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EXHIBIT 10.11
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as of
the 15th day of January, 1998, by and between Edify Corporation ("Client") and
DRH Strategic Consulting Inc. ("Consultant").
WHEREAS, Consultant serves as an advisor on financial services businesses
and employs or engages persons with significant experience and special
abilities relating to Client's business; and
WHEREAS, Client desires to retain the services of Consultant and
Consultant desires to be retained by Client to provide services as an
independent contractor.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, the parties hereby agree as follows:
1. Retention of Consultant and Services to be Performed.
1.1 Client hereby retains Consultant for the Term of this Agreement
(as hereinafter defined), and Consultant hereby accepts such retention by
Client. The services performed by Consultant's duties shall be as set forth in
Schedule A and, subject to any limitations set forth in Schedule A, such
services shall be performed at such reasonable times and places as Consultant
and Client shall mutually agree.
1.2 Consultant shall make available to Client the services of
Xxxxxx X. Xxxxxx, its President ("Xxxxxx"), for the performance of
Consultant's obligations under this Agreement.
2. Term and Termination.
2.1 Unless earlier terminated as provided in paragraph 2.2, the term
of this Agreement (the "term") shall be as set forth in Schedule A hereto.
2.2 The Agreement may be terminated prior to expiration of the Term
as follows:
(a) Upon the death of Xxxxxx;
(b) By Client in the event that Xxxxxx is unable, by reason of
physical or mental disability, to perform the services contemplated by this
Agreement for a period of more than 30 days in any 6-month period;
(c) By Client in the event that Consultant fails to perform its
obligations under this Agreement and does not cure such failure within 30 days
of receipt of written notice thereof from Client;
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(d) By Consultant in the event that Client fails to perform its
obligations under this Agreement and does not cure such failure within 30 days
of receipt of written notice therefrom from Consultant;
(e) By Client upon 3 months prior written notice to Consultant;
(f) By Consultant upon 45 days prior to written notice to Client in
the Consultant determines to cease operating its business, or
(g) By mutual written agreement of the parties.
Nothing in this paragraph 2.2 shall prevent Consultant from suspending the
performance of its services under this Agreement, without being deemed to be in
breach of its obligations hereunder, in the event that Client fails to pay when
due the compensation specified in paragraph 3.
3. Compensation.
3.1 During the term of this Agreement, Consultant shall receive from
Client the compensation payable as set forth on Schedule A hereto.
3.2 Upon termination of this Agreement, Consultant shall be entitled
to any compensation earned by Consultant to the date of termination, and no
portion of the current installment of any retainer payment shall be refundable
unless the Agreement was terminated due to a breach by Consultant.
4. Reimbursement of Expenses. Consultant shall be entitled, upon
submission of detailed invoices, to reimbursement of travel and other expenses
reasonably incurred in connection with Consultant's services. Payment shall be
due within 15 days of invoice submission.
5. Cooperation. Client agrees to cooperate with Consultant to the extent
necessary for Consultant to perform the services hereunder, including providing
Consultant with necessary information, including internal documents and
background reports related to Client's business, plans and strategies.
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6. Confidentiality.
6.1 Consultant recognizes and acknowledges that the business of
Client is highly competitive and that, by reason of its engagement, Consultant
may have access to confidential and proprietary information regarding Client,
including information provided pursuant to paragraph 5. Consultant hereby
agrees not to disclose or use for the benefit of anyone other than Client any
such confidential or proprietary information.
6.2 The provisions of paragraph 6.1 shall survive for a period of 3
years after the termination of this Agreement.
6.3 The provisions of Section 6.1 shall not apply to any information
which (a) is, at the time of disclosure to Consultant, a part of the public
domain or thereafter becomes a part of the public through no violation of this
Agreement, (b) was available to Consultant on a non-confidential basis prior to
its disclosure to Consultant by Client, (c) becomes available to Consultant on
a non-confidential basis from a source other than Client, provided that such
source is not bound by a confidentiality agreement with Client or an affiliate
of Client, or (d) is required to be disclosed in a filing required by law or as
otherwise contemplated by paragraph 6.4 below.
6.4 If Consultant is required, in any civil or criminal legal
proceeding or any regulatory proceeding or any similar process or pursuant to
any request of a regulatory authority having jurisdiction over Consultant, to
disclose any propriety and confidential information, the Consultant shall give
to Client prompt notice of such request so that Client may seek an appropriate
protective order or waive Consultant's compliance with the provisions of this
Agreement; provided, however, that in the absence of a protective order or the
receipt of waiver hereunder, Consultant is nonetheless, in the opinion of its
counsel, compelled to disclose such information to any tribunal or else stand
liable for contempt or suffer any other censure or penalty, Consultant may
disclose such information to such tribunal without liability hereunder.
7. Independent Contractor.
7.1 For all purposes of this Agreement, Consultant is an independent
contractor and not an employee, agent, partner or joint venturer of or with the
Client. Consultant acknowledges and agrees that, except as otherwise expressly
authorized by Client, it shall have no power to bind Client, or to assume or to
create, any contract or agreement on behalf of Client or in Client's name.
7.2 Consultant shall be responsible for the payment of all federal,
state and local taxes payable with respect to any compensation paid to
Consultant hereunder.
7.3 Should Consultant engage other persons to assist Xxxxxx in the
performance of Consultant's services hereunder, Consultant shall be solely
responsible for the compensation of such persons and for any tax withholding
and payroll taxes required in connection with such compensation.
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7.4 Consultant hereby agrees that any written work product produced
on Client's behalf shall be deemed a "rider", which shall become the property
of the Client.
8. Other Activities During the Term of this Agreement.
8.1 This Agreement shall not be deemed or construed to require
Consultant to devote its full time and attention to the performance of
services hereunder nor to constitute an exclusive engagement of Consultant or
Xxxxxx. Subject to the restrictions, if any, contained in Schedule A hereto,
Consultant and Xxxxxx may undertake or engage in other activities during the
term of this Agreement, provided such other activities do not interfere with
the performance of Consultant's duties and obligations hereunder.
8.2 Client shall not be precluded from engaging other consultants to
perform services for Client, which may be similar to services performed by
Consultant hereunder.
9. Additional Terms. The parties may set forth such additional terms and
conditions as they mutually agree upon in Schedule A hereto.
10. Assignment. As a personal services contract, this Agreement is not
assignable by Consultant, but it may be assigned by Client to, and it shall be
binding upon and inure to the benefit of, any personal or entity succeeding to
all or substantially all of the business or assets of the Client.
11. Interpretation. It is the intent of the parties that in case of any
one or more of the provisions contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other
provisions of the Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions has never been contained herein.
Moreover, it is the intent of the parties that in case any of the provisions
contained in the Agreement shall be held to be excessively broad or, for any
reason, such provisions shall be construed by limiting and reducing it as
determined by a court of competent jurisdiction, so as to make it enforceable
to the extent compatible with applicable law.
12. Notices. All notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered in person, by
facsimile, or by registered or certified mail, return receipt requested,
addressed as provided on Schedule B hereto or to such other address as either
party may notify the other in writing.
13. Complete Agreement; Amendments. This Agreement, including Schedule A
hereto, contains the entire agreement and understanding of the parties with
respect to the subject matter of the Agreement, and no representations,
promises, agreements or understandings, written or oral, not contained herein
shall be of any force or effect. No change, modification, or waiver of any
provision of this Agreement shall be valid or binding unless it is writing
dated subsequent to the date thereof, and signed by the party intended to be
bound.
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14. Headings. The headings of the paragraphs herein are for the purposes
of reference only and in no way shall limit, define or otherwise affect the
provisions hereof.
15. Counterparts. This Agreement may be signed in two counterparts, each
of which shall be deemed an original and both of which shall together
constitute one agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Illinois, without regard to
the provisions thereof respecting the conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first written above.
DRH STRATEGIC CONSULTING, INC.
By: /s/ XXXXXX X. XXXXXX
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President
EDIFY CORPORATION
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Client
By: /s/ [SIG]
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Its: Director of Legal Affairs
The undersigned, Xxxxxx X. Xxxxxx, individually acknowledges and agrees to
provide consulting services to Client under the foregoing Consulting Agreement
and to comply with and be bound by the terms and conditions of the foregoing
Consulting Agreement.
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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SCHEDULE A
TO
CONSULTING AGREEMENT
1A. Services to be Performed.
(a) Description of Services:
Consultant to provide market insight, reaction to strategy, technology and
product plans, and assistance in conveying to customers/ prospects
Client's strengths.
(b) Locations and Amount of Services:
Dedicated Services: Ten dedicated days of consulting services per
year at (a) Client's place of business or (b) other locations
(including the places of business of Client's customers) designated
by Client.
Referral Services: Consultant will be available by phone to provide
advice and feedback to Client on a demand basis to queries. There is
no limitation to the number of such calls.
(c) Scheduling:
The scheduling of consulting services shall be subject to Xxxxxx'
availability. Client shall use its best efforts to provide as much advance
notice of its scheduling needs as possible, and Consultant and Xxxxxx
shall do their best efforts to accommodate such needs.
2A. Term of Agreement.
This term of this Agreement shall commence on January 15, 1998 and
continue until January 14, 2000.
3A. Compensation.
(a) Retainer Fees: Client shall pay Consultant retainer of $12,500 at the
beginning of each calendar quarter. If more than 10 days are utilized
during a year, the incremental daily fee will be $5,000 plus expenses
incurred.
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4A. RESTRICTIONS ON CONSULTANT'S OTHER ACTIVITIES.
Consultant hereby agrees that, during the term of this Agreement, it
shall not enter into any agreement to provide consulting services to:
1.) TSAI
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2.) Sun Microsystems
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5A. ADDRESS FOR NOTICE.
If to Consultant: If to Client:
DRH Strategic Consulting, Inc. Edify Corporation
Two First National Plaza 2840 San Xxxxx Expressway
Suite 620, 6th Floor Santa Clara, California 95051
Xxxxxxx, Xxxxxxxx 00000 Attention: Director of Legal Affairs
Facsimile: (000) 000-0000
Copy To: Director of Legal Affairs
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SCHEDULE B
TO
CONSULTING AGREEMENT
1. ADDRESS FOR NOTICE.
If to Consultant: If to Client:
DRH Strategic Consulting, Inc. Edify Corporation
Two First National Plaza 0000 Xxx Xxxxx Xxxxxxxxxx
Xxxxx 000 Xxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000 Attention: President and CEO
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Copy To: Director of Legal Affairs
