Exhibit 10.28
TATUM CFO
PARTNERS, L.L.P.
REVISED RETAINER AGREEMENT
This Revised Agreement, entered into as of July 15, 1999 by Delphi
Information Systems, Inc. (the "Company"), Tatum CFO Partners, LLP
("Tatum") and Richard J. Baum ("the CFO") (collectively, the "parties"),
replaces the Agreement previously entered into between the Company, the
CFO, and Tatum as of June 15, 1999.
WHEREAS, the Company wishes to engage the CFO to provide certain services and
Tatum wishes that the CFO provide such services in return for certain
consideration; the parties after full and careful negotiation agree as
follows:
I. SERVICES; FEES AND PAYMENTS
A. Beginning the Effective Date, the CFO will perform, with the title
Acting Chief Financial Officer, CFO Services as set forth in Section II
for a total monthly fee of $17,500 (the "Monthly Fee").
B. The CFO will provide CFO Services for 5 days per week.
C. The Company will pay the CFO directly according the Company's normal
payroll process a portion of the Monthly Fee equal to $14,593.33 (the
"Salary"); and will pay Tatum the remaining portion of $2,916.67
("Retainer Fee").
D. If this Agreement commences or concludes in the middle of a month, each
portion of the Monthly Fee shall be prorated for that month.
E. The Company also will pay Tatum the incentive bonus set forth in Schedule
A.
F. The Company will also provide Tatum stock options in accordance with the
attached Schedule B.
G. The Company will pay all amounts owed Tatum no later than the 15th day of
the month for which amounts are invoiced.
H. The Company will promptly reimburse the CFO for travel and out-of-pocket
business expenses.
I. In the case that the CFO provides CFO Services in excess of 5 days per
week, the Company will pay an additional $1,057.95 daily fee (the
"Additional Daily Fee").
J. The Company will pay the CFO directly according the Company's normal
payroll process 83.33% of the Additional Daily Fee (the "Additional
Salary"), and will pay Tatum the remaining 16.67% portion ("Additional
Retainer Fee").
K. In the event this Agreement is canceled prior to September 15, 1999, an
additional fee will be paid sufficient to adjust the aggregate prior and
prospective Monthly Fees to an amount equal to $1,200 per day (the "Early
Termination Fee").
L. The Company will pay the CFO directly according the Company's normal
payroll process 83.33% of the Early Termination Fee, and will pay Tatum
the remaining 16.67% portion.
II. CFO SERVICES
A. CFO Services is defined as those certain services as specified and
directed by the Company from time to time and which the CFO is able to
perform within the time allotted under this agreement.
B. CFO Services will never exceed the traditional scope of services of the
chief financial officer.
III. THE RELATIONSHIP OF THE CFO AND THE COMPANY
A. The Company, Tatum and the CFO agree that the CFO will be an employee of
the Company.
B. As an employee of the Company, the CFO will work under the exclusive
management and authority of the Company.
C. The CFO will serve the Company as an officer of the Company, upon
election by its Board of Directors, to take effect upon receipt by the CFO
and Tatum of written evidence that the CFO as an officer is covered by
director and officer insurance maintained by the Company at no additional
cost to the CFO or Tatum.
D. The CFO may sign federal or state securities filing, and representations
and warranties on behalf of the Company after such date as the CFO
receives satisfactory written evidence that in signing such filings he is
covered by applicable insurance (whether director and officer insurance or
a special policy) maintained by the Company at no additional cost to the
CFO or Tatum CFO. (Note that the election to sign securities filings can
also be done by later amendment to agreement.)
E. The CFO will be eligible for vacation and holidays consistent with the
Company's policy as it applies to senior management, except that any
initial delay period will not apply.
F. The CFO elects not to participate in the Company's employment retirement
plan or any other employee benefit plan, and waives any coverage that may
otherwise exist. The Company will not include the CFO as participant in
any such plan, unless required to do so by law for plan qualification.
However, notwithstanding the foregoing, the CFO may participate (without
Company matching payments) in the Company's 401(k) plan, if such a plan
is provided.
G. The CFO waives any past or present claim it may have against the Company
for any discrimination.
IV. THE RELATIONSHIP OF TATUM AND THE COMPANY
A. The Company, Tatum and the CFO agree that for purposes of this Agreement,
Tatum's relationship with the Company is to make the CFO available to the
Company to provide CFO services. However, the Company is solely responsible
for its evaluation, management and use of the CFO and the CFO Services.
V. THE RELATIONSHIP OF TATUM AND THE CFO
A. The Company, Tatum and the CFO agree that for purposes of this Agreement,
Tatum's relationship with the CFO is to make available to the CFO certain
resources of Tatum. These resources are not warranted or guaranteed in any
way and the Company is solely responsible for its evaluation, management
and use of these resources.
VI. STANDARD DISCLAIMERS
A. Neither Tatum nor the CFO will be liable for Y2K related losses, costs,
damages or expenses.
B. Tatum will not be liable for any non-compliance with federal, state or
local laws or regulations.
C. The Company agrees that reports, projections and/or forecasts can be
prepared only at the Company's direction and reflect the judgment of the
Company. Tatum makes no representation or warranty as to the accuracy or
reliability of reports, projections and/or forecasts; and will not be
held liable for any claims of reliance on such reports, projections
and/or forecasts.
VII. INDEMNITY; JOINT DEFENSE; LIABILITY LIMITATIONS; ARBITRATION; INSURANCE
A. The Company agrees to indemnify Tatum to the full extent permitted by law
for any losses, costs, damages and expenses, including attorneys' fees, as
such are incurred, in connection with (1) any cause of action, suit or
other proceeding arising in connection with Tatum's engagement by the
Company under this Agreement, the CFO's employment with the Company or the
CFO's activities while employed by the Company, and (2) any legal
proceeding in which Tatum may be required or agree to participate, but in
which Tatum is not a party. This indemnification does not apply to actions
taken by Tatum in bad faith.
B. If the Company and Tatum are defendants in any action, suit, or other
proceeding, the defense of Tatum will be represented by counsel selected
by Tatum.
C. The Company and Tatum agree to binding arbitration under the rules of the
American Arbitration Association ("AAA"), to take place in the AAA's
Atlanta office, if any dispute arises between them.
D. The Parties recognize and agree that any breach by Tatum of this Agreement
would result in injury that would be impossible to accurately ascertain.
Therefore, Tatum shall pay to the Company as liquidated damages, and not
as a penalty, an amount equal to two full months of Retainer Fee. The
parties agree that this amount of liquidated damages represents a
reasonable approximation of the damages that would be incurred as a result
of a breach by Tatum of this Agreement.
E. In any event, at any time, Tatum may pay a sum equal to the total Retainer
Fee paid under this Agreement for the most recent four months, which
payment the Company agrees shall serve as final satisfaction and accord
for any and all such liabilities of Tatum under this Agreement.
F. As a precondition for recovery of any alleged liability, the Company shall
give Tatum notice, in writing, the alleged basis for liability within
thirty (30) days of discovering the circumstances giving
rise to such alleged liability, and no legal or other action shall be
taken by the Company against Tatum more than (60) days after such notice
has been given or (ii) less than thirty (30) days after such notice has
been given, in order that Tatum shall have the opportunity to investigate
in a timely manner and, where possible, correct of rectify the alleged
basis for liability.
G. Tatum will not be liable in any event for incidental or consequential
damages including without limitation any interruption of business or loss
of business, profit, or good will.
H. To the extent the Company has directors' and officers' liability insurance
("including entity coverage") and/or errors and omissions liability
insurance in effect, the Company will provide such insurance coverage for
the CFO.
VIII. GENERAL TERMS AND CONDITIONS
A. Subject to the payment of any applicable Early Termination Fee, this
Agreement may be canceled by either party effective on no less than 30
days' advance written notice. However, Tatum retains the right to
terminate this agreement immediately if the Company has not remained
current with its obligations to Tatum under this Agreement, the Company
is not in compliance with any government regulatory entity, or by death or
disability of the CFO.
B. The provisions on the attached Schedule A are incorporated by reference as
if set forth herein, and the provisions concerning the bonus in Schedule A
will survive any cancellation of this Agreement.
C. Neither the Company, Tatum nor the CFO shall be deemed to have waived any
rights or remedies accruing under this Agreement unless such waiver is in
writing and signed by the party electing to waive the right or remedy.
D. This Agreement is governed by Illinois law.
E. The terms of this Agreement are severable, and they may not be amended
except in writing signed by the parties. This Agreement binds and benefits
the successors of the parties.
F. This Agreement contains the entire agreement between the parties,
superseding any prior oral or written statements or agreements.
G. The persons signing below are authorized to sign on behalf of each party,
and their signatures are all necessary signatures.
TATUM CFO PARTNERS, LLP The COMPANY The CFO
/s/ Dirk B. Landis /s/ [Illegible] /s/ Richard J. Baum
- ---------------------- ------------------- --------------------
Signature Signature Signature
[Illegible]
Dirk B. Landis ------------------- Richard J. Baum
Area Limited Partner Name and Title
As of July 15, 1999 As of July 15, 1999 As of July 15, 1999