entity whose equity securities are listed on a national securities exchange or
regularly traded in The Nasdaq National Market.
C. Upon the termination of this Agreement and for 18 months
thereafter, the Consultant shall immediately notify the Company of each
employment or agency relationship entered into by Consultant, and each
corporation, proprietorship or other entity formed or used by the Consultant,
the business of which is directly or indirectly similar to or competition with
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the Business. The provisions of this Subsection 6.C. shall survive termination
of this Agreement for any reason.
D. The Consultant agrees that the restrictions contained in this
Section 6 are reasonable as to time and geographic scope because of the nature
of the Business and the Consultant agrees, in particular, that the geographic
scope of this restriction is reasonable because companies engaged in the
Business compete on a nationwide basis. The Consultant acknowledges that the
Company is in direct competition with all other companies engaged in the
Business throughout the continental United States and other markets in which the
Company may be conducting business at the time the Consultant's employment with
the Company is terminated, and because of the nature of the Business, the
Consultant agrees that the covenants contained in this Section 6 cannot
reasonably be limited to any smaller geographic area.
7. Non-Raid.
A. The Consultant acknowledges that the Company has invested
substantial time and effort in assembling its present staff of personnel. The
Consultant agrees that until the termination of this Agreement and during the 18
month period immediately thereafter, the Consultant shall not employ, solicit
for employment, or advise or recommend to any other person that such other
person employ or solicit for employment, any of the Company's employees.
B. The Consultant acknowledges that all customers of the Company,
which the Consultant has serviced or hereafter shall service during the term of
this Agreement and all prospective customers from whom the Consultant has
solicited or may solicit business during the term of this Agreement, shall be
solely the customers of the Company. The Consultant agrees that until the
termination of this Agreement and during the 18 month period immediately
thereafter, the Consultant shall not solicit business, as to products or
services competitive with the Business of the Company, from any of the Company's
customers with whom the Consultant had contact during the term of this
Agreement.
C. The Consultant agrees that during the term of this Agreement and
during the 18 month period immediately thereafter, the Consultant shall not
interfere with any relationship between the Company and any of its suppliers,
clients or employees. The Consultant agrees that during such 18 month period, he
will not influence or attempt to influence any of the customers or clients of
the Company not to do business with the Company.
D. The Consultant agrees that the restrictions contained in this
Section 7 are reasonable as to time and geographic scope because of the nature
of the Business and the Consultant agrees, in particular, that the geographic
scope of this restriction is reasonable because companies engaged in the
Business compete on a nationwide basis. The Consultant acknowledges that the
Company is in direct competition with all other companies engaged in the
Business throughout the continental United States and other markets in which the
Company may be conducting business at the time thethis Agreement is terminated,
and because of the nature of the Business, the Consultant agrees that the
covenants contained in this Section 7 cannot reasonably be limited to any
smaller geographic area.
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8. Blue Pencil Provision. Consultant acknowledges that the periods, scope
and geographic area of restriction imposed by Section 6 and Section 7 are fair
and reasonable and are reasonably required for the protection of the Company.
If any part or parts of Section 6 or Section 7 shall be held to be unenforceable
or invalid, the remaining parts thereof shall nevertheless continue to be valid
and enforceable as though the invalid portion or portions were not a part
hereof. If any of the provisions of Section 6 or Section 7 relating to the
scope, periods of time or geographic area of restriction shall be deemed to
exceed the maximum scope, periods of time or geographic area which a court of
competent jurisdiction would deem enforceable, the scope, times and geographic
area shall, for the purposes of Section 6 and Section 7, be deemed to be the
maximum scope, time periods and geographic area which a court of competent
jurisdiction would deem valid and enforceable in any state in which such court
of competent jurisdiction shall be convened. The invalidity or unenforceability
of any provision of Section 6 or 7 in one jurisdiction shall not affects its
validity or enforceability in another jurisdiction.
9. Confidentiality. Consultant acknowledges that he has had and will have
access to certain information related to the business, operations, future plans
and customers of the Company, the disclosure or use of which could cause the
Company substantial losses and damages. Accordingly, Consultant covenants that
during the term of this Agreement with the Company and thereafter he will keep
confidential all information and documents furnished to him by or on behalf of
the Company and not use the same to his advantage, except to the extent such
information or documents are lawfully obtained from other sources on a non-
confidential (as to the Company) basis or are in public domain through no fault
on his part or is consented to in writing by the Company. Upon termination of
this Agreement, Consultant shall return to the Company all records, lists, files
and documents, or media and other Company property which are in his possession
and which relate to the Company.
10. Right to Injunctive Relief. Consultant agrees and acknowledges that a
violation of the covenants contained in Sections 6, 7 and 9 of this Agreement
will cause irreparable damage to the Company, and that it is and may be
impossible to estimate or determine the damage that will be suffered by the
Company in the event of a breach by Consultant of any such covenant. Therefore,
Consultant further agrees that in the event of any violation or threatened
violation of such covenants, the Company shall be entitled as a matter of course
to an injunction out of any court of competent jurisdiction restraining such
violation or threatened violation by Consultant, such right to an injunction to
be cumulative and in addition to whatever other remedies the Company may have.
11. Exceptions. Consultant may continue his activities with the following
companies: Eden Financial Services, Inc. and its subsidiaries, and Intek and
its direct or indirect subsidiaries, each of which Consultant is a beneficial
shareholder and/or a director, and may invest in and/or serve as a director for
any other company, provided that such activities do not materially interfere
with Consultant's duties and responsibilities hereunder and such activities do
not otherwise violate this Agreement. All future Board of Director positions
other than with the Company or its subsidiaries must be approved by the
Company's Board of Directors (which approval will not be unreasonably withheld).
12. Delivery of Files. At or immediately after termination hereof
Consultant will deliver all files, records, disks, and other media with Company
information, to the Company.
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13. Integration. This Agreement shall constitute the entire Agreement
between Consultant and Company relating to the subject matter hereof and
supersedes and replaces in its entirety that certain Management Employment
Agreement dated as of May 4, 1999 between Consultant and the Company. This
Agreement shall be governed by the laws of Colorado, excluding laws on choice of
law. Any litigation regarding this Agreement shall only be brought and heard in
the federal or state courts located in Denver, Colorado and no transfer of venue
outside such area shall be permitted.
14. Unenforceability. If any paragraph or subparagraph of this Agreement
or any part thereof shall be unenforceable under any applicable laws,
notwithstanding such unenforceability the remainder of this Agreement shall
remain in full force and effect.
15. Binding. This Agreement shall inure to the benefit of and be binding
upon, the Company and 80% or more owned subsidiaries of the Company.
16. Attorneys' Fees. In the event of any legal or arbitration action or
proceeding to enforce or interpret the provisions hereof, the prevailing party
shall be entitled to reasonable attorneys' fees and costs, whether or not the
proceeding results in a final judgment.
17. Survival. Terms which by their terms or sense are to survive
termination hereof shall so survive.
18. Notice. Notices hereunder shall be in writing and sent to the
residence address of the Consultant last provided to the Company, and to the
then current business address of the Company. Notices may be sent by first
class U.S. mail and shall be effective three (3) days after deposit. Notices
sent by other means shall be effective when actually delivered to the above-
described address.
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IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of
the date first above written.
SPIDER TECHNOLOGIES, INC.
By:______________________________
Title:___________________________
CONSULTANT
_________________________________
Xxxxxxx X. X'Xxxxxxx
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
Xxxxxxx X. X'Xxxxxxx personally appeared before me and acknowledged that
the foregoing Consulting Agreement was executed as his voluntary act and deed,
this _____ day of ______________, 2000. In witness whereof, I hereunto set my
hand and official seal.
_______________________________________
Notary Public, State of Colorado
My Commission Expires:
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