Exhibit 10.21
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of
the 20th day of May, 2000 by and between Businessliner, Inc. ("Consultant"), a
Delaware corporation with its principal place of business at _______________,
and Credit Management Solutions, Inc. ("Company"). Consultant and Company may
sometimes hereinafter be referred to individually as a "party" or jointly as the
"parties".
W I T N E S S E T H:
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WHEREAS, Consultant's President, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, was Company's
founder and held the position of Chief Executive Officer until May of 1999; and
WHEREAS, Consultant possesses unique knowledge relating to Company's
business; and
WHEREAS, Company desires to retain Consultant's services on a
temporary basis for the purpose of providing strategic business management
guidance and advice to Company and its Affiliates; and
WHEREAS, Consultant is willing to provide such services to Company.
NOW, THEREFORE, in consideration of the mutual promises and
obligations specified in this Agreement, and any compensation paid to Consultant
for services hereunder, and intending to be legally bound hereby, the parties
agree as follows:
I. SCOPE OF SERVICES
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A. Scope of Services. Consultant agrees to render consulting services
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("Services") to the Company and its Affiliates for the term of this Agreement.
For the purposes of this Agreement, "Affiliate" means any person or entity that:
1. directly or indirectly owns more than fifty percent (50%) of the
voting stock of Company; or
2. more than fifty percent (50%) of the voting stock of which is
directly or indirectly owned by Company; or
3. more than fifty percent (50%) of the voting stock of which is
directly or indirectly owned by another person or entity that directly or
indirectly owns more than fifty percent (50%) of the voting stock of Company.
The Services shall be as set forth in Exhibit A hereto and such other services
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as Company may from time to time prescribe.
B. Payment. Consultant shall be paid an annual fee of two hundred
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thirteen thousand two hundred Dollars ($213,200.00), payable in bi-weekly
installments. Any amounts
previously paid by Company to Consultant or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as compensation
for consulting services rendered since January 1, 2000 shall be chargeable
against this annual fee.
II. TERM OF AGREEMENT
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A. The term of this Agreement shall commence on January 1, 2000 and shall
expire on December 31, 2000. Thereafter, this Agreement shall be renewable only
upon mutual written agreement of the parties.
III. CONFIDENTIAL INFORMATION
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A. Company and/or its Affiliates may disclose or may have previously
disclosed to Consultant or his agents, or Consultant or his agents may obtain
access to, develop, or create, proprietary and confidential information or
material concerning or related to Company's and/or its Affiliates' products
and/or services, or to Company's and/or its Affiliates' manufacturing and/or
marketing processes, servicing, existing products, or general business
operations. Such information or material may include, but is not limited to, the
discovery, invention, research, improvement, manufacture, or sale of the
products or services (including, without limitation, information created,
discovered or developed by Consultant, or made known to Consultant during the
term of this Agreement or arising out of Consultant's or his staff's performance
of the Services hereunder), or Company's and/or its Affiliates' trade secrets,
processes, formulas, data, know-how, software, documentation, program files,
flow/charts, drawings, software diagnostic techniques and other techniques,
source and object code, standards, specifications, improvements, inventions,
customer information, accounting data, statistical data, research projects,
development and marketing plans, strategies, forecasts, computer programs,
customer lists, sales, costs, profits, and pricing methods and organizations,
employee lists, compensation plans (collectively, the "Information" or
"Confidential Information"). Consultant acknowledges the confidential and secret
character of the Information and agrees that the Information is the sole,
exclusive, and extremely valuable property of Company and/or its Affiliates.
Accordingly, Consultant agrees that he and his agents will not reproduce any of
the Information without Company's prior written consent, or use the Information
except in the ordinary course of performance of this Agreement, or divulge all
or any part of the Information to any third party, either during or after the
term of this Agreement.
B. Permitted Disclosure. Confidential Information shall not include any
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information to the extent such information is generally known to the public
through no disclosure or other act or omission, direct or indirect, of
Consultant. Information shall not be deemed to be available to the general
public for the purposes of this Agreement (a) merely because it is embraced by
more general information in the prior possession of Consultant or of others, or
(b) merely because it is expressed in public literature in general terms not
specifically in accordance with the Information.
C. Injunctive Relief. Consultant expressly agrees that the covenants set
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forth in Article III are reasonable and necessary to protect Company and/or its
Affiliates and their legitimate business interests, and to prevent the
unauthorized dissemination of confidential Information to competitors of the
Company and/or its Affiliates. Consultant also agrees that Company and/or its
Affiliates will be irreparably harmed and that damages alone cannot
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adequately compensate Company and/or its Affiliates if there is a violation of
Article III by Consultant, and that injunctive relief against Consultant is
essential for the protection of Company and/or its Affiliates. Therefore, in the
event of any such breach, it is agreed that, in addition to any other remedies
available, Company and/or its Affiliates shall be entitled as a matter of right
to injunctive relief in any court of competent jurisdiction, plus attorneys'
fees actually incurred for the securing of such relief.
IV. INVENTIONS, COPYRIGHTS, ETC.
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A. Rights in Inventions. All inventions, discoveries, developments, and
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improvements made, conceived or reduced to practice by Consultant or his agents
under or arising out of this Agreement ("Inventions") shall, whether or not such
Inventions are patentable or copyrightable or made or conceived or reduced to
practice or learned by Consultant or his agents either alone or jointly with
others, become and remain the sole and exclusive property of Company. Consultant
shall immediately notify Company in writing of, and provide detailed information
concerning all such Inventions, and hereby transfers and assigns all of his
rights, title, and interests in and to any such Inventions to Company,
irrespective of whether or not any patent application is, or has been, filed for
such Inventions. During and after the term of this Agreement, Consultant shall,
at Company's request and Company's expense and through attorneys and
representatives designated by Company, assist Company in making applications for
Letters Patent in the United States and/or other countries for all such
Inventions. Consultant will take whatever steps are necessary to have assigned
to Company all such applications, and to protect Company's rights and vest in
Company all rights, title, and interests in and to the Inventions and such
Letters Patent.
B. Copyrights. Consultant hereby assigns to Company all of his rights,
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title, and interests in and to all copyrights on all writings, documents,
reports, papers, drawings, tabulations, books, computer programs, and other
works written or made by Consultant or his agents under or arising out of this
Agreement ("Material"). All Materials developed by Consultant or its agents
under this Agreement are to be considered works made for hire as that term is
defined in Section 101 of the Copyright Act (17 U.S.C. (S) 101) and are the sole
and exclusive property of Company. To the extent that any such works may not be
considered works made for hire for Company under applicable law, Consultant
hereby assigns to Company and, upon their creation, will automatically assign to
Company the ownership of such works, including copyright interests and any other
intellectual property therein, without the necessity of any further
consideration. Any assignment of copyright hereunder includes all rights of
paternity, integrity, disclosure and withdrawal and any other rights that may be
known as or referred to as "moral rights" (collectively "Moral Rights"). To the
extent such Moral Rights cannot be assigned under applicable law and to the
extent the following is allowed by the laws in the various countries where Moral
Rights exist, Consultant hereby waives such Moral Rights and consents to any
action of the Company that would violate such Moral Rights in the absence of
such consent. Consultant will confirm any such waivers and consents from time to
time as requested by the Company.
C. Attorney-In-Fact. In the event that Company is unable for any reason
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whatsoever to secure Consultant's signature to any lawful and necessary document
required to apply for or execute any Letters Patent or other application with
respect to such an Invention (including
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renewals, extensions, continuations, divisions, or continuations in part of any
Inventions), Consultant hereby irrevocably designates and appoints Company and
its duly authorized officers and agents as Consultant's agents and attorneys-in-
fact to act for and in Consultant's behalf and to execute and file any such
Letters Patent and applications and to do all other lawfully permitted acts to
further the prosecution of the application with the same legal force and effect
as if executed by Consultant.
V. NON-COMPETITION
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A. Consultant acknowledges that Company and its Affiliates have invested
substantial time, money and resources in the development and retention of their
Inventions, Confidential Information (including trade secrets), customers,
accounts and business partners, and further acknowledges that during the course
of Consultant's prior employment with Company and present consultant
relationship with Company and its Affiliates, Consultant has had and will have
access to Company's and/or its Affiliates' Inventions and Confidential
Information (including trade secrets), and will be introduced to existing and
prospective customers, accounts and business partners of Company and/or its
Affiliates. Consultant acknowledges and agrees that any and all "goodwill"
associated with any existing or prospective customer, account or business
partner belongs exclusively to Company and/or its Affiliates, including, but not
limited to, any goodwill created as a result of direct or indirect contacts or
relationships between Consultant and any existing or prospective customers,
accounts or business partners. Additionally, the parties acknowledge and agree
that Consultant possesses skills that are special, unique or extraordinary and
that the value of Company and its Affiliates depends upon his use of such skills
on their behalf.
B. In recognition of this, the Consultant covenants and agrees that:
1. During the term of this Agreement, and for a period of one (1)
year thereafter, Consultant may not, without the prior written consent of
Company, (whether as an employee, agent, servant, owner, partner, consultant,
independent contractor, representative, stockholder or in any other capacity
whatsoever) perform any work competitive in any way to the actual or planned
business of Company and/or its Affiliates on behalf of any entity or person
other than Company and/or its Affiliates (including Consultant).
2. During the term of this Agreement, and for a period of one (1)
year thereafter, Consultant may not entice, solicit or encourage any Company or
Affiliate employee to leave the employ of Company or its Affiliates or any
independent contractor to sever its engagement with the Company and/or its
Affiliates, absent prior written consent to do so from Company.
3. During the term of this Agreement, and for a period of one (1)
year thereafter, Consultant may not, directly or indirectly, entice, solicit or
encourage any customer or prospective customer of Company and/or its Affiliates
to cease doing business with Company and/or its Affiliates, reduce its
relationship with Company and/or its Affiliates or refrain from establishing or
expanding a relationship with Company and/or its Affiliates.
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VI. RETURN OF PROPERTY
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A. Upon the termination of this Agreement for any reason whatsoever,
Consultant agrees to end all further use and utilization of, and to immediately
return to Company and/or its Affiliates, without limitation, Inventions, papers,
drawings, tabulations, reports, computer programs, other documents or equipment,
furnished by Company and/or its Affiliates or created or prepared by Consultant,
either alone or jointly with others, pursuant to the provisions or requirements
of this Agreement, and any tools or facilities furnished by Company and/or its
Affiliates to Consultant or his agents.
VII. TERMINATION
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A. Company may terminate this Agreement immediately without further
payment to Consultant if:
1. Consultant materially breaches any provision of this Agreement;
2. Consultant does not satisfactorily perform the Services agreed
upon in this Agreement; and
3. Consultant commits, attempts to commit, engages in or conspires
to commit any crime or act involving fraud, misrepresentation or gross
misconduct against the Company.
B. Upon any termination under this Article VII, Consultant will
immediately stop performing all Services unless otherwise directed by Company in
writing. Within thirty (30) days after receipt from Consultant of a statement of
services rendered, Company shall pay Consultant for all work properly completed
prior to the termination.
VIII. NOTICE
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A. Any notice given under this Agreement shall be delivered personally
or be written or telegraphic. Written notice shall be sent via next-day delivery
or facsimile and by registered or certified mail, postage prepaid, return
receipt requested. Any telegraphic notice must be followed within three (3) days
by written notice. All notice shall be effective when first received at the
following addresses except that any notice of change of address will be deemed
effective only upon receipt by the party to whom it is directed:
If to Consultant to:
BUSINESSLINER, INC.
_____________________
_____________________
_____________________
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If to Company to:
PRESIDENT
CREDIT MANAGEMENT SOLUTIONS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(With a copy to General Counsel)
IX. COMPLIANCE WITH APPLICABLE LAWS
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A. Consultant warrants that the Services performed under this Agreement
shall comply with all applicable federal, state and local laws and regulations.
B. Consultant's performance under this Agreement shall be conducted with
due diligence and in full compliance with the highest professional standards of
practice in the industry. Consultant shall comply with all applicable laws and
Company and/or its Affiliates' safety rules in the course of performing the
Services. If Consultant's work requires a license, Consultant has obtained that
license and the license is in full force and effect.
X. INDEPENDENT CONTRACTOR. Nothing herein contained shall be deemed to create
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an agency, joint venture, partnership or franchise relationship between parties
hereto. Consultant acknowledges that he and his agents are independent
contractors, and not agents or employees of the company or its affiliates and
are not entitled to any company or affiliate employment rights or benefits and
are not authorized to act on behalf of company or its affiliates. Consultant
shall be solely responsible for any and all tax obligations of consultant,
including but not limited to, all city, state and federal income taxes, social
security withholding tax and other self employment tax incurred by consultant.
Company and its affiliates shall not dictate the work hours of consultant or his
agents during the term of this agreement. Anything herein to the contrary
notwithstanding, the parties hereby acknowledge and agree that company and its
affiliates shall have no right to control the manner, means, or method by which
consultant performs the services called for by this agreement. Rather, company
and its affiliates shall be entitled only to direct consultant with respect to
the elements of services to be performed by consultant and the results to be
derived by company and its affiliates, to inform consultant as to where and when
such services shall be performed, and to review and assess the performance of
such services by consultant for the limited purposes of assuring that such
services have been performed and confirming that such results were satisfactory.
Company and its affiliates shall be entitled to exercise broad general power of
supervision and control over the results of work performed by consultant's
personnel to ensure satisfactory performance, including the right to inspect,
the right to stop work, the right to make suggestions or recommendations as to
the details of the work, and the right to propose modifications to the work.
XI. INDEMNIFICATION AND WARRANTIES. Consultant warrants that he shall have good
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and marketable title to all of the inventions, information, material, work, or
product made, created, conceived, written, invented, or provided by consultant
pursuant to the provisions of this agreement ("product") except with respect to
company's and/or its
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affiliates' rights, title and interests in the product created hereunder.
Consultant further warrants that the product shall be free and clear of all
liens, claims, encumbrances, or demands of third parties other than company
and/or its affiliates, including any claims by any such third parties of any
rights, title, or interests in or to the product arising out of any trade
secret, copyright, or patent. Consultant further warrants that his performance
of all the terms of this agreement will not conflict with any federal, state or
local laws, rules or regulations or proprietary rights of others or breach any
agreement or arrangement by which consultant is bound, including, without
limitation, any agreement to keep in confidence proprietary information acquired
by consultant in confidence or in trust prior to his performance of the services
for company and/or its affiliates. Consultant shall indemnify, defend, and hold
harmless company and/or its affiliates and their customers from any and all
liabilities, losses, costs, damages, judgments, or expenses (including
reasonable attorneys' fees) resulting from or arising in any way out of any such
claims by any third parties, and/or which are based upon, or are the result of
any breach of the warranties contained in this section B.
XII. GENERAL
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A. Assignment. Company shall have the right to assign, delegate, or
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transfer at any time, in whole or in part, any or all of the rights, duties, and
interests herein granted without the necessity of obtaining the consent of
Consultant. Consultant acknowledges that this is a personal service contract and
agrees not to assign any rights or delegate any duties hereunder without the
prior written consent of Company.
B. Controlling Law. This Agreement will be governed by those laws of the
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State of Maryland.
C. Amendment. Except as otherwise provided herein, this Agreement may be
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modified, amended, or any provision waived only by a written instrument signed
by Consultant and Company.
D. Entire Agreement. This Agreement and the Attachments hereto constitute
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the entire agreement and set forth the entire understanding of the parties with
respect to the subject matter hereof, supersede all prior agreements, covenants,
arrangements, letters, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party, and
may not be modified, amended or terminated by mutual consent except by a written
agreement specifically referring to this Agreement signed by the parties hereto
and any other party to be charged.
E. Severability. In the event any one or more of the provisions of this
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Agreement are unenforceable, the remainder of the Agreement will be unimpaired.
Any unenforceable provision will be replaced by a mutually acceptable provision
which comes closest to the intention of the parties at the time the original
provision was agreed upon.
F. Headings. The Article and Section headings in this Agreement are for
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purposes of reference only.
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G. Right to Reproduce Consultant's Name. Consultant hereby grants
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Company, its designees, licensees, or successors, the right to reproduce, print,
publish, or disseminate in any medium Consultant's name (including, without
limitation, all professional, group, individual, and other assumed or fictitious
names used by Consultant, if any) and biographical material concerning
Consultant, as news or information, for purposes of trade, or for advertising
purposes.
H. Waiver. Company's failure at any time to require strict performance by
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Consultant of any of the provisions hereof shall not waive or diminish Company's
rights thereafter to demand strict compliance therewith or with any other
provisions hereof. Waiver by Company of any default by Consultant shall not
waive any other or similar default by Consultant.
I. Confidentiality. Consultant and Company agree that no information
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concerning the terms of this Agreement may be disclosed to third-parties except
as required by law.
IN WITNESS WHEREOF, the parties hereto, each acting under due and
proper authority, and each intending to be legally bound, have executed this
Agreement on the date and year first above written.
CREDIT MANAGEMENT SOLUTIONS, BUSINESSLINER, INC.:
INC.:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
________________________ _________________________
Name/Title: CEO Name/Title: President
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SCHEDULE A
SCOPE OF WORK
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Consultant shall provide the following services in accordance with the
terms and conditions of the Agreement dated of even date herewith by and between
Consultant and Company to which this Schedule A is attached:
Through ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ only, provide advice and guidance on
corporate transactions, strategic relationships, and product, marketing and
sales strategies; attend client meetings, trade shows and corporate and
marketing events; otherwise provide Company and its Affiliates with support in
furtherance of their business interests.