AMENDED AND RESTATED CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement (this "Agreement"), dated as
of November 13, 2000, is made by and between FRONT PORCH DIGITAL INC., a Nevada
corporation having an address at 0000 Xxxxxx Xxxxxx West, Suite 130, Cherry
Hill, New Jersey 08002 (the "Company"), and EQUITY PIER LLC, a Colorado limited
liability company having an address at 0000 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
("Equity Pier") and amends and restates in its entirety the Consulting Agreement
by and between the Company and Equity Pier dated as of August 1, 2000 (the
"Original Consulting Agreement").
RECITALS
A. The Company has acquired from Storage Technology Corporation the
business and assets of its StorageTek Media Services Division (the "Division");
B. Equity Pier has knowledge and experience regarding the management and
technical operations of businesses similar to the business of the Division, the
operation and infrastructure needed to develop and maintain the business of the
Division, and integrating the operations of the Division with those of the
Company to meet the requirements of the Company; and
C. The Company desires Equity Pier to provide consultation to the Company
regarding the above described matters, and Equity Pier desires to provide such
consultation, on the terms and conditions set forth herein.
AGREEMENT
In consideration of the mutual covenants and promises set forth herein, the
parties agree as follows:
1. SERVICES. During the Term (as hereinafter defined) of this Agreement,
Equity Pier shall perform for and on behalf of the Company the consulting
services described on Exhibit A attached hereto (the "Services").
2. COMPENSATION. The Company shall pay Equity Pier $204,000 per month for
Equity Pier's performance of the Services, commencing on October 15, 2000 and on
the 15th day of each month thereafter during the Term.
3. TIME DEVOTED BY CONSULTANT. Equity Pier shall spend such time as is
necessary to fulfill its obligations under this Agreement, more being needed
initially and less being needed once the business of the Division has been
integrated with the business of the Company and is fully operational. The
particular amount of time may vary from day to day or week to week.
4. RENDERING OF SERVICES. Equity Pier will perform most of the Services
in accordance with this Agreement at a location of Equity Pier's discretion. In
addition, Equity Pier will perform services on the telephone and at such other
places as necessary to perform the Services in accordance with this Agreement.
Equity Pier acknowledges that the Services to be rendered hereunder shall be
performed by such individuals at Equity Pier as shall be mutually agreed to by
the parties.
5. WARRANTIES AND REPRESENTATIONS. Equity Pier warrants and represents to
the Company that:
(a) Equity Pier has full right and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby;
(b) Neither the execution and delivery of this Agreement by Equity
Pier nor the consummation by Equity Pier of the transactions contemplated
hereby will constitute a violation of, or be in conflict with, constitute
or create a default under, or result in the creation or imposition of any
liens upon any property of Equity Pier pursuant to (a) any agreement or
commitment to which Equity Pier is a party or by which Equity Pier is
subject; or (b) any statute or any judgment, decree, order, regulation or
rule of any court or governmental authority relating to Equity Pier;
(c) There are no actions, suits, proceedings or investigations
pending or threatened against Equity Pier which questions the validity of
this Agreement or challenges any of the transactions contemplated hereby;
and
(d) Equity Pier will perform, or cause to be performed, the Services
in a workmanlike manner and in accordance with generally accepted industry
standards and practices.
6. TERM. This Agreement shall be effective commencing October 1, 2000 and
shall terminate on June 30, 2004 (the "Term").
7. SET-OFF RIGHTS. In the event either party shall be thirty (30) days or
more past due in paying any amount (the "Past Due Amount") it owes the other
party, pursuant to this or any other agreement or obligation between the
parties, the party to whom the Past Due Amount is owed shall have the right to
offset such Past Due Amount against any payment due from it, pursuant to this
Agreement or any other agreement or obligation, to the party owing the Past Due
Amount.
8. COMPLIANCE WITH LAWS. Equity Pier shall comply with all applicable law
and obtain all licenses, permits, authorizations and approvals required in
providing the Services.
9. CONFIDENTIALITY.
(a) Disclosure of Information. Equity Pier agrees, without the
prior written consent of the Company, Equity Pier shall not, directly or
indirectly, through any
2
form of ownership, in any individual or representative or affiliated
capacity whatsoever, except as may be in furtherance of the Company's
business, reveal, divulge, disclose or communicate to any person or entity
in any manner whatsoever confidential information relating directly or
indirectly to the Company's business of any kind, nature or description,
including, without limitation: (i) the proprietary software (including all
source and object code and other information and documentation related
thereto), trade secrets, inventions, ideas, processes, formulas,
discoveries, developments, designs and techniques; (ii) information
regarding plans for research, development, new products, marketing and
selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (iii) information
regarding the skills and salary of past or present employees, officers or
directors of the Company. The agreements set forth herein shall not apply
to any information (A) that at the time of disclosure or thereafter is
generally available to and known by the public (other than as a result of a
disclosure directly or indirectly by Equity Pier in violation of this
Agreement), (B) the disclosure of which is required by law, regulation,
order, decree or process (so long as, to the extent practicable, Equity
Pier delivers prompt written notice to the Company of such disclosure
calculated to provide the Company with an opportunity to obtain a
restraining order or other recourse), or (C) that is otherwise approved by
the Company in writing. Without regard to whether any or all of the
foregoing matters would be deemed confidential, material or important, the
parties hereto stipulate that as between them, the same are confidential,
material and important and gravely affect the effective and successful
conduct of the Company, its business and its goodwill.
(b) THIRD PARTY INFORMATION. Equity Pier acknowledges that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") subject
to a duty of the Company to maintain the confidentiality of such
information and to use it only for certain limited purposes. Equity Pier
shall hold Third Party Information that it knows or should know is Third
Party Information in the strictest confidence and will not disclose to
anyone (other than the Company's personnel who need to know such
information in connection with their work for the Company) or use, except
in connection with Equity Pier's work for the Company, Third Party
Information unless expressly authorized in writing by the President or
Board of Directors of the Company.
(c) NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND
OTHERS. During the Term of this Agreement, Equity Pier shall not improperly
use or disclose any confidential information or trade secrets, if any, of
any current or former employer or any other person to whom Equity Pier has
an obligation of confidentiality and Equity Pier shall not bring onto the
premises of the Company any unpublished documents or any property belonging
to any current or former employer or any other person or entity to whom
Equity Pier has an obligation of confidentiality unless consented to in
writing by that person or entity.
10. INDEPENDENT CONTRACTOR. For purposes of this Agreement, Equity Pier is
an independent contractor of the Company, and neither party shall be deemed to
be the agent or employee of the other. All persons employed by Equity Pier shall
be its employees or
3
subcontractors and shall not be deemed employees of the Company. Equity Pier
assumes exclusive liability for all contributions, taxes or payments required to
be made because of such employees or subcontractors by the federal and state
Unemployment Compensation Acts, Social Security Acts and all amendments thereto,
and by all other current and future acts, federal or state, requiring payment by
Equity Pier on account of such employees or subcontractors performing the
Services under this Agreement.
11. NOTICES. Any and all notices, elections, offers, acceptances, and
demands permitted or required to be made under this Agreement shall be in
writing, signed by the person giving such notice, election, offer, acceptance or
demand and shall be delivered personally, or sent by registered or certified
mail, to the party, at its address on file with the other party or at such other
address as may be supplied in writing. The date of personal delivery or the date
of mailing, as the case may be, shall be the date of such notice, election,
offer, acceptance or demand.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties concerning the subject matter hereof and supersedes all prior
agreements, understanding, discussions, negotiations and undertakings whether
written or oral, between the parties with respect thereto, including, but not
limited to, the Original Consulting Agreement.
13. NON-WAIVER. The failure of any party to insist on performance of any
term, covenant or condition hereunder or to exercise any right or privilege
conferred in this Agreement in any one or more instances shall not be a waiver
of any such terms, covenants, conditions, rights or privileges, but the same
shall continue and remain in full force and effect as if no such forbearance or
waiver had occurred, nor shall the same be construed as a novation of this
Agreement. No waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.
14. AMENDMENT. No change, modification or amendment of this Agreement
shall be valid or binding on the parties except pursuant to a written instrument
executed and delivered by each party hereto.
15. SUCCESSORS AND ASSIGNS. Equity Pier may not assign this Agreement or
any right or interest hereto without the prior written consent of the Company.
Each and every successor to and assignment of any party hereto shall hold such
interest subject to all of the terms and provisions of this Agreement. The
rights of the parties and their successors and assigns, as among themselves,
shall be governed by the terms of this Agreement, and the right of any party,
affiliate or successor in interest to assign, sell or otherwise transfer or deal
with its interests under this Agreement shall be subject to the limitations and
restrictions of this Agreement.
16. BeNEFIT AND BINDING EFFECT. This Agreement shall be binding on and
shall inure to the benefit of the parties hereto and their successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended to
confer on any third party any right, remedy, obligation or liability under or by
reason of this Agreement.
4
17. SEVERABILITY. If any provision of this Agreement or the application
thereof shall be invalid, illegal or unenforceable, such provision shall be
curtailed, limited or deleted, but only to the extent necessary to remove such
invalidity, illegality or unenforceability, and the remainder of this Agreement
shall not be affected or impaired thereby. Further, the parties will agree to
legally enforceable provisions to replace any term, provision or covenant
determined to be invalid, illegal or unenforceable so as to put the parties, as
nearly as possible, in the same position that they would have been had such
provision not been held invalid, illegal or unenforceable.
18. HEADINGS. Any heading or title contained in this Agreement is inserted
only as a matter of convenience and for reference, and in no way defines,
limits, extends, or describes the scope of this Agreement or the intent of any
provision hereof.
19. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey (without regard for conflict
of law principles).
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and each such counterpart shall be deemed an original hereof.
21. JOINT PREPARATION. This Agreement shall be deemed to have been jointly
prepared by the Company and Equity Pier, and no ambiguity herein shall be
construed against any party hereto based upon the identity of the author of this
Agreement or any portion hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first set forth above.
Front Porch Digital Inc.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
Equity Pier LLC
By: /s/ Xxxx Guest
-----------------------------------
Name: Xxxx Guest
Title: Secretary and General
Counsel
5
EXHIBIT A
---------
CONSULTING SERVICES
1. In relation to the Media Services Acquisition:
a) Identify, interview, and transition key personnel of Media Services
for retention purposes
b) Drive the integration process of systems, functions, and organizations
2. In relation to Corporate functions for FPDI:
a) Set-up the Board structure with regards to membership including
governance process
b) Implementation of Xxxx Xxxxxxx as Chairman of the Board and
interim-CEO
c) Find, interview, and hire permanent CEO
d) Implementation of Xxx Xxxxxxx as Director on FPDI Board
e) Establish corporate headquarters in Boulder, Colorado
f) Drive the fund raising process g) Facilitate the entry of FPDI onto
the NASDAQ
3. In relation to Operational functions for FPDI:
a) Establish job descriptions and functional responsibilities of the
newly defined organization structure
b) Set-up compensation plan and stock options program
c) Facilitate integration of benefit plans
d) Participate in the sales process thru customer visits, telephone
calls, presentations, etc.
e) Form strategic alliances with potential partners (StorageTek,
ManagedStorage International, Imation, GE, Teleplace/eManage, Sun,
Kodak, Agfa, Sony, FileNet, EMC, HP)
6
