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EXHIBIT 10.9
[ITC LOGO]
CONSULTANT AGREEMENT
THIS AGREEMENT, made as of this 18th day of August, 1997 (the "Effective Date"),
by and between ITC LEARNING CORPORATION, a corporation duly organized and
existing under the laws of the State of Maryland, with principal offices in
Herndon, Virginia (hereinafter referred to as "ITC"), and Xxxxxx X. Xxxxxxxx,
acting personally, of 0000 Xxxx Xxxxxx Xxxxxx, XX 00000 (hereinafter referred to
as the "CONSULTANT").
ARTICLE 1
INDEPENDENT CONTRACTOR
The CONSULTANT shall be deemed at all times to be an independent contractor and
the CONSULTANT is not for any purposes an employee or CONSULTANT of ITC and the
CONSULTANT agrees not to make any representation to the contrary. The CONSULTANT
understands and agrees that as an independent contractor he/she does not have
any authority to sign contracts, notes, obligations, to make any purchases or to
acquire or dispose of any property on behalf of ITC. ITC does however, agree to
indemnify, defend and hold harmless CONSULTANT for any claims, or actions which
may result the transactions or transactions contemplated hereby regardless
whether or not CONSULTANT is deemed liable for such claims or actions
ARTICLE 2
CHARACTER AND EXTENT OF SERVICES
The CONSULTANT shall act as an advisor to ITC for the potential sale of the
assets, capital stock, intellectual property or other assets of Xxxxxxxx
SoftTeach ("Xxxxxxxx"), a subsidiary of ITC. Sale of any of the foregoing could
be accomplished through the exchange of cash or securities, assumption of debt
or other liabilities, or other mutually agreed upon compensation. In such
capacity, CONSULTANT shall use his best efforts and work with ITC, its officers
and employees, in order to bring forward a term sheet from a potential purchaser
for Xxxxxxxx, which leads to the successful consummation of the proposed
transaction outlined therein ("Transaction"). In accordance with the
requirements of this engagement, the CONSULTANT shall perform the following
tasks:
- Communicate and coordinate with potential purchasers of Xxxxxxxx
regarding the timing of due diligence and due diligence procedures;
- Negotiate in good faith with potential purchasers toward a purchase
price acceptable to ITC, which may be accepted or rejected by ITC, in
ITC's sole discretion;
- Assist ITC in structuring and negotiating the terms of the
Transaction.
ITC acknowledges that groups headed by X. Xxxxxxxxxxx and X. Xxxxx are potential
purchasers of Xxxxxxxx, and would be covered by this Agreement.
CONSULTANT will be under the direction of X.X. (Xxxx) Xxxxxx, the Chief
Executive Officer of ITC, or another ITC manager or officer when specifically
designated by Xxxx Xxxxxx.
ARTICLE 3
PERIOD OF PERFORMANCE
The term of this AGREEMENT shall be that period commencing with the Effective
Date through close of business December 31, 1997.
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ARTICLE 4
TERMINATION
This AGREEMENT may be terminated by either party without cause, upon 7 days
written notice to the other party, or at any time by ITC for non-performance.
Non-performance, which will be determined solely by ITC, includes failure on the
part of CONSULTANT to diligently perform hereunder and/or failure to provide
work acceptable to ITC, or, if requested by ITC, failure to show evidence of
satisfactory progress in terms of producing acceptable work and/or maintaining
schedule.
ARTICLE 5
COMPENSATION
As payment in full for satisfactory completion and acceptance of the services
performed and provided to ITC, ITC will pay CONSULTANT a fee based on the
following schedule:
- For sales which the aggregate purchase price is less than $5 million, a fee
equal to $25,000 plus one percent (1%) of the aggregate purchase price.
- For sales which the aggregate purchase price is more than $5 million, a fee
equal to $100,000 plus one percent (1%) of the aggregate purchase price.
As used above, the aggregate purchase price of any transaction will include the
following: the fair market value of all cash, securities or other assets
exchanged or given to ITC in consideration of the purchase, as well as the book
value of all liabilities or debt assumed by purchasers in the transaction. Any
debt financing provided to purchaser by ITC will be included in the
determination of aggregate purchase price.
CONSULTANT's fee will be considered earned upon consummation of the transaction,
and all funds payable to CONSULTANT will be made at closing. CONSULTANT's fee
will be placed in escrow by ITC's attorney at closing and will be remitted
directly to CONSULTANT by the closing attorney.
ARTICLE 6
ACCEPTANCE AND PAYMENT
Acceptance will not occur until the ITC representative has had appropriate time
to review and approve the services performed and/or deliverables provided to
ITC. If ITC considers CONSULTANT'S services to have been satisfactorily
completed, the ITC representative will xxxx the CONSULTANT'S invoice "accepted
for payment" and sign and date the invoice. Invoices or attachments must specify
and detail the amount of time and service performed on each task.
ALL INVOICES SHOULD BE SUBMITTED TO ITC, ACCOUNTS PAYABLE, 00000 XXXXXX
XXXXXXXXXX XXXXX, XXXXXXX, XXXXXXXX, 00000-0000.
ARTICLE 7
ASSIGNMENT AND SUBCONTRACTING
CONSULTANT'S obligations authorized under this AGREEMENT are not assignable or
transferable and CONSULTANT agrees not to subcontract any of the work authorized
hereunder without prior written approval of ITC.
ARTICLE 10
LIABILITY
ITC specifically agrees by acceptance of this AGREEMENT to save harmless and
indemnify CONSULTANT against all loss, liability, damage, and expense caused by
any conduct or representations made by it to CONSULTANT or third parties related
to the services contemplated by this AGREEMENT. Inasmuch as ITC is the seller of
Xxxxxxxx and that all assets, liabilities, contracts, agreements,
understandings, partnerships, joint ventures,
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business agreements and claims, and in general, the corporate, legal, financial,
and accounting affairs of Xxxxxxxx are under the care, custody and control of
ITC, it is understood that the intent of this provision is to absolve and
protect CONSULTANT from any and all loss, liability, damage, and expense caused
by, or connected with the sale of Xxxxxxxx by ITC to any party and, the work of
CONSULTANT hereunder or the engagement of CONSULTANT pursuant to this AGREEMENT.
Notwithstanding the foregoing, ITC will not have any obligation to CONSULTANT
for any claim or losses arising from the bad faith, willful misconduct or
negligence of the CONSULTANT. CONSULTANT agrees to indemnify ITC for any claims
or losses arising out of CONSULTANT'S bad faith, willful misconduct or
negligence in the performance of his duties hereunder.
ARTICLE 11
OWNERSHIP OF WORK PRODUCT
All technical data, evaluations, reports and other work product of CONSULTANT
hereunder shall become the property of ITC and shall be delivered to ITC upon
completion of services authorized hereunder. The CONSULTANT hereby releases any
and all claim, right or interest including any claim, right or interest arising
out of or recognized under Title 17 of the United States Code relating to
copyrights, which the undersigned has or may have, now or in the future, in and
to any videotape, book, article, pamphlet, chart, film, filmstrip, handbook,
manual, or other materials produced or hereafter to be produced by ITC (all of
which are hereinafter called the "Work"), including any claim, right or interest
in and to any reproductions and derivative works of the Work. The CONSULTANT
agrees that all such rights, including the right to reproduce, prepare
derivative works of, distribute copies of (by sale or otherwise), perform,
display or otherwise use the Work, have been and shall continue to be the sole
and exclusive property of ITC Learning Corporation.
ARTICLE 12
LEGAL REQUIREMENTS
CONSULTANT shall secure all licenses or permits required by law and shall comply
with all ordinances, laws, rules, and regulations pertaining to its services
hereunder.
ARTICLE 13
GUARANTEES AND WARRANTY
CONSULTANT warrants and guarantees that the work performed hereunder will be in
accordance with generally accepted professional standards.
ARTICLE 14
PROPRIETARY INFORMATION
CONSULTANT shall not, either during or after the term of this AGREEMENT,
disclose to any third party any confidential information relative to the work of
the business of ITC and/or any affiliated corporations, without written consent
of ITC, or as disclosed to a potential purchaser pursuant to a duly executed
non-disclosure or confidentiality agreement between ITC and the potential
purchaser. ITC's representatives shall at all times have access to the work for
purposes of inspecting same and determining that the work is being performed in
accordance with the terms of the AGREEMENT.
ARTICLE 15
WAIVER
The failure of ITC to insist on strict performance of any of the terms and
conditions hereof shall not constitute a waiver of any other provisions or any
default to the CONSULTANT. The terms and conditions of this AGREEMENT shall
survive the period herein stated. The failure of CONSULTANT to insist on strict
performance of any of the terms and conditions hereof shall not constitute a
waiver of any other provisions or any default to ITC. The terms and conditions
of this Article 15 shall survive the period herein stated.
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ARTICLE 16
ENTIRE AGREEMENT AND AMENDMENTS
This instrument constitutes the entire AGREEMENT between the PARTIES covering
the subject matter. No modifications or amendments shall be valid unless in
writing and signed by the PARTIES.
IN WITNESS WHEREOF, THE PARTIES hereto have caused this AGREEMENT to be duly
executed in their respective names.
For ITC LEARNING CORPORATION For
AGREEMENT Executed By: AGREEMENT Executed By:
/s/ X.X. (Xxxx) Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
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X.X. (Xxxx) Xxxxxx SSN: ###-##-####
Reviewed by /s/ Xxxxxxxxxxx X. Xxxx
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Xxxxxxxxxxx X. Xxxx
Vice President, Finance & Administration
