Exhibit 10.11
SEPARATION AGREEMENT
This Separation Agreement ("Separation Agreement") is made and entered into
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as of this first day of October, 1999 by and among Intek Information, Inc., a
Delaware corporation ("Intek") and Spider Technologies, Inc., a Delaware
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corporation ("Spider").
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RECITALS
A. Intek is the sole stockholder of Spider;
B. Intek's Board of Directors has approved a distribution of all the
Spider stock held by Intek as of the date of the distribution (the
"Distribution"). Such shares are anticipated to be distributed on or about
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October 15, 1999. The actual date of such distribution is referred to as the
"Distribution Date." The effective time of the Distribution for purposes hereof
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is 12:01 A.M. Denver, Colorado time, on October 1, 1999 ("Effective Time").
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C. Intek and Spider wish to enter into this Agreement to govern the
relationships between the parties after the Distribution Date and the Effective
Time, it being understood that this Agreement is null and void if the
Distribution does not occur.
D. Intek and Spider have entered into a Contribution Agreement,
Transition Support Agreement, Software Assignment and Grant-Back License,
Maintenance, and Support Agreement ("Software Agreement"), Tax Separation
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Agreement, Sublease and Resource Sharing Agreement, Landlord's Consent to
Sublease (regarding Xxxxxx 000 xxx 000, 0000 Xxxxxx Xxxx, Xxx Xxxxx),
Intellectual Property Security Agreement, and other agreements related to the
Distribution and the relationship between the parties after the Distribution
(collectively, the "Related Agreements").
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E. Spider is by way of this Separation Agreement and the Related
Agreements acquiring the information technology and software business of Intek
other than the Integration Business as defined in the Contribution Agreement
(the "Business").
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TERMS AND CONDITIONS
In consideration of the mutual covenants herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE I
CAPITALIZATION OF INTEK AND SPIDER
1.1 Pre- and Post-Distribution Outstanding Capitalization of Intek.
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Common Stock/1/ 7,475,890
Series A Preferred Stock 15,000 (3,000,000 as converted)
Series B Preferred Stock/2/ 12,306,142
Series C Preferred Stock 6,371,913
Series D Preferred Stock 8,841,911
Series E Preferred Stock/3/ 2,510,691
1.2 Pre-Distribution Outstanding Capitalization of Spider.
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Common 7,475,890
Series A Preferred 37,707,124
1.3 Post-Distribution Capitalization of Spider.
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Common to Intek 7,475,890
Series A Preferred to Intek 37,707,124/4/
Total Option Pool (Including Outstanding 11,000,000
unexercised options shown below and
5,600,000 exercised grants shown below
as outstanding)
Outstanding Options to Purchase Common 2,563,500
Warrant to Intek to Purchase Common for
Acorn Transaction 1,000,000
Common held by others (Key Employee
Grants) 5,600,000
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/1/ Reflects stock option exercise for 3,541 shares in July, 1999.
/2/ Reflects return of shares of Series B Preferred by Protocall
Shareholders.
/3/ Reflects purchase of a total of 26,219 shares of Series E by Xxx,
Xxxxxxx and Xxxxxxx Xxxxxx.
/4/ Equals number to reflect theoretical PIK Election dividend at Intek
to date of distribution as provided in attached Distribution Plan. Calculation
is as follows:
Intek Common 7,475,890 Spider Common 7,475,890
Series A 3,000,000 (as converted)
plus 435,000 (14.5%) Spider Series A 3,435,000
Series B 12,306,142
plus 1,784,391 (14.5%) Spider Series A 14,090,533
Series C 6,371,913
plus 923,927 (14.5%) Spider Series A 7,295,840
Series D 8,841,911
plus 1,282,077 (14.5%) Spider Series A 10,123,988
Series E 2,510,691
plus 251,069 (10%) Spider Series A 2,761,760
TOTAL SPIDER COMMON 7,475,890 TOTAL SPIDER SERIES A 37,707,121
ADDITIONAL 3 SHARES NECESSARY FOR ROUNDING CALCULATIONS SO TOTAL SPIDER SERIES A
IS 37,707,124
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ARTICLE II
PLAN OF DISTRIBUTION
2.1 Shares of Spider. The capital stock of Spider described above as "to
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Intek" ("Distribution Stock") will be distributed to the holders of capital
stock of Intek in accordance with the Distribution Plan attached as Exhibit 2.1.
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2.2 Conditions to Distribution.
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2.2.1 The obligations of each party to close the transactions
contemplated hereby are conditioned upon the following:
(i) the Closing occurring prior to November 1, 1999,
(ii) the simultaneous execution and delivery, and if
performance is required at such time, performance, of
each of the following:
(a) this Agreement
(b) Software Assignment and Grant-Back License,
Maintenance, and Support Agreement;
(c) Tax Separation Agreement;
(d) Contribution Agreement;
(e) Intellectual Property Security Agreement and
related UCC-1 Financing Statements;
(f) Transition Support Agreement;
(g) Warrant to Purchase Common Stock (1,000,000
shares);
(h) Satisfactorily prepared TelWeb copyright filing
and related U.S. Copyright Office security
interest filings;
(i) Sublease and Resource Sharing Agreement; and
(j) Landlord's Consent to Sublease.
(iii) the receipt of the necessary consents of the
stockholders of Intek;
(iv) Consent of the San Diego landlord unless waived by
Intek and
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Spider;
(v) Consent of Silicon Valley Bank, N.A. and Charter
Financial;
(vi) the Closing not having a material adverse effect on
Intek or Spider, or the capital structures of either
party.
2.2.2. The obligation of Intek to close the transactions contemplated
hereby is conditioned upon amendments in form satisfactory to Intek to its
organizational documents and agreements with its shareholders including: (i) an
Amended and Restated Certificate of Incorporation; and (ii) an Amended and
Restated Shareholders and Voting Agreement.
2.3 Closing. The Closing of the transactions contemplated hereby and in
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the Related Agreements will occur at the offices of the Company, with this
Agreement and each Related Agreement being considered effective simultaneously
with the other except as logic may otherwise dictate or as a particular document
may otherwise state. At the time of the Closing the Distribution Stock shall be
deemed issued and the transfers and assumptions of assets, rights, liabilities
and obligations as provided in the Related Agreements and herein shall occur
except as provided otherwise herein or in a Related Agreement.
2.4 Asset Transfers: Assets will be transferred from Intek to Spider at
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the Closing as provided in the Related Agreements and herein.
ARTICLE III
DIVISION OF ASSETS
3.1 Sublease. The parties acknowledge that they may enter into a mutually
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agreed upon sublease on an arms length basis for a portion of the space Intek
anticipates leasing at the Denver Technology Center provided consent of the
landlord can be readily obtained.
3.2 Negotiation Rights Agreement. Pursuant to the Negotiation Rights
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Agreement between Intek and Trans Cosmos Inc. dated April 16, 1999 ("TC
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Agreement"), Intek and Spider are to determine which Opportunities (as defined
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in the TC Agreement) involving Trans Cosmos Inc. as the Initiator (as defined in
the TC Agreement) shall be allocated to Intek and which to Spider. Intek and
Spider allocate such Opportunities as follows:
(a) Spider shall be allocated the following Opportunities:
Opportunities primarily involving the creation, modification, distribution,
sale, licensing, or sublicensing of software, or provision of software support
or information technology support services.
(b) Intek shall be allocated the following Opportunities: all other
Opportunities including the "Integration Business" as defined in the
Contribution Agreement.
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3.3 Call Center Services Agreements. The subcontracted performance by
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Spider of certain obligations of Intek constituting part of the Business for
Intek call center customers shall be governed by the terms of the Software
Agreement and Spider will indemnify Intek for claims or liabilities based upon
Spider's failure to properly perform such subcontracted work.
3.4 Allocated Employees. As of the Distribution Date, the employees and
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leased employees of Intek or its subsidiaries (other than Spider) listed on
Schedule 3.4 shall become employees of Spider ("Allocated Employees"). Intek
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shall not be responsible for the insurance, employee benefits and other related
benefits of the Allocated Employees which accrued after the Distribution Date
except as provided in the Transition Support Agreement. Spider shall be
responsible for all costs associated with Allocated Employees from and after the
Effective Date. Intek shall not be responsible for any COBRA benefit, or
unemployment or worker's compensation benefits, of an employee or leased
employee whose employment ends, or whose injury or death occurs, while an
employee of Spider. Spider shall reimburse Intek if Intek has to make any
payment in respect thereof, including as a result of adjustment to its insurance
rates or government fund payment obligations. Spider will credit Allocated
Employees for their service time at Intek and its subsidiaries for purposes of
Spider benefit plans (unless prohibited by law) and Spider health and life
insurance will not exclude pre-existing conditions.
3.6 Stock Options. The stock options of Allocated Employees to purchase
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stock of Intek shall be amended in the manner determined by Intek.
3.7 Performance of Contracts. Pursuant to a Contribution Agreement
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between Intek and Spider of even date, certain contracts, related intangibles,
obligations, commitments, debts and accounts payable of Intek were assigned and
transferred to Spider (collectively the "Contracts"). Spider shall perform all
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obligations under the Contracts which first accrue or become performable (as to
non-monetary obligations) after the Effective Date.
3.8 Accounts Payable and Accounts Receivable. All accounts payable of the
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Business accrued prior to the Effective Time are the sole responsibility of
Intek and all accounts receivable of the Business accrued prior to the Effective
Time are owned by Intek. All accounts payable of the Business accrued after the
Effective Time are the sole responsibility of Spider and all accounts receivable
of the Business accrued after the Effective Time are owned solely by Spider.
Spider shall be responsible for payments for ordinary course items, whether
accrued before or after the Effective Time, if Spider is the beneficiary thereof
(e.g., supplies ordered before the Effective Time, but received after the
Effective Time if not subject to the Sublease and Resource Sharing Agreement).
If Intek or Spider receives any correspondence or payment related to an
obligation, liability or asset of the other, the receiving party shall promptly
forward it to the other party.
If a payment is received from a person which owes funds to both Intek and
Spider, the following procedures shall be followed:
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A. If the payment indicates it relates to a particular invoice or is
otherwise designated for payment in a particular manner (other
than only the name of the payee), it shall be applied in that
manner.
B If the payor does not indicate how payment is to be applied, as
between the parties hereto it shall be applied first to
obligations owed by the payor to the person to whom the payment
is made, and then to obligations owed to the other party hereto.
The parties will cooperate to properly inform persons owing obligations to
both of them as to the proper method of payment.
3.9 Allocations from Effective Time to Distribution Date. From and after
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the Effective Time, all revenues of the Business (including in respect of the
assets which are held by Spider as of the Distribution Date) shall be the income
and property of Spider, and all liabilities and obligations of the Business
(including in respect of the assets which are held by Intek immediately before
the Distribution Date) shall be the liabilities and obligations of Spider. All
financial reporting and tax reporting shall be consistent with this principle.
3.10 Insurance. Spider acknowledges that the insurance policies of Intek
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will not provide coverage for Spider, its assets or employees, on and after the
Distribution Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Spider.
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Spider represents and warrants to Intek as follows:
(a) Organization and Good Standing. Spider is a corporation duly
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organized, validly existing, and in good standing under the laws of the State of
Delaware.
(b) Authority and Status. Spider has full power and authority to
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execute and deliver this Agreement and the Related Agreements, to perform its
obligations hereunder and under the Related Agreements, and to consummate the
transactions contemplated hereby and under the Related Agreements without the
necessity of any act or consent of any other person. Spider has taken all
necessary and appropriate corporate action, including obtaining all necessary
board and shareholder consents, with respect to the execution, delivery and
performance by Spider of this Agreement and of the Related Agreements. This
Agreement and the Related Agreements to be executed, delivered and performed by
Spider in connection herewith, constitute or will, when executed and delivered,
constitute the valid and legally binding obligations of Spider, enforceable
against it in accordance with their respective terms, except as enforceability
may be limited by applicable equitable principles or by bankruptcy, insolvency,
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reorganization, moratorium, or similar laws from time to time in effect
affecting the enforcement of creditors' rights generally.
(c) Litigation. To the knowledge of Spider, there is no claim,
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litigation, action, suit or proceeding, administrative or judicial, pending or
threatened against Spider or relating to the Business, the assets transferred
pursuant to the Contribution Agreement (the "Assets"), this Agreement, or the
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transactions contemplated hereunder, at law or in equity, before any federal,
state, local or foreign court, or regulatory agency, or other governmental
authority, which could result in the institution of legal proceedings to
prohibit or restrain the consummation or performance of this Agreement or the
transactions contemplated hereby, or claim damages as a result of this Agreement
or the transactions contemplated hereby, or have a material adverse effect on
the Business or Assets.
(d) No Conflict. Neither the execution and delivery of this Agreement
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nor compliance with the terms and provisions hereof, including, without
limitation, the consummation of the transactions contemplated hereby, will
conflict with or result in the breach of any term, condition, or provision of
Spider's Certificate of Incorporation or Bylaws.
(f) San Diego Lease. It is not anticipated that as of the
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Distribution Date the landlord of the San Diego, California real estate will
have formally consented to the sublease of the property.
4.2 Representations and Warranties of Intek.
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Intek represents and warrants to Spider as follows:
(a) Organization and Standing. Intek is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Delaware.
(b) Authority and Status. Intek has full power and authority to
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execute and deliver this Agreement and the Related Agreements, to perform its
obligations hereunder and under the Related Agreements, and (subject to the
limitations of Section 5.4) to consummate the transactions contemplated hereby
and under the Related Agreements without the necessity of any act or consent of
any other person. Intek has taken all necessary and appropriate corporation
action, including obtaining all necessary board and shareholder consents with
respect to the execution, delivery and performance by Intek of this Agreement
and of the Related Agreements. This Agreement and the Related Agreements to be
executed, delivered and performed by Intek in connection herewith, constitute or
will, when executed and delivered, constitute the valid and legally binding
obligation of Intek, enforceable against it in accordance with their respective
terms, except as enforceability may be limited by applicable equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar
laws from time to time in effect affecting the enforcement of creditors' rights
generally.
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(c) Title to the Assets. Except as set forth on Schedule 4.2 attached
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hereto and except for Permitted Encumbrances, to the Knowledge of Intek, Intek
has good and marketable title to the tangible personal property assets
transferred pursuant to the Contribution Agreement free and clear of any
pledges, liens, or security interests (collectively, the "Liens"). The term
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"Permitted Encumbrances" shall mean liens for current taxes not due and payable
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and liens securing obligations assumed by Spider. Any and all Liens set forth
on Schedule 4.2, with the exception of Permitted Encumbrances, shall be
terminated as of the Closing Date, and Intek shall transfer the Assets to Spider
free and clear of all such Liens. By virtue of the deliveries made on the
Closing Date, Spider will obtain good and marketable title to the Assets, free
and clear of all Liens except for Permitted Encumbrances.
"Knowledge of Intek" means the actual conscious knowledge of a senior
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officer of Intek, but excludes senior officers of Intek (other than Xxxxxxx X.
X'Xxxxxxx) who become employees of Spider at or about the time of the
Distribution.
(d) Litigation. To the Knowledge of Intek, there is no claim,
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litigation, action, suit, or proceeding, administrative or judicial, pending or
threatened against Intek relating to the Business, the Assets, this Agreement,
or the transactions contemplated hereunder, at law or in equity, before any
federal, state, local, or foreign court, or regulatory agency, or other
governmental authority, which could result in the institution of legal
proceedings to prohibit or restrain the consummation or performance of this
Agreement or the transactions contemplated hereby, or claim damages as a result
of this Agreement or the transactions contemplated hereby, or have a material
adverse effect on the Business or Assets.
(e) No Conflict. Neither the execution and delivery of this Agreement
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nor compliance with the terms and provisions hereof, including without
limitation, the consummation of the transactions contemplated hereby, will
conflict with or result in the breach of any term, condition, or provision of
Intek's Certificate of Incorporation or Bylaws.
(f) San Diego Lease. It is not anticipated that as of the
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Distribution Date the landlord of the San Diego, California real estate will
have formally consented to the sublease of the property.
ARTICLE V
LIABILITY
5.1 Performance. Except as specifically provided otherwise herein or in a
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Related Agreement, Spider agrees from and after the effective date of the
Contribution Agreement, to perform and observe all the terms, conditions,
covenants and agreements of the agreements, commitments and contracts
("Contracts") assigned to Spider by way of the Contribution Agreement or a
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Related Agreement, which Intek as a party thereunder was required to perform and
observe, all with the same force and effect as if Spider had signed the Contract
in place of Intek. This obligation of performance does not change the
obligation of Spider to bear the financial burden thereof from and after the
Effective Time.
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5.2 Prorations. Except as specifically provided otherwise herein or in a
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Related Agreement, the parties agree that all rent, taxes, lease payments,
merchant association fees, common area expenses, utilities, telecommunication
services, maintenance, software license or maintenance, and other similar
amounts (whether expense or income) under each Contract, or other obligations
incurred in the ordinary course of the Business, if any, shall be prorated
between Intek and Spider as of the Effective Time.
5.3 Indemnity. Except as specifically provided otherwise herein or in a
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Related Agreement, Spider shall defend, indemnify and hold Intek (its
successors, assigns, subsidiaries, owners, officers and directors) ("Intek
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Indemnified Parties") harmless from any and all losses, claims, damages and
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liabilities accruing under the Contracts, or the operation of the Business from
and after the Effective Time, from any breach of the representations and
warranties in Section 4.1 or a covenant of Spider herein, and all reasonable
costs, including reasonable attorneys' fees, incurred by the Intek Indemnified
Parties in connection therewith. Except as specifically provided otherwise
herein or in a Related Agreement, Intek shall defend, indemnify and hold Spider
(its successors, assigns, subsidiaries, owners, officers and directors ("Spider
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Indemnified Parties") harmless from any and all losses, claims, damages and
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liabilities accruing under the Contracts or the operation of the Business prior
to the Effective Time, from any breach of the representations and warranties in
Section 4.2 or a covenant of Intek herein.
5.4 Assigned Contracts. The parties acknowledge that there are certain
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contracts to which Intek is a party that will be affected by the transactions
described herein. One category consists of agreements with call center
customers of Intek for the provision of call center services and information
technology support, which are the subject of a portion of the Software
Assignment and are not assigned to Spider. A second category consists of other
agreements to which Intek is a party which are assigned to Spider as provided in
the Contribution Agreement, which include various agreements under which Intek
licenses software used with the TelWeb software. INTEK HAS NO LIABILITY
WHATSOEVER TO SPIDER IF ANY AGREEMENT DESCRIBED IN THIS SECTION IS TERMINATED OR
BREACHED AS A RESULT OF THE TRANSACTIONS CONTEMPLATED HEREBY, THE RIGHTS TO
PERFORMANCE THEREOF IN ANY RESPECT NOT BEING ABLE TO BE SUBCONTRACTED TO SPIDER,
OR SUCH AGREEMENT IS NOT ASSIGNABLE TO SPIDER. In addition, Spider has certain
responsibilities regarding software and other assets as described in the
Sublease and Resource Sharing Agreement.
ARTICLE VI
RELATED MATTERS
6.1 Access to Information.
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(a) From and after the Distribution Date, Intek and its subsidiaries
shall afford Spider and its authorized employees and representatives reasonable
access (including access to persons or firms possessing relevant information and
records) and reasonable duplicating rights during normal business hours to, or,
at Intek's option, copies of, all records, books, contracts, instruments, data
and other information (collectively, "Information") within Intek's or its
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subsidiaries' possession, insofar as such access or copies are reasonably
required by Spider.
(b) Spider and its subsidiaries shall afford to Intek and its
authorized employees and representatives reasonable access (including access to
persons or firms possessing relevant information and records) and reasonable
duplicating rights during normal business hours to, or, at Spider's option,
copies of, all Information within Spider's or its subsidiaries' possession,
insofar as such access or copies are reasonably required by Intek.
(c) Except as otherwise specifically provided for herein, a party
providing Information or witnesses to the other hereunder shall be entitled to
receive from the recipient, upon the presentation of appropriate invoices
therefor, payments for such amounts relating to supplies, disbursements, and
such other costs, employee time, and out-of-pocket expenses, or which may be
reasonably incurred in providing such Information or witnesses. Invoices shall
be due and payable within thirty (30) days of receipt. Interest shall accrue on
any unpaid amount at the rate of ten percent (10%) per annum.
6.2 Confidentiality. Each of Intek and its subsidiaries and Spider and
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its subsidiaries shall hold, and cause each of their respective officers,
directors, employees, agents, consultants and advisors to hold, in strict
confidence, all non-public Information concerning the other party furnished it
by such other party or its representatives pursuant to this Agreement or the
Related Agreements or prior to the date hereof, unless compelled to disclose
such Information by judicial or administrative process or, in the opinion of
counsel, by the requirements of law (in which case such party shall promptly
notify the other party so that the other party may seek a protective or other
appropriate remedy), each party shall not release or disclose such Information
to any other person, except its auditors, attorneys, financial advisors,
bankers, subcontractors, and other consultants and advisors who shall be bound
by the provisions of this Section 6.2. Each party shall be deemed to have
satisfied its obligations hereunder with respect to confidential Information
supplied by the other party if it exercises the same care as it does with
respect to preserving the confidentiality of its own similar information. In
addition, a party shall not use Information except for the purpose for which it
is delivered.
6.3. Litigation. Without limiting the generality of the foregoing, Intek
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and Spider agree that Intek shall be responsible for any monetary or other award
against Intek or Spider, and shall be entitled to any monetary or other
recovery, in the litigation currently ongoing between Intek and Davox
Corporation in the Xxxxxxxx Xxxxx, Xxxx xxx Xxxxxx xx Xxxxxx, Xxxxx of Colorado
(Civil Action No. 98-CV-4824) or related to the facts forming the basis of that
litigation ("Davox Litigation").
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6.4 Indemnification. Neither party shall be liable for indemnification
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with respect to any claim for which indemnification may result hereunder unless
the indemnified person hereunder ("Indemnitee") indemnification notifies the
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other party in writing of the nature of the claim, in as much detail as is
feasible, within a reasonable time after the facts giving rise to it are known
to the Indemnitee. The party requested to make indemnification shall be
entitled to participate at its own expense in the defense, or if it so elects by
a writing delivered to the Indemnitee within thirty (30) days after receipt of
such notice, to assume at its own expense the defense of the matter giving rise
to the claim for indemnification or of any suit brought in connection with it.
If the party to make indemnification elects to assume the defense and is
reasonably creditworthy or carries insurance so as to make it reasonable to
expect it will be able to discharge an adverse judgment, the defense shall be
conducted by counsel, chosen by it. If the Indemnitee elects to assume the
defense of any such claim or suit and retain such counsel, the Indemnitee shall
bear the fees and expenses of its own counsel arising out of any legal service
thereafter performed by that counsel. In the event the Indemnitee elects to
defend against any such claim, the will, so long as the party to make
indemnification is actively engaged in defense of the claim, refrain from paying
or compromising the claim and will extend its cooperation and assistance to the
party to make indemnification in its defense against the claim. Each party and
Indemnitee will cooperate in the defense of any claim.
If the parties hereto or an Indemnitee are unable to agree upon or settle
any claim for indemnity, either party or an Indemnitee may submit the indemnity
claim to binding arbitration as provided herein.
Notwithstanding anything else herein except for provisions stating a
particular matter is governed by another agreement, neither party need reimburse
or indemnify the other for a breach of a representative or warranty herein until
the amount to be reimbursed or indemnified exceeds $50,000 and then only as to
the amounts in excess of $50,000.
6.5 Taxes. Intek and Spider have entered into a Tax Separation Agreement
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(as amended, supplemented or otherwise modified, the "Tax Separation
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Agreement"), regarding their respective rights and obligations with respect to
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taxes of Intek and Spider for all periods and certain other tax-related matters.
In the event of a conflict between the terms of the Tax Separation Agreement and
the terms of this Agreement, the terms of the Tax Separation Agreement shall
govern.
6.6. Technology Transfer Agreement. Intek and Spider have entered into a
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Software Assignment and Grant-Back License, Maintenance and Support Agreement,
and certain other agreements (as amended, supplemented or otherwise modified,
the "Technology Agreements"), setting forth the arrangements between the parties
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with respect to certain technology including TelWeb. In the event of a conflict
between the Technology Agreements and the terms of this Agreement, the terms of
the Technology Agreements shall govern.
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6.7 Expenses. Except as otherwise provided in this Agreement or a Related
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Agreement, all out of pocket expenses in connection with the Distribution up to
the date of the Distribution, shall be borne by Intek.
6.8 Non-solicitation. Except as provided otherwise in the Sublease and
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Resource Sharing Agreement, before, during, and for twelve (12) months after the
later of the date hereof and the termination of the Transition Support Agreement
of even date herewith between the parties, Intek and Spider shall not, directly
or indirectly, offer, induce, recruit, solicit, influence, or attempt to
influence any employee or any leased employee of the other or any of its
subsidiaries to terminate his or her employment for the purpose of working for
the other (without the prior written consent of other party). Provided,
however, that this Section 6.8 shall not apply to prohibit Intek actions as to:
(i) Spider employees or leased employees if there has been an "Abandonment" as
defined in Section 3.7 of the Software and Grant Back License, Maintenance and
Support Agreement; or (ii) Shared Executives of Intek. If a party hereto is
acquired by another entity with assets valued for balance sheet purposes as of
the preceding fiscal year end, or gross revenues in the preceding fiscal year,
of more than $500,000,000, this prohibition shall be limited to direct
solicitations of employment other than solicitations conducted by "help wanted"
or similar public advertisements.
ARTICLE VII
MISCELLANEOUS
7.1 Survival. All of the provisions of this Agreement shall survive
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the Distribution Date. The representations and warranties in Sections 4.1 and
4.2 shall survive for a period of one year. Sections 3.1, 3.2 and 3.3 shall
terminate eight (8) years after the date hereof, except as to matters as to
which a claim has been brought by one party hereto against the other party
hereto as of such termination date.
7.2 Entire Agreement. This Agreement and the other writings referred to
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herein or delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
7.3. Waiver and Modification. An amendment or modification of this
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Agreement will be valid and effective only if it is in writing and signed by
each party to this Agreement. In addition, a waiver of any duty, obligation, or
responsibility of a party under this Agreement will be valid and effective only
if it is evidenced by writing signed by, or on behalf of, the party against whom
the waiver or discharge is sought to be enforced. The waiver by either party of
a breach of a provision of this Agreement will not constitute as waiver of a
succeeding breach of the provision or a waiver of the provision itself.
7.4. Notices. All notices, requests, consents and other communications
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hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy, nationally
recognized overnight courier or first class registered or certified
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mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or in a counterpart hereto (as the case may be) or such
other address as may hereafter be designated in writing by such party to the
other parties:
if to Intek, to:
Intek Information, Inc.
0000 XXX Xxxxxxx, 00/xx/ Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx, Xxxxx & Xxxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: G. Xxxxx Xxxxxxxx, Jr.
if to Spider, to:
Spider Technologies, Inc.
0000 XXX Xxxxxxx, 00/xx/ Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
E/*/ Law Group
0000 Xxxx 000/xx/ Xxxxx
Xxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
7.5. Counterparts. This Agreement may be executed in any number of
------------
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
13
7.6. Headings. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
7.7. Nouns and Pronouns. Whenever the context may require, any pronouns
------------------
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and vice
versa.
7.8. Dispute Resolution. Any and all disputes or claims arising under or
------------------
related to this Agreement (including by a Spider Indemnified Party or Intek
Indemnified Party) shall be promptly submitted to arbitration before the
American Arbitration Association ("AAA") before a single arbitrator. The
---
arbiter shall be selected by the AAA on the basis, if possible, of his or her
expertise in the subject matter(s) of the dispute. The decision of the
arbitrator shall be final, nonappealable and binding upon the parties, and it
may be entered in any court of competent jurisdiction. The arbitration shall
take place in Denver, Colorado. The arbitration shall be conducted under the
Commercial Arbitration Rules of the AAA. The arbitrator shall have the power to
grant equitable relief where applicable under Colorado law. The arbitrator
shall issue a written opinion setting forth his or her decision and the reasons
therefor within thirty (30) days after the arbitration proceeding is concluded.
The obligation of the parties to submit any dispute arising under or related to
this Agreement to arbitration as provided in this Section shall survive the
expiration or earlier termination of this Agreement. Notwithstanding the
foregoing, either party may seek and obtain an injunction or other appropriate
relief from a court to preserve the status quo with respect to any matter
pending conclusion of the arbitration proceeding, but no such application to a
court shall in any way be permitted to stay or otherwise impede the progress of
the arbitration proceeding. Each party hereto, and in order to be entitled to
the benefits hereunder each Intek Indemnified Party and Spider Indemnified
Party, submits itself to the jurisdiction of the AAA in Denver, Colorado.
In the event of any arbitration or litigation being filed or instituted between
the parties concerning this Agreement, the prevailing party will be entitled to
receive from the other party or parties its reasonable attorneys' fees, witness
fees, costs and expenses, court costs and other reasonable expenses, whether or
not such controversy, claim or action is prosecuted to judgment or other form of
relief.
7.9. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Colorado without giving effect to the
principles of conflicts of law. Each of the parties hereto hereby irrevocably
and unconditionally consents to submit to the jurisdiction of the courts of the
State of Colorado and of the United States of America, in each case located in
the County of Denver, for any action, proceeding or investigation in any court
or before any governmental authority ("Litigation") arising out of or relating
to this Agreement and the transactions contemplated hereby (and agrees not to
commence any Litigation relating thereto except in such courts unless consented
to by the other party hereto or unless such courts do not have subject matter
jurisdiction over the primary subject of the Litigation). Each of the parties
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any
14
Litigation arising out of this Agreement or the transactions contemplated hereby
in the courts of the State of Colorado or the United States of America, in each
case located in the County of Denver, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum.
7.10. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid, but
if any provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
7.11. Rights of Third Parties. Nothing in this Agreement, whether
-----------------------
express or implied, is intended or should be construed to confer or grant to any
person, except the parties hereto, Spider Indemnified Parties and Intek
Indemnified Parties, and their respective assignees and successors, any claim,
right, remedy, or privilege under, or because of, this Agreement or any
provision of it.
7.12. Assignment; Binding Effect. A party to this Agreement (whether
--------------------------
by operation of law or otherwise) shall not assign its rights or delegate its
duties, obligations, and responsibilities under this Agreement without the
advance written consent of the other party to this Agreement, and any assignment
or delegation without the advance written consent of the other party will be
invalid and ineffective against the nonconsenting party. Such consent will not
be unreasonably withheld. This Agreement is binding on, and inures to the
benefit of, any successor or approved assignee of a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Separation
Agreement as of the date first above written.
INTEK INFORMATION, INC.
By: /S/ XXXXXXX X. X'XXXXXXX
-------------------------------
Its: Chairman/CEO
-------------------------------
SPIDER TECHNOLOGIES, INC.
By: /S/ XXXXXXX X. X'XXXXXXX
------------------------------
Its: ______________________________
15
EXHIBIT 2.1
DISTRIBUTION PLAN
See Tab 9
16
SCHEDULE 3.5(a)
ALLOCATED EMPLOYEES
Spider Employee
CTO Will Bechtel
AM Vine Xxxxx None
OI Xxxxx Xxxxxxxxx Sony
SD Xxxxx Xxxxxx Sega
TW Xxxx Xxxxxx None
QA Xxxxx Xxxxxx None
TM Xxx Xxxxxxxxx SDM/DI
SDM Xxxxx Xxxxxx SDM
Prog Xxx Xxxxx Amex
Prog Xxxxx Xxxxxxxxxxxxx
Admin Xxxx Xxxxxx Admin
Prog. Dev. Xxx Xxxxx
Prog. Dev. Xxxxxxx Xxxxxxxx
Prog. Dev. Don Van Meter
17
SCHEDULE 4.2
LIENS
Silicon Valley Bank, N.A.
Charter Financial
18
