CONSULTING AGREEMENT
Exhibit 10.1
THIS CONSULTING AGREEMENT (“Agreement”) is made by and between QUOVADX, INC., a Delaware
corporation (the “Company”), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual resident of the State of Colorado
(“▇▇. ▇▇▇▇▇▇▇”) as of September 5, 2006 (the “Effective Date”).
W I T N E S S E T H:
WHEREAS, ▇▇. ▇▇▇▇▇▇▇ was employed by the Company from December 1997 until September 1, 2006,
most recently as its Executive Vice President, Marketing and Corporate Services, the terms of which
employment were governed by an Employment Agreement between ▇▇. ▇▇▇▇▇▇▇ and the Company dated
February 10, 2005 (the “Employment Agreement”); and
WHEREAS, effective September 1, 2006, ▇▇. ▇▇▇▇▇▇▇ resigned from all officer positions held by
him with the Company and its affiliates and terminated his employment relationship with each of the
foregoing; and
WHEREAS, the Company now desires to retain ▇▇. ▇▇▇▇▇▇▇ as a consultant so that it may have the
benefit of ▇▇. ▇▇▇▇▇▇▇’▇ considerable experience with the Company and its operations; and
WHEREAS, the parties hereto wish to confirm and document this engagement and to confirm
certain other understandings relating to the termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual promises, covenants and
agreements contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Termination of Employment.
(a) ▇▇. ▇▇▇▇▇▇▇’▇ resignation as an officer and employee of the Company and the termination of
his employment relationship was effective as of September 1, 2006 (the “Termination Date”).
(b) The parties acknowledge and agree that the Employment Agreement is terminated and is of no
further force or effect. ▇▇. ▇▇▇▇▇▇▇ acknowledges and represents that except as to compensation
payable under this Agreement, he has received all salary, wages, bonuses, accrued vacation,
commissions and any and all other benefits due to him under the Employment Agreement or otherwise
due to him on account of his employment with the Company.
2. Consulting Services.
(a) For the period beginning immediately after the Termination Date and ending December 31,
2006, unless earlier terminated pursuant to Section 7 hereof (the “Consulting Period”), the Company
has retained ▇▇. ▇▇▇▇▇▇▇ as a consultant to provide advisory services to the Company in respect of
the Company’s historical operations and activities with which ▇▇. ▇▇▇▇▇▇▇ has extensive experience.
Under no circumstances will ▇▇. ▇▇▇▇▇▇▇ be called upon to consult on matters that relate to the
Company’s future plans, in particular its exploration of strategic alternatives announced August
31, 2006, it being understood however that in connection with that process, ▇▇. ▇▇▇▇▇▇▇ may be
called upon to provide historical information relevant to current activities, but will not
otherwise be involved in any current activity.
(b) Such services shall be rendered by ▇▇. ▇▇▇▇▇▇▇ upon the request of the Company, at such
specific times and locations as shall be mutually determined from time to time by the Company and
▇▇. ▇▇▇▇▇▇▇, not to exceed 10 hours per month. Time not used in one month may be carried to the
next month, but no longer. Should ▇▇. ▇▇▇▇▇▇▇ be called upon to provide greater than 10 hours in
any one month, he will promptly notify the Company and will be paid at the hourly rate in Section
3(a) below for such additional hours.
3. Compensation.
(a) For services to be rendered during the Consulting Period, the Company will pay to ▇▇.
▇▇▇▇▇▇▇ a monthly retainer fee in the form of cash compensation in the amount of $2,500 per month
(or an hourly rate of $250). In addition to such monthly retainer fee, the Company will reimburse
▇▇. ▇▇▇▇▇▇▇ for all reasonable expenses incurred by him in rendering his services hereunder so long
as such expenses shall have been approved in
advance by the Company. ▇▇. ▇▇▇▇▇▇▇ shall invoice the Company monthly for services and
provide original documentation.
(b) ▇▇. ▇▇▇▇▇▇▇ is not an employee of the Company for any purpose whatsoever, but is an
independent contractor. The Company is interested only in the results obtained by ▇▇. ▇▇▇▇▇▇▇, who
shall have sole control of the manner and means of performing under this Agreement. The Company
shall not have the right to require ▇▇. ▇▇▇▇▇▇▇ to do anything, which would jeopardize the
relationship of independent contractor between the Company, and ▇▇. ▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇ does not
have, nor shall he hold himself out as having, any right, power or authority to create any contract
or obligation, either expressed or implied, on behalf of, in the name of, or binding upon the
Company, unless the Company shall consent thereto in writing. ▇▇. ▇▇▇▇▇▇▇ shall be responsible for
filing all proper returns and other forms for his tax liabilities and withholding obligations.
(c) As an independent contractor, ▇▇. ▇▇▇▇▇▇▇ is solely responsible for all taxes,
withholdings, and other similar statutory obligations relating to his services under this
Agreement.
4. Acknowledgments and Agreements. ▇▇. ▇▇▇▇▇▇▇ hereby acknowledges and agrees that:
(a) in performance of his duties as a consultant hereunder, ▇▇. ▇▇▇▇▇▇▇ will no longer be in
possession of material, non-public information associated with the business of the Company;
(b) any use by ▇▇. ▇▇▇▇▇▇▇ of any “Trade Secrets” or “Confidential Information” (both, as
hereinafter defined) that was known to ▇▇. ▇▇▇▇▇▇▇ prior to his Termination Date is intended to
inure to the exclusive benefit of the Company, and any goodwill established thereby or associated
therewith is intended to inure to the exclusive benefit of the Company;
(c) any disclosure or use of any Trade Secrets or Confidential Information except as otherwise
authorized by the Company in writing, or any other violation of Sections 5 or 6 hereof would be
wrongful and cause immediate, significant, continuing and irreparable injury and damage to the
Company that is not fully compensable by monetary damages;
(d) should ▇▇. ▇▇▇▇▇▇▇ breach any provision of Sections 5 or 6 hereof, the Company shall be
entitled to obtain immediate relief and remedies in a court of competent jurisdiction (including,
without limitation, damages, specific performance, preliminary or permanent injunctive relief and
an accounting for all profits and benefits arising out of ▇▇. ▇▇▇▇▇▇▇’▇ breach), cumulative of and
in addition to any other rights or remedies to which the Company may be entitled, at law or in
equity; and
(e) the restrictions contained in Sections 5 and 6 hereof are reasonable in scope, duration
and geographic territory given the competitive nature of the Company’s business and the potential
injury and damage that may result to the Company from a breach thereof.
5. Confidentiality and Ownership of Work Product.
(a) For purposes of this Agreement, “Confidential Information” means any confidential,
proprietary, business information or data belonging to or pertaining to the Company that does not
constitute a “Trade Secret” (as defined under applicable law) and that is not generally known by or
available through legal means to the public or the Company’s competitors, including, without
limitation, information regarding the Company’s shareholders, clients, referral sources and
suppliers. Confidential Information does not include generic, non-proprietary knowledge held by ▇▇.
▇▇▇▇▇▇▇ about the Company’s business or clients, where such information can be derived from
non-confidential sources or where such information is generally known by persons with experience in
the Company’s industry comparable to that of ▇▇. ▇▇▇▇▇▇▇.
(b) ▇▇. ▇▇▇▇▇▇▇ shall exercise reasonable best efforts to ensure the continued confidentiality
of all Trade Secrets and Confidential Information of the Company known by, disclosed to or made
available to him prior to his Termination Date. ▇▇. ▇▇▇▇▇▇▇ shall immediately notify the Company
of any unauthorized disclosure or use of any Trade Secrets or Confidential Information of which he
becomes aware. ▇▇. ▇▇▇▇▇▇▇ shall assist the Company, to the extent reasonably necessary, in the
procurement of or any protection of the Company’s rights to or in any of the Trade Secrets or
Confidential Information.
(d) Any work product, property, data, documentation or information or materials conceived,
discovered, developed or created by ▇▇. ▇▇▇▇▇▇▇ pursuant to his previous, current and ongoing
relationship with, or engagement by, the Company which constitute or are protected by patents,
copyrights, trademarks, service marks and trade secrets of the Company existing on the date hereof
(collectively, the “Work Product”) shall be owned
exclusively by the Company. To the greatest extent possible, all Work Product shall be deemed
to be a “work made for hire” (as defined in the Copyright Act, 17 U.S.C.A. §§ 101 et
seq., as amended) and owned exclusively by the Company. ▇▇. ▇▇▇▇▇▇▇ hereby unconditionally
and irrevocably transfers and assigns to the Company all right, title and interest in or to any
Work Product, including, without limitation, all patents, copyrights, trademarks, service marks,
trade secrets and other intellectual property rights therein. ▇▇. ▇▇▇▇▇▇▇ agrees to execute and
deliver to the Company any transfers, assignments, documents or other instruments, which the
Company may deem necessary or appropriate, from time to time, to vest complete title and ownership
of all Work Product, and all associated intellectual property and other rights, exclusively in the
Company.
(e) Upon the request of the Company, (i) ▇▇. ▇▇▇▇▇▇▇ shall take such steps as the Company may
reasonably request in order to transfer, disclose, and give the Company the full benefit of any
Work Product remaining in his possession; and (ii) ▇▇. ▇▇▇▇▇▇▇ shall deliver to the Company all
memoranda, notes, records, drawings, manuals, disks and other documents and media, regardless of
form, that contain Work Product, Confidential Information or Trade Secrets.
6. Protective Covenants.
(a) Definitions. For purposes of this Agreement, the following terms shall have the
following meanings and shall be applicable only during the term of this Agreement:
(i) "Business” shall mean the Company’s core business, as agreed upon by the Company
and ▇▇. ▇▇▇▇▇▇▇.
(ii) “Competitive Position” shall mean: (A) ▇▇. ▇▇▇▇▇▇▇’▇ direct or indirect equity
ownership (excluding equity ownership of less than five percent (5%) of any public company) or
control of any portion of any entity (other than the Company or a corporate affiliate of the
Company) engaged, wholly or partly, in the Business; (B) any employment, consulting, partnership,
advisory, directorship, agency, promotional or independent contractor arrangement between ▇▇.
▇▇▇▇▇▇▇ and any entity (other than the Company) engaged, wholly or partly, in the Business whereby
▇▇. ▇▇▇▇▇▇▇ is required to or does perform services substantially similar to the services provided
to the Company as an employee or pursuant hereto and related to the Business on behalf of or for
the benefit of such an entity; or (C) ▇▇. ▇▇▇▇▇▇▇’▇ performance of services substantially similar
to the Business for his own account and benefit (and not at the direction of or for the benefit of
the Company).
(iii) "Client” shall mean an actual client or actively sought prospective client of
the Company during the term of ▇▇. ▇▇▇▇▇▇▇’▇ employment or engagement by the Company.
(b) Noncompetition. ▇▇. ▇▇▇▇▇▇▇ covenants and agrees that he will not, during the
term of this Agreement hereunder, directly or indirectly, alone or in conjunction with any other
party, accept, enter into or take any action in conjunction with or in furtherance of a Competitive
Position.
(c) Nonsolicitation of Clients. ▇▇. ▇▇▇▇▇▇▇ covenants and agrees that he will not,
during the term of this Agreement, directly or indirectly, alone or in conjunction with any other
party, solicit, divert or appropriate (or attempt to do so) any Client for the purpose of providing
the Client with services or products competitive with those offered by the Company during the term
of this Agreement.
(d) Nonsolicitation of Personnel. ▇▇. ▇▇▇▇▇▇▇ covenants and agrees that he will not,
during the term of this Agreement (except as directed to do so by the Company), directly or
indirectly, alone or in conjunction with any other party, encourage or solicit (or attempt to do
so) any employee, consultant, contractor or other personnel of the Company to terminate, alter or
lessen such party’s affiliation with the Company or to violate the terms of any agreement or
understanding between such party and the Company.
7. Term; Termination.
(a) Term. The term of this Agreement shall commence on the Effective Date (as defined
below) and shall continue until December 31, 2006, unless earlier terminated as set forth below.
Upon any termination of this Agreement, the Consulting Period shall also terminate.
(b) Termination.
(i) Death or Disability. This Agreement shall automatically and immediately
terminate upon the death of ▇▇. ▇▇▇▇▇▇▇, or if he is unable to perform the services hereunder for a
period of 20 consecutive days.
(ii) Other. After November 5, 2006, either party to this Agreement may terminate the
agreement upon 30 days written notice.
8. Waiver and Release.
(a) In consideration of his engagement hereunder, ▇▇. ▇▇▇▇▇▇▇ hereby waives and releases the
Company from liability for all rights and claims, whether or not they are presently known to exist,
that ▇▇. ▇▇▇▇▇▇▇ has against the Company or any of its subsidiaries relating in any way to ▇▇.
▇▇▇▇▇▇▇’▇ employment or separation from employment with the Company. This release shall not be
deemed a release of any claim that ▇▇. ▇▇▇▇▇▇▇ may have against the Company arising out the
Company’s breach of this Agreement. The rights and claims which ▇▇. ▇▇▇▇▇▇▇ waives and releases in
this Agreement include, to every extent allowed by law, those arising under the Employee Retirement
Income Security Act of 1974, the Civil Rights Acts of 1866, 1871, 1964 and 1991, the Fair Labor
Standards Act, Rehabilitation Act of 1973, the Occupational Safety and Health Act, the Veterans’
Reemployment Rights Act, the Uniformed Services Employment and Reemployment Rights Act of 1994
(“USERRA”) and the Americans With Disabilities Act.
(b) ▇▇. ▇▇▇▇▇▇▇ also acknowledges that he is waiving and releasing any rights he may have
under the Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and release is
knowing and voluntary. ▇▇. ▇▇▇▇▇▇▇ and the Company agree that this waiver and release does not
apply to any rights or claims that may arise under ADEA after the Termination Date. ▇▇. ▇▇▇▇▇▇▇
acknowledges that the consideration given for this waiver and release is in addition to anything of
value to which ▇▇. ▇▇▇▇▇▇▇ was already entitled. ▇▇. ▇▇▇▇▇▇▇ further acknowledges that he has been
advised by this writing that
| (i) | he should consult with an attorney prior to executing this Release; | ||
| (ii) | he has up to twenty-one (21) days within which to consider this Release; | ||
| (iii) | he has seven (7) days following his execution of this Release to revoke this Release; | ||
| (iv) | this Release shall not be effective until the revocation period has expired; and | ||
| (v) | nothing in this Release prevents or precludes ▇▇. ▇▇▇▇▇▇▇ from challenging or seeking a determination in good faith of the validity of this waiver and release under ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law. |
(c) ▇▇. ▇▇▇▇▇▇▇ waives and releases all similar rights and claims under all other federal,
state and local discrimination provisions and all other statutory and common law causes of action
relating in any way to his employment or separation from employment with the Company, except for
rights expressly set forth or reserved in this Agreement. This release does not in any way impair
▇▇. ▇▇▇▇▇▇▇’▇ right to be indemnified to the fullest extent allowed by law or the Bylaws of the
Company for any acts or omissions relating to or arising out of his employment with the Company.
9. Survival. Notwithstanding any termination of this Agreement, the provisions of
Sections 4, 5, 6, 7, 8, 9, 11(d) and 11(g) hereof shall survive and remain in full force and
effect, as shall any other provision hereof that, by its terms or reasonable interpretation
thereof, sets forth obligations that extend beyond the termination of this Agreement.
10. Notices.
(a) All notices provided for or required by this Agreement shall be in writing and shall be
delivered personally to the other designated party, or mailed by certified or registered mail,
return receipt requested, or delivered by a recognized national overnight courier service, as
follows:
| If to the Company: | Quovadx, Inc. | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Telephone: (▇▇▇)▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇)▇▇▇-▇▇▇▇ | ||||
| ATTENTION: Legal Department |
| If to ▇▇. ▇▇▇▇▇▇▇: | ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
(b) Notices delivered pursuant to Section 10(a) hereof shall be deemed given: at the time
delivered, if personally delivered; three (3) business days after being deposited in the mail, if
mailed; and one (1) business day after timely delivery to the courier, if by overnight courier
service.
(c) Either party hereto may change the address to which notice is to be sent by written notice
to the other party in accordance with the provisions of this Section 9.
11. Miscellaneous.
(a) This Agreement contains the entire agreement and understanding concerning the subject
matter hereof between the parties hereto. No waiver, termination or discharge of this Agreement,
or any of the terms or provisions hereof, shall be binding upon either party hereto unless
confirmed in writing. This Agreement may not be modified or amended, except by a writing executed
by both parties hereto. No waiver by either party hereto of any term or provision of this
Agreement or of any default hereunder shall affect such party’s rights thereafter to enforce such
term or provision or to exercise any right or remedy in the event of any other default, whether or
not similar.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State
of Colorado.
(c) ▇▇. ▇▇▇▇▇▇▇ may not assign this Agreement, in whole or in part, without the prior written
consent of the Company, and any attempted assignment not in accordance herewith shall be null and
void and of no force or effect.
(d) This Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(e) The headings contained herein are for the convenience of the parties only and shall not be
interpreted to limit or affect in any way the meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute the same Agreement. Any signature
page of any such counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this Agreement, and any telecopy
or other facsimile transmission of any signature shall be deemed an original and shall bind such
party.
(g) The unenforceability or invalidity of any provision of this Agreement shall not affect the
validity or enforceability of the remaining provisions hereof, but such remaining provisions shall
be construed and interpreted in such a manner as to carry out fully the intent of the parties
hereto; provided, however, that should any judicial body interpreting this Agreement deem any
provision hereof to be unreasonably broad in time, territory, scope or otherwise, it is the intent
and desire of the parties hereto that such judicial body, to the greatest extent possible, reduce
the breadth of such provision to the maximum legally allowable parameters rather than deeming such
provision totally unenforceable or invalid.
(h) This Agreement shall not be construed more strongly against either party hereto,
regardless of which party is responsible for its preparation.
(i) Upon the reasonable request of the other party, each party hereto agrees to take any and
all actions, including, without limitation, the execution of certificates, documents or
instruments, necessary or appropriate to give effect to the terms and conditions set forth in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly authorized
representatives to execute, this Agreement on the respective dates set forth below.
| QUOVADX, INC. | ||||||
Date: September 5, 2006
|
By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: President and Chief Executive Officer | ||||||
| “▇▇. ▇▇▇▇▇▇▇” | ||||||
Date: September 5, 2006
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |