Exhibit 10.9
CONSULTING AGREEMENT
This Consulting Agreement ("AGREEMENT") is entered into by and
between Xxxxxxx X. Xxxxxxxx ("CONSULTANT") and Giga Information Group, Inc.
("COMPANY") effective as of July 1, 1998.
CONSULTANT has been requested by COMPANY to provide consulting
services and advice as requested by COMPANY in accordance with the terms,
covenants and conditions set forth below.
In consideration of the following terms, covenants and
conditions, the parties agree as follows:
1. Term. The term of this AGREEMENT shall be the period
commencing on July 1, 1998 and ending on June 30, 2000, or until completion of
the project/assignment set forth in paragraph 2, whichever date is earlier.
Either party may also terminate this AGREEMENT upon not less than sixty (60)
days' prior written notice to the other.
2. Services. CONSULTANT agrees to serve as a consultant to
COMPANY during the term of this AGREEMENT, to provide advice, guidance and
knowledge related to strategy and executive management as reasonably required by
COMPANY. CONSULTANT shall allocate an average minimum of 15 hours per week to
his consulting services hereunder. Nothing contained herein shall preclude
CONSULTANT from representing, performing services for or being employed by such
additional clients, persons or companies (other than a competitor of COMPANY) as
CONSULTANT in his sole discretion sees fit, so long as such activities do not
conflict or interfere with CONSULTANT'S performance under this AGREEMENT.
3. Independent Contractor. CONSULTANT shall be an independent
contractor in the making and performance of this AGREEMENT and is not, and shall
not be construed to be, an employee, agent or servant of COMPANY. COMPANY shall
have no liability whatsoever for withholding, collection or payment of income
taxes or for taxes of any other nature on behalf of CONSULTANT, and CONSULTANT
hereby agrees to indemnify COMPANY for any liability, cost or expense incurred
by COMPANY as a result of COMPANY'S failure to withhold. Under no circumstances
shall CONSULTANT have or claim to have power of decision hereunder in any
activity on behalf of COMPANY, nor shall he have the power or authority
hereunder to obligate, bind or commit COMPANY in any respect. It is specifically
understood that COMPANY shall not, with respect to CONSULTANT'S services,
exercise or have the power to exercise such control over CONSULTANT as would
indicate or establish that a relationship of employer and employee exists
between CONSULTANT and COMPANY. CONSULTANT is free to engage at CONSULTANT'S
expense such other employees or agents of CONSULTANT that CONSULTANT deems
necessary for the satisfactory completion of the project/assignment set forth in
Paragraph 2, provided that any such employees or agents first execute COMPANY'S
standard form of Confidential and Proprietary Information, Trade Secrets and
Non-Solicitation Agreement. The parties further agree that CONSULTANT shall have
the right to control the manner and means by which the contracted
project/assignment is achieved, subject only to the satisfaction of COMPANY as
to the quality, effectiveness and timeliness of the required results.
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4. Fees and Expenses. COMPANY shall pay CONSULTANT a fee of
$8,333 per month for the first four (4) months of this AGREEMENT and a fee of
$13,333 per month for each month thereafter. The aforementioned fees are based
on an average of 15 hours per week of consulting services and will be adjusted
accordingly for any mutually agreed upon change of hours of services provided.
The fees for services shall he paid monthly. If either party terminates this
AGREEMENT before the expiration of the term specified in paragraph 1, the fees
owed shall be prorated according to the number of full or partial months
elapsed. COMPANY agrees to reimburse CONSULTANT for reasonable travel, living
and related expenses incurred by CONSULTANT when requested by Company to travel
hereunder, upon submission of appropriate documentation. CONSULTANT shall also
receive from COMPANY an additional fee of $2,000 per month for administrative
expenses of CONSULTANT in maintaining his office and staff and Consultant will
also be provided with a reasonable level of personal computer equipment,
software and upgrades in order to facilitate Consultant's work under this
Agreement.
5. Stock Option. Upon approval of this AGREEMENT by the
Compensation Committee of COMPANY, CONSULTANT shall receive a five-year
non-qualified stock option for 100,000 shares of COMPANY Common Stock under
COMPANY'S 1995 Stock Option Plan, having an exercise price equal to the Fair
Market Value of the Common Stock at the time of grant. The option will provide
for vesting as follows: 28,000 shares on June 30,1999 and 2,000 shares for each
full calendar month thereafter through June 30, 2002; provided, however, that
vesting will accelerate upon a "change of control" or if CONSULTANT fails to be
nominated or re-elected as a Director, in each case (regarding his continuing as
a Director) without his prior consent, and will terminate: (1) if CONSULTANT
terminates this Agreement prior to June 30, 2000 or (2) if COMPANY terminates
this AGREEMENT prior to June 30, 2000 or this AGREEMENT expires by its terms and
CONSULTANT no longer serves as a consultant on other agreed terms or as a
director.
6. Confidential Information. CONSULTANT understands and
acknowledges that during the term of this AGREEMENT he may have access to and
become acquainted with certain confidential information and trade secrets, which
are private or confidential in that they are not generally known or available to
the public, or give COMPANY, and its subsidiaries and related companies, an
opportunity to obtain an advantage over competitors who do not know or use such
information. CONSULTANT agrees that he shall not disclose any such confidential
information or trade secrets to any person or entity, either directly or
indirectly, or use said confidential information or trade secrets for his
personal benefit or in any other way, except in the performance of CONSULTANT'S
responsibilities set forth in this AGREEMENT. However, this obligation will not
apply to information which is or becomes publicly available without fault on the
part of CONSULTANT, is already in CONSULTANT'S possession prior to the time
CONSULTANT gains access to the data under this AGREEMENT, is independently
developed by CONSULTANT, or is rightfully obtained from third parties. Upon
termination of this AGREEMENT, CONSULTANT shall return to COMPANY all copies of
all data, materials and documents which belong to COMPANY (whether or not such
data, materials or documents were prepared by COMPANY, the CONSULTANT or
others).
7. Proprietary Rights. (a) CONSULTANT agrees that if any
inventions, discoveries or improvements are conceived, first reduced to
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practice, made or developed in anticipation of, in the course of, or as a result
of, work performed under this AGREEMENT, CONSULTANT will assign to COMPANY the
CONSULTANT'S entire right, title and interest in and to such inventions,
discoveries and improvements, and any patents that may be granted in any country
of the world. CONSULTANT further agrees that, without charge to COMPANY or its
designee, CONSULTANT will sign all papers and do all acts which may be
necessary, desirable or convenient to enable COMPANY at its expense to file and
prosecute applications for patents on such inventions, discoveries and
improvements, and to maintain any such patents granted.
(b) The entire right, title and interest, including copyright,
in all original works of authorship fixed in any tangible medium or expression
originated and developed by CONSULTANT as a part of the work covered by this
AGREEMENT shall be transferred to and vested in COMPANY. The parties expressly
agree to consider as works made for hire those works ordered or commissioned by
COMPANY which qualify as such in accordance with the copyright laws. For all
such original works, CONSULTANT agrees to provide documentation satisfactory to
COMPANY to assure the conveyance of all such right, title and interest,
including copyright, to COMPANY. The cost of conveying such rights shall be at
COMPANY'S expense. In the event the work is deemed not to be a work for hire,
CONSULTANT irrevocably transfers, assigns and conveys the exclusive copyright
ownership to COMPANY, free and clear of any liens, claims, or other encumbrances
to the fullest extent permitted by law.
(c) CONSULTANT agrees to disclose and furnish promptly to
COMPANY any and all technical information, computer or other apparatus programs,
specifications, drawings, records, documentation, works of authorship or other
creative works, ideas, knowledge or data, written, oral or otherwise expressed,
originated or developed by CONSULTANT, as a result of work performed under or in
anticipation of this AGREEMENT. CONSULTANT further agrees that all such
information shall be the property of COMPANY, shall be used only in providing
services under this AGREEMENT, and may not be used for other purposes, except
upon such terms as may be agreed upon by COMPANY in writing.
(d) CONSULTANT warrants the originality of the work prepared
for COMPANY under this AGREEMENT, its disclosure to COMPANY exclusively, and
that no portion of the work prepared for COMPANY under this AGREEMENT is derived
from any work owned by another party. If such information includes materials
previously developed or copyrighted by CONSULTANT and not originated or
developed under this AGREEMENT, CONSULTANT grants and agrees to grant to COMPANY
any unrestricted, royalty-free license to use and copy such materials.
(e) CONSULTANT warrants that the use of any work product, or
any part thereof, furnished under this AGREEMENT by CONSULTANT to COMPANY, will
not infringe any U.S. patent, copyright, trade secret or other proprietary right
and that he is not currently bound by any other agreement, restriction or
obligation and will not assume such obligation or restriction which would in any
way interfere or would be inconsistent with the services to be provided to
COMPANY under this AGREEMENT.
8. Governing Law. This AGREEMENT shall in all respects be
interpreted, enforced and governed under the laws of the Commonwealth of
Massachusetts.
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9. Arbitration. (a) All disputes between CONSULTANT (and his
attorneys, successors, and assigns) and COMPANY (and its affiliates,
shareholders, directors, officers, employees, agents, successors. attorneys, and
assigns) relating in any manner to any and all disputes arising out of or
relating to this AGREEMENT or the interpretation or breach thereof ("Arbitrable
Claims") shall be resolved by arbitration. All persons and entities specified in
the preceding sentence (other than COMPANY and CONSULTANT) shall be considered
third-party beneficiaries of the rights and obligations created by this Section
on Arbitration. Arbitrable Claims shall include, but are not limited to,
contract (express or implied) and tort claims of all kinds, as well as all
claims based on any federal, state, or local law, statute, or regulation,
excepting only claims under applicable workers' compensation law and
unemployment insurance claims. Arbitration shall be final and binding upon the
parties and shall be the exclusive remedy for all Arbitrable Claims, except that
COMPANY may, at its option, seek injunctive relief and damages in court for any
breach of Sections 6 and 7 of this AGREEMENT. Subject to the foregoing sentence,
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO
ARBITRABLE CLAIMS.
(b) Arbitration of Arbitrable Claims shall be in accordance
with the Employment Dispute Resolution Rules of the American Arbitration
Association ("AAA Employment Rules"), except as provided otherwise in this
AGREEMENT. In any arbitration, the burden of proof shall be allocated as
provided by applicable law. Either party may bring an action in court to compel
arbitration under this AGREEMENT and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit or administrative action
in any way related to any Arbitrable Claim. All arbitration hearings under this
AGREEMENT shall be conducted at the COMPANY office or branch where this
AGREEMENT was executed or, in the event the branch is no longer in operation, at
the COMPANY office geographically closest to the place where this AGREEMENT was
executed. The Federal Arbitration Act shall govern the interpretation and
enforcement of this Section. The fees of the arbitrator shall be split between
both parties equally. All proceedings and all documents prepared in connection
with any Arbitrable Claim shall be confidential and, unless otherwise required
by law, the subject matter thereof shall not be disclosed to any person other
than the parties to the proceedings, their counsel, witnesses and experts, the
arbitrator, and, if involved, the court and court staff.
10. Survival. The rights and obligations of CONSULTANT and
COMPANY set forth in Sections 4, 6, 7 and 9 shall survive the expiration or
termination of this AGREEMENT.
11. Entire Agreement; Amendments. This AGREEMENT sets forth
the entire agreement between the parties and fully supersedes any and all prior
agreements or understandings between the parties relating to the subject matter
hereof. Any amendment or modification to this AGREEMENT must be made in writing
and signed by both parties. Nothing contained herein shall affect CONSULTANT'S
rights or obligations as a director of COMPANY or any other compensation he may
receive in such capacity.
12. Counterparts. This AGREEMENT may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same instrument.
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13. Notices. All notices under this AGREEMENT shall be in
writing and delivered in person or sent by telefax or by registered mail,
charges prepaid. Any notice given hereunder shall be deemed to be received and
effective (i) on the date of such delivery or (ii) on the date of receipt of
confirmation by answerback, in the case of telefax, in each case to the
appropriate address or telefax number set forth below (or to such other
addresses or telefax numbers as a party may designate as to itself by notice to
the other party):
If to COMPANY:
Giga Information Group, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telefax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to CONSULTANT:
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Telefax: (000) 000-0000
14. Assignability. CONSULTANT may not assign, transfer,
pledge, encumber or hypothecate this AGREEMENT, or any of his rights hereunder
(whether by operation of law or otherwise), and this AGREEMENT shall not be
subject to execution, attachment or similar proceeding. Any attempted
assignment, transfer, pledge, encumbrance, hypothecation or other disposition of
this AGREEMENT, contrary to the provisions hereof, and the levy of any
attachment or similar proceeding upon this AGREEMENT, or CONSULTANT'S rights
hereunder, shall be null and void and without effect, but the benefits and
obligations of CONSULTANT hereunder shall inure to the benefit of and shall be
binding upon his heirs, executors, administrators, and legal representatives.
This AGREEMENT shall inure to the benefit of and shall be binding upon COMPANY
and its successors.
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IN WITNESS WHEREOF, the parties hereto have executed this
AGREEMENT on the day and year first above written subject to approval by the
Board of Directors of the COMPANY.
Xxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Date: 12/18/98
Giga Information Group, Inc
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Date: 12/17/98
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