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EXHIBIT 10.10
CONSULTING AND NON-COMPETITION AGREEMENT
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THIS CONSULTING, AND NON-COMPETITION AGREEMENT (this "AGREEMENT"), dated as
of April 1, 2000 between CLICK COMMERCE, INC., a Delaware corporation (the
"COMPANY"), and LESLIE SHROYER (the "CONSULTANT").
WHEREAS, Consultant has valuable knowledge regarding the Company's industry
and business;
WHEREAS, the Company desires to retain the Consultant to obtain the benefit
of Consultant's service and allegiance, and the Consultant desires to accept
such retention, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual premises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Consulting Relationship. The Company hereby engages the Consultant as a
consultant, and the Consultant agrees to accept such engagement, upon the terms
and conditions set forth herein. The Company and Consultant do hereby
acknowledge that the relationship between Company and Consultant shall be solely
that of an independent contractor and that Consultant shall not be treated as an
employee for any purpose.
2. Consulting Period. The term of this Agreement hereunder shall commence on
the date hereof and continue until terminated as provided herein (the
"CONSULTING PERIOD"). It is anticipated that Consultant shall spend
approximately 80 days during calendar year 2000 performing consulting services
for the Company.
3. Consulting Services. Consultant shall provide services in the following
areas:
(a) market requirements and product definition decisions (feature and
functionaility strategy);
(b) product architecture and application definition;
(c) marketing message development for enterprise clients;
(d) business development for strategic relationships with systems
integrators and vendors with whom the Company must integrate; and
(e) other related matters as may reasonably be requested by the
Company from time to time during the Consulting Period.
4. Other Activities. During the Consulting Period, the Consultant may engage
in any other business or professional activities, either on a full-time or part-
time basis, so long as such activities, either singly or in the aggregate, do
not interfere with the proper performance of his duties and responsibilities to
the Company or violate the provisions of Sections 7 or 9 hereof.
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5. Compensation and Other Terms of Engagement.
(a) Compensation. In consideration of the Consultant's provision to
the Company of the consulting services as contemplated in Section 2 hereof and
as set forth in Section 3 hereof during the Consulting Period, the Company
hereby grants to Consultant options to purchase 10,000 shares of common stock,
par value $0.001 per share, of the Company at an exercise price of $5.25 per
share, which options will be granted under the Amended and Restated Click
Commerce, Inc. Stock Option and Stock Award Plan and the pursuant to the
execution of a stock option agreement in the form attached hereto as Exhibit A.
Consultant shall receive no other compensation for his services hereunder. In
the event that Consultant fails to substantially provide the consulting services
contemplated by Section 2 and set forth in Section 3 hereof, notwithstanding the
vesting of such options, Consultant shall forfeit the options granted
hereunder.
(b) Taxes. Consultant shall be responsible for all taxes, including
self-employment taxes due on payments made under this Agreement.
(c) Business Expenses. The Company shall reimburse the Consultant for
expenses (including, without limitation, travel and accommodations at the level,
class and manner provided to senior executive employees of the Company), which
the Consultant may from time to time reasonably incur on behalf of, and at the
request of the Company in the performance of services under this Agreement;
provided, however, that the Consultant shall be required to account to the
Company for such expenses in the manner prescribed by the Company. In
determining expenses reasonably incurred in the performance of his duties, the
Consultant shall be reimbursed consistent with the Company's policy on
reimbursement as applied to its senior executives.
6. Termination of Agreement. Either party may terminate Consultant's
engagement hereunder at any time and for any reason by providing the other party
written notice of such termination.
7. Records and Confidential Data.
(a) Acknowledgement of Confidential Information. The Consultant
acknowledges that in connection with the performance of services as a consultant
pursuant to the terms of this Agreement the Company will make available to the
Consultant, or the Consultant will have access to, certain Confidential
Information (as defined below) of the Company and its affiliates. The Consultant
acknowledges and agrees that any and all Confidential Information learned or
obtained by the Consultant while engaged as a consultant to the Company or
otherwise whether developed by the Consultant alone or in conjunction with
others or otherwise, shall be and is the property of the Company and its
affiliates.
(b) Obligations Relating to Confidential Information. The
Confidential Information will be kept confidential by the Consultant, will not
be used in any manner which is detrimental to the Company, will not be used
other than in connection with the Consultant's discharge of his duties
hereunder, and will be safeguarded by the Consultant from unauthorized
disclosure.
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(c) Return of Confidential Information. Following the termination of
this Agreement, as soon as possible after the Company's written request, the
Consultant will return to the Company all written Confidential Information which
has been provided to the Consultant and the Consultant will destroy all copies
of any analyses, compilations, studies or other documents prepared by the
Consultant or for the Consultant's use containing or reflecting any Confidential
Information.
(d) Confidential Information Defined. For the purposes of this
Agreement, "CONFIDENTIAL INFORMATION" shall mean all confidential and
proprietary information of the Company, and its affiliates, including, without
limitation, the Company's marketing strategies, pricing policies or
characteristics, customers and customer information, product or product
specifications, designs, manufacturing processes, manufacturing costs, cost of
materials, customer lists, business or business prospects, plans, proposals,
codes, marketing studies, research, reports, investigations, or other
information of similar character. For purposes of this Agreement, the
Confidential Information shall not include and the Consultant's obligations
under this Section 7 shall not extend to (i) information which is generally
available to the public, (ii) information obtained by the Consultant from third
persons not under agreement to maintain the confidentiality of the same, (iii)
information which is required to be disclosed by law or legal process and (iv)
information independently developed by the Consultant without breach of this
Agreement.
(e) Construction. Any reference to the Company in this Section 7
shall apply to the Company and/or its subsidiaries, as context requires. For the
purposes of this Agreement, with respect to the Company, "SUBSIDIARIES" means
any entity in which the Company directly or indirectly owns an equity interest
or any interests convertible into an equity interest.
(f) Survival. This Section 7 shall survive the termination of this
Agreement.
8. Assignment of Inventions.
(a) Definition of Inventions. "INVENTIONS" mean discoveries,
developments, concepts, ideas, methods, designs, improvements, inventions,
formulas, processes, techniques, programs, know-how and data, whether or not
patentable or registerable under copyright or similar statutes, except any of
the foregoing that (i) is not related to the business of the Company or its
affiliates, (ii) does not involve the use of any equipment, supplies, facility
or Confidential Information of the Company, (iii) was developed entirely on the
Consultant's own time, and (iv) does not result from any work performed by the
Consultant for the Company.
(b) Assignment. The Consultant agrees to and hereby does assign to
the Company, without further consideration, all of his right, title and interest
in any and all Inventions he may make during the term hereof.
(c) Duty to Disclose and Assist. The Consultant agrees to promptly
disclose in writing all Inventions to the Company, and to provide (without cost
or expenses to Consultant) all assistance reasonably requested by the Company in
the preservation of the Company's interests in the Inventions including
obtaining patents in any country throughout the world. Such services will be
without additional compensation.
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(d) Ownership of Copyrights. The Consultant agrees that any work
prepared for the Company which is eligible for United States copyright
protection or protection under the Universal Copyright Convention, the Berne
Copyright Convention and/or the Buenos Aires Copyright Convention shall be a
work made for hire and ownership of all copyrights (including all renewals and
extensions) therein shall vest in the Company. If any such work is deemed not to
be a work made for hire for any reason, the Consultant hereby grants, transfers
and assigns all right, title and interest in such work and all copyrights in
such work and all renewals and extensions thereof to the Company, and agrees to
provide all assistance reasonably requested by the Company in the establishment,
preservation and enforcement of the Company's copyright in such work, such
assistance to be provided at the Company's expense but without any additional
compensation to the Consultant. The Consultant hereby agrees to and does hereby
waive the enforcement of all moral rights with respect to the work developed or
produced hereunder, including without limitation any and all rights of
identification of authorship and any and all rights of approval, restriction or
limitation on use or subsequent modifications.
(e) Litigation. The Consultant agrees to render assistance and
cooperation to the Company at its request regarding any matter, dispute or
controversy with which the Company may become involved and of which the
Consultant has or may have reason to have knowledge, information or expertise.
Such services will be for reasonable compensation and subject to Consultant's
reasonable availability.
(f) Construction. Any reference to the Company in this Section 8
shall apply to the Company and/or its subsidiaries, as context requires.
(g) Survival. This Section 8 shall survive the termination of this
Agreement.
9. Covenants Not to Compete.
(a) Non-disclosure of Confidential Information and Trade Secrets.
Consultant covenants and agrees that during the Consulting Period and
thereafter, except as may be required in performance of Consultant's services to
the Company, Consultant shall not disclose any Confidential Information. This
covenant is not intended to, and does not limit in any way Consultant's duties
and obligations to the Company under statutory and common law not to disclose or
make personal use of the Company's Confidential Information or trade secrets.
(b) Non-Interference with Customer Accounts. Consultant covenants and
agrees that during the Consulting Period and for a period of two (2) years
thereafter, Consultant shall not directly or indirectly, personally or on behalf
of any other person, business, corporation, or entity, contact or do business
with any customer of the Company with respect to any product, business or
activity which is competitive with any product business or activity of the
Company (a "COMPETITIVE ACTIVITY"). With regard to the Consultant's post-
Consulting Period obligations, this covenant applies to those customers and the
related entities of the customers to which the Company sold its products, parts
or services during the twelve-month period prior to the termination of the
Consulting Period, and those prospective customers with which the Company
actively pursued sales during the twelve-month period prior to such termination.
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(c) Non-Competition. Subject to such matters and activities as may be
approved by the Board of Directors of the Company in writing, Consultant
covenants and agrees that during the Consulting Period and for a period of two
(2) years thereafter, Consultant shall not directly or indirectly own an
interest in, operate, join, control, advise, consult to, work for, serve as a
director of, have a financial interest, or participate in any corporation,
partnership, proprietorship, firm, association, person, or other entity that
engages (or engaged) in any Competitive Activity at the time of termination of
the Consulting Period and/or during the six month period prior thereto. This
Covenant (as defined below) applies in any country, territory or jurisdiction in
which the Company is doing business or making an active effort to do business at
the time that this Agreement is terminated. This Covenant does not prohibit the
mere passive ownership of less than one percent (1%) of the outstanding stock of
any publicly traded corporation as long as Consultant is not otherwise in
violation of this Covenant.
(d) No Diversion. Consultant shall not divert or attempt to divert or
take advantage of or attempt to take advantage of any actual or potential
business or opportunities of the Company or its subsidiaries, affiliates,
distributors or representatives, which Consultant became aware of as the result
of his engagement by the Company.
(e) Non-Recruitment. Consultant agrees that the Company has invested
substantial time and effort in assembling its present workforce. Accordingly,
Consultant covenants and agrees that during his employment and for a period of
two (2) years following the termination of his employment, Consultant shall not
hire away, nor directly or indirectly entice or solicit or seek to induce or
influence any of the Company's employees to leave their employment.
(f) Remedies. Consultant acknowledges that should he violate any of the
covenants contained in paragraphs 7, 8, 9(a), (b), (c), (d) and (e) above
(collectively "COVENANTS"), it will be difficult to determine the resulting
damages to the Company and, in addition to any other remedies it may have, the
Company shall be entitled to temporary injunctive relief without being required
to post a bond and permanent injunctive relief without the necessity of proving
actual damage. The Company may elect to seek one or more of these remedies at
its sole discretion on a case by case basis. Failure to seek any or all remedies
in one case does not restrict the Company from seeking any remedies in another
situation. Such action by the Company shall not constitute a waiver of any of
its rights.
(g) Severability and Modification of Any Unenforceable Covenant. It is
the parties' intent that each of the Covenants be read and interpreted with
every reasonable inference given to its enforceability. However, it is also the
parties' intent that if any term, provision or condition of the Covenants is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the provisions thereof shall remain in full force and effect
and shall in no way be affected, impaired or invalidated. Finally, it is also
the parties' intent that if a court should determine any of the Covenants are
unenforceable because of over breadth, then the court shall modify said covenant
so as to make it reasonable and enforceable under the prevailing circumstances.
(h) Tolling. In the event of the breach by Consultant of any Covenant the
running of the period of restriction shall be automatically tolled and suspended
for the amount of time that
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the breach continues, and shall automatically recommence when the breach is
remedied so that the Company shall receive the benefit of Consultant's
compliance with the Covenants.
(i) No Other Defenses. Consultant agrees that the Covenants shall be
enforced independently of any other obligations between the parties, and that
the existence of any other claim or defense shall not affect the enforceability
of the Covenants or the remedies provided herein. This Agreement shall be in
addition to and shall not replace any other restrictive covenant Agreement that
Consultant may currently have with the Company or any related entity or may
hereinafter enter into with the Company or any related entity.
(j) No Assignment. This Agreement and the rights and duties hereunder are
personal to the Consultant and shall not be assigned, delegated, transferred,
pledged or sold by the Consultant without the prior written consent of the
Company. The Consultant hereby acknowledges and agrees that the Company may
assign, delegate, transfer, pledge or sell this Agreement and the rights and
duties hereunder (a) to an affiliate of the Company or (b) to any third party in
connection with (i) the sale of all or substantially all of the assets of the
Company or (ii) a merger or consolidation involving the Company. This Agreement
shall inure to the benefit of and be enforceable by the parties hereto, and
their respective heirs, personal representatives, successors and assigns.
(k) Survival. This Section 9 shall survive the termination of this
Agreement.
10. Indemnification
(a) Trade Secrets and Other Protected Information. Consultant hereby
indemnifies and shall hold harmless (including reasonable attorneys' fees) the
Company (hereinafter referred to as "Indemnified Party") against all liability
to third parties (other than liability solely the fault of the Indemnified
Party) arising from or in connection with the violation of any third party's
trade secrets, information, trademarks, copyright or patent rights in connection
with the performance of the consulting services under this Agreement.
(b) Personal Injury and Property Damage Indemnification. Each party shall
defend, indemnify, and hold the other (Indemnified Party) harmless from and
against any and all claims, losses, damages, judgments, costs, and expenses
(including attorney's fees) which the Indemnified Party may suffer or incur
arising out of or in connection with injuries to persons (including death) or
loss of, or damage to, property, occasioned by negligence, unlawful act, or
willful misconduct of the Indemnifying Party provided the other party promptly
notifies the Indemnifying Party in writing of the claim and permits the
Indemnifying Party to control the direction of the litigation and selection of
counsel. The Indemnifying Party also reserves the right to control any
settlement.
(c) Duration of Indemnification. Obligations to indemnify any Indemnified
Party will survive the expiration or termination of this Agreement by either
party for any reason. Either party may, as its option, conduct the defense in
any third party action arising as described herein and the Indemnified Party
agrees to cooperate with such defense to the fullest extent possible.
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11. Miscellaneous Provisions.
(a) Notices. All notices, offers or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly given or made (i) if delivered personally or (ii)
after the expiration of five days from the date upon which such notice was
mailed from within the United States by certified mail, return receipt
requested, postage prepaid, (iii) upon receipt by prepaid telegram or facsimile
transmission (with written confirmation of receipt) or (iv) after the expiration
of the second business day following deposit with documented overnight delivery
service. All notices given or made pursuant hereto shall be so given or made to
the parties at the following addresses:
If to the Consultant:
[____________________]
__________________________
__________________________
If to the Company:
Click Commerce, Inc.
200 East Randolph Street, 49th Floor
Chicago, IL 60601
Attention: Justin Dearborn, General Counsel
The address of any party hereto may be changed by a notice in writing given in
accordance with the provisions hereof.
(b) Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such
provision shall be severed and enforced to the extent possible or modified in
such a way as to make it enforceable, and the invalidity, illegality or
unenforceability thereof shall not affect the validity, legality or
enforceability of the remaining provisions of this Agreement.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois applicable to contracts
executed in and to be performed entirely within that state, except with respect
to matters of law concerning the internal corporate affairs of any corporate
entity which is a party to or the subject of this Agreement, and as to those
matters, the law of the jurisdiction under which the respective entity derives
its powers shall govern.
(d) WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE, RELEASE AND
RELINQUISH ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY ACTIONS TO ENFORCE AN ARBITRATOR'S DECISION PURSUANT TO SECTION 10(J) OF
THIS AGREEMENT.
(e) Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
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(f) Entire Understanding. This Agreement, including all Recitals hereto
which are incorporated herein by this reference, together with the other
agreements and documents being executed and delivered concurrently herewith by
the Consultant, the Company and certain of its affiliates, constitute the entire
understanding among all of the parties hereto and supersedes any prior
understandings and agreements, written or oral, among them respecting the
subject matter within.
(g) Limitation on Liabilities. If the Consultant is awarded any damages
as compensation for any breach related to this Agreement or a breach of any
covenant contained in this Agreement (whether express or implied by either law
or fact), such damages shall be limited to contractual damages and shall exclude
(i) punitive damages and (ii) consequential and/or incidental damages (e.g.,
lost profits and other indirect or speculative damages).
(h) Pronouns and Headings. As used herein, all pronouns shall include the
masculine, feminine, neuter, singular and plural thereof wherever the context
and facts require such construction. The headings, titles and subtitles herein
are inserted for convenience of reference only and are to be ignored in any
construction of the provisions hereof.
(i) Amendments. Except as set forth in Sections 9(e) and 10(b) above,
this Agreement shall not be changed or amended unless in writing and signed by
both the Consultant and the Board.
(j) Arbitration. Notwithstanding anything herein to the contrary, in the
event that there shall be a dispute among the parties arising out of or relating
to this Agreement, or the breach thereof, the parties agree that such dispute
shall be resolved by final and binding arbitration in the State of Illinois,
City of Chicago administered by the American Arbitration Association (the
"AAA"), in accordance with AAA's Commercial Arbitration Rules, to which shall be
added the provisions of the Federal Rules of Civil Procedure relating to the
Production of Evidence, and the parties agree that the arbitrators may impose
sanctions in their discretion to enforce compliance with discovery and other
obligations. Such arbitration shall be presided over by a single arbitrator. If
the Consultant, on the one hand, and the Company, on the other hand, do not
agree on the arbitrator within fifteen (15) days after a party requests
arbitration, the arbitrator shall be selected by the Company and the Consultant
from a list of five (5) potential arbitrators provided by AAA. Such list shall
be provided within ten (10) days of the request of any party for arbitration.
The party requesting arbitration shall delete one name from the list. The other
party shall delete one name from the list. This process shall then be repeated
in the same order, and the last remaining person on the list shall be the
arbitrator. This selection process shall take place within the two (2) business
days following both parties' receipt of the list of five (5) potential
arbitrators. Hearings in the arbitration proceedings shall commence within
twenty (20) days of the selection of the arbitrator or as soon thereafter as the
arbitrator is available. The arbitrator shall deliver his or her opinion within
twenty (20) days after the completion of the arbitration hearings. The
arbitrator's decision shall be final and binding upon the parties, and may be
entered and enforced in any court of competent jurisdiction by either of the
parties. The arbitrator shall have the power to grant temporary, preliminary and
permanent relief, including without limitation, injunctive relief and specific
performance. Unless otherwise ordered by the arbitrator, the arbitrator's fees
and expenses shall be shared equally by the parties.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
CLICK COMMERCE, INC.
By: /s/ Michael W. Ferro, Jr.
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Name: Michael W. Ferro, Jr.
Title: CEO
CONSULTANT:
/s/ Leslie Shroyer
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Leslie Shroyer
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