EXHIBIT 10.30
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of November 18, 1998, between
Value America, Inc., a Virginia corporation (the "Company"), and the Union Labor
Life Insurance Company, a Maryland corporation acting on behalf of its Separate
Account P (which is not a separate entity) (the "Consultant"), recites and
provides as follows:
W I T N E S S E T H:
WHEREAS, the Company wishes to secure the services of the Consultant of the
Company upon the terms and conditions hereinafter set forth, and the Consultant
wishes to render such services to the Company upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Consulting Relationship. The Company agrees to retain the Consultant as
an independent consultant of the Company and the Consultant accepts such
retention and agrees to perform such duties that the Company's President,
Executive Vice President, or Board of Directors may from time to time assign
related to (i) affinity programs, (ii) the establishment of new markets and
(iii) analysis of employee compensation and benefits in comparison to entities
in which the Consultant holds an equity ownership interest, provide however,
that the services to be provided by the Consultant to the Company shall in no
event require the Consultant's employees to spend more than four man-hour in any
calendar month providing consulting services to the Company an further provided
that the services to be provided by the Consultant pursuant to this Agreement
shall in no event be provided in connection with or related in any way to the
offer and sale of securities in any capital-raising transaction.
2. Term of Consulting Agreement. The term of this Agreement shall be for
the commencing on the date hereof and ending on the date that the Consultant
ceases to hold shares of the Company's Series A Preferred Stock or Series
Preferred Stock, as defined in the Company's Articles of Incorporation as of the
date hereof (the "Term").
3. Compensation. As full compensation for all services to be rendered by
the Consultant to the Company and its subsidiaries and Affiliates (a defined in
Section 6 hereof) in all capacities during the Term, the Consultan shall receive
the following action and benefits:
3.1 Fee. The compensation for the consulting services to be rendered
hereunder, which the Company agrees to pay or cause to be paid an Consultant
agrees to accept, shall be as set forth on Exhibit A hereto.
3.2 Expenses. Subject to such policies as may from time to time be
established by the Company's Board of Directors and the limitations on
reimbursement of expenses set forth on Exhibit A hereto, the Company shall pay
or reimburse the Consultant for all reasonable and necessary expense actually
incurred or paid by the Consultant during the Term in the performance of the
Consultant's duties under this Agreement, upon submission of expense statements,
vouchers or other supporting information in accordance with the then customary
practices of the Company.
3.3 Withholding of Taxes. The Company may withhold from any
compensation or benefits payable under this Agreement all federal, state, city
and other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
3.4 Stock Option. As a part of the Consultant's compensation
hereunder, the Company shall grant an option to purchase up to 22,500 shares o
the Company's common stock, without par value (such number of share constituting
post-split shares after taking the Company's 3:1 stock split effective September
1, 1998 into account), subject to the terms and condition of a Stock Option
Agreement substantially in the form of Exhibit B hereto.
4.Termination.
4.1 No Termination by Company. The Company shall not terminate this
Agreement for any reason during the Term
4.2 Termination by Consultant. The Consultant may terminate this
Agreement for Good Reason upon 30 days' written notice by the Consultant to the
Company. For purposes of this Agreement, "Good Reason" means: (i) the failure of
the Company to provide compensation and benefits to the Consultant pursuant to
Section 3 hereof, which breach is not cured within 30 days after notice thereof,
or (ii) the failure of the Company to adhere in any substantial manner to any of
its other covenants contained herein which breach is not cured within 30 days
after notice thereof. Except as provided in Section 5 hereof, the Consultant
shall have no right to receive any compensation or benefit hereunder after such
termination.
5. Severance Payments. If this Agreement is terminated by the Consultant
pursuant to Section 4.2 hereof, all compensation payable to the Consultant under
Section 3 hereof shall cease as of the date of termination and the Company
shall, subject to compliance by the Consultant with the covenants contained
herein, pay to the Consultant a lump sum equal to all previously earned and
accrued unpaid compensation and benefits from the Company.
6. Certain Definitions. For purposes of this Agreement, the term
"Affiliates" means all Persons directly or indirectly controlling, controlled by
or under common control with the Company, where control may be by management
authority, equity interest or otherwise, and the term "Person" means an
individual, a corporation, an association, a partnership, a limited liability
company, an estate, a trust and any other entity or organization, other than the
Company or any of its Affiliates.
7. Other Provisions.
7.1 Independent Contractor. The Consultant shall be deemed for all
purposes an independent contractor and not an employee of the Company. Nothing
in this Agreement shall establish an agency, partnership, joint venture or
employee relationship between the Company and the Consultant.
7.2 Notices. Any notice or other communication required or which may
be given hereunder shall be in writing and shall be delivered personally,
telecopied, sent by overnight courier service, such as Federal Express, or sent
by certified, registered or express mail, postage prepaid, to the parties at the
following addresses, or at such other addresses as shall be specified by the
parties by like notice, and shall be deemed given when so delivered personally
or telecopied, or if sent by overnight courier, one day following the delivery
to such overnight courier, or if mailed, three days after the date of mailing,
as follows:
(i) if to the Company, to:
Value America, Inc.
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Executive Vice President and CFO
with a copy (which shall not constitute notice) to:
XxXxxxx Xxxx, A Professional Corporation
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. XxXxxxx, Esquire
(ii) if to the Consultant, to:
The Union Labor Life Insurance Company
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxxxxxx X. Xxxxx, Senior Vice President of Investments
with a copy (which shall not constitute notice) to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Twenty-third Floor, 000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esquire
7.3 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior contracts and other agreements, written or oral, with respect thereto.
7.4 Waivers and Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in execising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
7.5 Governing Law: Venue. This Agreement shall be governed by, and
construed in accordance with and subject to, the laws of the Commonwealth of
Virginia applicable to agreements made and to be performed entirely within such
Commonwealth, without reference to the choice of law provisions of any
jurisdiction. The parties hereto irrevocably and unconditionally consent to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and of the
United States located in the Commonwealth of Virginia in connection with any
suit, action or proceeding relating to this Agreement and agree not to commence
any suit, action or proceeding relating thereto except in such courts.
7.6 Binding Effect: Benefit. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and any successors and assigns
permitted by Section 7.7 hereof. Nothing in this Agreement, expressed or
implied, is intended to confer on any Person other than the parties hereto or
their successors and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
7.7 Assignment. This Agreement, and the Consultant's rights and
obligations hereunder, may not be assigned by the Consultant. The Company may
assign this Agreement and its rights, together with its obligations, hereunder
in connection with any sale, transfer or other disposition of all or
substantially all of its assets or business, whether by sale of capital stock,
merger, consolidation or otherwise.
7.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.9 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY
VALUE AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
(Signature)
Print Name: Xxxx X. Xxxxxxx
Title: EVP & CFO
Date: 12/19/98
CONSULTANT
THE UNION LABOR LIFE INSURANCE COMPANY,
a Maryland corporation acting on behalf of its Separate Account P
By: /s/ Xxxxxx X. Xxxxx
-------------------
(Signature)
Print Name: Xxxxxx X. Xxxxx
Title: V.P., Private Capital
Date: 12/31/98
Exhibit A - Compensation of Consultant
Compensation
During the Term of this Agreement, the Consultant shall receive a fee which
shall be calculated at the rate of (i) $244.50 per day for the period commencing
June 26, 1998 and ending June 30, 1998 and (ii) $22,005 per calendar quarter
commencing July 1, 1998 and ending on the last day of the Term, payable in
arrears commencing on December 31, 1998, with a final payment to be made within
10 business days of the last day of the Term.
Limitations on Reimbursement of Expenses
Unless otherwise determined by the Company's Board of Directors, all
reimbursable expenses beyond the first $2,000 expenses must be pre-approved by
an Executive Vice President of the Company, the President of the Company, or the
Company's Board of Directors.
Exhibit B - Non-qualified Stock Option Agreement
The form of Non-qualified Stock Option Agreement is attached hereto.
