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CONSULTING AGREEMENT
This Consulting Agreement is made by Computron Software, Inc.
("Computron") and Xxxxxxx Xxxxxxxx ("Typaldos").
W I T N E S S E T H:
WHEREAS, in accordance with the Agreement relating to the
termination of employment of even date herewith (the "Agreement") between
Typaldos and Computron, Typaldos has ceased his employment with Computron
effective as of November 27, 1996;
WHEREAS, Computron desires to retain Typaldos to provide consulting
services, and Typaldos desires to provide such consulting services to Computron,
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the representations
made, actions and agreements to be undertaken, and payments to be made as set
forth herein, and further good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Typaldos and Computron, the
parties agree as follows:
1. CONSULTATION:
(a) During the period (the "Consulting Period") commencing on
December 1, 1997 through the earlier of (a) November 30, 2000 or (b) the date
this Consulting Agreement is terminated pursuant to Section 6 below, Typaldos
shall make himself reasonably available to Computron, by telephone or in person,
when so requested by the Chief Executive Officer of Computron or his designee,
for consultation with the Chief Executive Officer or his designee on reasonable
notice and at reasonable times and places to be determined by Computron.
Typaldos shall cooperate fully with Computron in any special projects assigned
to him, suitable for him based on prior recent experience and position, and
shall use or provide any knowledge or information acquired by Typaldos during,
or as a result of, his employment with Computron in connection with any such
consultations or assignments.
(b) In return for the payments provided in Section 2 of this
Consulting Agreement, Typaldos will make himself available as a consultant to
the Chief Executive Officer of Computron, or his designee, for up to 60 hours
each month during the Consulting Period; provided that he will not be entitled
to additional compensation for hours in excess of 60 each month unless
Computron's Chief Executive Officer gives prior written approval for such
additional hours and such additional compensation. Within fifteen (15) days
following the last day of each calendar month of the Consulting Period, Typaldos
shall provide to Computron a written description of the consulting work he
performed during the prior month, including a reasonably detailed description of
each project and the time he spent on each project.
(c) Typaldos shall have no authority (actual, apparent, or
otherwise) to bind Computron, or any of its past, present and future partners,
parents, subsidiaries, related entities, predecessors, successors, directors,
officers, agents, employees, contractors and assigns
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(individually and collectively the "Computron Parties"), during and following
the Consulting Period. Typaldos represents and warrants that during and
following the Consulting Period, he will not make any commitments or otherwise
bind Computron or the Computron Parties, or enter into any contract on behalf of
Computron or the Computron Parties, and will not hold himself out as being
authorized, directly or indirectly, to act as a representative of or on behalf
of Computron or the Computron Parties.
2. PAYMENTS AND REIMBURSEMENT OF EXPENSES:
In exchange for his consulting services under this Consulting
Agreement and during the term of the Consulting Period, Typaldos will be paid by
Computron as follows:
(i) Three Hundred Thousand Dollars and No Cents
($300,000.00) for each of the first two years of the
Consulting Period (December 1, 1997 through November 30,
1999), and Two Hundred Fifty Thousand Dollars and No
Cents ($250,000.00) for the third year of the Consulting
Period (December 1, 1999 through November 30, 2000).
Except as provided in Section 1(b), the total payments
to Typaldos under this Consulting Agreement shall not
exceed Eight Hundred Fifty Thousand Dollars
($850,000.00). Computron will make such payments in
equal quarterly installments (except as otherwise
indicated) as follows:
(x) For the first year of the Consulting Period
(December 1, 1997, through November 30, 1998),
Computron will make a single payment of Three
Hundred Thousand Dollars and No Cents
($300,000.00) payable at or around December 1,
1997;
(y) For the second year of the Consulting Period
(December 1, 1998 through November 30, 1999),
Computron will make four equal quarterly payments
of Seventy Five Thousand Dollars and No Cents
($75,000.00), in advance, payable on or about
December 1, 1998, March 1, 1999, June 1, 1999 and
September 1, 1999, for a total payment of Three
Hundred Thousand Dollars and No Cents
($300,000.00);
(z) For the last year of the Consulting Period
(December 1, 1999 through November 30, 2000),
Computron will make four equal quarterly payments
of Sixty Two Thousand Five Hundred Dollars and No
Cents ($62,500.00) on or about December 1, 1999,
March 1, 2000, June 1, 2000, and September 1,
2000), for a total payment of Two Hundred Fifty
Thousand Dollars and No Cents ($250,000.00).
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If this Consulting Agreement is terminated earlier than
November 30, 2000 pursuant to the terms of Section 6 of
this Consulting Agreement, Computron's obligations to
make quarterly payments then unpaid shall be terminated
and Typaldos shall reimburse Computron for any advances
paid during the quarter but not yet earned (pro rated
for the applicable quarter based on the days Typaldos
was available to consult, whether or not he was actually
consulting for Computron).
(ii) Computron agrees to reimburse Typaldos, subject to the
submission of appropriate itemization and receipts for
any necessary and reasonable expenses that Typaldos
incurs providing services to Computron under this
Consulting Agreement, provided that no single expense
shall exceed Five Hundred Dollars ($500.00) unless
Typaldos first obtains approval from the Chief Executive
Officer of Computron or his designee to incur such
expense. Typaldos shall be reimbursed for any travel
expenses incurred in providing services to Computron
under the Consulting Agreement, provided that travel
outside the New York City Metropolitan area must be
approved in advance by the Chief Executive Officer of
Computron or his designee. Such travel expenses will be
paid to Typaldos, subject to the submission of
appropriate itemization and receipts.
(iii) All payments made by Computron under this Consulting
Agreement will be in the form of a check made payable to
"Xxxxxxx Xxxxxxxx" and will be sent by regular mail to
the following address:
000 Xxxx 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
3. NON-EMPLOYEE STATUS:
As a consultant to Computron, Typaldos will perform consulting
services at the request of the Chief Executive Officer or his designee as an
independent contractor. Typaldos understands and agrees that nothing in this
Consulting Agreement, explicitly or implicitly, shall be construed to make him
or any of his employees, representatives or agents an employee of Computron or
any of the Computron Parties. Typaldos understands and agrees that neither he,
nor anyone else he employs, will accrue any benefits under, or in any way be
covered by Computron's employee benefit plans. Typaldos further understands and
agrees that he will be exclusively liable for all federal, state, and local
income taxes that may be due as a result of any fees or compensation Typaldos
receives pursuant to this Consulting Agreement.
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4. NONCOMPETITION AND CONFIDENTIALITY:
Typaldos and Computron agree that, in order to better protect the
goodwill of Computron and to better assure the prevention of disclosure of
confidential materials and information of Computron, and given the unique nature
of the services he may provide to Computron, Typaldos will not, directly or
indirectly, for his own benefit or for or with any other person, firm or
corporation, engage in any business or practice in direct competition with
Computron at any time during the Consulting Period and for a period of six
months following the end of the Consulting Period. Typaldos also agrees that he
will not, directly or indirectly, for his own benefit or for or with any other
person, firm, or corporation, become employed (including without limitation as
an employee, consultant, or partner) by any person in any capacity in "direct
and major competition" with Computron at any time during the Consulting Period
and for a period of six months following the end of the Consulting Period. Those
business entities listed as competitors in any Form 10-K or Form 10-Q of
Computron from 1991 to 2000, inclusive, are in "direct and major competition"
with Computron for purposes of this Section 4. The parties understand and agree
that this Section 4 covers any such engagement by Typaldos, including any such
engagement that commences prior to the Consulting Period and which continues
into the Consulting Period.
5. NONSOLICITATION:
Typaldos agrees that during the Consulting Period and during the one
(1) year period immediately following the Consulting Period, he will not,
directly or indirectly, induce or attempt to induce any employee of Computron,
or of its subsidiaries or dedicated distributors (individually and collectively,
the "Computron Entities"), to terminate his or her employment.
6. TERMINATION:
(a) Computron shall have the right to terminate all of its
obligations hereunder, including without limitation its obligations to make the
payments set forth in Section 2 (but not those set forth in Sections 7 and 9),
by giving written notice to Typaldos at any time, if Typaldos shall commit any
act or omit to take any action in bad faith to the material detriment of
Computron or the Computron Entities, be convicted of a felony (other than motor
vehicle), or, after thirty (30) days notice and opportunity to cure, materially
breach any of the terms of the Agreement or the Consulting Agreement, such
termination to be effective at the time such notice is given by Computron. In
the case of termination under this Section 6(a), all of Typaldos' obligations
hereunder (other than those set forth in Sections 4, 5, 7, 8, and 9 of this
Consulting Agreement) shall terminate at the time the termination of Computron's
obligations becomes effective.
(b) Typaldos may terminate his obligations hereunder (other
than those set forth in Sections 4, 5, 7, 8, and 9) by giving Computron written
notice of such termination, provided such termination shall not take effect
until the expiration of thirty (30) days from the date such notice is given.
Typaldos agrees to complete any assignments then in progress and to
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cooperate fully with Computron in the termination of his obligations under this
Consulting Agreement. In the case of any termination under this Section 6(b),
Typaldos' obligations hereunder (other than those set forth in Sections 4, 5, 7,
8, and 9 of this Consulting Agreement) shall terminate and all of Computron's
obligations hereunder, including without limitation its obligations to make the
payments set forth in Section 2 (but not those set forth in Sections 7 and 9),
shall terminate at the time the termination of Typaldos' obligations (other than
those set forth in Sections 4, 5, 7, 8, and 9) become effective.
(c) This Consulting Agreement shall terminate (except for the
obligations of Typaldos under Sections 4, 5, 7, 8, and 9) upon the expiration of
the Consulting Period or in the event that Typaldos becomes employed by
Computron or any of the Computron Entities. In the case of any termination under
this Section 6(c), Typaldos' obligations hereunder (other than those set forth
in Sections 4, 5, 7, 8, and 9 of this Consulting Agreement) shall terminate and
all of Computron's obligations hereunder, including without limitation its
obligations to make the payments set forth in Section 2 (but not those set forth
in Sections 7 and 9), shall terminate at the time the termination of Typaldos'
obligations (other than those set forth in Sections 4, 5, 7, 8, and 9) becomes
effective.
(d) This Consulting Agreement shall terminate without further
action of any party if Typaldos shall die or become disabled. For purposes of
this Consulting Agreement, the term "disability" shall mean a physical or mental
incapacity of Typaldos which has prevented him from performing consulting
services for one hundred eighty (180) days, whether or not consecutive, out of
any twelve (12) consecutive months. In the case of any termination under this
Section 6(d), Typaldos' obligations hereunder (other than, in the case of
disability, those set forth in Sections 4, 5, 7, 8, and 9 of this Consulting
Agreement) shall terminate and all of Computron's obligations hereunder,
including without limitation its obligations to make the payments set forth in
Section 2 (but not those set forth in Sections 7 and 9), shall terminate at the
time the termination of Typaldos' obligations (other than, in the case of
disability, those set forth in Sections 4, 5, 7, 8, and 9) becomes effective.
7. INDEMNIFICATION:
Typaldos shall indemnify and hold harmless Computron and the
Computron Entities from and against any and all liabilities, losses, claims,
costs and expenses (including legal costs of any kind and nature) arising from
(i) any failure by Typaldos to fulfill any of his obligations hereunder, (ii)
any unlawful act committed by Typaldos during the Consulting Period, or (iii)
any act, omission, or misrepresentation by Typaldos during the Consulting
Period. Computron shall indemnify and hold harmless Typaldos from and against
any and all liabilities, losses, claims, costs and expenses (including legal
costs of any kind and nature) (collectively, "Losses") arising from any act or
omission of Typaldos in connection with and related to his function as a
consultant for Computron, provided that, with respect to the matters as to which
Losses arise, Typaldos is, in all material respects, acting within the proper
course and scope of Typaldos' duties as a consultant under the terms of this
Consulting Agreement.
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8. DUTY OF CONFIDENTIALITY AND COOPERATION:
(a) In further consideration of the covenants undertaken
herein by Computron, Typaldos agrees to refrain from taking any action that
xxxxx the business interests, reputation, or goodwill of Computron, including
but not limited to making derogatory comments to Computron's customers,
suppliers, or employees, or to the general public regarding the character and
ability of Computron, the Computron Entities, and its and their current officers
and employees.
(b) Typaldos' prior employment with Computron and work as a
consultant to Computron creates a relationship of confidence and trust between
Computron and him with respect to certain information applicable to the business
of Computron or applicable to the business of any client or customer of
Computron, which may be made known to him by Computron or by any client or
customer of Computron, or learned by him during his employment or the Consulting
Period.
(c) Computron possesses and will continue to possess
information that has been or will be created, discovered, or developed by, or
that otherwise has or will become known to, Computron (including, but not
limited to, information created, discovered, or developed by Typaldos or made
known to Typaldos during the period of or arising out of his prior employment by
Computron and during this Consulting Period), or in which property rights have
been or may be assigned or otherwise conveyed to Computron, which information
has commercial value in the business in which Computron is engaged and is
treated by Computron as confidential. All such information is hereinafter called
"Proprietary Information," which term, as used herein, shall also include, but
shall not be limited to, trade secrets, systems, processes, formulae, data,
functional specifications, blueprints, computer programs, know-how,
improvements, discoveries, developments, designs, inventions, techniques,
marketing plans, distribution channels, strategies, forecasts, new products,
unpublished financial statements, budgets, projections, licenses, prices, costs,
and customer and supplier lists.
(d) Without limiting Typaldos' obligations under Section 4 of
this Agreement, Typaldos acknowledges that by reason of his prior employment
with the Company, and by reason of this Consulting Agreement, he has been given,
and in the future may be given access to Proprietary Information of Computron
and the Computron Entities. Typaldos represents and warrants that he has kept,
will keep, and will continue to keep all such information confidential and that
he will not use such information for any purpose, except in connection with this
Consulting Agreement or in connection with any legal proceeding to which
Typaldos is a party, without the prior written consent of the Chief Executive
Officer of Computron. All Proprietary Information shall be the sole property of
Computron and its assigns.
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9. ARBITRATION:
All controversies, claims and disputes arising out of or relating to
this Consulting Agreement, including without limitation any violation of its
terms, shall be resolved by final and binding arbitration before a panel of
three arbitrators in New York, New York in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The costs of such
arbitration, including the arbitrators' fees, shall be split equally between the
parties. Each party shall pay its own attorney's fees. With respect to any
breach or threatened breach of Sections 4, 5, or 8 of this Consulting Agreement,
Computron may elect to commence an action in a federal or state court of
appropriate jurisdiction.
10. OTHER PROVISIONS:
(a) This Consulting Agreement constitutes and contains the
complete understanding of the parties with respect to the subject matters
addressed herein, and supersedes and replaces any prior negotiations and all
agreements, proposed or otherwise (except for the agreement of even date
herewith), whether written or oral, concerning the subject matters hereof. This
Consulting Agreement is an integrated document. This Consulting Agreement may
not be modified or amended unless such modification or amendment is in writing
and signed by both Typaldos and the Chief Executive Officer of Computron.
(b) If any provision of this Consulting Agreement or the
application thereof is held invalid, such invalidity shall not affect other
provisions or applications of the Consulting Agreement that can be given effect
without the invalid provision or application and, to such end, the provisions of
this Consulting Agreement are declared to be severable.
(c) This Consulting Agreement may be executed in any number of
counterparts, each of which shall be deemed to constitute an original but all of
which shall constitute one and the same instrument.
(d) This Consulting Agreement is deemed to have been executed
and delivered within the State of New Jersey and the rights and obligations of
the parties hereunder shall be construed and enforced in accordance with the
laws of the State of New Jersey.
(e) No waiver or any breach of any term or provision of this
Consulting Agreement shall be construed to be, nor shall be, a waiver of any
other breach of this Consulting Agreement. No waiver shall be binding unless in
writing and signed by the party waiving the breach.
(f) Both parties to this Consulting Agreement agree to
cooperate fully and to execute any and all supplementary documents and to take
all additional actions as may be necessary and appropriate to give full force to
the basic terms of the intent of this Consulting Agreement and which are not
inconsistent with its terms.
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Executed this 29th day of September, 1997.
COMPUTRON SOFTWARE, INC.
By:_________________________________________
XXXXXXX XXXXXXXX
____________________________________________
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