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EXHIBIT 10.39.2
ADVISORY AGREEMENT
[Conformed Copy]
THIS ADVISORY AGREEMENT (this "Agreement") is entered into effective as
of February 1 2001, by and between Aperian, Inc., a Delaware corporation (the
"Company"), and Xxxxxxxxxxx Xxxxxxxx ("Advisor" or "Xx.
Xxxxxxxx");
WITNESSETH:
WHEREAS, the Company wishes to continue to benefit from the advice,
experience and knowledge of Xx. Xxxxxxxx; and
WHEREAS, Advisor is willing to advise the Company, upon the terms and
conditions contained herein;
NOW, THEREFORE, for and in consideration of the compensation to be paid
Xx. Xxxxxxxx under this Agreement and the mutual promises, covenants, and
undertakings contained herein, the Company and Advisor agree as follows:
1. Independent Contractor: There shall be created pursuant to this
Agreement an independent contractor relationship between the Company and Advisor
whereby Xx. Xxxxxxxx shall supply advisory services to the Company in accordance
with and subject to the terms and conditions set forth herein.
2. Term: The term of this Agreement shall be for a three-month period
ending April 30, 2001, unless earlier terminated pursuant to its provisions. At
the option of the Company, the term of this Agreement may be extended on a month
to month basis up to, but not beyond, July 31, 2001.
3. Services: During the term of this Agreement, and subject to his
reasonable availability, Xx. Xxxxxxxx shall provide such advisory services as
the Board of Directors of the Company (the "Board") or the Chief Executive
Officer of the Company (the "CEO") may reasonably request or that Xx. Xxxxxxxx
believes might be valuable to the Company, including assisting the Board and the
CEO in such strategic and financial matters, acquisition strategy or other
projects as the Board or the CEO deems appropriate. The method of performance,
hours utilized and other details of Advisor's services hereunder shall be within
Xx. Xxxxxxxx'x sole control. While retained as an advisor by the Company,
Advisor shall be available at all times during normal business hours. If Advisor
accepts employment with another entity or otherwise does not expect to be not
available on a full-time basis, Advisor will inform the CEO of such
unavailability, in which event Advisor and the Company will renegotiate this
Agreement in light of the services Advisor is able to perform, up to an
including termination of this Agreement, provided that the total amount of
general services fees payable to Advisor during the term (including any
extension) hereof will not be less than $43,752.
4. Compensation and Expense Reimbursement:
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A. General Services Fee: As compensation for his services during
the term of this Agreement, Xx. Xxxxxxxx shall receive a monthly fee, payable on
the 15th of each month beginning February 15, 2001, in the amount of $14,584.
B. Expenses: The Company shall promptly reimburse Advisor for all
reasonable out-of-pocket expenses incurred by him in performance of his services
hereunder, provided that such expenses are pre-approved by the CEO and are
submitted to the Company (with proper supporting documentation) in accordance
with the Company's policy then in effect for employee expense reports.
5. Confidential Information: Advisor and the Company acknowledge that
the Company's business is highly competitive and that the Company may, from time
to time, provide Advisor with access to confidential information. Advisor agrees
that he will not make any unauthorized disclosure of confidential business
information obtained from the Company ("Confidential Information"), or make any
unauthorized use thereof. However, Advisor shall be permitted to disclose
Confidential Information as is required by law, including deposition or trial
testimony pursuant to subpoena, provided that if he is requested or required (by
oral question, interrogatories, request for information or documents, subpoena,
civil investigative demand or similar process) to disclose any Confidential
Information, if reasonably possible under the circumstances as determined in
good faith, he will promptly notify the other party of such request or
requirement so that the other party may seek an appropriate protective order or
waive compliance with the provisions of this Agreement.
In the absence of a protective order or the receipt of a waiver
hereunder, or in the good faith determination of Advisor that time is of the
essence, Advisor shall obtain legal counsel, and if Advisor and/or his counsel
in good faith believe that Advisor is compelled to disclose the Confidential
Information or be exposed to liability for contempt or suffer other censure or
penalty, Advisor may disclose only such Confidential Information to the party
compelling disclosure as is required by law, as determined by Advisor on advice
of counsel. Advisor further agrees that he will cooperate with the Company in
its efforts to obtain a protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information. All
reasonable legal fees, costs and expenses incurred by Xx. Xxxxxxxx in obtaining
legal representation pursuant to his obligations under this paragraph shall be
paid by the Company.
The obligations of the parties set forth in this paragraph 5 shall
apply during the term of this Agreement and shall survive for one year following
the termination of this Agreement for any reason whatsoever.
6. Capacity and Benefits: At all times while serving under this
Agreement, Advisor shall be an independent contractor and not a common-law
employee. Therefore, except to the extent provided in any other agreement
between Advisor and the Company, Advisor shall not, during the term of this
Agreement, be entitled to participate in the Company's benefit plans and
programs for its employees. Further, Advisor will in no way be considered to be
an agent, employee, or servant of the Company. Advisor shall have no authority
to bind the Company without receiving specific written authority to do so. It is
not the purpose or intention of this Agreement or the parties to create, and the
same shall not be construed as creating, any partnership, partnership relation,
joint venture, agency, or employment relationship.
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7. Termination:
A. Disability: If Advisor becomes unable to provide advisory
services hereunder during the term of this Agreement by reason of illness or
incapacity, then this Agreement shall terminate, and Advisor shall be entitled
to the entire monthly fee provided under paragraph 4A hereof for the month in
which such termination occurs.
B. Death: If Advisor dies during the term of this Agreement, then
this Agreement shall terminate, and Advisor shall be entitled to the entire
monthly fee provided under paragraph 4A hereof for the month in which Advisor's
death occurs.
C. Expiration of the Term: This Agreement shall terminate
automatically and without notice upon the expiration of the term provided in
paragraph 2 hereof.
D. Effect of Termination: Upon termination of this Agreement, all
of the parties' obligations, other than the confidentiality obligations under
paragraph 5 hereof and the Company's obligation to pay any unpaid fees or
unreimbursed expenses under this Agreement, shall terminate. The confidentiality
obligations under paragraph 5 hereof, shall survive termination of this
Agreement as set forth in such paragraph and Exhibit.
8. Notices: For purposes of this Agreement, notice, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered by United States
certified or registered mail, return receipt requested, addressed as follows:
If to Advisor:
Xx. Xxxxxxxxxxx Xxxxxxxx
0000 Xxxxxx, #000
Xxxxxx, Xxxxx 00000
If to the Company:
Xx. Xxxxxx X. Xxxxx
Chairman
Aperian, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
9. Successor Obligations and Assignment: The rights and obligations of
the Company under this Agreement shall inure to the benefit of and be binding
upon its successors and assigns. Advisor may assign any rights accruing to him
under this Agreement to any affiliated entity with the consent of the Company,
which consent shall not be unreasonably withheld.
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10. Amendment: This Agreement may not be modified except by an
agreement in writing executed by both the Company and Advisor.
11. Governing Laws: This Agreement shall be subject to and governed by
the laws of the State of Texas, without giving effect to principles of conflicts
of law.
12. Validity: In the event that any portion or provision of this
Agreement is found to be invalid or unenforceable, the other portions or
provisions hereof shall not be affected thereby.
13. Counterparts: 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 one and the same instrument.
14. Effect of Agreement: The terms of this Agreement shall supersede
any obligations and rights of the Company and Advisor respecting advisory
services. Nothing in this Agreement shall be construed as permitting either
party hereto to directly or indirectly benefit from any confidential business
information obtained from the other party during the period that Xx. Xxxxxxxx
was an employee, officer or director of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
17th day of January , 2001, to be effective as of February 1, 2001.
APERIAN, INC.
By: /s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman
/s/Xxxxxxxxxxx Xxxxxxxx
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Xxxxxxxxxxx Xxxxxxxx
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