Exhibit 10.13
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is entered into as of November 1, 2001 ("Effective Date") between
UNIVERSAL ACCESS GLOBAL HOLDINGS INC., whose principal place of business is 000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 ("the Company") and
XXXXXXX X. XXXX, an individual whose address is ________________________________
_________________ (hereinafter "Consultant").
1. SERVICES; TERM
1.1 SCOPE OF SERVICES. Consultant will perform the services ("Services")
described in the Task Orders executed by the parties and attached hereto as
EXHIBIT A.
1.2 TERM. The term of this Agreement shall begin on the Effective Date and
end on December 31, 2002.
2. PAYMENT
2.1. PAYMENT. Company will pay Consultant in the amounts and in accordance
with the arrangements specified in each Task Order.
2.2. INVOICING, LATE PAYMENTS. Except as otherwise set forth in a Task
Order, Consultant will invoice monthly for the Services. Company will pay
the amounts invoiced within thirty (30) days of Company's receipt of the
invoice. Interest will accrue at one (1) percent per month compounded
monthly on amounts not paid within thirty (30) days of the invoice due
date.
2.3. EXPENSES. Company will reimburse Consultant for all reasonable
expenses incurred by Consultant in connection with the Services, including
travel and lodging expenses, and as set forth in the Task Order. Travel
shall be conducted in accordance with Company's travel policies and
procedures.
2.4. TAXES. Company will reimburse Consultant for any sales tax, use tax,
or other taxes incurred by Consultant in connection with the provision of
the Services (other than income taxes imposed on Consultant).
3. WARRANTIES
3.1 Consultant warrants that it will perform the Services hereunder in a
competent and workmanlike manner utilizing reasonable care and skill.
3.2 EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 3.1 ABOVE,
CONSULTANT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS
OF ANY KIND OR NATURE WITH RESPECT TO THE SERVICES AND ANY OBLIGATION,
LIABILITY, PERFORMANCE, NONPERFORMANCE, AND ANY OTHER MATTER IN CONJUNCTION
WITH THIS AGREEMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
NON-INFRINGEMENT, TITLE OR OTHERWISE. CONSULTANT DOES NOT WARRANT THAT THE
SERVICES PERFORMED BY
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ITS PERSONNEL WILL BE ERROR FREE, FREE OF UNINTENDED CONSEQUENCES, OR FULLY
COMPREHENSIVE.
4. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, SPECIAL,
INDIRECT, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSES (INCLUDING LOST
PROFITS OR SAVINGS) EVEN IF ADVISED OF THEIR POSSIBLE OCCURRENCE. IN NO EVENT
WILL EITHER PARTY'S LIABILITY, IF ANY, UNDER EACH TASK ORDER EXCEED THE AMOUNTS
PAID TO CONSULTANT BY THE COMPANY UNDER SUCH TASK ORDER.
5. TERMINATION
5.1. TERMINATION. Either party may at any time and without cause terminate
this Agreement by giving 30 days written notice of termination. In the
event of such termination. Company will pay Consultant for all Services
rendered and reasonable expenses incurred by Consultant prior to the
expiration of such period.
5.2. SURVIVAL. The terms of Sections 3 through 8 will survive the
termination or expiration of this Agreement for any reason.
6. INDEPENDENT CONTRACTOR RELATIONSHIP
Consultant will undertake the Services as an independent contractor. Consultant
will determine the manner and method of its performance of the Services, and
Company's general right to supervise the Services will not make Consultant, or
its agents or personnel, the agents or employees of Company. The provision of
Services under this Agreement will not result in any partnership, joint venture,
or trust relationship between Consultant and Company. Neither party will have
the authority to make any statements, representations, or commitments of any
kind on behalf of the other party, or to take any action binding upon the other.
7. INTELLECTUAL PROPERTY; CONFIDENTIALITY
7.1 The provisions of EXHIBIT B are hereby incorporated herein and made a
part hereof.
7.2 The parties have or will execute a confidentiality and non-disclosure
agreement substantially in the form attached hereto as EXHIBIT C.
8. GENERAL PROVISIONS
8.1 NON-SOLICITATION. During the term of this Agreement, and for a period
of one year thereafter, Consultant will not, directly or indirectly, on
behalf of itself or as a partner or as an officer, director, employee,
agent, consultant or shareholder of any other entity or person, or as a
trustee, fiduciary or other representative of any other person or entity,
induce, attempt to induce or hire any employee (or any person who was an
employee during the year preceding the date of any solicitation) of Company
or its affiliates to leave the employ of Company or its affiliates, or in
any way interfere with the relationship between any such employee and
Company or its affiliates.
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8.2 SEVERABILITY. If any term or provision of this Agreement is be found
by a court of competent jurisdiction or by an arbitrator to be invalid,
illegal or otherwise unenforceable, such finding will not affect the other
terms or provisions of this Agreement or the whole of this Agreement, but
such term or provision found to be invalid, illegal or otherwise
unenforceable will be deemed modified or narrowed to the extent necessary
in the court's or arbitrator's opinion to render such term or provision
enforceable, and the rights and obligations of the parties will be
construed and enforced accordingly, preserving to the fullest permissible
extent the intent and agreements of the parties set forth in this
Agreement.
8.3 NOTICES. Any notice or other communication given pursuant to this
Agreement must be in writing and will be effective when delivered
personally to the party for whom intended, or when signed for by that
person (or that person's authorized representative) if delivered by
messenger or express courier service or by certified or registered United
States mail, or five (5) days following deposit of the same into the United
States mail, first class postage prepaid, provided that in each case other
than personal delivery the notice is addressed and sent to such party at
the address set forth above.
8.4 FORCE MAJEURE. Neither party will be liable for any delays or failures
in performance of any obligations under this Agreement, due to causes
beyond its reasonable control, including, but not limited to: acts of God,
fire, explosion, or other similar catastrophes; any law, order, regulation,
direction, action or request of any government (or body thereof) having
jurisdiction over either of the parties; national emergencies,
insurrections, riots, wars or terrorist attacks; or strikes, lock-outs,
work stoppages or other labor difficulties.
8.5 COMPLETE AGREEMENT. This Agreement includes Task Orders executed
hereunder (which are incorporated herein and made a part hereof) and sets
forth the entire understanding between the parties with respect to the
performance of the Services and the subject matter of this Agreement, and
supersedes all prior and contemporaneous agreements, arrangements,
correspondence, requests for proposals, proposals, and communications,
whether oral or written, with respect to the performance of the Services or
the subject matter of this Agreement.
8.6 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Illinois without giving effect to
any choice-of-law rules that may otherwise require application of the laws
of another jurisdiction.
8.7 LEGAL AND EQUITABLE REMEDIES. The Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice
to any other rights and remedies that the Company may have for a breach of
this Agreement by Consultant.
8.8 ASSIGNMENT. Neither this Agreement nor any interest herein nor any
claim arising under or in connection with or relating to this Agreement may
be assigned by Consultant without the Company's prior written consent, and
any attempted assignment without such consent will be void. Company may
assign this Agreement without the consent of Consultant.
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8.9 SUCCESSORS. This Agreement will inure to the benefit of and will be
binding upon the parties, their respective successors and permitted
assignees and transferees, unless otherwise provided in this Agreement.
8.10 AMENDMENTS. The terms and conditions of this Agreement may not be
amended, changed, modified, supplemented or waived without the signature of
each party. No waiver of any breach, delay or default under this Agreement
will constitute a waiver of any other or subsequent breach, delay or
default hereunder, whether or not similar.
AGREED AND ACCEPTED:
UNIVERSAL ACCESS GLOBAL HOLDINGS INC. CONSULTANT
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Authorized Signature Authorized Signature
XXXXXXX X. XXXX
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Printed Name Printed Name
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Date Date
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Social Security Number
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EXHIBIT A
TASK ORDER
Task Order under Independent Contractor Agreement (the "Agreement") with
Universal Access Global Holdings Inc. dated as of November 1, 2001.
DESCRIPTION OF SERVICES:
Consultant will provide financial and strategic analysis for the Company,
including potential acquisitions, strategic alliances, partnerships, financing
opportunities and other transactions which the Company may consider and will
assist in the preparation of financial models. Consultant will, upon reasonable
notice from Company, make herself available at all reasonable times during
normal business hours for consultation with the officers and directors of
Company with respect to such services, including without limitation the
Company's Chief Financial Officer, Chief Development Officer and Chairman and
Chief Executive Officer.
COMPENSATION:
(a) $12,000 / MONTH (payable in arrears)
(b) Company will grant Consultant, subject to approval by its Board of
Directors or appropriate committee thereof, an option to purchase 43,000 shares
of Common Stock of the Company. The per share exercise price for the shares
subject to the option will be the fair market value of a share of Common Stock
as of the date of grant. The option will vest with respect to 1/12 of the shares
subject to the option at the end of each month beginning with January 2002. The
option will be granted under the Universal Access, Inc. 1999 Stock Plan and will
be subject to its provisions and the terms of the Notice of Stock Option Grant
made thereunder. CONSULTANT ACKNOWLEDGES THAT THE VALUE OF SUCH OPTION IS
CONTINGENT UPON THE MARKET FOR THE COMPANY'S COMMON STOCK AND THAT THE EXERCISE
PRICE OF THE OPTION MAY EXCEED THE MARKET VALUE FOR THE COMPANY'S COMMON STOCK
DURING THE TIME IN WHICH THE OPTION IS EXERCISABLE.
AGREED AND ACCEPTED:
UNIVERSAL ACCESS GLOBAL HOLDINGS INC. CONSULTANT
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Authorized Signature Authorized Signature
Xxxxxxx X. Xxxx
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Printed Name Printed Name
November 1, 2001 November 1, 2001
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Date Date
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EXHIBIT B
INTELLECTUAL PROPERTY
A. NO USE OF NAME OR TRADEMARKS. Neither party will utilize the names or
trademarks of the other in connection with any advertising, marketing or
promotion of any kind without obtaining the other party's prior written consent.
Without limiting the foregoing, neither party will publicize, promote or
disclose that Consultant is providing Services to Company pursuant to this
Agreement without obtaining the other party's prior written consent.
B. WORK PRODUCT. Company retains all rights, title and interest in and to all
software, programming documentation, technical ideas, concepts, know-how,
inventions, discoveries, improvements, techniques and all related intellectual
property rights, created, conceived and developed by Company prior to the
commencement of this Agreement (the "Company Prior Technology"). All right,
title, and interest in and to all derivative works, enhancements, extensions and
modifications of or related to the Company Prior Technology or other products
developed in whole or in part by Company, including without limitation all
intellectual property rights therein (the "Developed Technology") shall be the
sole property of Company whether developed by Company or any other party in
performing the Services or otherwise. All ideas, know-how, techniques or other
intellectual property rights originated, developed or owned by the Consultant
prior to the commencement of this Agreement and ideas, know-how, techniques or
other intellectual property, excluding the Developed Technology developed solely
by Consultant during the term of the Agreement or services not specified within
a Task Order, shall be the sole property of Consultant.
C. INVENTIONS AND DATA RIGHTS
C.1 Consultant agrees that all notes, models, writings, reports, formulas,
specifications, memoranda, computer source code and documentation and other
data prepared and/or produced by Consultant in the performance of this
Agreement and all derivative works thereof are works made for hire and are
assigned to and shall become the sole property of Company, including all
rights therein of whatever kind or nature, and Consultant agrees not to
disclose same to any other person, firm or corporation. Upon termination of
its work on the project, or upon the termination or expiration of this
Agreement, Consultant agrees to promptly deliver to Company all documents
and other records that relate to the business activities of Company, and
all other materials which belong to Company.
C.2 Consultant agrees and does hereby assign to Company as its exclusive
property, its entire right, title and interest in those inventions,
innovations or ideas developed or conceived by it solely or jointly with
others, during the term of Consultant's work for or at Company, which
inventions, innovations or ideas relate to the products, processes,
developments, research activities, or other business activities of Company,
or result from work which Consultant performed at or for Company. All
rights, title and interest in such inventions shall be vested in Company
immediately upon such development or conception. Consultant further agrees
that, when requested, Consultant will without charge to Company, but at
Company's expense, sign all papers, take all rightful oaths, and do all
acts which may be necessary, desirable or convenient for securing and
maintaining the patents, copyrights and legal protection for inventions or
innovations in any and all countries and for vesting title in Company, its
successors, assigns, and legal representatives or nominees.
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C.3 If Consultant, during the course of performing the Services for the
Company, discovers, invents, or produces, without limitation, any
information, computer programs, software or other associated intangible
property, network configuration, formulae, product, device, system,
technique, drawing, program or process which is a "trade secret" within the
meaning of the Illinois Trade Secret Act (irrespective of where Consultant
performs the Services), such information, formulae, product, device,
system, technique, drawing, program or process shall be assigned to the
Company. Consultant agrees to fully cooperate with the Company in
protecting the value and secrecy of any such trade secret, and further
agrees to execute any and all documents the Company deems necessary to
document any such assignment to the Company. Consultant appoints the
Company as Consultant's attorney-in-fact to execute any documents the
Company may deem necessary that relates to any such trade secret or
assignment thereof to the Company.
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EXHIBIT C
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-Disclosure Agreement (this "Agreement") is
effective as of November 1, 2001 between Xxxxxxx X. Xxxx, an individual, with an
address at _______________ and Universal Access Global Holdings Inc., a Delaware
corporation, with an office at 000 X. Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000
(collectively, the "Parties").
BACKGROUND
THE PARTIES HAVE AGREED TO EXPLORE A POSSIBLE TRANSACTION AND/OR RELATIONSHIP
(THE "TRANSACTION"). IN CONNECTION WITH THE TRANSACTION, THE PARTIES HAVE AGREED
TO EXCHANGE CONFIDENTIAL INFORMATION (DEFINED BELOW), SUBJECT TO THE FOLLOWING
TERMS AND CONDITIONS. A PARTY, INCLUDING ITS AFFILIATES (DEFINED BELOW),
PROVIDING ANY CONFIDENTIAL INFORMATION TO THE OTHER PARTY IS REFERRED TO HEREIN
AS THE "OWNER," AND THE PARTY RECEIVING ANY CONFIDENTIAL INFORMATION FROM THE
OTHER PARTY IS REFERRED TO HEREIN AS THE "RECIPIENT." A PARTY CAN BE BOTH AN
OWNER AND A RECIPIENT HEREUNDER.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the foregoing and the
mutual promises contained in this Agreement, the Parties,
intending to be legally bound, hereby agree as follows:
1. As used herein, "Confidential Information" means any and all information,
whether furnished orally, in writing or in any tangible or intangible form
or medium, that is confidential or proprietary to Owner, any
Representatives (defined below) of Owner, or any third party, that Owner
may disclose to Recipient in connection with the Transaction, or which,
although not related to the Transaction, is nevertheless disclosed as a
result of discussions and/or dealings between the Parties or their
Affiliates or Representative's and which should reasonably have been
understood by the Recipient to be proprietary and confidential to the
Owner, because of legends or other markings, the circumstances of the
disclosure or the nature of the information itself. For purposes of this
Agreement, (a) "Affiliates" means any person or entity controlling,
controlled by, or under common control with the applicable party, and (b)
"Representatives" means a respective party's directors, officers,
employees, consultants, and advisors.
2. The term "Confidential Information" does not include any information that
(a) at the time of disclosure or thereafter is generally available to the
public (other than as a result of a wrongful disclosure directly or
indirectly by the Recipient or its Representatives), (b) was or becomes
available to the Recipient from a source other than the Owner or its
Representatives, provided that the Recipient has no
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reasonable basis for concluding that such information was made available in
violation of a confidentiality agreement with the Owner, (c) is
independently developed by the Recipient without violating any of its
obligations under this Agreement and demonstrated by Recipient's
contemporaneous business records, (d) is generally made available to third
parties by the Owner without restriction on disclosure, or (e) is disclosed
with the prior written consent of the Owner.
3. Recipient will hold the Confidential Information in confidence and protect
it in accordance with the security measures by which it protects its own
proprietary and/or Confidential Information that it does not wish to
disclose, except that Recipient will use at least a reasonable degree of
care. Recipient will use the Confidential Information received from Owner
solely for the purpose of the Transaction and such information will be kept
confidential by Recipient, except that Recipient may disclose Owner's
Confidential Information, or portions thereof, to its Affiliates or
Representatives, or to the Representatives of its Affiliates, who need to
know such information for the purpose of the Transaction and who are bound
by obligations of non-disclosure at least as restrictive as those imposed
by this Agreement. Prior to disclosing the Confidential Information or any
portion thereof to such parties, Recipient will inform those parties of the
confidential nature of the Confidential Information and their duty to treat
such Confidential Information in accordance with the applicable
non-disclosure agreement. Each party will be responsible for the breach of
this Agreement by any person to whom it has delivered Confidential
Information.
4. If Recipient or any of its Affiliates or Representatives become legally
compelled by law, regulation, rule, or by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or similar
process, or is advised by legal counsel to disclose any of the Confidential
Information, Recipient will use reasonable efforts to provide Owner with
prompt notice of such requirement or advice prior to disclosure so that
Owner may seek a protective order or other appropriate remedy and/or waive
compliance with the terms of this Agreement. If such protective order or
other remedy is not obtained, or Owner waives compliance with the
provisions hereof, the party compelled to make disclosure will furnish only
that portion of the Confidential Information which it is legally required
to so furnish and use reasonable efforts to obtain assurance that
confidential treatment will be accorded such Confidential Information.
5. Upon written request by Owner, Recipient will return to Owner promptly all
Confidential Information received from Owner in Recipient's or its
Affiliates' or Representatives' possession or certify within such period
that it and its Affiliates and Representatives have destroyed such
information.
6. Neither this Agreement nor the disclosure by Owner of the Confidential
Information or other information to Recipient will result in any obligation
on the part of either party to enter into any further agreement with the
other with respect to the subject matter hereof or otherwise, to purchase
any products or services
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from the other or to require either party to disclose any particular
information to the other. Nothing in this Agreement will imply any
partnership or joint Transaction between the Parties or be construed as
making either party the agent of the other.
7. THE PARTIES ACKNOWLEDGE AND AGREE THAT A BREACH OF ANY OF THE PROVISIONS OF
THIS AGREEMENT WILL RESULT IN IMMEDIATE AND IRREPARABLE HARM FOR WHICH
MONEY DAMAGES WOULD NOT BE AN ADEQUATE REMEDY. IN THE EVENT OF ANY BREACH
OR THREATENED BREACH OF THE PROVISIONS OF THIS AGREEMENT, THE NON-BREACHING
PARTY MAY OBTAIN EQUITABLE RELIEF WITHOUT THE NECESSITY OF POSTING A BOND,
INCLUDING INJUNCTIONS AND ORDERS FOR SPECIFIC PERFORMANCE, IN ADDITION TO
ALL OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY.
8. Upon ten (10) business days written notice, either party may notify the
other that it no longer wishes to receive or provide Confidential
Information. Any information received or provided by either party
thereafter will not be subject to the protection of this Agreement.
9. This Agreement will expire two (2) years from the date hereof.
Notwithstanding anything herein to the contrary, the non-disclosure
obligations of the Parties set forth in this Agreement will survive the
expiration or termination of this Agreement.
10. Neither this Agreement nor any rights hereunder in whole or in part are
assignable or otherwise transferable by either party without the prior
written consent of the other party.
11. The laws of the State of Illinois will govern this Agreement. Any dispute
arising under the terms hereof will be heard only before courts of
competent jurisdiction in Chicago, Illinois.
12. This Agreement constitutes the entire understanding between Recipient and
Owner as to the Confidential Information provided in connection with the
Transaction and merges all prior and contemporaneous discussions and
agreements between them relating thereto.
13. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, and all of which when taken together will
constitute one and the same instrument.
14. This Agreement will be binding upon each party and its successors and
assigns, and will inure to the benefit of, and be enforceable by, each
party and its successors and assigns.
15. The provisions of this Agreement will be severable in the event that any of
the provisions hereof are held by a court of competent jurisdiction to be
invalid, void
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or otherwise unenforceable, and the remaining provisions will remain
enforceable to the fullest extent permitted by law.
SIGNATURES
Each party has caused this Agreement to be executed on its behalf by an
authorized individual as of the date set forth above.
Xxxxxxx X. Xxxx Universal Access Global Holdings Inc.
Signature: Signature:
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Name: Name:
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Title: Title:
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