EXHIBIT 10.11
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT dated as of June 1, 2002 (the "Agreement") is
made by and between QUOVADX, INC., a Delaware corporation (the "Company"),
XXXXXXXXXX.XXX CORPORATION, a Georgia corporation ("Xxxxxxxxxx.xxx"), and XXXXXX
X. XXXXXX, an individual resident of the State of Georgia ("Xx. Xxxxxx").
WITNESSETH:
WHEREAS, Xx. Xxxxxx was employed by Xxxxxxxxxx.xxx as its Chief Executive
Officer, the terms of which employment were governed by an Employment Agreement
between Xx. Xxxxxx and Xxxxxxxxxx.xxx dated May 14, 2001 (the "Employment
Agreement"); and
WHEREAS, effective August 13, 2001, the Company acquired Xxxxxxxxxx.xxx
through the merger of Xxxxxxxxxx.xxx with a wholly-owned subsidiary of the
Company and, in connection therewith, assumed Xxxxxxxxxx.xxx's obligations under
the Employment Agreement;
WHEREAS, effective October 15, 2001, Xx. Xxxxxx resigned from all officer
positions held by him with the Company and with any subsidiaries and affiliates
of the Company (including without limitation Xxxxxxxxxx.xxx), and terminated his
employment relationship with each of the foregoing; and
WHEREAS, from the date of such resignation and termination, the Company has
retained Xx. Xxxxxx as a consultant so that it may have the benefit of Xx.
Xxxxxx'x experience and abilities; and
WHEREAS, the parties hereto wish to confirm and document this engagement
and to confirm certain other understandings relating to the termination of Xx.
Xxxxxx'x employment;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. TERMINATION OF EMPLOYMENT.
(a) Xx. Xxxxxx'x resignation as an officer and employee of the Company
and Xxxxxxxxxx.xxx (and any subsidiaries of the foregoing), and the termination
of his employment relationships with each of the foregoing entities, was
effective as of October 15, 2001 (the "Termination Date").
(b) The parties acknowledge and agree that the Employment Agreement is
terminated and is of no further force or effect. Xx. Xxxxxx acknowledges and
represents that except as to compensation payable under this Agreement, he has
received all salary, wages, bonuses, accrued vacation, commissions and any and
all other benefits due to him under the Employment Agreement or otherwise due to
him on account of his employment with the Company or Xxxxxxxxxx.xxx.
2. CONSULTING SERVICES.
(a) For the period beginning immediately after the Termination Date and
ending August 13, 2004, unless earlier terminated pursuant to Section 7 hereof
(the "Consulting Period"), the Company has retained Xx. Xxxxxx as a consultant
to perform, when and as requested by the Company, general duties as an advisor
and consultant in respect of the operations and activities of the Company.
(b) Such services shall be rendered by Xx. Xxxxxx upon the request of
the Company, at such specific times and locations as shall be mutually
determined from time to time by the Company and Xx. Xxxxxx.
(c) It is understood that the inability of Xx. Xxxxxx to render the
services contemplated herein to the Company by reason of temporary or permanent
illness, disability, incapacity or death will not be considered a failure to
perform his services hereunder or constitute a breach or default of Xx. Xxxxxx'x
agreement as set out herein.
3. COMPENSATION.
(a) For services rendered and to be rendered during the first year of
the Consulting Period, the Company has paid to Xx. Xxxxxx cash compensation in
the amount of $120,000, the receipt of which Xx. Xxxxxx hereby acknowledges.
(b) For services to be rendered from October 16, 2002 through the end
of the Consulting Period, Xx. Xxxxxx will be compensated at an hourly rate of
$200.00 per hour, up to a maximum of $1,600.00 a day. Xx. Xxxxxx will xxxx the
Company for actual hours worked by date. In addition to such hourly and/or daily
rate payable to Xx. Xxxxxx hereunder, the Company will reimburse Xx. Xxxxxx for
all reasonable expenses incurred by him in rendering his services hereunder so
long as such expenses shall have been approved in advance by the Company.
(c) The parties acknowledge that, during the Consulting Period, Xx.
Xxxxxx shall continue to be a "Service Provider" as that term is used in the
Company's 1997 Stock Plan and Xx. Xxxxxx'x Stock Option Agreement dated August
13, 2001, and that, as such, Xx. Xxxxxx'x option to purchase a total of two
hundred thousand (200,000) shares of the Company's common stock will continue to
vest, or once vested, be outstanding and exercisable during the Consulting
Period and for a period of three (3) months thereafter. Xx. Xxxxxx holds the
option to purchase an additional 116,155 shares of the Company's common stock
which is fully vested and exercisable at this time.. Upon termination of the
Consulting Agreement, Xx. Xxxxxx will have the option to purchase said 116,155
shares for a period of three (3) months thereafter.
(d) During the period beginning after the Termination Date and ending
August 13, 2004, Xx. Xxxxxx shall continue to be covered under the Company's
health benefit and life insurance plans, with coverage comparable to that
received during his period of employment by the Company. From August 13, 2004
and for a period of six months thereafter, Xx. Xxxxxx shall be entitled to
continue his health insurance coverage upon payment of the relevant "COBRA"
premiums.
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(e) Xx. Xxxxxx is not an employee of the Company for any purpose
whatsoever, but is an independent contractor. The Company is interested only in
the results obtained by Xx. Xxxxxx, who shall have sole control of the manner
and means of performing under this Agreement. The Company shall not have the
right to require Xx. Xxxxxx to do anything, which would jeopardize the
relationship of independent contractor between the Company, and Xx. Xxxxxx. Xx.
Xxxxxx does not have, nor shall he hold himself out as having, any right, power
or authority to create any contract or obligation, either expressed or implied,
on behalf of, in the name of, or binding upon the Company, unless the Company
shall consent thereto in writing. Xx. Xxxxxx shall be responsible for filing all
proper returns and other forms for his tax liabilities and withholding
obligations.
4. ACKNOWLEDGMENTS AND AGREEMENTS. Xx. Xxxxxx hereby acknowledges and
agrees that:
(a) in performance of his previous duties as an officer of the Company,
and his duties as a consultant hereunder, Xx. Xxxxxx has been and will be in
possession of confidential information important to the business of the Company;
(b) any use by Xx. Xxxxxx of any "Trade Secrets" or "Confidential
Information" (both, as hereinafter defined) is intended to inure to the
exclusive benefit of the Company, and any goodwill established thereby or
associated therewith is intended to inure to the exclusive benefit of the
Company;
(c) any disclosure or use of any Trade Secrets or Confidential
Information except as otherwise authorized by the Company in writing, or any
other violation of Sections 5 or 6 hereof would be wrongful and cause immediate,
significant, continuing and irreparable injury and damage to the Company that is
not fully compensable by monetary damages;
(d) should Xx. Xxxxxx breach any provision of Sections 5 or 6 hereof,
the Company shall be entitled to obtain immediate relief and remedies in a court
of competent jurisdiction (including, without limitation, damages, specific
performance, preliminary or permanent injunctive relief and an accounting for
all profits and benefits arising out of Xx. Xxxxxx'x breach), cumulative of and
in addition to any other rights or remedies to which the Company may be
entitled, at law or in equity; and
(e) the restrictions contained in Sections 5 and 6 hereof are
reasonable in scope, duration and geographic territory given the competitive
nature of the Company's business and the potential injury and damage that may
result to the Company from a breach thereof.
5. CONFIDENTIALITY AND OWNERSHIP OF WORK PRODUCT.
(a) For purposes of this Agreement, "Confidential Information" means
any confidential, proprietary, business information or data belonging to or
pertaining to the Company that does not constitute a "Trade Secret" (as defined
under applicable law) and that is not generally known by or available through
legal means to the public or the Company's competitors, including, without
limitation, information regarding the Company's shareholders, clients, referral
sources and suppliers. Confidential Information does not include generic,
non-proprietary
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knowledge held by Xx. Xxxxxx about the Company's business or clients, where such
information can be derived from non-confidential sources or where such
information is generally known by persons with experience in the Company's
industry comparable to that of Xx. Xxxxxx.
(b) In recognition of the Company's need to protect its legitimate
business interests, Xx. Xxxxxx hereby covenants and agrees that with regard to
any: (i) Confidential Information, at all times during his engagement by the
Company hereunder and following the termination thereof for any reason for a
period of two (2) years following the termination of Xx. Xxxxxx'x engagement by
the Company for any reason; and (ii) Trade Secrets, at all times such
information remains a "trade secret" under applicable law, Xx. Xxxxxx shall
regard and treat all such information as strictly confidential and wholly owned
by the Company and shall not, for any reason or in any fashion, either directly
or indirectly use, disclose, transfer, assign, disseminate, reproduce, copy, or
otherwise communicate any such Confidential Information or Trade Secrets to any
individual or entity for any purpose other than in accordance with the terms of
Xx. Xxxxxx'x engagement by the Company hereunder.
(c) Xx. Xxxxxx shall exercise reasonable best efforts to ensure the
continued confidentiality of all Trade Secrets and Confidential Information of
the Company known by, disclosed to or made available to him, whether in
connection with this Agreement or any other past or present relationship with
the Company. Xx. Xxxxxx shall immediately notify the Company of any unauthorized
disclosure or use of any Trade Secrets or Confidential Information of which he
becomes aware. Xx. Xxxxxx shall assist the Company, to the extent reasonably
necessary, in the procurement of or any protection of the Company's rights to or
in any of the Trade Secrets or Confidential Information.
(d) Any work product, property, data, documentation or information or
materials conceived, discovered, developed or created by Xx. Xxxxxx pursuant to
his previous, current and ongoing relationship with, or engagement by, the
Company which constitute or are protected by patents, copyrights, trademarks,
service marks and trade secrets of the Company existing on the date hereof
(collectively, the "Work Product") shall be owned exclusively by the Company. To
the greatest extent possible, all Work Product shall be deemed to be a "work
made for hire" (as defined in the Copyright Act, 17 U.S.C.A. Sections 101 et
seq., as amended) and owned exclusively by the Company. Xx. Xxxxxx hereby
unconditionally and irrevocably transfers and assigns to the Company all right,
title and interest in or to any Work Product, including, without limitation, all
patents, copyrights, trademarks, service marks, trade secrets and other
intellectual property rights therein. Xx. Xxxxxx agrees to execute and deliver
to the Company any transfers, assignments, documents or other instruments, which
the Company may deem necessary or appropriate, from time to time, to vest
complete title and ownership of all Work Product, and all associated
intellectual property and other rights, exclusively in the Company.
(e) Upon the request of the Company, (i) Xx. Xxxxxx shall take such
steps as the Company may reasonably request in order to transfer, disclose, and
give the Company the full benefit of any Work Product remaining in his
possession; and (ii) Xx. Xxxxxx shall deliver to the Company all memoranda,
notes, records, drawings, manuals, disks and other documents and media,
regardless of form, that contain Work Product, Confidential Information or Trade
Secrets.
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6. PROTECTIVE COVENANTS.
(a) DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings and shall be applicable only during the term
of this Agreement:
(i) "BUSINESS" shall mean the Company's core business, as agreed
upon by the Company and Xx. Xxxxxx.
(ii) "COMPETITIVE POSITION" shall mean: (A) Xx. Xxxxxx'x direct
or indirect equity ownership (excluding equity ownership of less than five
percent (5%) of any public company) or control of any portion of any entity
(other than the Company or a corporate affiliate of the Company) engaged, wholly
or partly, in the Business; (B) any employment, consulting, partnership,
advisory, directorship, agency, promotional or independent contractor
arrangement between Xx. Xxxxxx and any entity (other than the Company) engaged,
wholly or partly, in the Business whereby Xx. Xxxxxx is required to or does
perform services substantially similar to the services provided to the Company
as an employee or pursuant hereto and related to the Business on behalf of or
for the benefit of such an entity; or (C) Xx. Xxxxxx'x performance of services
substantially similar to the Business for his own account and benefit (and not
at the direction of or for the benefit of the Company).
(iii) "CLIENT" shall mean an actual client or actively sought
prospective client of Xxxxxxxxxx.xxx or the Company during the term of Xx.
Xxxxxx'x employment or engagement by Xxxxxxxxxx.xxx or the Company.
(b) NONCOMPETITION. Xx. Xxxxxx covenants and agrees that he will not,
during the term of this Agreement hereunder, directly or indirectly, alone or in
conjunction with any other party, accept, enter into or take any action in
conjunction with or in furtherance of a Competitive Position.
(c) NONSOLICITATION OF CLIENTS. Xx. Xxxxxx covenants and agrees that he
will not, during the term of this Agreement, directly or indirectly, alone or in
conjunction with any other party, solicit, divert or appropriate (or attempt to
do so) any Client for the purpose of providing the Client with services or
products competitive with those offered by the Company during the term of this
Agreement.
(d) NONSOLICITATION OF PERSONNEL. Xx. Xxxxxx covenants and agrees that
he will not, during the term of this Agreement (except as directed to do so by
the Company), directly or indirectly, alone or in conjunction with any other
party, encourage or solicit (or attempt to do so) any employee, consultant,
contractor or other personnel of the Company to terminate, alter or lessen such
party's affiliation with the Company or to violate the terms of any agreement or
understanding between such party and the Company.
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7. TERM; TERMINATION.
(a) TERM. The term of this Agreement shall commence on the Effective
Date (as defined below) and shall continue until August 13, 2004, unless earlier
terminated as set forth below. Upon any termination of this Agreement, the
Consulting Period shall also terminate.
(b) TERMINATION.
(i) DEATH. This Agreement shall automatically and immediately
terminate upon the death of Xx. Xxxxxx.
(ii) CAUSE. In addition to any other rights or remedies available
to the Company at law, in equity or hereunder, the Company may, at any time, by
delivering a written termination notice to Xx. Xxxxxx, immediately terminate his
engagement for "Cause" (as hereinafter defined). For purposes of this Agreement,
"Cause" shall mean any of: (i) Xx. Xxxxxx has been convicted of a felony or a
crime involving moral turpitude; (ii) Xx. Xxxxxx has committed an act
constituting fraud, theft, deceit or material misrepresentation with respect to
the Company or any customer or client of the Company; (iii) Xx. Xxxxxx has
embezzled funds or assets from the Company or any customer or client of the
Company; or (iv) the Board of Directors has concluded, in its sole discretion,
that Xx. Xxxxxx has breached or defaulted in the performance of any provision of
this Agreement and Xx. Xxxxxx has failed to remedy any such breach or default
that is capable of being remedied within thirty (30) days after written notice
from the Company that Xx. Xxxxxx is in breach or default. Upon such termination,
the Company shall pay to Xx. Xxxxxx all unpaid fees earned through the date of
such termination.
8. WAIVER AND RELEASE.
(a) In consideration of his engagement hereunder, Xx. Xxxxxx hereby
waives and releases the Company from liability for all rights and claims,
whether or not they are presently known to exist, that Xx. Xxxxxx has against
the Company or any of its subsidiaries relating in any way to Xx. Xxxxxx'x
employment or separation from employment with Xxxxxxxxxx.xxx or the Company.
This release shall not be deemed a release of any claim that Xx. Xxxxxx may have
against the Company arising out the Company's breach of this Agreement. The
rights and claims which Xx. Xxxxxx waives and releases in this Agreement
include, to every extent allowed by law, those arising under the Employee
Retirement Income Security Act of 1974, the Civil Rights Acts of 1866, 1871,
1964 and 1991, the Fair Labor Standards Act, Rehabilitation Act of 1973, the
Occupational Safety and Health Act, the Veterans' Reemployment Rights Act, the
Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") and
the Americans With Disabilities Act.
(b) Xx. Xxxxxx also acknowledges that he is waiving and releasing any
rights he may have under the Age Discrimination in Employment Act of 1967
("ADEA") and that this waiver and release is knowing and voluntary. Employee
further acknowledges that he has been advised by this writing that (a) he should
consult with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has seven
(7) days following the execution of this Agreement by the parties to revoke the
Agreement; and (d) this Agreement shall not be effective until the revocation
period has expired.
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Any revocation should be in writing and delivered to Xxxxx Xxxxxxxx at the
Company, at the address listed below, by close of business on the seventh day
from the date that Xx. Xxxxxx signs this Agreement.
(c) Xx. Xxxxxx waives and releases all similar rights and claims under
all other federal, state and local discrimination provisions and all other
statutory and common law causes of action relating in any way to his employment
or separation from employment with the Company, except for rights expressly set
forth or reserved in this Agreement. This release does not in any way impair Xx.
Xxxxxx'x right to be indemnified to the fullest extent allowed by law or the
Bylaws of the Company for any acts or omissions relating to or arising out of
his employment with the Company.
9. SURVIVAL. Notwithstanding any termination of this Agreement, the
provisions of Sections 4, 5, 6, 7, 8, 9, 11(d) and 11(g) hereof shall survive
and remain in full force and effect, as shall any other provision hereof that,
by its terms or reasonable interpretation thereof, sets forth obligations that
extend beyond the termination of this Agreement.
10. NOTICES.
(a) All notices provided for or required by this Agreement shall be in
writing and shall be delivered personally to the other designated party, or
mailed by certified or registered mail, return receipt requested, or delivered
by a recognized national overnight courier service, as follows:
If to the Company: Quovadx, Inc.
0000 X. Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
ATTENTION: Legal Department
If to Xx. Xxxxxx: Xx. Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000) 000-0000
(b) Notices delivered pursuant to Section 10(a) hereof shall be deemed
given: at the time delivered, if personally delivered; three (3) business days
after being deposited in the mail, if mailed; and one (1) business day after
timely delivery to the courier, if by overnight courier service.
(c) Either party hereto may change the address to which notice is to be
sent by written notice to the other party in accordance with the provisions of
this Section 9.
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11. MISCELLANEOUS.
(a) This Agreement contains the entire agreement and understanding
concerning the subject matter hereof between the parties hereto. No waiver,
termination or discharge of this Agreement, or any of the terms or provisions
hereof, shall be binding upon either party hereto unless confirmed in writing.
This Agreement may not be modified or amended, except by a writing executed by
both parties hereto. No waiver by either party hereto of any term or provision
of this Agreement or of any default hereunder shall affect such party's rights
thereafter to enforce such term or provision or to exercise any right or remedy
in the event of any other default, whether or not similar.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado.
(c) Xx. Xxxxxx may not assign this Agreement, in whole or in part,
without the prior written consent of the Company, and any attempted assignment
not in accordance herewith shall be null and void and of no force or effect.
(d) This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(e) The headings contained herein are for the convenience of the
parties only and shall not be interpreted to limit or affect in any way the
meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute the same Agreement. Any signature page of any such counterpart, or
any electronic facsimile thereof, may be attached or appended to any other
counterpart to complete a fully executed counterpart of this Agreement, and any
telecopy or other facsimile transmission of any signature shall be deemed an
original and shall bind such party.
(g) The unenforceability or invalidity of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions hereof, but such remaining provisions shall be construed and
interpreted in such a manner as to carry out fully the intent of the parties
hereto; provided, however, that should any judicial body interpreting this
Agreement deem any provision hereof to be unreasonably broad in time, territory,
scope or otherwise, it is the intent and desire of the parties hereto that such
judicial body, to the greatest extent possible, reduce the breadth of such
provision to the maximum legally allowable parameters rather than deeming such
provision totally unenforceable or invalid.
(h) This Agreement shall not be construed more strongly against either
party hereto, regardless of which party is responsible for its preparation.
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(i) Upon the reasonable request of the other party, each party hereto
agrees to take any and all actions, including, without limitation, the execution
of certificates, documents or instruments, necessary or appropriate to give
effect to the terms and conditions set forth in this Agreement.
(j) This Agreement shall be effective on the eighth (8th) day after it
has been executed by all parties hereto (the "Effective Date").
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representatives to execute, this Agreement on the respective dates
set forth below.
QUOVADX, INC.
By:
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Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive Officer
"Xx. Xxxxxx"
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XXXXXX X. XXXXXX
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