Exhibit 10.8
SUBLEASE AND RESOURCE SHARING AGREEMENT
This Sublease and Resource Sharing Agreement (this "Agreement") is made and
entered into as of this First day of October, 1999 ("Effective Date") by Spider
Technologies, Inc., a Delaware corporation ("Spider"), and Intek Information,
Inc., a Delaware corporation ("Intek"). Capitalized terms not defined herein
have the meanings specified in the Separation Agreement between the parties of
even date herewith (the "Separation Agreement").
WHEREAS, pursuant to this Agreement, Intek has agreed to sublet to Spider
certain office space located in San Diego, California and, in conjunction
therewith, to allow Spider the use of certain equipment and supplies of Intek
and to make available, as appropriate, certain personnel, including clerical and
other personnel to perform services for a period of time in excess of a
transition period to facilitate Spider's operation of the business acquired
from Intek (the "TelWeb Business") pursuant to the Separation Agreement and the
Related Agreements;
WHEREAS, this Agreement is one of the Related Agreements referred to in the
Separation Agreement; and
WHEREAS, the obligations of the parties to consummate the transactions
contemplated by the Separation Agreement was conditioned on, among other things,
the execution and delivery of this Agreement by the parties.
NOW, THEREFORE, the parties agree as follows:
1.0 SUBLEASE.
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1.1 Sublease. Intek hereby subleases to Spider, and Spider subleases
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from Intek, that portion of the premises located at 0000 Xxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx, as is described on Exhibit A, which will be attached hereto within
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sixty (60) days after the Effective Date and represent that space actually
necessary for the use of Spider personnel (the "Subleased Premises"), from the
Effective Date hereof for the balance of the current lease term of such space
(the "Sublease Term"). The Subleased Premises constitute approximately 40% of
the Premises (as defined below).
1.2 Rent. Spider agrees to pay a percentage of the rent and all
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associated charges and costs (including common area charge, insurance, property
taxes and other occupancy costs owing pursuant to the M&S Lease to M&S or
others) (the "Spider Rent") required by the Lease Agreement, executed in June,
1997, between Intek and M&S California Fund, L.P. ("M&S"), as amended by a First
Amendment dated March 19, 1998 (the "M&S Lease") (the M&S Lease is attached
hereto as Exhibit B), or otherwise incurred in the occupancy of the Premises,
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and falling
due within, or payable in respect of, the Sublease Term, directly to Intek on
the same terms and conditions as set forth in the M&S Lease except that Spider
will make all such payments a minimum of five (5) days before such payment
(including to third parties other than M&S) becomes due under the M&S Lease or
is otherwise due. The entire premises covered by the M&S Lease is referred to as
the "Premises." The percentage of the rent and associated charges to be borne by
Spider as the Spider Rent shall be determined by mutual agreement of Intek and
Spider and evidenced by a writing dated not later than sixty (60) days after the
Effective Date. The percentage will be based upon the ratio of the Subleased
Premises to the Premises and any occasional use by Spider of the Premises not a
part of the Subleased Premises such as restrooms.
1.3 Insurance. Spider shall at all times while Intek's guaranty of
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the M&S Lease is in place maintain in connection with the Premises broad form
liability coverage typical of similar operations, and in any event at least the
insurance required by the M&S Lease and at least $2,000,000 of coverage for
possible injury or death per occurrence ($4,000,000 aggregate).
1.4 Responsibility. Spider shall be responsible for the performance
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of the covenants and conditions contained in the M&S Lease as they relate to
the Subleased Premises.
1.5 Nonassignability. This Sublease may not be assigned by Spider,
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nor the Subleased Premises subleased, without the written consent of Intek.
1.6 Expiration of Sublease. At the expiration of the Sublease Term
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or any sooner termination of this Sublease, Spider shall quit and surrender the
premises in as good order and condition as when received, reasonable wear and
tear excepted.
1.7 Subject to M&S Lease. This Sublease is expressly made subject to
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all of the terms, conditions, and limitations contained in the M&S Lease.
1.8 Intek's Obligations. So long as Spider is not in default
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hereunder, Intek will not:
(a) Terminate the M&S Lease prior to its scheduled expiration
date of approximately August 1, 2003 (excluding renewal terms) without at least
180 days notice to Spider (and at the end of such 180 days notice to Spider the
provisions of Sections 2, 3, 4 and 5 hereof shall end); or
(b) Assign or sublease the M&S Lease or space subject thereto
(other than to a purchaser of all or substantially all the business of Intek
conducted at the Premises or to an affiliate of Intek (collectively a "Permitted
Transferee")) without giving Spider 20 days written notice thereof and offering
to assign or sublease (as applicable) the M&S Lease or space subject thereto to
Spider on the same terms, so long as Spider is not a credit risk which Intek, in
its discretion, finds unacceptable.
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2.0 EQUIPMENT.
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2.1 Shared Furniture, Fixtures and Equipment. For so long as Spider
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shall sublet the Subleased Premises from Intek, Intek shall allow Spider the use
of the furniture, fixtures and equipment of Intek currently located on the
Premises and such additional furniture, fixtures and equipment as may be
mutually agreed upon in writing from time to time (the "Intek Equipment") on the
terms and conditions set forth in this Agreement.
2.2 Base Fees For Use of Intek Equipment. Spider shall pay a monthly
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fee for the use of the Intek Equipment (the "Base Fee"). Such Base Fee shall be
determined by mutual agreement of Intek and Spider, to be evidenced by a writing
dated not later than sixty (60) days after the Effective Date.
2.3 Maintenance, Repair and Replacement Fees. Spider shall be
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responsible for a percentage of all costs incurred in connection with the
maintenance, repair, or replacement of any item of Intek Equipment (the
"Maintenance Fees"). The percentage of Maintenance Fees to be borne by Spider
shall be determined by mutual agreement of Intek and Spider, to be evidenced by
a writing dated not later than sixty (60) days after the Effective Date.
2.4 Payment of Base Fees and Maintenance Fees. By the twentieth
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(20/th/) day of each month, Intek shall send to Spider an itemized invoice for
the Base Fee and any Maintenance Fees payable for use of the Intek Equipment for
the preceding month. The monthly invoice of fees and expenses is due and
payable ten days after its receipt by Spider.
2.5 Payment of Fees Upon Termination of Agreement. If this Agreement
---------------------------------------------
is terminated in accordance with Section 9 or 1.8(a) on a day other than the
last day of a month, the Base Fee for the use of the Intek Equipment will be
pro rated based on the number of days in the month on and before, and the number
of days in the month after, the day when this Agreement is terminated. Spider
shall reimburse and pay to Intek all Maintenance Fees incurred (whether or not
yet billed by or to Intek) by Intek pursuant to this Agreement up to and
including the date of termination.
2.6 Right of Purchase. Intek will not sell or sublease any items of
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Intek Equipment of an aggregate value in excess of $20,000 during any 12 month
period, except to a Permitted Transferee, without offering in writing to sell or
sublease such Intek Equipment in excess of $20,000 to Spider on the same terms,
so long as Spider is not a credit risk which Intek, in its discretion, finds
unacceptable.
3.0 UTILITIES AND OPERATING EXPENSES.
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3.1 Non-Lease Utilities and Miscellaneous Operating Expenses. Spider
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shall be responsible for payment of a percentage of all costs associated with
provision of utilities and
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miscellaneous operating expenses, beginning as of the Effective Date, which are
not otherwise incorporated into the Spider Rent as contemplated in the M&S Lease
and the Spider Sublease, including, but not limited to, local and long distance
telephone service, postage, internet access fees, software license and support
fees, cleaning, and other expenses agreed upon, in writing, by Intek and Spider
and not otherwise addressed in a Related Agreement ("Miscellaneous Expenses").
The percentage of costs associated with the Miscellaneous Expenses to be borne
by Spider shall be determined by mutual agreement of Intek and Spider, to be
evidenced by a writing dated not later than sixty (60) days after the Effective
Date. All Miscellaneous Expenses will be itemized and invoiced by Intek to
Spider and payable by Spider in the same manner as is provided for invoicing of
Base and Maintenance Fees as set forth in Section 2 herein. Should Intek be
prohibited by any applicable laws or regulations from allowing Spider the shared
use of any utilities or other services or property, Spider will be solely
responsible for securing its own such utility and other services and property,
and Spider further agrees that it will indemnify and hold Intek harmless from
and against any claims arising out of or resulting from Spider's unauthorized
use of utility and other services and property.
3.2 Software Licenses. Spider hereby agrees that, in the event any
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Intek software license agreement under which Intek is the licensee prohibits
the use of the subject software by or for the benefit of Spider, Spider will be
solely responsible for securing such software and/or licenses to use such or
comparable software. Spider further agrees that it will indemnify and hold
Intek harmless from and against any claims arising out of or resulting from
Spider's unauthorized use of software licensed to Intek. This Section 3.1 does
not apply to the software which is the subject of the Software Assignment and
Grant-Back License, Maintenance and Support Agreement, dated as of Nov. 4, 1999,
between Intek and Spider (the "TelWeb License").
4.0 INVENTORY AND SUPPLIES.
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4.1 Use of Inventory and Supplies. Spider shall reimburse Intek for
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all inventory and/or supplies used or consumed by Spider. Intek shall invoice
Spider, at cost plus 5 percent, for such inventory and/or supplies on a monthly
basis in the manner provided for invoicing of Base and Maintenance Fees set
forth in Section 2 hereof and Spider will pay such invoices in accordance with
Section 2. Spider may order its own inventory and supplies, and Intek has no
obligation under this Section 4 to purchase inventory or supplies for Spider.
Intek and Spider will establish a system to reasonably allocate such use and
consumption.
5.0 EMPLOYEES AND INTELLECTUAL PROPERTY.
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5.1 Shared Employees. As of the Effective Time, the clerical and
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other employees of Intek listed on Exhibit C ("Shared Employees") shall allocate
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the specified percentage of their time to Spider ("Spider Time"). The Shared
Employees shall remain employees of Intek and thus shall be paid their salary by
Intek and receive their benefits directly from Intek. Spider shall reimburse
Intek for the Shared Employees' out-of-pocket expenses while performing work for
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Spider, so long as those expenses and documentation thereof are in accordance
with Spider's reasonable policies as reported by Spider to Intek from time to
time. If Intek finds those policies unreasonable, Intek and Spider will arrange
for direct payment by Spider of all expenses incurred on Spider work. By the
twentieth (20/th/) day of each month, Intek shall send to Spider an invoice for
monthly aggregate charges for the Shared Employees (if any) not listed as "Fixed
Charge" employees on Exhibit C ("Aggregate Charges") which shall equal one-
twelfth (1/12) of the aggregate of each Shared Employee's fully loaded total
annual cost of employment including salary, benefits and overhead (but excluding
stock options or stock grants) to Intek multiplied by the Spider Time provided
on Exhibit C. On a quarterly basis beginning January 1, 2000, Intek and Spider
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shall review the Spider Time and if the actual costs for salary, benefits and
overhead on an aggregate basis for the Shared Employees are more or less than
ten percent (10%) of the Aggregate Charges, or the Spider Time has been changed,
but not previously adjusted, the Aggregate Charges shall be appropriately
adjusted on a prospective basis to reflect the actual future costs. The amount
of Fixed Charges for Shared Employees is set forth in a separate letter
agreement.
5.2 Inventions. Shared Employees may be authoring or creating
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intellectual property for both Spider and Intek at the same time, and both
Spider and Intek may have agreements with a Shared Employee whereby the Shared
Employee assigns rights to intellectual property. As between Intek and Spider:
(i) if the intellectual property was created while working for a party (whether
Intek or for Spider even though employed by Intek), that party will be the owner
of the intellectual property; (ii) if it is not clear that the intellectual
property was created in the course of work for one party or another, the
intellectual property will be jointly owned by Spider and Intek and either party
may freely deal with the property (including selling or licensing) with no duty
to account for any sums to, or seek any permission from, the other party;
provided, however, that this Section 5.2 is subject and subordinate to any
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allocation of rights to intellectual property created in the future as provided
for in the TelWeb License.
5.3 Quarterly Meeting on Shared Employees. Intek and Spider will
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meet within 20 days after each calendar quarter end to discuss the amount of
Spider Time for each Shared Employee. If the parties cannot agree, then the
Shared Employee will continue working for the current calender quarter at the
Spider Time in effect during the preceding calender quarter, and at the end of
that period the Shared Employee will work full time for Spider if the Spider
Time is 50% or more and for Intek if the Spider Time is less than 50%. If the
Shared Employee is Xxxx Xxxxxx, Xx. Xxxxxx will continue working in accordance
with the Spider Time for 3 months longer than provided for other Shared
Employees in the preceding sentence.
5.4 Employment After Termination. During the term of this Agreement,
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Spider will not directly or indirectly solicit or incent any Shared Employee to
terminate his or her employment. If the Spider Time of a Shared Employee at the
time of termination of this Agreement is less than 25%, for one year after such
termination Spider will not, directly or indirectly solicit or incent the Shared
Employee to terminate his or her employment with Intek. If the Spider Time of
the Shared Employee is more than 75%, for one year after termination of this
Agreement Intek will
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not attempt to retain or solicit the employment of the employee if employee
wishes to accept employment with Spider. After termination, all other Shared
Employees may be hired or retained by either Spider or Intek.
5.5 Time for Performance. Intek and Spider on-site management will
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coordinate and mutually agree upon the specific times a Shared Employee will
perform work for Spider and perform work for Intek. If on-site management
cannot agree, senior management of both companies will attempt to agree. If
such agreement does not occur, the Shared Employee will work each day for each
company in accordance with the Spider Time.
5.6 Termination of Shared Employee. Nothing in this Agreement
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requires Intek to retain any person in the service of Intek or hire a person to
perform the services of any person who is no longer an Intek employee. If Intek
decides to terminate a Shared Employee, it will so notify Spider if the Shared
Employee agrees to that notice.
6.0 TERM; PERIODIC MEETING.
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6.1 Term. This Agreement shall commence on the Effective Date and
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continue in effect until (i) as to Section 1.0 the termination of the M&S Lease;
(ii) as to Section 2.0 for a term of one year after the Effective Date; (iii) as
to Section 3.1 for the term of Section 1.0 as to costs of physical occupancy of
the subleased Premises and for the term of Section 2.0 as to costs related to
Sections 2.0 or 4.0 goods and services; (iv) as to Section 4.0 for the term of
Section 2.0, unless in each case renewed or earlier terminated in accordance
with this Agreement. All references in this Agreement to the "term of this
Agreement" include a renewal term of this Agreement, if a renewal term is
mutually agreed upon in writing. Notwithstanding the expiration of all or part
of this Agreement pursuant to this Section, the duties, obligations, and
responsibilities of Spider and Intek (and the agents, officers, directors,
employees, subcontractors, and representatives of Spider and Intek, if any)
under Sections 5.2, 5.4, 7, 8, and 10 will survive following the expiration of
this Agreement.
6.2 Semi-Annual Meeting. Intek and Spider will meet at least once
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every six months after the Effective Date to discuss and adjust, in good faith,
any changes provided for herein to reflect actual usage, costs and charges.
7.0 RELATIONSHIP BETWEEN PARTIES.
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7.1 Relationship Between Parties. The relationship between Spider
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and Intek created by this Agreement is that of an independent contractor, and
nothing in this Agreement, whether express or implied, shall be deemed to create
an association, partnership, joint venture, or employee-employer relationship
between Spider and Intek. By virtue of this Agreement, no agent, officer,
director, employee, or, representative of Spider is, will be, or will be deemed
to be, an agent, officer, director, employee, or representative of Intek.
Spider shall not have the right to make any
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contracts or commitments for, or on behalf of, Intek without Intek's prior
written approval. Conversely, no agent, officer, director, employee, or
representative of Intek is, will be, or will be deemed to be, an agent, officer,
director, employee, or representative of Spider. Intek shall not have the right
to make any contracts or commitments for, or on behalf of, Spider without
Spider's prior written approval. Intek may not direct the activities of Shared
Employees during Spider Time.
8.0 INDEMNIFICATION.
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8.1 Indemnification of Intek. Spider shall indemnify Intek, its
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subsidiaries and their respective agents, officers, directors, employees, owners
and representatives, from any cost, loss, expense, or liability incurred by
Intek or its subsidiaries, or their respective agents, officers, directors,
employees, owners, or representatives, arising out of a breach of any covenant
made or to be performed by Spider or its subsidiaries pursuant to this
Agreement.
8.2 Indemnification of Spider. Intek shall indemnify Spider, its
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subsidiaries and their respective agents, officers, directors, employees, owners
and representatives from any cost, loss, expense, or liability incurred by
Spider or its subsidiaries, or their respective agents, officers, directors,
employees, owners, or representatives arising out of a breach of any covenant
made or to be performed by Intek pursuant to this Agreement
9.0 TERMINATION OF AGREEMENT.
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9.1 Termination by Intek. Intek unilaterally may terminate this
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Agreement before the expiration of its stated term, without further liability or
obligation to Spider, if any of the following events occurs:
(a) Spider defaults under any of its monetary obligations under
this Agreement and does not cure such default within twenty (20) days of notice
of such default, or fails to undertake reasonable steps to cure any nonmonetary
default under this Agreement within five (5) days after it receives notice from
Intek of any such default (and fails to cure any such non-monetary default
within twenty (20) days following the effective date of the notice of default);
(b) The initiation of an action or proceeding for the
dissolution, termination, or liquidation of Spider;
(c) Spider sells, leases, exchanges, distributes, liquidates, or
otherwise transfers all or substantially all its assets;
(d) Six (6) months following the closing of an initial public
offering of Spider's stock registered pursuant to the Securities Act of 1933, as
amended; or
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(e) Spider files (or a creditor files against Spider) a petition
seeking relief or reorganization under any bankruptcy, insolvency, or debtor
relief law or gives notice to any creditor of a proposed general assignment for
the benefit of its creditors; or a trustee, receiver, or custodian is appointed
for Spider generally or for all or substantially all its assets.
Termination of this Agreement in accordance with subsections (a)
through (e) above will be effective, unless otherwise provided, when notice of
termination is given to Spider. If this Agreement is terminated in accordance
with this Section, neither party to this Agreement will have any additional
right or obligation with respect to the other party to this Agreement, except
Spider shall remain liable and pay for the services rendered and costs incurred
by Intek to Spider pursuant to this Agreement through the effective date of
termination and additionally, the duties, liabilities, obligations, and
responsibilities of the respective parties set forth in Sections 1.4, 3.1, 5.2,
5.4, 7, 8, and 10 will survive following the termination of this Agreement.
9.2 Termination by Spider. Spider unilaterally may terminate this
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Agreement before the expiration of its stated term, without further liability or
obligation to Intek, if any of the following events occurs:
(a) Intek defaults under any of its monetary obligations under
this Agreement and does not cure such default within ten (10) days of notice of
such default, or fails to undertake reasonable steps to cure any non-monetary
default under this Agreement within five (5) days after it receives notice from
Spider of any such default (and fails to cure any such nonmonetary default
within fifteen (15) days);
(b) The initiation of an action or proceeding for the
dissolution, termination, or liquidation of Intek;
(c) Intek sells, leases, exchanges, distributes, liquidates, or
otherwise transfers all or substantially all its assets;
(d) Six (6) months following the closing of an initial public
offering of Intek's stock registered pursuant to the Securities Act of 1933, as
amended; or
(e) Intek files (or a creditor files against Intek) a petition
seeking relief or reorganization under any bankruptcy, insolvency, or debtor
relief law or gives notice to any creditor of a proposed general assignment for
the benefit of its creditors; or a trustee, receiver, or custodian is appointed
for Intek generally or for all or substantially all its assets.
Termination of this Agreement in accordance with subsections (a)
through (e) above will be effective, unless otherwise provided, when notice of
termination is given to Intek. If this Agreement is terminated in accordance
with this Section, neither party to this Agreement will have any additional
right or obligation with respect to the other party to this Agreement, except
Spider
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shall remain liable and pay for the services rendered and costs incurred by
Spider to Intek pursuant to this Agreement through the effective date of
termination and, additionally, the duties, liabilities, obligations, and
responsibilities of the respective parties set forth in Sections 1.4, 3.1, 3.2,
5.2, 5.4, 7, 8 and 10 will survive following the termination of this Agreement.
10.0 MISCELLANEOUS.
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10.1. Entire Agreement. This Agreement and the other writings
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referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
10.2. Waiver and Modification. An extension, amendment,
-----------------------
modification, cancellation, or termination of this Agreement will be valid and
effective only if it is in writing and signed by each party to this Agreement.
In addition, a waiver of any duty, obligation, or responsibility of a party
under this Agreement will be valid and effective only if it is evidenced by
writing signed by, or on behalf of, the party against whom the waiver or
discharge is sought to be enforced. The waiver by either party of a breach of a
provision of this Agreement will not constitute as waiver of a succeeding breach
of the provision or a waiver of the provision itself.
10.3. Notices. All notices, requests, consents and other
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communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or in a counterpart hereto (as the case may be) or such
other address as may hereafter be designated in writing by such party to the
other parties:
if to the Intek, to:
Intek Information, Inc.
0000 XXX Xxxxxxx, 00/xx/ Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx, Xxxxx & Xxxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: G. Xxxxx Xxxxxxxx, Jr.
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if to the Spider, to:
Spider Technologies, Inc.
0000 XXX Xxxxxxx, 00/xx/ Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
E* Law Group
0000 Xxxx 000/xx/ Xxxxx
Xxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
10.4. Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
10.5. Headings. The headings of the sections of this Agreement have
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been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
10.6. Nouns and Pronouns. Whenever the context may require, any
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pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
10.7 Dispute Resolution. Any and all disputes or claims arising under
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or related to this Agreement (including by a Spider Indemnified Party or Intek
Indemnified Party) shall be promptly submitted to arbitration before the
American Arbitration Association ("AAA") before a single arbitrator. The
arbiter shall be selected by the arbitration service on the basis, if possible,
of his or her expertise in the subject matter(s) of the dispute. The decision
of the arbitrator shall be final, nonappealable and binding upon the parties,
and it may be entered in any court of competent jurisdiction. The arbitration
shall take place in Denver, Colorado. The arbitration shall be conducted under
the Commercial Arbitration Rules of the AAA. The arbitrator shall have the
power to grant equitable relief where applicable under Colorado law. The
arbitrator shall issue a written opinion setting forth his or her decision and
the reasons therefor within thirty (30) days after the arbitration proceeding is
concluded. The obligation of the parties to submit any dispute arising under or
related to this Agreement to arbitration as provided in this Section shall
survive the expiration or earlier
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termination of this Agreement. Notwithstanding the foregoing, either party may
seek and obtain an injunction or other appropriate relief from a court to
preserve the status quo with respect to any matter pending conclusion of the
arbitration proceeding, but no such application to a court shall in any way be
permitted to stay or otherwise impede the progress of the arbitration
proceeding. Each party hereto, and in order to be entitled to indemnification
hereunder each Intek Indemnified Party and Spider Indemnified Party, submits
itself to the jurisdiction of the AAA in Denver, Colorado.
In the event of any arbitration or litigation being filed or instituted between
the parties concerning this Agreement, the prevailing party will be entitled to
receive from the other party or parties its reasonable attorneys' fees, witness
fees, costs and expenses, court costs and other reasonable expenses, whether or
not such controversy, claim or action is prosecuted to judgment or other form of
relief.
10.8. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Colorado without giving
effect to the principles of conflicts of law. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the jurisdiction of the
courts of the State of Colorado and of the United States of America, in each
case located in the County of Denver, for any action, proceeding or
investigation in any court or before any governmental authority ("Litigation")
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any Litigation relating thereto except in
such courts). Each of the parties hereto hereby irrevocably and unconditionally
waives any objection to the laying of venue of any Litigation arising out of
this Agreement or the transactions contemplated hereby in the courts of the
State of Colorado or the United States of America, in each case located in the
County of Denver, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such Litigation brought
in any such court has been brought in an inconvenient forum.
10.9. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid, but
if any provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
10.10. Rights of Third Parties. Nothing in this Agreement, whether
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express or implied, is intended or should be construed to confer or grant to any
person, except Spider and Intek, and the parties listed in Section 8 hereof as
entitled to indemnification, and their respective assignees and successors, any
claim, right, remedy, or privilege under, or because of, this Agreement or any
provision of it.
10.11. Assignment; Binding Effect. A party to this Agreement (whether
--------------------------
by operation of law or otherwise) shall not assign its rights or delegate its
duties, obligations, and responsibilities under this Agreement without the
advance written consent of the other party to this Agreement, and any assignment
or delegation without the advance written consent of the other party will be
invalid
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and ineffective against the nonconsenting party. Such consent will not be
unreasonably withheld. This Agreement is binding on, and inures to the benefit
of, any successor or approved assignee of a party to this Agreement.
10.12 Further Assurances. The parties will from time to time take
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such additional reasonable actions as necessary to carry out the intent and
purpose of this Agreement, provided no party need incur or discharge significant
additional performance or monetary obligations to fulfill its duties under this
Section 10.12.
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IN WITNESS WHEREOF, the parties hereto have executed this Sublease and
Resource Sharing Agreement as of the date first above written.
Intek: INTEK INFORMATION, INC.
By: /s/ XXXXXXX X. X'XXXXXXX
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Its:_________________
Spider: SPIDER TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. X'XXXXXXX
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Its:_________________
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EXHIBIT A
SUBLEASED PREMISES
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EXHIBIT B
M&S LEASE
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EXHIBIT C
LIST OF SHARED Employees
Percentage of Time
Shared Employee Devoted to Spider
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Xxxx Xxxxxx (Fixed Charge) 40%
Xxxxx Xxxxxxxxx (Fixed Charge) 40%
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