EXHIBIT 10.21
AGREEMENT
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This Agreement, dated as of October 28, 1999 (this "Agreement") is between
Inprise Corporation, a Delaware corporation (the "Company"), and 00xx Xxxxxx
Partners, LLC (the "Consultant").
Recitals
A. Consultant is in the business of providing business management advice,
strategies and recruitment services;
B. Consultant desires to perform, and the Company desires to have Consultant
perform management consulting services for the Company as hereinafter set forth.
NOW, THEREFORE, the parties hereto agrees as follows:
1. Services
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The Company hereby engages Consultant and Consultant hereby accepts
such engagement to immediately place certain individuals into interim positions
at the company as set forth below. All such placements are subject to the
approval of the Board of Directors or the appropriate subcommittee thereof of
the Company. Such placements are temporary and may be terminated by the Company
at any time.
(a) Interim Placements:
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(i) Interim Chief Operating Officer
Consultant shall place Xxxx Xxxxxx, a partner of Consultant, in the
position of Interim Chief Operating Officer, subject to the terms and
conditions, scope of services, and fee schedule set forth on Exhibit A hereto,
which exhibit is fully incorporated herein.
(ii) Interim Vice President of Sales Operations
Consultant shall place Xxxxx Xxxxxxxxx, a staff consultant with
Consultant, or another individual acceptable to the Company with similar
experience, in the position of Interim Vice President of Sales Operations,
subject to the terms and conditions, scope of services, and fee schedules set
forth on Exhibit B hereto, which exhibit is fully incorporated herein.
(iii) Interim Vice President of Customer Service, Technical
Support, and Professional Services
Consultant shall place Xxxxxxx Xxxxxxxxx, a partner of Consultant, in
the position of Interim Vice President of Customer Service, subject to the terms
and conditions, scope of services, and fee schedule set forth on Exhibit C
hereto, which exhibit is fully incorporated herein.
(iv) Interim Human Resources Support
Consultant shall provide interim human resources support, subject to
the terms and conditions, scope of services, and fee schedule set forth on
Exhibit D hereto, which exhibit is fully incorporated herein.
2. Payment
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Payment of the fees stated in Exhibits A-D will be due and payable
upon completion of each month's services. In the event of termination prior to
the month's end the service fee will be prorated based upon the portion of the
month completed.
(a) Performance Bonus: In consideration for the services performed
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hereunder, Company shall pay Consultant a performance bonus to be calculated as
follows: (i) in the event on January 31, the price of the Company's common stock
(as determined based on a 10-day moving average prior to such date or a 30-day
moving average subsequent to such date, whichever is higher) exceeds $6.00 and
this contract has not been terminated, the company will pay the Consultant
$125,000. In addition, for the first such incremental $2.00 increase above
said $6.00 price, the Company shall pay $125,000 to the Consultant. For the
second such incremental $2.00 increase above an $8.00 price, the Company shall
pay $250,000, and for the third such incremental $2.00 increase above $10.00,
the Company shall pay $125,000; (ii) in the event of termination of this
agreement prior to the January 31, 2000, the calculation of the bonus payable
will be calculated using the average price of the Company's Common stock during
the ten business days prior to termination of the agreement and; (iii) in the
event of a merger, consolidation, or sale of all or substantially all of the
assets of the Company the calculation of the bonuses payable will be based upon
the equivalent price per share paid by the buyer in cash or through exchange of
stock. However, the transaction code named "Maroon", and all other transactions
under discussion prior to October 20, 1999 as disclosed to Xxxx Xxxxxx in his
capacity as Interim Chief Operating Officer, are specifically excluded for
purposes of the section. In no event, will the performance bonuses payable
under this agreement exceed $500,000.
(b) Expenses: Any reasonable, out-of-pocket expenses, in accordance
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with the Company's travel and expense reimbursement policy, will be reimbursed
by the Company.
(c) Invoices: Consultant shall invoice the Company on a monthly basis
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for the Services. The Company will pay each invoice no later than thirty days
after its receipt by the Company.
(d) Taxes: Prior to commencing the services, Consultant must provide
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Company with its IRS Form W-9 and Employer Identification Number. Consultant is
responsible for filing all tax returns, tax declarations, and tax schedules, and
for the payment of all taxes resulting from fees or other compensation. Company
will not withhold any employment taxes from Consultant's fees. Company will
report the amount paid to you on IRS Form 1099, to the extent required to do so
by law.
3. Termination
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(a) General. This Agreement shall commence on the date hereof and
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shall continue in full force and effect until terminated by either party
pursuant to Section 3(b) below.
(b) Termination of Agreement. Either party may terminate this
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Agreement at any time upon written notice to the other, subject to the exception
in Exhibit A.
4. Insurance
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During the term of this Agreement, Consultant shall maintain at
Consultant's expense, for Consultant and Consultant's employees, workers'
compensation and other insurance as appropriate or required by law, including,
but not limited to, comprehensive general liability insurance in the amount of
$2,000,000 per occurrence.
5. Confidentiality
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a. "Confidential Information" means all information relating to the
business or assets of Company that is not generally known by non-Company
personnel, including information you create or discover while performing the
services under this Agreement, and information obtained by Company in confidence
from third parties. The existence and terms of this Agreement shall be
Confidential Information.
b. Consultant agrees that Consultant and each individual placed
hereunder will not disclose, use or copy the Confidential Information, except as
required in the lawful performance of Consultant's duties to Company.
Consultant will take all reasonable measures to protect the Confidential
Information from any unauthorized or premature disclosure, use or destruction.
Consultant's obligation to protect the Confidential Information shall survive at
all times after the termination of Consultant's engagement with Company.
6. Ownership rights
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a. Consultant hereby assign to Company all right, title and interest
in and to the work performed by Consultant under this Agreement (including all
copyrights, trademarks, trade secret rights patent rights and other proprietary
rights with respect to the work). Consultant agrees not to use the work created
under this Agreement for Consultant's own benefit or the benefit of any party
other
than Company. You agree to execute any other documents as Company may reasonably
require from time to time to register, record or perfect the rights granted
hereunder.
b. Consultant hereby irrevocably appoint the President and General
Counsel of Company each to act as your agent and attorney-in-fact to perform all
acts necessary to obtain and/or maintain patents, copyrights, mask work rights,
and similar rights, to any creations assigned to Company by you under this
Agreement if (a) Consultant is unavailable, within the meaning of any applicable
laws, or (b) Consultant refuses to perform those acts. Consultant acknowledges
that the grant of the foregoing power of attorney is coupled with an interest
and shall survive the death, disability, liquidation and/or dissolution of
Consultant or any of Consultant's employees.
7. LIMITATION OF LIABILITY
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IN NO EVENT SHALL COMPANY BE LIABLE TO CONSULTANT FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS
AGREEMENT, EVEN IF COMPANY HAS ABEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE. IN NO EVENT SHALL COMPANY BE LIABLE FOR AMOUNTS IN
EXCESS OF THE AMOUNTS PAYABLE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
8. Solicitation for Hire
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Neither Consultant (and it's interim placements provided hereunder) nor Company
shall solicit for hire any employee, contractor or any other personnel of the
other party for a period of six (6) months from the Consultant's conclusion of
services for the Company.
9. General Provisions.
(a) Indemnification. Company hereby agrees that the Company shall
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indemnify and hold Consultant and each officer, employee, attorney, agent and
affiliate of Consultant (the "Indemnitees") harmless from and against any
losses, damages, liabilities, actions and claims suffered by the Indemnitees in
connection with arising out of, or in any way the result of this Agreement, the
advisory services provided pursuant thereto, and shall reimburse any of the
Indemnitees for any reasonable legal or other expenses incurred in connection
with investigating, responding to, or defending against any such loss, damage,
liability, action or claim, including, without limitation, any reasonable legal
or other expenses incurred in connection with compliance with, or seeking
protective orders or other appropriate relief concerning discovery and other
similar procedures in any action or proceedings provided that the Indemnitors'
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obligation to indemnify shall not extend to any losses, damages, liabilities,
actions or claims arising as a result of the negligence or willful misconduct of
an Indemnitee.
(b) Entire Agreement. This Agreement expresses the entire agreement
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of the parties and supersedes all prior promises, representations,
understandings, arrangements and agreements with respect to the subject matter
hereof, and may not be amended, modified, superceded or canceled except by a
written instrument executed by all parties hereto.
(c) Waiver. No waiver of any of the provisions of this Agreement
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shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
(d) Severability. Any provision of this Agreement which is prohibited
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(e) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Notices. Any notice required or permitted to be given under this
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Agreement by Company to Consultant shall be in writing personally delivered or
sent by registered or certified United States mail, return receipt requested,
postage prepaid or personally delivered and addressed to 00xx Xxxxxx Partners,
LLC, 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, Attention:
Xxxx Xxxxxxxx, or such other address as the Consultant may specify from time to
time by like notice to the Company. Any notice required or permitted to be
given under the Agreement by the Consultant to the Company shall be in writing,
sent by registered or certified United States mail, return receipt requested,
postage prepared or personally delivered and addressed to Company, 000
Xxxxxxxxxx Xxx, Xxxxxx Xxxxxx, Xxxxxxxxxx, 00000, Attention: General Counsel,
or at such other address as Consultant may specify from time to time by like
notice to the Company. Any notice personally delivered shall be effective upon
delivery. Any notice sent by mail in the manner provided herein shall be
effective on the date of delivery or refusal indicated on the return receipt.
(g) Warranty. Each of the parties signing this Assignment hereby
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warrants and represents that it has the full legal power, authority, and right
to execute, deliver, and perform the obligations under this Assignment, and that
the assignment contemplated hereby has been duly authorized by all requisite
actions on their part, respectively, and that no remaining action or third party
action is required to make this Assignment binding upon each party.
(h) Governing Law. This Agreement, including the validity,
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interpretation, construction and performance of this Agreement, shall be
governed by and construed in accordance with substantive laws of the State of
California and the federal laws of the United States of America.
(i) Survivability. The provisions of Section 5, 6, 7, 8, and 9 shall
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survive the termination or expiration of this agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first stated above.
COMPANY: CONSULTANT:
INPRISE CORPORATION 00XX XXXXXX PARTNERS, LLC
/s/ /s/
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Name: Name:
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Title: Title:
EXHIBIT A
Position: Interim Chief Operating Officer, reporting to the Chief Executive
Officer.
1. Description of Services: The Interim Chief Operating Officer shall manage
day-to-day operations of the Company, including Sales, Marketing,
Operations, and Research & Development, and such other duties as may be
assigned by the CEO from time to time. He or she shall devote his or her
full time and energies to the performance of his or her duties for the
Company.
2. Monthly Fee: $50,000
3. Start Date: October 11, 1999
4. Minimum Term: Through January 31, 2000, but may be terminated by either
party at any time on 30 days' notice. If terminated prior to three months
the Company will pay the balance due for the three month period.
5. Monthly Objectives: To be provided by the Chief Executive Officer.
