CONSULTING SERVICES AGREEMENT
Exhibit 10.6
This
Consulting Services Agreement (“Agreement”) is entered into
effective as of the effective date set forth on the signature page
to this Agreement (“Effective
Date”) by and between AutoWeb, Inc., a Delaware
corporation (“Company”), and the individual
identified as the consultant on the signature page to this
Agreement (“Consultant”).
Background
The
Company is engaged in the business of providing internet marketing
services for the automotive industry. Consultant was formerly
employed by the Company as its EVP, Chief Financial Officer and
voluntarily resigned her positions at, and employment with, the
Company and its affiliated entities effective as of April 12, 2018
(“Employment Termination
Date”) in order to take a position with another
company. The Company wishes to engage Consultant to provide the
transition services described herein on a consulting basis, and
Consultant wishes to be engaged to provide such transition
services.
In
consideration of the covenants and agreements set forth herein, the
parties hereto agree as follows.
ARTICLE I
CONSULTING SERVICES
1.1
Consulting
Services. The Company hereby engages Consultant to perform
the transition services (“Consulting Services”) set forth on
the Consulting Services Schedule attached hereto as Exhibit A
(“Consulting Services
Schedule”), and Consultant hereby accepts the
engagement, upon the terms and conditions hereinafter set forth.
The parties acknowledge that in deciding to engage Consultant, the
Company has relied solely on the experience, expertise and
reputation of Consultant. All Consulting Services are to be
provided solely by the Consultant and no other employees of or
contractors for Consultant.
1.2
Term. The
engagement of Consultant hereunder shall commence effective as of
the Effective Date and shall continue until and including April 11,
2019 (“Agreement Expiration
Date”). This Agreement may be terminated prior to the
Agreement Expiration Date (i) by Consultant for any reason, with or
without cause, upon thirty (30) days prior written notice to
Company; or (ii) by either party by reason of a material breach of
this Agreement by the other party upon thirty (30) days prior
written notice detailing the breach by the breaching party and
breaching party fails to cure such breach within thirty (30) days
following such written notice. The period commencing with the
Effective Date and ending on the earlier of (i) the Agreement
Expiration Date and (ii) the effective date of any termination of
this Agreement by a party prior to the Agreement Expiration Date in
accordance with the provisions of this Section 1.2 is referred to
herein as the “Consulting
Term.” The provisions of Sections 1.5, Articles III
and IV shall survive any termination of this
Agreement.
1.3
Standards of Care
and Conduct. In the performance of the Consulting Services
under this Agreement, Consultant shall adhere to those fiduciary
standards, ethical practices and standards of care and competence
which are customary for professionals rendering consulting and
advisory services of the type provided for in this Agreement. In
performing the Consulting Services, Consultant shall comply with
(i) all applicable laws, rules, regulations and order;
(ii) reasonable instructions and directions from the Company;
and (iii) the Company’s Code of Conduct and other similar
policies. Consultant shall avoid engaging in any consulting,
employment or other business arrangements with third parties that
may constitute or give rise to a conflict of interest with respect
to the Company’s engagement of Consultant or in the provision
of the Consulting Services. Consultant represents and warrants to
the Company that Consultant currently does not have any such
arrangements that constitute or may give rise to a conflict of
interest, and Consultant shall disclose to Company any proposed
arrangements that constitute or may give rise to a conflict of
interest conflicts of interest prior to entering into any such
arrangement. The Company may at its discretion (i) request
Consultant to terminate any arrangement that the Company believes
does or may constitute a conflict of interest for Consultant in
connection with Consultant’s engagement by the Company or in
the performance of the Consulting Services; or (ii) if Consultant
does not terminate such arrangement, terminate this Agreement.
Consultant represents and warrants that Consultant’s entering
into this Agreement and performing the Consulting Services will not
conflict with or constitute a breach of any other agreements or
obligations Consultant has with or to any third party.
1.4
Independent
Contractor.
(a)
Consultant will
perform all Consulting Services as an independent contractor and
not as an employee of the Company. Consultant acknowledges and
agrees that Consultant is a self-employed independent contractor
and that nothing in this Agreement shall be considered to create an
employer-employee relationship between the Company and Consultant.
Consultant is not eligible to receive and will not receive or
participate in any compensation or employee benefit plans or
arrangements of any type in which employees of the Company may
participate, including but not limited to, any (i) retirement,
pension, savings, profit-sharing or other similar plans or
arrangements; (ii) any stock option, stock purchase or other equity
participation plans or arrangements; (iii) any long-term or
short-term bonus or other compensation plans or arrangements; (iv)
sick pay, paid non-working holidays, or paid vacations or leave
days; (v) overtime; (vi) any life, accident, disability, health or
dental insurance or reimbursement plans or arrangements; and (vii)
workers’ compensation. If Consultant is found, by a court of
competent jurisdiction to be an “employee” of the
Company, notwithstanding the foregoing, and to the extent permitted
by applicable law, rule, regulation or order, Consultant
voluntarily waives any and all rights, if any, to all such
compensation or benefits.
(b)
As an independent
contractor, Consultant is solely responsible for the payment of any
and all self-employment taxes and/or assessments imposed on account
of the payment of compensation to, or the performance of the
Consulting Services by, Consultant pursuant to this Agreement,
including, without limitation, any state, federal or foreign
unemployment insurance tax, income tax, Social Security (FICA)
payments, and disability insurance taxes. The Company shall not, by
reason of Consultant's status as an independent contractor and the
representations contained herein, make any withholdings or payments
of said taxes or assessments with respect to compensation paid
Consultant hereunder; provided, however, that if required by law or
any governmental agency, the Company shall withhold any such taxes
or assessments from the compensation due Consultant, and any such
withholding shall be for Consultant's account and shall not be
reimbursed by the Company to Consultant. Consultant expressly
agrees to treat any compensation earned under this Agreement as
self-employment income for federal and state tax purposes, and to
make all payments of federal and state income taxes, unemployment
insurance taxes, and disability insurance taxes as, when, and to
the extent the same may become due and payable with respect to such
self-employment compensation earned under this
Agreement.
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(c)
Consultant is not
an agent of the Company. Unless otherwise directed by the Company
in writing, Consultant is not authorized to (i) waive any right or
to incur, assume, or create any debt, obligation, contract, or
release of any kind whatsoever in the name or on behalf of the
Company or any affiliated entity nor (ii) to hold Consultant out as
an employee or agent of the Company or any affiliated entity or to
make any statement or representation that Consultant has any such
authority.
(d)
Consultant shall
maintain adequate general liability, errors and omissions and other
insurance covering Consultant as required by applicable law, rule
or regulation (e.g., workers’ compensation).
(e)
Consultant
represents and warrants to the Company that Consultant is
authorized to provide the Consulting Services under applicable
laws, rules and regulations.
(f)
Consultant shall
comply with all applicable laws, rules and regulations in the
performance of the Consulting Services, and on request, Consultant
shall furnish the Company with appropriate assurances or
certificates of compliance.
(e)
Consultant shall
retain the right to determine the method, details and means of
performing the Consulting Services.
1.5
Indemnification.
(a)
Each party
to this
Agreement will defend, indemnify and hold harmless the other party
and each of its parent company, affiliate companies, officers,
directors, employees and agents against and in respect of any loss,
debt, liability, damage, obligation, claim, demand, fines,
penalties, forfeitures, judgment, or settlement of any nature or
kind, known or unknown, liquidated or unliquidated, including
without limitation all reasonable costs and expenses incurred
(legal, accounting or otherwise) (collectively, “Damages”) arising out of,
resulting from or based upon any claim, action or proceeding by any
third party, including any governmental or regulatory body,
alleging facts or circumstances constituting a breach of the
obligations, representations or warranties of the indemnifying
party set forth in this Agreement.
(b)
If a
party
entitled to indemnification under this Section 1.5 (an
“Indemnified
Party”) makes an indemnification request to the other
party, the Indemnified Party shall permit the other party (the
“Indemnifying
Party”) to control the defense and disposition or
settlement of the matter at its own expense; provided, however,
that the Indemnifying Party may not enter into any settlement
thereof with the Indemnified Party’s prior written consent
(not to be unreasonably withheld or delayed) unless the Indemnified
Party is fully and unconditionally released from such claims
without any admission of liability and the Indemnified Party is not
subject to any injunctive or other equitable relief or other
obligations. The Indemnified Party shall be permitted to
participate in such defense and represent itself at its own expense
with counsel of its own choosing. The Indemnified Party shall
notify the Indemnifying Party promptly of any claim for which
Indemnifying Party is responsible and shall cooperate with the
Indemnifying Party in every commercially reasonable way to
facilitate defense of any such claim; provided that the Indemnified
Party’s failure to notify Indemnifying Party shall not
diminish Indemnifying Party’s obligations under this Section
1.5 except to the extent that Indemnifying Party is materially
prejudiced as a result of such failure.
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ARTICLE II
CONSULTING CONSIDERATION AND EXPENSES
2.1
Consulting
Consideration. In consideration for the performance of the
Consulting Services, Consultant shall receive the consideration set
forth on the Consulting Services Schedule (“Consulting
Consideration”).
2.2
Expenses.
Except as may otherwise be set forth on the Consulting Services
Schedule, (i) the Consulting Consideration includes any and all
costs, fees and expenses which may be incurred by Consultant in its
performance of the Consulting Services; and (ii) Consultant shall
not be reimbursed for any costs or expenses unless authorized by
the Company in writing in advance of Consultant incurring the
costs, fees or expenses. As to expenses for which the Company will
reimburse Consultant as set forth on the Consulting Services
Schedule, the Company shall pay or reimburse Consultant for all
reasonable and authorized business expenses incurred by Consultant
while engaged under this Agreement so long as said expenses have
been incurred for and promote the business of the Company and are
normally and customarily incurred by consultants performing similar
consulting services in the same or similar market. As a condition
to reimbursement under this Section 2.2, Consultant shall furnish
to the Company adequate records and other documentary evidence
required by federal and state statutes and regulations for the
substantiation of each expenditure. Consultant must submit proper
documentation for each such expense within thirty (30) days after
the date that Consultant incurs such expense, and the Company will
reimburse Consultant for all eligible expenses within thirty (30)
days thereafter. Consultant acknowledges and agrees that failure to
furnish the required documentation may result in the Company
denying all or part of the expense for which reimbursement is
sought.
2.3
Payments.
Payment of approved costs and expenses shall be made on a monthly
basis in accordance with the Company’s customary accounts
payable practice.
2.4
Reporting.
Concurrently with the execution and delivery of this Agreement, the
Consultant has provided Company with a completed IRS Form W-9 for
Consultant. The Company will provide Consultant with an IRS Form
1099 each year reflecting the payments made to Consultant under
this Agreement.
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ARTICLE III
CONFIDENTIALITY AND PROPRIETARY RIGHTS
3.1
Confidential
Information.
(a)
Consultant
acknowledges and agrees that the Company has developed and uses and
will develop and use Confidential Information and that Consultant
will have access to and will participate in the creation or
development of Confidential Information in the performance of the
Consulting Services. All Confidential Information shall be and
remain the sole property of the Company notwithstanding that
Consultant may participate in the creation or development of the
Confidential Information. For purposes of this Agreement, the term
“Confidential
Information” shall mean all Company business methods,
techniques, plans, and know-how; budgets, financing and accounting
techniques and projections; advertising, proposals, applications,
marketing materials and concepts; customer files and other
non-public information regarding customers; methods for developing
and maintaining business relationships with customers, suppliers,
vendors, and partners; customer and prospect lists; procedure
manuals; employees and personnel information.
(b)
Consultant shall
maintain the confidentiality of the Confidential Information and
shall not (i) disclose to any other person or entity Confidential
Information in any manner or for any purpose; or (ii) use
Confidential Information in any manner or for any purpose which is
directly or indirectly in competition with or injurious or adverse
to the Company.
(c)
Upon termination of
this Agreement for any reason, Consultant will promptly surrender
to the Company all copies of Confidential Information in
Consultant's possession or under Consultant's control, whether any
such Confidential Information was prepared by Consultant or by
others.
(d)
The obligations of
Consultant under this Section 3.1 shall continue during the term of
this Agreement and for a period of three (3) years after
termination of this Agreement; provided that in the case of
Confidential Information constituting trades secrets, the
obligations shall continue for as long as such Confidential
Information remains trade secrets.
3.2
Ownership of
Intellectual Property.
(a)
(i) All
Intellectual Property, whether or not patentable or copyrightable,
made, conceived, written, developed or first reduced to practice by
Consultant, whether solely or jointly with others, during the
period of Consultant's engagement by the Company under this
Agreement or prior to the Effective Date and which result from the
performance of the Consulting Services or similar services
performed for the Company or any predecessor company or business,
shall be the sole and exclusive property of the Company. To the
extent Consultant may retain any interest in any such Intellectual
Property by operation of law or otherwise, Consultant hereby
irrevocably assigns and transfers to the Company all of
Consultant's entire right, title and interest in and to all such
Intellectual Property. All copyrights and copyrightable material
shall be deemed works for hire, and the Company shall have all
right, title and interest in such material, including all moral
rights, and shall be the author thereof for all purposes under
applicable copyright laws. For purposes of this Agreement, the term
“Intellectual
Property” shall mean all inventions, improvements,
discoveries, ideas, designs, software, trademarks, trade names,
copyrights and copyrightable subject matter, patents, know-how,
mask works, programs, documents, data, trade secrets and
Confidential Information.
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(ii)
Without
limiting the
generality of the forgoing provisions of this Section 3.2(a), all
articles, documents, reports, manuals, programs, software or
computer programs and components thereof, and any other
deliverables or work products arising from or related to the
Consulting Services or similar services or similar services
performed for the Company or any predecessor company or business
prior to the Effective Date (“Materials”) developed or authored
by Consultant for the Company under this Agreement or under the
provision of similar services performed for the Company or any
predecessor company or business prior to the Effective Date, are to
be considered Works Made for Hire as that term is defined in
Section 101 of the Copyright Act (17 U.S.C. §101) and are and
shall be the sole and exclusive property of the Company. Consultant
agrees that any and all proprietary rights to the Materials
developed hereunder or prior to the Effective Date, including, but
not limited to, patent, copyright, trademark and trade secret
rights, to the extent they are available, are the sole and
exclusive property of the Company, free from any claim or retention
of rights thereto on the part of Consultant or any employee or
agent of Consultant, as of the Effective Date of this
Agreement.
(b)
To the extent that any Materials or Intellectual Property
developed, authored, created or produced under this Agreement or
under the provision of similar services performed for the Company
or any predecessor company or business prior to the Effective Date
may not be considered Works Made for Hire, or to the extent that
Section 3.2(a)(i) or Section 3.2(a)(ii), is declared invalid either
in substance or purpose, in whole or in part, Consultant hereby
assigns and agrees to irrevocably assign, transfer, grant, convey
and relinquish exclusively to the Company, any and all of
Consultant’s right, title and interest, including ownership
of copyright and/or patent rights to any material developed by
Consultant under this Agreement or under the provision of similar
services performed for the Company or any predecessor company or
business prior to the Effective Date without consideration beyond
the mutual promises set forth in this Agreement and the payment of
fees as provided for by this Agreement. All right, title and
interest of every kind and nature, whether now known or unknown, in
and to the copyrights, patents, ideas and creations created,
written and developed by either Consultant or the Company in the
course of providing the Consulting Services under and pursuant to
this Agreement or under the provision of similar services performed
for the Company or any predecessor company or business prior to the
Effective Date, shall be the exclusive property of the Company for
any and all purposes and uses, and Consultant shall have no right,
title or interest of any kind or nature in or to such material. As
part of this Agreement, Consultant agrees to do all things
necessary to protect this assignment, including but not limited to,
executing an assignment of Consultant’s copyright and/or
patent interests in the Material and Intellectual Property created,
authored and/or developed pursuant to this Agreement or under the
provision of similar services performed for the Company or any
predecessor company or business prior to the Effective
Date.
(c)
Consultant represents and warrants
that all Materials and Intellectual Property produced under this
Agreement or under the provision of similar services performed for
the Company or any predecessor company or business prior to the
Effective Date were and shall be of original authorship by
Consultant or that Consultant has the legal right to convey the
entire right, title and interest in such Materials and Intellectual
Property as is contemplated by this Agreement. Consultant further
represents and warrants no other person, firm, corporation or
entity has any rights or interest in the Materials and Intellectual
Property Consultant submits or has submitted to the Company or
under the provision of similar services performed for the Company
or any predecessor company or business prior to the Effective Date.
Consultant further warrants that its execution and performance of
this Agreement, including, but not limited to, the tangible or
intangible products produced as a result of it, shall not infringe
upon or violate any patent, copyright, trade secret or other
proprietary right of any third party and shall not constitute a
defamation or invasion of the right of privacy or
publicity.
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(d)
Consultant hereby
appoints the Company, for the period of Consultant's engagement by
the Company, and for five years thereafter, as Consultant's
attorney-in-fact for the purpose of executing, in Consultant's name
and on Consultant's behalf, such instruments or other documents as
may be necessary to transfer, confirm and perfect in the Company
the rights Consultant has granted to the Company pursuant to this
Section 3.2.
(e)
Consultant will
assist the Company to obtain for its own benefit patents,
copyrights and/or trademarks thereon in any and all jurisdictions
as may be designated by the Company, and Consultant will execute
when requested, patent, trademark and/or copyright applications and
assignments thereof to the Company or persons designated by the
Company, and any other lawful documents deemed necessary by the
Company to carry out the purposes of this Agreement. Consultant
will further assist the Company in every way to enforce any
patents, copyrights, trade secrets, and other intellectual property
rights of the Company, including, without limitation, testifying in
any suit or proceeding involving any of the Intellectual Property
or executing any documents deemed necessary by the Company, all
without further consideration, but at the expense of the
Company.
(f)
The obligations and
undertakings stated in this Section 3.2 shall continue beyond the
termination of Consultant's engagement by the Company, but if
Consultant is called upon to render such assistance after the
termination of Consultant's engagement, then Consultant shall be
entitled to a reasonable per diem fee in addition to reimbursement
of any out-of-pocket expenses incurred at the request of the
Company.
3.3
Prohibition on
Interference with Relationships. During the term of this
Agreement and for a period of one (1) year thereafter, Consultant
shall not, directly or indirectly, without the Company's prior
written consent, solicit any person or entity having contractual or
other business relationships with the Company, including without
limitation, any customer or client, lessee, supplier, business
partner or independent contractor, for the purpose of having such
person or entity terminate or modify such person's or entity's
contractual and/or business relationship with the Company, nor
shall Consultant interfere with any of such contractual or business
relationships.
3.4
Prohibition on
Solicitation of Company Employees. During the term of this
Agreement and for a one (1)-year period following termination or
expiration of this Agreement, Consultant will not directly or
indirectly, without the Company's prior written consent, (i)
solicit or recruit any of the Company's employees to leave the
employ of the Company; or (ii) hire as an employee or engage as an
independent contractor, any employee of the Company.
3.5
Covenants
Reasonable. The parties hereto agree that the nature and
duration of the covenants set forth in this Article III are
reasonable under the circumstances. In the event any court or
arbitrator determines that the nature of any covenant or the
duration of any covenant, or both, are unreasonable and to that
extent is unenforceable, the parties agree that such covenant shall
remain in full force and effect to the greatest extent and duration
as would not render the covenant unenforceable.
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3.6
Cooperation
and Assistance.
Consultant agrees to reasonably assist and cooperate (including,
but not limited to, providing information to the Company and/or
testifying in a proceeding) in the investigation and handling of
any internal investigation, legislative matter, or actual or
threatened court action, arbitration, administrative proceeding, or
other claim involving any matter that arose during
Consultant’s period of employment by the Company or during
the Term of this Agreement. Consultant’s agreement to
assist and cooperate shall not affect in any way the content of
information or testimony provided by Consultant.
3.7
Right to Injunctive
and Equitable Relief. Consultant's obligations under this
Article III are of a special and unique character which gives them
a special value to the Company. The Company cannot be reasonably or
adequately compensated in damages in an action at law in the event
Consultant breaches such obligations. Therefore, Consultant
expressly agrees that the Company shall be entitled to injunctive
and other equitable relief in the event of such breach in addition
to any other rights or remedies which the Company may possess at
law or in equity. The obligations of Consultant and the rights and
remedies of the Company under this Article III are cumulative and
in addition to, and not in lieu of, any obligations, rights or
remedies created by applicable law, including without limitation,
applicable copyright and patent laws and laws relating to
misappropriation or theft of trade secrets or confidential
information.
ARTICLE IV
GENERAL PROVISIONS
4.1
Notices. Any
notice required or permitted under this Agreement will be
considered to be effective in the case of (i) certified mail, when
sent postage prepaid and addressed to the party for whom it is
intended at its address of record, three (3) days after deposit in
the mail; (ii) by courier or messenger service, upon receipt by
recipient as indicated on the courier's receipt; or (iii) upon
receipt of an Electronic Transmission by the party that is the
intended recipient of the Electronic Transmission. The record
addresses, facsimile numbers of record, and electronic mail
addresses of record for the parties are set forth below, for the
Company, or on the Consulting Services Schedule, for Consultant and
may be changed from time to time by notice from the changing party
to the other party pursuant to the provisions of this Section
4.1.
If to
the Company:
00000
XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000-0000
Attention: Legal
Department
Facsimile No.:
949.862.1323
If to
Consultant: As set forth on the Consulting Services
Schedule
For
purposes of this Section 4.1, "Electronic Transmission” means a
communication (i) delivered by facsimile, telecommunication or
electronic mail when directed to the facsimile number of record or
electronic mail address of record, respectively, which the intended
recipient has provided to the other party for sending notices
pursuant to this Agreement and (ii) that creates a record of
delivery and receipt that is capable of retention, retrieval, and
review, and that may thereafter be rendered into clearly legible
tangible form.
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4.2
Entire
Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings, and
negotiations between the parties with respect to the subject matter
hereof. Notwithstanding the foregoing, this Agreement is not
intended by the parties to supersede, and does not supersede, any
prior or contemporaneous agreements or understandings entered into
by the parties in connection Consultant’s prior employment
with the Company or the termination of such employment, including
without limitation that certain Employee Confidentiality Agreement
dated as of April 26, 2010 between Company and Consultant, that
certain Mutual Agreement To Arbitrate dated April 26, 2010 between
Company and Consultant and that certain Confidential Separation and
Release Agreement dated as of the Effective Date between Company
and Consultant, all of which agreements remain in full force and
effect in accordance with their terms.
4.3
Modifications,
Amendments, Waivers and Extensions. This Agreement may not
be modified, changed or supplemented, nor may any obligations
hereunder be waived or extensions of time for performance granted,
except by written instrument signed by the party to be charged or
by its agent duly authorized in writing or as otherwise expressly
permitted herein. No waiver of any default or breach of any
agreement or provision herein contained shall be deemed a waiver of
any preceding or succeeding default or breach thereof or of any
other agreement or provision herein contained. No extension of time
for performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations or
acts.
4.4
Governing
Law. This Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with the internal laws,
and not the laws pertaining to conflicts or choice of laws, of the
State of California applicable to agreements made and to be
performed wholly within the State of California.
4.5
Partial
Invalidity. Any provision of this Agreement which is found
to be invalid or unenforceable by any court in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability, and the invalidity or
unenforceability of such provision shall not affect the validity or
enforceability of the remaining provisions hereof.
4.6
Dispute Resolution,
Forum.
(a)
The parties
consent to and agree that any dispute or claim arising hereunder
shall be submitted to binding arbitration in Orange County,
California, and
conducted in accordance with the Judicial Arbitration and Mediation
Service (“JAMS”)
rules of practice then in effect or such other procedures as the
parties may agree in writing, and the parties expressly waive any
right they may otherwise have to cause any such action or
proceeding to be brought or tried elsewhere. The parties hereunder
further agree that (i) any request for arbitration shall be made in
writing and must be made within a reasonable time after the claim,
dispute or other matter in question has arisen; provided however,
that in no event shall the demand for arbitration be made after the
date that institution of legal or equitable proceedings based on
such claim, dispute or other matter would be barred by the
applicable statue(s) of limitations; (ii) the appointed arbitrator
must be a former or retired judge or attorney at law with at least
ten (10) years experience in commercial matters; (iii) costs and
fees of the arbitrator shall be borne by both parties equally,
unless the arbitrator or arbitrators determine otherwise; (iv)
depositions may be taken and other discovery may be obtained during
such arbitration proceedings to the same extent as authorized in
civil judicial proceedings; and (v) the award or decision of the
arbitrator, which may include equitable relief, shall be final and
judgment may be entered on such award in accordance with applicable
law in any court having jurisdiction over the matter.
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(b)
TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(c)
The parties
acknowledge and agree that money damages may not be a sufficient
remedy for a breach of certain provisions of this Agreement,
including but not limited to, Article III, and accordingly, a
non-breaching party may be entitled to specific performance and
injunctive relief as remedies for such violation. Accordingly,
notwithstanding the other provisions of this Section 4.6, the
parties agree that a non-breaching party may seek relief in a court
of competent jurisdiction for the purposes of seeking equitable
relief hereunder, and that such remedies shall not be deemed to be
exclusive remedies for a violation of the terms of this Agreement
but shall be in addition to all other remedies available to the
non-breaching party at law or in equity.
(d)
In any
action, arbitration or other proceeding by which one party either
seeks to enforce its rights under this Agreement or seeks a
declaration of any rights or obligations under this Agreement, the
prevailing party will be entitled to reasonable attorneys’
fees, and subject to Section 4.6(a), reasonable costs and expenses
incurred to resolve such dispute and to enforce any final
judgment.
(e)
No remedy
conferred on either party by any of the specific provisions of this
Agreement is intended to be exclusive of any other remedy, and each
and every remedy will be cumulative and will be in addition to
every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. The election of one or
more remedies by a party will not constitute a waiver of the right
to pursue other available remedies.
4.7
Interpretation.
Titles and headings of sections of this Agreement are for
convenience of reference only and shall not affect the construction
of any provision of this Agreement. No provision of this Agreement
shall be construed in favor of or against any party by reason of
the extent to which the party or the party’s counsel
participated in the drafting hereof.
4.8
Assignment.
This Agreement and the rights, duties, and obligations hereunder
may not be assigned or delegated by any party without the prior
written consent of the other party. Any assignment or delegation of
rights, duties, or obligations hereunder made without the prior
written consent of the other party shall be void and be of no
effect. Notwithstanding the foregoing provisions of this Section
4.8, the Company may assign or delegate its rights, duties and
obligations hereunder to any person or entity controlling,
controlled by, or under common control with the Company or any
person or entity which acquires substantially all of the business
or assets of the Company.
-9-
4.9
Successors and
Assigns. This Agreement and the provisions hereof shall be
binding upon and shall inure to the benefit of each of the parties
and their respective permitted successors and assigns.
4.10
Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall
constitute but one and the same instrument. Signatures on this
Agreement may be communicated by facsimile or PDF transmission and
shall be binding upon the parties transmitting the
same.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
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Effective Date:
June 9, 2018
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Company
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By:
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/s/
Xxxxx
X. Xxxxxx
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Xxxxx X.
Xxxxxx
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EVP,
Chief Legal and Administrative
Officer
and Secretary |
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“Consultant”
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By:
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/s/
Xxxxxxxx
Xxxxx
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Xxxxxxxx
Xxxxx
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-10-
Exhibit A
Consulting Services Schedule
Consultant
Name:
Xxxxxxxx
Xxxxx
Consultant Contact Information
for Notice
Purposes:
Xxxxxxxx
Xxxxx
[Personal
Residence Information Redacted]
Consulting Services: Consultant will make herself available
on an as-needed basis (subject to reasonable notice and at
reasonable times not interfering with Consultant’s employment
with her new employer), to provide, and will provide, transition
support services for the Company’s accounting, banking,
financial, governmental reporting, finance, strategic transactions
modeling and investor relation functions.
Consulting Time: The Company and Consultant shall agree in
advance upon the number of hours to be spent by Consultant in the
performance of the Consulting Services, which agreement may be in
the form of a “not to exceed” number of hours during
weekly or monthly periods or hours specified for individual
projects. In no event shall Consultant exceed the agreed upon hours
without Company’s prior written approval.
The
Company and Consultant shall agree in advance upon the number of
hours to be spent by Consultant in the performance of the
Consulting Services, which agreement may be in the form of a
“not to exceed” number of hours during weekly or
monthly periods or hours specified for individual projects. In no
event shall Consultant be required or permitted to perform services
under this Agreement at a level during any monthly period that is
greater than twenty percent (20%) of the average level of service
that Consultant performed for the Company during the 36-month
period immediately preceding the Termination Date. The parties
acknowledge that during the 36-month period immediately preceding
the Termination Date, Consultant worked an average of approximately
50 hours per week for the Company.
Consulting Consideration: As consideration for the
performance of the commitments and obligations made by Consultant
in this Agreement, the Company and Consultant agree as
follows:
1. Stock
Options.
(a) Vesting
Any of the stock options to purchase common stock of the Company
listed below that were awarded to Consultant during
Consultant’s employment by the Company (“Employment Stock Options”) will
continue to vest in accordance with their normal vesting schedules
set forth in the applicable stock option award agreements during
the period commencing on the Employment Termination Date and ending
as of the end of the Consulting Term. Any Employment Stock Options
that remain unvested at the end of the Consulting Term shall
terminate and be cancelled at that time, and in no event shall any
Employment Stock Options vest if such Employment Stock Options
would have vested after the end of the Consulting Term.
Notwithstanding any provisions in the applicable stock option award
agreements for the Employment Stock Options to the contrary, the
vesting of Employment Stock Options shall not be accelerated if any
acceleration event provided for in the applicable stock option
award agreements occurs during the Consulting Term;
provided, however, that if the acceleration event is a
change in control (as defined for purposes of the stock option
award agreements) of the Company, then the vesting of any unvested
Employment Stock Options shall be accelerated to the extent and as
provided in the applicable stock option award agreements. In no
event shall any Employee Stock Options vest (whether in accordance
with their normal vesting schedule or by reason of the limited
acceleration of vesting set forth above) after the original
expiration dates of the Employee Stock Options set forth in the
applicable stock option award agreements for the Employment Stock
Options.
(b) Post-Termination
of Employment Exercise Periods. Any post-employment
termination exercise periods for Employment Stock Options that are
vested as of the end of the Consulting Term shall be tolled during
the Consulting Term and shall not commence running until the end of
the Consulting Term;
provided, however, that in no event will the
post-termination exercise periods extend beyond the original
expiration dates of the Employee Stock Options set forth in the
applicable stock option award agreements for such Employee Stock
Options.
(c) Amendments
to Award Agreements. The applicable provisions of the stock
option award agreements for the Employee Stock Options are hereby
amended to implement the vesting continuation and limited vesting
acceleration set forth in clause (a) of this paragraph 1 and the
tolling of the post-termination exercise periods set forth in
clause (b) of this paragraph 1.
-11-
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Plan
Name
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Grant
Date
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Xxxxx
Xxxxx
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Original
Options
Granted
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Options
Vested
as
of
Employment
Termination
Date
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Options
Unvested
as
of
Employment
Termination
Date
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Original
Post-
Termination
of
Employment
Exercise
Window
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Original
Expiration
Date
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12/7/11 NQ $0.76
10IP
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12/7/2011
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$3.80
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10,000
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10,000
Covered
under Rule 10b5-1 Plan
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0
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May exercise vested
options for a period of 90
days
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12/7/2018
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04/26/2010 NQ $0.79
06IP
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4/26/2010
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$3.95
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5,000
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5,000
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0
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May exercise vested
options for a period of 90
days
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4/23/2020
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1/10/12 NQ $0.78
10IP Performance
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1/10/2012
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$3.90
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12,340
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12,340
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0
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May exercise vested
options for a period of 90
days
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1/10/2019
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1/24/13 NQ $4.00
10IP Performance
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1/24/2013
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$4.00
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6,875
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6,875
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0
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May exercise vested
options for a period of 90
days
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1/24/2020
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3/17/14 NQ $14.32
10IP
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3/17/2014
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$14.32
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7,400
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7,400
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0
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May exercise vested
options for a period of 90
days
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3/17/2021
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1/21/15 NQ $9.10
2014IP
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1/21/2015
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$9.10
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20,000
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20,000
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0
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May exercise vested
options for a period of 90
days
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1/21/2022
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1/23/15 NQ $10.20
2014IP
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1/23/2015
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$10.20
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15,000
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15,000
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0
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May exercise vested
options for a period of 90
days
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1/23/2022
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5/18/15 NQ $13.22
2014IP
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5/18/2015
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$13.22
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6,000
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5,668
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332
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May exercise vested
options for a period of 90
days
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5/18/2022
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7/15/16 NQ $14.41
2014 AR IP
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7/15/2016
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$14.41
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30,000
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16,672
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13,328
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May exercise vested
options for a period of 90
days
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7/15/2023
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01/26/17 NQ $13.81
2014 AR IP
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1/26/2017
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$13.81
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20,000
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7,790
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12,210
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May exercise vested
options for a period of 90
days
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1/26/2024
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2. Restricted
Shares.
(a) Lapsing
of Forfeiture Restrictions. Consultant was awarded 40,000
shares of restricted stock on September 27, 2017
(“Restricted
Shares”). The forfeiture restrictions set forth in the
award agreement for the Restricted Shares lapse as to one-third
(1/3rd) of
the Restricted Shares each anniversary of the award date over three
years. The forfeiture restrictions will continue to lapse in
accordance with their normal lapse schedule set forth in the
restricted stock award agreement for the Restricted Shares during
the Consulting Term, such that, provided this Agreement has not
been terminated by either party in accordance with Section 1.2
prior to September 27, 2018, the forfeiture restrictions on the
first one-third (1/3rd) of the Restricted
Shares (13,333 shares) shall lapse as of September 27, 2018, and
all other Restricted Shares shall terminate and be cancelled as of
the end of the Consulting Term, absent any acceleration of the
lapsing of the forfeiture restrictions as provided in clause (b)
below prior to the end of the Consulting Term. In no event shall
the forfeiture restrictions for any Restricted Shares lapse after
the end of the Consulting Term, and all Restricted Shares that
remain subject to forfeiture restrictions as of the end of the
Consulting Term shall be terminated and cancelled as of the end of
the Consulting Term.
-12-
(b) Acceleration
of Lapsing. Notwithstanding any provisions in the Restricted
Shares award agreement to the contrary, the lapsing of the
forfeiture restrictions for the Restricted Shares shall not be
accelerated if any acceleration event provided for in the
Restricted Shares award agreement occurs during the Consulting
Term;
provided, however, that if the acceleration event is a
change in control (as defined for purposes of the Restricted Shares
award agreement) of the Company, then the lapsing of the forfeiture
restrictions shall be accelerated for any Restricted Shares that
are at the time still subject to forfeiture restrictions to the
extent and as provided in the Restricted Shares award
agreement.
(c) Amendment
to Restricted Shares Award Agreement. The applicable
provisions of the Restricted Shares award agreement are hereby
amended to implement the forfeiture restrictions lapsing
continuation set forth in clause (a) of this paragraph 2 and the
limited acceleration of the forfeiture lapsing provisions set forth
in clause (b) of this paragraph 2.
Consultant
acknowledges that Consultant shall continue to be governed by and
subject to the Company’s Securities Trading Policy during the
Consulting Term.
Company Equipment and Use and Access to Company
Systems
During
the Term, the Company, in its discretion, may make available to
Consultant a Company-standard laptop computer for use in providing
the Consulting Services, and the availability and use of the
Company laptop computer is not a condition or requirement for
Consultant’s performance of the Consulting Services. All such
Company equipment shall be returned to the Company at the end of
the Consulting Term or at any time prior to the end of the
Consulting Terms upon request by the Company. Consultant agrees
that Consultant will comply with all Company policies and
procedures regarding the use of Company equipment and systems as if
Consultant were employed by the Company.
-13-
