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EXHIBIT 10.32
CONSULTING AGREEMENT
BETWEEN
AREMISSOFT CORPORATION,
A DELAWARE CORPORATION
AND
NOBLE MARKETING LTD.,
A UNITED KINGDOM LIMITED LIABILITY COMPANY
This Consulting Agreement ("Agreement") is intended to set forth the
understanding concerning certain consulting services to be performed by and
between Noble Marketing Ltd., a United Kingdom Limited Liability Company (the
"Consultant") and AremisSoft Corporation (the "Company") and its subsidiaries.
The Consultant will render management consulting services for the Corporation
upon the following terms and conditions hereinafter set forth:
1. SERVICES. The Consultant shall provide the management consulting
services of ▇▇▇▇ Voice to the Company, including, but not limited to, direction
and control of the supervision of the Company's hospitality business and its
employees subject to the policies and direction of the Company's Board of
Directors, Chief Financial Officer and President.
2. SPECIAL DUTIES. The Consultant's employee, ▇▇▇▇ Voice shall also serve,
without additional compensation, as a Member of the Company's Board of Directors
and the Chairman of the Board of Directors of the Company's subsidiaries,
AremisSoft (UK) Plc. and AremisSoft Hospitality (UK) Ltd. In such capacities,
the Consultant shall provide services and do all things necessary or advisable
to manage and conduct the business of the Company, including, but not limited
to, the supervision, direction and control of the business and other employees
of the Company, subject to the policies and direction of the Company's Board,
its Chief Executive Officer and President. To the extent consistent with the
Company's Certificate of Incorporation ("Articles") and Bylaws ("Bylaws"), the
Consultant shall have all powers, duties and responsibilities necessary to carry
out its duties, and such other powers and duties as the Company's Board may
prescribe consistent with its Articles and Bylaws.
3. AVAILABILITY. The Consultant will be available to perform such services
at reasonable and mutually agreeable times during the term of this Agreement.
4. INDEPENDENT CONTRACTOR. The Consultant will at all times be an
independent contractor and not an employee of the Company. The Consultant
recognizes and agrees that it is not subject or entitled to any benefits, wages,
or other terms and conditions of employment or otherwise, under the policies,
practices, and procedures of the Company.
It is understood and agreed that the Consultant shall not engage in any
other business activity during the term of this Agreement, whether or not for
profit or other remuneration, with any corporation, partnership or other
business entity which competes, directly or indirectly, with the business of the
Company.
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The Consultant agrees that it and its affiliates and employees will not
purchase or sell any shares of common stock of the Company in the open market so
long as it possesses material information not previously disclosed to the public
or not outdated.
5. REPORTING OBLIGATIONS. In connection with the performance of its duties
hereunder, unless otherwise instructed by the Company's Board, the Consultant
shall report to the Chief Executive Officer, President and the Company's Board.
6. COMPENSATION. The Company shall pay the Consultant Thirteen Thousand
U.S. Dollars ($13,000.00) per month for all services performed pursuant to this
Agreement. Such amount shall be payable in periodic installments in accordance
with the terms of the Company's regular payroll practices in effect from time to
time during the term of this Agreement, but in no event less frequently than
once each month.
The Company shall grant the Consultant options to purchase Twenty-Five
Thousand options to purchase share of Common Stock of the Company at a price per
share of Twenty Nine U.S. Dollars (U.S.$29.00) per share pursuant the Company's
2000 Stock Option Plan and the Nonqualified Stock Option Agreement entered into
by the Parties on September 7, 2000.
7. EXPENSES. The Company shall pay or reimburse the Consultant for all
reasonable hotel and airfare expenses actually incurred or paid by the
Consultant in the performance of the Consultant's services under this Agreement
in accordance with the expense reimbursement policies of the Company in effect
from time to time during the term of this Agreement, upon presentation of proper
expense statements or vouchers or such other written supporting documents as the
Company may reasonably require. All other expenses shall be borne by the
Consultant.
8. CONDUCT OF SERVICES. The Consultant agrees that services to be
performed by it hereunder will be performed in a professional and competent
manner in conformity with this Agreement. The Consultant will comply with all
applicable laws, rules, regulations, and standards of any public authority
having jurisdiction in performing the Consultant's service.
9. LIABILITY. The Company shall indemnify and hold harmless the
Consultant, to the fullest extent permitted by applicable law, from and against
all judgments, fines, penalties, excise taxes, amounts paid in settlement,
liabilities, losses, costs and expenses (including reasonable attorneys' fees
and legal costs), if the Consultant is made, is threatened to be made or in good
faith expects to be made a party or a material witness to any threatened or
pending or completed action, suit, proceeding or investigation, whether civil,
criminal, administrative or otherwise, including an action by or in the right of
the Company or any of its affiliated companies to procure a judgment in its
favor, by reason of the Consultant being or having been a Consultant to the
Company, except that this right of indemnification shall not extend to the
willful wrongful acts or gross negligence of the Consultant.
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The Consultant shall indemnify and hold harmless the Company, to the
fullest extent permitted by applicable law, from and against all judgments,
fines, penalties, excise taxes, amounts paid in settlement, liabilities, losses,
costs and expenses (including reasonable attorneys' fees and legal costs), if
the Company is made, is threatened to be made or in good faith expects to be
made a party or a material witness to any threatened or pending or completed
action, suit, proceeding or investigation, whether civil, criminal,
administrative or otherwise, including an action by or in the right of the
Company or any of its affiliated companies to procure a judgment in its favor,
by reason of the Consultant willful wrongful acts or gross negligence.
10. UNFAIR AND NON-COMPETITION. The Consultant acknowledges that he will
have access at the highest level to, and the opportunity to acquire knowledge
of, the Company's customer lists, customer needs, business plans, trade secrets
and other confidential and proprietary information from which the Company may
derive economic or competitive advantage, and that it is entering into the
covenants and representations contained in this Agreement in order to preserve
the goodwill and going concern value of the Company, and to induce the Company
to enter into this Agreement. The Consultant agrees not to compete with the
Company or to engage in any unfair competition with the Company during the term
of this Agreement, but not limited to the acts and conduct described herein.
11. CONFIDENTIAL INFORMATION. During the term of this Agreement, the
Consultant agrees to keep secret and to retain in the strictest confidence all
confidential matters which relate to the Company or its "affiliate" (as that
term is defined in the Exchange Act), including, without limitation, customer
lists, client lists, trade secrets, pricing lists, business plans, financial
projections and reports, business strategies, internal operating procedures, and
other confidential business information from which the Company derives an
economic or competitive advantage, or from which the Company might derive such
advantage in its business, labeled "secret" or "confidential" or some similar
term, and not to disclose any such information to anyone outside of the Company,
whether during or after the term of this Agreement, except as required in
connection with performing the services to the Company.
12. NON-SOLICITATION OF CUSTOMERS. During the term of this Agreement, the
Consultant will have access to confidential records and data pertaining to the
Company's customers, their needs, and the relationship between the Company and
its customers. Such information is considered secret and is disclosed during the
term of this Agreement in confidence. Accordingly, during the term of this
Agreement, the Consultant and any entity controlled by it or with which it is
associated (as the terms "control" and "associate" are defined in the Exchange
Act) shall not, directly or indirectly (i) solicit for a competitive purpose,
interfere with, induce or entice away any person or entity that is or was a
client, customer or agent of the Company or its affiliates (as the term
"affiliate" is defined in the Exchange Act), or (ii) in any manner persuade or
attempt to persuade any such person or entity (a) to discontinue its business
relationship with the Company or its affiliates, or (b) to enter into a business
relationship with any other entity or person the loss of which the Consultant
should reasonably anticipate would be detrimental to the Company or its
affiliates in any respect.
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13. NON-SOLICITATION OF EXECUTIVES. The Consultant and any entity
controlled by it or with which it is associated (as the terms "control" and
"associate" are defined in the Exchange Act) shall not, during the term of this
Agreement, directly or indirectly solicit, interfere with, offer to hire or
induce any person who is or was an officer or employee of the Company or any
affiliate (as the term "affiliate" is defined in the Exchange Act) (other than
secretarial personnel) to discontinue his or her relationship with the Company
or an affiliate of the Company, in order to accept employment by, or enter into
a business relationship with, any other entity or person. (These acts are
hereinafter referred to as the "prohibited acts of solicitation.") The foregoing
restriction, however, shall not apply to any business with which the Consultant
may become associated after the Term of this Agreement.
14. RETURN OF PROPERTY. Upon termination of this Agreement, and at the
request of the Company, the Consultant agrees to promptly deliver to the Company
all Company or affiliate memoranda, notes, records, reports, manuals, drawings,
designs, computer files in any media, and other documents (including extracts
and copies thereof) relating to the Company or its affiliates, and all other
property of the Company.
15. INVENTIONS. All processes, inventions, patents, copyrights,
trademarks, and other intangible rights that may be conceived or developed by
the Consultant, either alone or with others, during the Term of this Agreement,
whether or not conceived or developed during the Consultant's working hours, and
with respect to which the equipment, supplies, facilities or trade secret
information of the Company was used, or that relate at the time of conception or
reduction to practice of the invention to the business of the Company, or to the
Company's actual or demonstrably anticipated research or development, or that
result from any work performed by the Consultant for the Company, shall be the
sole property of the Company. Upon the request of the Company, the Consultant
shall disclose to the Company all inventions or ideas conceived during the
Employment Term, whether or not the property of the Company under the terms of
this provision, provided that such disclosure shall be received by the Company
in confidence. Upon the request of the Company, the Consultant shall execute all
documents, including patent applications and assignments, required by the
Company to establish the Company's rights under this provision.
16. REPRESENTATIONS. The Consultant represents and warrants to the Company
that it has full power to enter into this Agreement and perform its duties
hereunder, and that its execution and delivery of this Agreement and the
performance of its duties shall not result in a breach of, or constitute a
default under, any agreement or understanding, whether oral or written,
including, without limitation, any restrictive covenant or confidentiality
agreement, to which it is a party or by which it may be bound.
17. NON-PAYMENT UPON NON-COMPLIANCE. Should the Consultant breach any one
of the covenants set forth in this Agreement, the Company shall have no
obligation to make the payments in Section 6, as applicable, in addition to all
other rights and remedies the Company may have available at law or in equity.
The Company shall provide written notice to the Consultant, ten (10) days prior
to an expected payment, of the breach of a covenant and the ensuing non-payment
thereof; provided, however, that if the Company learns of the breach
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without sufficient time to provide ten (10) days notice, the Company shall
provide written notice as soon thereafter as practicable.
18. CONFIDENTIAL INFORMATION. During the term of this Agreement and for a
period of five (5) years following the termination, except as otherwise agreed
to in writing by the Company, the Consultant will keep (i) confidential, and
prevent the disclosure of Confidential Information as defined below (ii) not to
use such Confidential Information on its own behalf, or on behalf of any other
person, firm, or entity; and (iii) not to disclose such Confidential Information
to any third party, unless required by law.
As used herein, "Confidential Information" means and includes any and all
of the following: (i) information or data, whether technical or non-technical,
which is in any way disclosed to the Consultant by or on behalf of the Company
in the course of, as a result of, or in connection with this Agreement; and (ii)
all diagrams, plans, models, prototype, devices, specifications, data and notes,
memorandum and writings of a technical or economic nature which are furnished to
the Consultant by the Company for the performance of services which the
Consultant prepares or procures, in the course of, or for the performance of
such services. The Consultant will not use, deliver, or permit to be used or
delivered, Confidential Information, to or for anyone other than the Company.
Such Confidential Information will be and remain the property of the Company.
Within one month of completion or termination of services hereunder, and
at such time, or time prior thereto as the Company may request, the Consultant
will deliver to the Company all copies of Confidential Information in the
Consultant's possession. The Consultant further agrees to refrain from
performing any other act with respect to Confidential Information, which is or
tends to be contrary to, or inconsistent with, the Company's proprietary rights
in Confidential Information or the Consultant's obligations concerning
Confidential Information. The Consultant agrees that disclosure of Confidential
Information contrary to this Section 18, or conflicts pursuant to Section 20
below, may cause significant, immediate, and irreparable harm and damages to the
Company or its affiliates. Consequently, the Company shall have the right to
seek injunctive relief and/or monetary damages from the Consultant in the event
of any breach of this Agreement by the Consultant, in addition to any other
remedy available at law or in equity.
19. DISCLOSURE INFORMATION. The Consultant's obligations under Section 18
above will not apply, however, to Confidential Information when, after, and to
the extent that Confidential Information is: (i) known to the public through no
fault of the Consultant; or (ii) disclosed or furnished to the Consultant by or
on the Company's behalf and was known to the Consultant prior to the first
disclosure to the Consultant by or on it behalf; or (iii) received by the
Consultant in good faith from a third party, and the Consultant does not violate
any obligation to a third party with respect to such Confidential Information;
or (iv) disclosed as the Consultant may be required by law to disclose.
20. THIRD PARTY OBLIGATIONS AND SERVICES. The Consultant hereby represents
to and agrees with the Company that the Consultant does not have, and will not
undertake any express or implied obligations to a third party which will in any
way conflict with any of the Consultant's obligations to the Company under,
during, and after the term of this Agreement. During the term
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of this Agreement, the Consultant may perform services for others in the field
of his services hereunder, as well as outside of said field, provided, however,
that the Consultant does not violate any of its obligations to the Company under
this Agreement. The Consultant may not assign or delegate the Consultant's
rights or obligations under this Agreement, including the right to receive money
pursuant to this Agreement, without the Company's prior written consent.
21. TERM The term of this Agreement will commence on the date of execution
by the Consultant hereof, and will terminate on December 31, 2001. It may be
extended by mutual agreement on such terms and conditions as the parties may
agree.
22. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given when received by delivery in person, by facsimile or by an
overnight courier service or three (3) days after deposit in the U.S. Mail,
certified with postage prepaid, addressed as follows:
If to the Company: AremisSoft Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: Roys Poyiadjis
With a copy to: ▇▇▇▇▇▇ Eng & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Consultant: Noble Marketing Ltd.
"Wychwood"
2 Hazelbank Close
Sheet
Petersfield
Hampshire GU31 4 BY
United Kingdom
Attn: ▇▇▇▇ Voice
or to such other addresses as a party may designate by five (5) days' prior
written notice to the other party.
23. SURVIVAL. The provisions of Sections 10, 11, 12, 13, 14, 15, 18 and 19
will survive and continue after expiration or termination of this Agreement.
24. AMENDMENT. This Agreement may be amended or modified in any way by an
instrument in writing, stating the amendment or modification, signed by the
parties hereto and attached to the end of this Agreement.
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25. ARBITRATION. Disputes arising under this Agreement shall be settled by
one arbitrator pursuant to the rules of the American Arbitration Association
(the "AAA") for Commercial Arbitration (the "Rules"). Such arbitration shall be
held in Sacramento County, California, or at such other location as mutually
agreed to by the parties to the dispute. Subject to any applicable limitations
contained in this Agreement, arbitration may be commenced at any time by any
party giving notice to the other party that a dispute has been referred to
arbitration under this Section. The arbitrator shall be selected by joint
agreement of the parties hereto, but if they do not so agree within Twenty (20)
days after the date of the notice referred to above, the selection shall be made
pursuant to the Rules from the panel of arbitrators maintained by the AAA. Any
award of the arbitrator shall be accompanied by a written opinion giving the
reasons for the award. The expense of the arbitration shall be borne by the
parties in the manner determined in writing by the arbitrator. This arbitration
provision shall be specifically enforceable by the parties. The determination of
the arbitrator pursuant to this Section shall be final and binding on the
parties and may be entered for enforcement before any court of competent
jurisdiction.
26. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware.
27. SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
28. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as
specifically set forth therein.
29. COUNTERPARTS. This Agreement may be executed in multiple counterparts
(by facsimile signature or otherwise), each of which shall be deemed an original
and all of which shall constitute one agreement, and the signature of any party
to any counterpart shall be deemed to be a signature to, and may be appended to,
any other counterpart.
[THIS SPACE WAS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CORPORATION:
AremisSoft Corporation
By:
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Roys Poyiadjis,
President
CONSULTANT:
Noble Marketing Ltd.
By:
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▇▇▇▇ Voice,
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