CONSULTING AGREEMENT
Exhibit
10.44
THIS
CONSULTING AGREEMENT (this “Agreement”)
is entered into as of June 29, 2007 between BPO Management Services,
Inc., a Delaware corporation (the “Company”
or “BPOMS”),
and Xxxxxx X. Xxxx (“Xxxx”),
an individual.
RECITALS
A. BPOMS
and Xxxx are parties to that certain Stock Purchase Agreement dated as of
the
date hereof (the “Stock
Purchase Agreement”),
with respect to the stock of Human Resources Micro-Systems, Inc. (“HRMS”).
B. The
Stock Purchase Agreement provides that Xxxx shall provide consulting services
to
BPOMS in accordance with the terms herein.
C. The
parties hereto intend that this Agreement shall be effective upon the Closing
Date as defined in the Stock Purchase Agreement (the “Effective
Date”).
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises, the following mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
each of the parties hereto, the parties hereto agree, intending to be legally
bound, as follows:
1. The
term (the “Term”)
of this Agreement shall commence on the Closing Date as defined in the Stock
Purchase Agreement and ending 12 months thereafter (the “Termination
Date”).
Either party hereto shall have the right to terminate this Agreement without
notice in the event of the death, bankruptcy, insolvency, or assignment for
the
benefit of creditors of the other party. Xxxx shall have the right to terminate
this Agreement if Company fails to comply with any of the material terms
of this
Agreement, including without limitation its responsibilities for fees as
set
forth in this Agreement, and such failure continues unremedied for a period
of
thirty (30) days after written notice to the Company by Xxxx. The Company
shall
have the right to terminate this Agreement upon delivery to Xxxx of notice
setting forth with specificity facts comprising a material breach of this
Agreement by Xxxx. Xxxx shall have thirty (30) days to remedy such breach.
2. Commencing
on the Effective Date, Xxxx shall perform for BPOMS the services described
on
Exhibit
A attached
hereto (collectively, the “Services”),
reporting to and solely as requested by Xxx Xxxxx (the “Supervisor”)
or his designee, and solely during regular business hours. Xxxx will not
be
required to perform Services hereunder more than 32 hours
per week. However, the parties anticipate that, after the first 2 months
of the
Term, BPOMS’ need for Xxxx’x performance of Services will not exceed “half-time”
(or 16 hours per week), and that after the next 2 months of the Term, BPOMS’
need for Xxxx’x performance of Services will be no more than 5 hours per week;
if BPOMS’ need for Xxxx’x performance of Services increases substantially, the
parties will confer and negotiate in good faith with respect to appropriate
modifications to the terms and conditions of this Agreement. Xxxx will perform
most of the Services in accordance with this Agreement at the Company’s offices
located at 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxxxxxxx, XX 00000, or 00
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, by telephone or at
such
other place(s) as are reasonably necessary to perform the Services in accordance
with this Agreement. If travel by Xxxx is required for purposes of performing
the Services, Xxxx shall not be required to travel outside the San Francisco
Bay
Area without his voluntary consent, which will not be unreasonably
withheld.
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3. Xxxx
shall be paid a fee for performance of the Services herein during the Term
in
the amount of $7,500.00 per month, payable on a monthly basis in advance,
no
later than the first day of each month. In addition, BPOMS shall reimburse
Xxxx
promptly for reasonable out-of-pocket expenses incurred in connection with
Services rendered under this Agreement.
4. Xxxx
shall bear any taxes arising from the Company’s payment to him of the fees
hereunder. Xxxx
shall indemnify BPOMS for any taxes, penalties or interest incurred by BPOMS
due
to Xxxx’x failure to pay taxes described in the immediately preceding sentence.
5. Both
Company and Xxxx agree that Xxxx will act as an independent contractor in
the
performance of his duties under this Agreement. Nothing contained in this
Agreement shall be construed to imply that Xxxx, or any employee, agent or
other
authorized representative of Xxxx, is a partner, joint venturer, agent, officer
or employee of Company. The Company shall indemnify and hold Xxxx harmless
from
and against any and all claims, assignments, liabilities, damages, losses,
obligations, judgments and expenses (including reasonable attorneys’ fees and
expert fees) relating to, resulting from or arising out of Xxxx’x performance of
the Services unless due to Xxxx’x gross negligence or willful
misconduct.
6. MISCELLANEOUS.
a. No
waiver or modification of this Agreement shall be binding unless it is in
writing signed by the parties hereto. No waiver of a breach hereof shall
be
deemed to constitute a waiver of a future breach, whether of a similar or
dissimilar nature.
b. The
rights (but not the obligations) of BPOMS under this Agreement may, without
requiring the consent of Xxxx, be assigned by BPOMS to any transferee, whether
by purchase, merger or otherwise, that directly or indirectly acquires all
or
substantially all of the assets of BPOMS. Xxxx may not assign any rights
herein
to any transferee.
c. All
notices and other communications required or permitted under this Agreement
shall be in writing, served personally on, or mailed by certified or registered
United States mail to, the party to be charged with receipt thereof. Notices
and
other communications served by mail shall be deemed given hereunder 72 hours
after deposit of such notice or communication in the United States Post Office
as certified or registered mail with postage prepaid and duly addressed to
whom
such notice or communication is to be given at the addresses provided for
in the
notice section of the Stock Purchase Agreement. Any such party may change
said
party’s address for purposes of this Section 6.c. by giving to the party
intended to be bound thereby, in the manner provided herein, a written notice
of
such change.
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d. This
Agreement may be executed by facsimile and in one or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
e. This
Agreement shall be construed in accordance with, and governed by, the laws
of
the State of California applicable to agreements executed and to be performed
in
California by California residents. The exclusive venue for any legal proceeding
with respect to this Agreement shall be San Francisco County,
California.
f. This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter of this Agreement and supersedes all previous oral
and
written and all contemporaneous oral negotiations, commitments, writings,
and
understandings.
g. If
any provision of this Agreement or application thereof to anyone or under
any
circumstances is adjudicated to be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect any other provisions
or
applications of this Agreement that can be given effect without the invalid
or
unenforceable provision or application and shall not invalidate or render
unenforceable such provision in any other jurisdiction or under any other
circumstance.
h. Time
is of the essence with respect to the performance of each term of this
Agreement.
i. If
any legal action, arbitration or other proceeding is brought for the enforcement
of this Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys’ fees and
other costs it incurred in that action or proceeding, in addition to any
other
relief to which it may be entitled.
j. This
Agreement shall be binding upon and inure to the benefit of the parties hereto;
provided, however, Xxxx may not assign any of his obligations under this
Agreement.
7. CONFIDENTIAL
INFORMATION. Xxxx agrees as follows:
7.1 Nondisclosure
and Nonuse of Confidential Information.
Xxxx acknowledges that BPOMS and its Affiliates continually develop Confidential
Information (as defined in Section 7.4 herein), that Xxxx may develop
Confidential Information for BPOMS or its Affiliates and that Xxxx may learn
of
Confidential Information during the course of services rendered to BPOMS
or its
Affiliates. Xxxx will comply with BPOMS’s policies and procedures for protecting
Confidential Information and, except as required by the nature of his du-ties,
Xxxx will never, directly or indirectly, use or dis-close any Confi-dential
Information without the prior written consent of the Supervisor. Xxxx
understands that this restriction will continue to apply after the termination
of this Agreement.
7.2 Use
and Return of Property and Documents.
Xxxx will protect the integrity of Confidential Information and keep
confidential all documents, customer lists, records of research, proposals,
reports, memoranda, computer software and programming, financial information,
and other materials (“Documents”)
including any copies thereof, in which Confidential Information may be
contained. Xxxx will not copy any Documents except as reasonably required
by the
nature of the services rendered under this Agreement. Xxxx will not remove
any
Documents or copies from BPOMS’s or its Affiliates’ premises except as
reasonably required by the nature of the services rendered under this Agreement
or if authorized by the Supervisor. Upon BPOMS’ written request, Xxxx will
return to BPOMS immediately after the termination of this Agreement all
Documents and copies and any other property of BPOMS or its Affiliates then
in
Xxxx’x possession or control.
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7.3 Assignments
of Rights.
Xxxx will promptly and fully disclose all Company Property (as defined in
Section 7.4) to BPOMS. Xxxx hereby assigns and agrees to assign to BPOMS
(or as
otherwise directed by BPOMS) Xxxx’x full right, title and interest to all
Company Property. Xxxx agrees to execute any and all applications for domestic
and foreign patents, copyrights or other proprietary rights and do such other
acts (including, among others, the execution and delivery of instru-ments
of
further assurance or confirmation) requested by BPOMS to assign the Company
Property to BPOMS and to permit BPOMS to enforce any patents, copy-rights
or
other proprietary rights in the Company Property. All copyrightable works
that
qualify as Company Property shall be considered “works made for
hire.”
7.4 Definitions:
For the purposes of this Agree-ment, the following definitions shall
apply:
“Affiliate”
has
the meaning set forth in Rule 12b-2 of the regulations promulgated under
the
Securities Exchange Act.
“Company
Property”
means developments, methods of doing business, compositions, works, concepts
and
ideas (whether or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to writing or practice by
Xxxx
(whether alone or with oth-ers, and whether or not during normal business
hours
or on or off BPOMS’s premises) while rendering services to BPOMS or any of its
Affiliates during the Term that relate to either the services provided by,
business of, or any prospec-tive activity of, BPOMS or any of its Affiliates
known to Xxxx, or about which Xxxx had reason to know, as a result of services
rendered under this Agreement.
“Confidential
Information”
shall mean any and all information of BPOMS and its Affiliates that is not
generally known by others with whom BPOMS or any of its Affiliates does or
plans
to compete or do busi-ness. Confidential Information includes, without
limita-tion, such information relating to (i) BPOMS’s and its Affiliates’
development, research and marketing activities, (ii) BPOMS’s and its Affiliates’
strategic plans, (iii) the identity and special needs of BPOMS’s and its
Affiliates’ customers and (iv) people and organiza-tions with whom BPOMS and its
Affiliates has bus-iness relationships. Confidential Information also includes
such infor-mation that BPOMS and its Affiliates may receive or have received
belong-ing to customers or others who do busi-ness with BPOMS and/or any
of its
Affiliates and, except to the extent disclosed by BPOMS or any of its Affiliates
on a nonconfidential basis, the Company Property.
7.5 Remedies.
Xxxx acknowledges that, if Xxxx breaches the provisions of this Section 7,
the
harm to BPOMS and its Affiliates will be irreparable. Xxxx therefore agrees
that, in the event of such a breach by Xxxx, in addi-tion to damages and
reasonable attorneys’ fees, BPOMS shall be entitled to obtain preliminary and
perma-nent injunctive relief against any such breach.
[Intentionally
Left Blank]
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IN
WITNESS WHEREOF, the undersigned have executed this Consulting Agreement
on the
day and year first above written.
|
BPO
MANAGEMENT SERVICES, INC.
By:__________________________
Name:________________________
Title:_________________________
|
_____________________________
Xxxxxx
X. Xxxx
|
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EXHIBIT
A
DESCRIPTION
OF SERVICES
In
conjunction with the Consulting Agreement to which this Exhibit
A
is attached, the parties have agreed to the following list of Services to
be
performed by Xxxx:
|
1.
|
Customer/Client
retention - Develop a plan with steps and timelines to best ensure,
and
where possible improve, HRMS’ continuing business relationship with its
customers. The plan will focus on the 60-90 day period following
acquisition and include the Supervisor and the customer-facing
staff of
HRMS.
|
|
2.
|
Product
development - Participate and advise in the development of an overall
product development plan to include both functional and technology
roadmap
items that include BPOMS products/services to appropriately extend
HRMS’
product/service offerings to the HR marketplace.
|
|
3.
|
Employee
retention - Support and participate in staff communications designed
to
maintain the morale as well as the continuing employment and interest
of
HRMS staff.
|
|
4.
|
Management
succession - Participate and advise BPOM in HRMS management staffing
decisions and provide personnel consulting/training as appropriate
for
incumbents or new hires.
|
|
5.
|
Sales/Marketing
- Participate and advise in the development of sales and marketing
plans
designed to grow HRMS licensed sales and hosted services to new
customers.
|
For
clarification of the foregoing, the Services shall not require Xxxx to perform
day-to-day operational matters for the Company or any of its business units
or
Affiliates.
