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OLSON CONSULTANT AGREEMENT EXHIBIT 10.11
This CONSULTANT AGREEMENT (hereinafter "Agreement") is made this 15th
day of August, 1997, between Surrey, Inc. (hereinafter the "Company"), a Texas
corporation, and James K. Olson (hereinafter "Olson").
R E C I T A L S
A. The Company has purchased the outstanding stock in the Company
owned by Olson pursuant to the terms and conditions of the Stock Purchase
Agreement by and between the Company and Olson dated of even date herewith.
B. Olson served as the Company's Chief Executive Officer and a
Director, and is intimately knowledgeable of the Company's financial affairs
and accounting procedures.
C. Olson has tendered his resignation as an officer and director
of the Company, effective as of the date hereof.
D. The Company desires to have Olson continue to advise the
Company and to perform certain services in accordance with the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants, premises and
agreements contained herein, the parties mutually agree as follows:
AGREEMENT
1. APPOINTMENT OF CONSULTANT. The Company hereby appoints Olson, and
Olson accepts appointment, as the Company's consultant, to perform such
accounting, financial and business review and analysis for the Company as shall
be requested by the Company (the "Services") during normally scheduled work
days and work hours, during the term of this Agreement, unless otherwise agreed
by mutual written agreement. In addition, during the term of this Agreement,
the Company agrees to continue to provide to Olson clerical and administrative
support and facilities commensurate with the support provided to Olson during
the prior fiscal year.
2. TERM. This Agreement shall begin on the date hereof and shall
terminate on the earlier of (i) the closing of the Company's initial public
offering of its common stock, (ii) December 31, 1997, or (iii) such other date
as the parties hereto may mutually agree (the "Term"). The parties may extend
the Term of this Agreement by mutual agreement.
3. COMPENSATION. The Company shall pay to Olson compensation during
the Term of this Agreement in the amount of $125,000 per year, payable
bi-weekly. This compensation is applicable to all the Services, and may be
changed, altered or modified only upon the written
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consent of the parties hereto. In addition, Olson shall be entitled (a) to
participate in all health insurance and other benefits currently offered to
officers of the Company and (b) to receive such stated compensation during any
period of disability occurring during the term of this Agreement.
4. EXPENSES. It is agreed that the Company shall bear all of its own
costs, overhead and business expenses, unless the parties otherwise mutually
agree in writing. This includes but is not limited to expenses incurred by
Olson in performing the Services.
5. SEVERABILITY. The terms of this Agreement are severable, as
allowed by law. In the event any provision of this Agreement is deemed
unenforceable or invalid, the remaining terms shall remain in full force and
effect.
6. ASSIGNMENT. Neither the rights nor obligations of this Agreement
are transferable or assignable, without the written agreement of the parties.
7. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties, and supersedes any and all previous written
or oral agreements, contracts, representations, discussions, negotiations or
course of dealing between the parties. This Agreement supersedes and takes the
place of any one or all existing contracts or agreements, whether oral or
written.
8. NOTICE. Any notice required or permitted to be given pursuant to
the terms of this Agreement shall be considered effective if hand delivered or
sent via certified United States Mail, postage prepaid, as follows:
If to Olson to: James K. Olson
9703 Vista View Drive
Austin, Texas 78750
With a Copy to: Paul Angenend, Esq.
SAEGERT, ANGENEND & AUGUSTINE
1145 West 5th Street, Suite 300 Austin,
Texas 78703
If to Company: SURREY, INC.
13110 Trails End Road
Leander, Texas 78641
Attn.: John B. van der Hagen
With a Copy to: G. Thomas MacIntosh, Esq.
MACKALL, CROUNSE & MOORE, PLC
1400 AT&T Tower
901 Marquette Avenue
Minneapolis, Minnesota 55402-2859
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9. MODIFICATION. This Agreement shall be modified or amended only by
the parties mutual written consent and agreement.
10. COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same instrument.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
12. CONSENT TO JURISDICTION. THE PARTIES IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN THE CITY OF
AUSTIN, TEXAS, OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY RELATED DOCUMENT. SELLER IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
IN WITNESS HEREOF, the parties have executed this Agreement as of the
date provided above.
SURREY, INC. CONSULTANT
By:
/s/John van der Hagen /s/James K. Olson
- ----------------------- --------------------
John van der Hagen James K. Olson
Its President
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INDEMNIFICATION AGREEMENT OF SURREY, INC.
AND JOHN B. VAN DER HAGEN WITH
JAMES K. OLSON AND LOUISE K. OLSON
This Indemnification is given by SURREY, INC., a Texas corporation
("Corporation"), and John B. van der Hagen, individually ("van der Hagen"), to
James K. Olson ("J. Olson") and Louise K. Olson ("L. Olson").
WITNESSETH:
WHEREAS, J. Olson has entered into a Stock Purchase Agreement ("Agreement")
with the Corporation dated as of the date hereof; and
WHEREAS, the Agreement requires that, in the event that J. Olson cannot
obtain a release from any lender or lessor to the Corporation with respect
thereto, the Corporation and/or van der Hagen shall indemnify, on the terms set
forth herein, J. Olson and L. Olson from any obligations or responsibilities
for the payment of all notes, leases or obligations of the Corporation which J.
Olson and/or L. Olson have personally guarantied, or on which J. Olson and/or
L. Olson are personally liable; and
WHEREAS,the Directors of the Corporation have determined that it is in the
best interest of the Corporation to provide such indemnification to J. Olson
and L. Olson.
NOW, THEREFORE, the Corporation and van der Hagen agree as follows:
AGREEMENT
1. INDEMNIFICATION BY CORPORATION. Corporation hereby indemnifies J. Olson
and L. Olson against, and agrees to hold each harmless from, any and all
damage, loss, liability and expense incurred or suffered by J. Olson and/or L.
Olson arising out of any liability arising from (a) any debt, lease, or other
obligation owed by the Corporation and which either required J. Olson and/or L.
Olson's personal guaranty (which guaranty has not been released), or on which
J. Olson and/or L. Olson remain personally liable (collectively, "Debts and
Other Liabilities") and (b) any initial public offering ("IPO") by the
Corporation of its common stock. Corporation further warrants and represents
that it will repay such Debts and Other Liabilities as soon as reasonable
business practice will allow out of the proceeds of any IPO or otherwise.
2. INDEMNIFICATION BY VAN DER HAGEN. Van der Hagen hereby indemnifies J.
Olson and L. Olson against, and agrees to hold each harmless from, any and all
damage, loss, liability and expense incurred or suffered by J. Olson and/or L.
Olson arising out of any liability under Norwest Bank Loan No. GP-767,
982-3006-SA, which required J. Olson and/or L. Olson
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personal guaranty (which guaranty has not been released), or on which J. Olson
and/or L. Olson remain personally liable.
3. PROCEDURE FOR INDEMNIFICATION. J. Olson and/or L. Olson agrees promptly
to give notice to Corporation or van der Hagen, as the case may be, of the
assertion of any claim, or the commencement of any suit, action or proceeding
in respect of which indemnity may be sought under this indemnification.
Corporation and van der Hagen, at the request of J. Olson and/or L. Olson, may
participate in and control the defense of any such suit, action or proceeding
at their own expense. Corporation and van der Hagen may not be liable for any
settlement effected without their consent of any claim, litigation or
proceeding in respect of which indemnity may be sought hereunder.
4. NOTICES. All notices, requests and other communication shall be in
writing (including telex, telecopy or similar writing) and shall be given:
If to Corporation: SURREY, INC.
13110 Trails End Road
Leander, Texas 78641
Attn: John van der Hagen, President
With a copy to: G. Thomas MacIntosh, Esq.
MACKALL, CROUNSE & MOORE, PLC
1400 AT&T Tower
901 Marquette Avenue
Minneapolis, MN 55402-2859
If to van der Hagen: John van der Hagen
13110 Trails End Road
Leander, Texas 78641
With a copy to: G. Thomas MacIntosh, Esq.
MACKALL, CROUNSE & MOORE, PLC
1400 AT&T Tower
901 Marquette Avenue
Minneapolis, MN 55402-2859
If to Olson: James K. Olson
9703 Vista View Drive
Austin, Texas 78750
With a copy to: Paul Angenend, Esq.
SAEGERT, ANGENEND & AUGUSTINE
1145 West Fifth Street, Suite 300
Austin, Texas 78703
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5. SUCCESSORS AND ASSIGNS. The provisions of this indemnification shall be
binding upon and inure to the benefit of J. Olson and/or L. Olson, Corporation
and van der Hagen, and their respective successors and assigns; provided that
any such transfer or assignment by Corporation and van der Hagen will not
relieve Corporation or van der Hagen of their obligations hereunder.
6. GOVERNING LAW. THIS INDEMNIFICATION SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICTS
OF LAW RULES OF SUCH STATE.
7. CONSENT TO JURISDICTION. THE CORPORATION AND VAN DER HAGEN IRREVOCABLY
SUBMIT THE JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN THE CITY
OF AUSTIN, TEXAS, OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDEMNIFICATION OR ANY RELATED DOCUMENT. CORPORATION AND VAN
DER HAGEN IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBLIGATION WHICH THEY MAY HAVE OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
8. CAPTIONS. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
IN WITNESS WHEREOF, Surrey, Inc. and John B. van der Hagen have executed this
Indemnification Agreement dated this the 15th day of August, 1997.
SURREY, INC.
By: /s/John B. van der Hagen
------------------------------------
John B. van der Hagen, President
/s/John B. van der Hagen
------------------------------------
John B. van der Hagen
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NON-COMPETITION AND
CONFIDENTIALITY AGREEMENT
This NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (this "Agreement") is made
and entered into effective the 15th day of August, 1997 by and between James K.
Olson, residing in Travis County, Texas ("Olson"), and SURREY, INC., a Texas
corporation (the "Company").
R E C I T A L S
A. Olson and the Company have entered into that certain Stock Purchase
Agreement ("Stock Purchase Agreement") dated of even date herewith, to which
this Agreement is ancillary.
B. Olson is resigning as an officer, employee and director of the Company.
C. Olson, through his association with Company, has obtained intimate
knowledge of the trade secrets and business of the Company which the Company
desires to remain confidential.
D. Olson and the Company have entered into a Consulting Agreement dated of
even date herewith, wherein Olson will continue to render services to the
Company as specified therein.
E. It is a condition to the consummation of the transactions contemplated by
the Stock Purchase Agreement that Olson execute and deliver this Agreement to
the Company.
NOW, THEREFORE, in consideration of the premises hereof and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Company and Olson, the Company and Olson hereby covenant
and agree as follows:
AGREEMENT
1. DEFINITIONS. Each capitalized term not defined herein shall have the
meaning assigned to that term in the Stock Purchase Agreement.
2. NONDISCLOSURE. Olson acknowledges that, in the course of his employment
and management relationship with Company, he has received or had access to
certain trade secrets, programs, lists of customers and other sensitive and
confidential information and knowledge concerning the business of the Company
(hereinafter collectively referred to as "Confidential Information"). Olson
understands that the Confidential Information is confidential and agrees not to
reveal the Confidential Information to individual or other business and
corporate entity outside the Company so long as the confidential or secret
nature of the Confidential Information shall continue. Olson further agrees
that he will at no time use the Confidential information in
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competing with Company.
On the date hereof, Olson shall surrender to the Company all papers,
documents, writings and other property produced by him or coming into his
possession by or through his employment and/or management relationship with the
Company or relating to or containing the Confidential Information. Olson
agrees that all such materials will at all times remain the property of
Company. Notwithstanding the above, any Confidential Information necessary
and/or required to be used by Olson in connection with services to be rendered
under the Consulting Agreement shall be delivered to the Company at the
termination of the term of such agreement.
For the purposes of this Agreement, the term "Confidential Information"
shall not include any information or knowledge which: (a) is now available or
hereafter becomes available to the public without a breach by Olson of the
terms stated in this Agreement; (b) is disclosed to Olson by a third party who,
to Olson's knowledge, is not under any obligation of secrecy or
confidentiality; or (c) which Olson or a party is compelled by law to disclose.
3. COVENANTS NOT TO COMPETE.
(a) During the term of the Consulting Agreement and for a period of
twenty-four (24) months after the termination of the Consulting Agreement (the
"Noncompetition Term"), Olson agrees that he will not, as principal, agent,
trustee or through the agency of any corporation, partnership, association or
agent or agency, compete directly or indirectly with the Company by:
(i) engaging in any activity which is competitive with the business of the
Company as of the date hereof in any state in which the Company had
Customers (as hereinafter defined) during the twenty-four (24) month
period immediately preceding the Noncompetition Term or during the
term of the Consulting Agreement;
(ii) soliciting or otherwise attempting to solicit or establish for
himself or for any other person or entity any business relationship
with any Customer, which business relationship is competitive with
Company;
(iii) entering into or seeking to enter into, personally or through or on
behalf of any other person or entity, any contract or other
arrangement with any Customer for the performance of services or
the provision of products of a nature being performed or provided
by Company;
(iv) providing or offering to provide services or products to a Customer,
personally or through or on behalf of any other person or entity,
which services or products are competitive with the services or
products offered by Company;
(v) urging any Customer or person or entity referring any business to the
Company to discontinue, in whole or part, such relations or business
with
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or referral to Company, or discouraging the continuation thereof;
(vi) have any type of equity interest in, or have any employment or
commission relationship with, any venture or entity which engages in
any of the activities referred to in clauses (i) through (v) above; it
being expressly understood that these restrictions do not preclude
Olson from owning stock of any publicly traded company, or less than
five percent (5%) of the stock of a privately held company.
(b) During the Noncompetition Term, Olson further agrees that he will not,
either directly or indirectly, through any person, firm, association or
corporation with which he is now or may hereafter become associated, cause or
induce any present or future employee of the Company to leave the employ of the
Company to accept employment with Olson or with such person, firm, association
or corporation.
(c) As used herein, "Customer" includes (without limitation) any person or
entity that purchased goods or services from the Company in any of the
twenty-four (24) months immediately preceding the Noncompetition Term and any
person or entity controlling, controlled by or under common control with any
such person or entity.
4. REASONABLE RESTRICTIONS. Olson represents to the Company that the
enforcement of the noncompetition covenants contained in this Agreement will
not be unduly burdensome to Olson and acknowledges that Olson is willing and
able to compete in other geographical areas not prohibited by this Agreement.
The parties to this Agreement hereby agree that the covenants contained in this
Agreement are reasonable and necessary restrictions for the purpose of
protecting the goodwill and other business interests of Company, and the
expectation of expanding Company's business in the designated geographic areas
without competition from Olson for the Noncompetition Term.
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties hereto and with respect to the subject matter of this Agreement and
supersedes and is in full substitution for any and all prior agreements and
understandings, whether written or oral, between said parties relating to the
subject matter of this Agreement.
6. AMENDMENT. This Agreement may not be amended or modified in any respect
except by an agreement in writing executed by the parties in the same manner as
this Agreement.
7. ASSIGNMENT. This Agreement may be assigned by the Company without the
consent of Olson in connection with the sale, transfer or other assignment of
all or substantially all of the capital stock or assets of, or the merger of,
the Company, provided that the party acquiring such capital stock or assets or
into which the Company merges assumes in writing the obligations of the Company
hereunder and provided further that no such assignment shall release the
Company from its obligations hereunder. Otherwise, this Agreement may not be
assigned by either party hereto without the prior written consent of the other
party.
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8. SUCCESSORS. This Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by each of the parties and their respective
successors and assigns.
9. UNENFORCEABLE PROVISIONS. In the event that a court should determine
that any restriction herein is unenforceable, the parties agree that this
Agreement shall nevertheless be enforceable for the maximum term and
geographical area allowed by law.
10. REMEDIES. Olson agrees that a breach or violation of any provision of
this Agreement shall entitle the Company or its assigns, as a matter of right,
to an injunction, without necessity of posting bond, issued by any court of
competent jurisdiction, restraining any further or continued breach or
violation of such provision. Such right to an injunction shall be cumulative
and in addition to, and not in lieu of, any other remedies to which the Company
or its assigns may show itself justly entitled, including, but not limited to,
specific performance and damages. The parties specifically agree that the
remedy of damages alone is inadequate for a breach or violation of any
provision of this Agreement by Olson. Further, during any period in which
Olson is in actual (as opposed to asserted) breach of any covenant in this
Agreement, the time period of this Agreement shall be extended for an amount of
time that Olson is in breach hereof.
11. NOTICE. All notices, consents, requests, approvals or other
communications in connection with this Agreement and all legal process in
regard hereto shall be in writing and delivered personally or sent by certified
mail, postage prepaid, or by facsimile transmission. Unless changed by written
notice pursuant hereto, the address of each party for the purpose hereof is as
follows:
If to Olson: James K. Olson
9703 Vista View Drive
Austin, Texas 78750
With a copy to: Paul Angenend, Esq.
SAEGERT, ANGENEND & AUGUSTINE
1145 West Fifth Street, Suite 3000
Austin, Texas 78703
If to Company SURREY, INC.
13110 Trails End Road
Leander, Texas 78641
Attn: John van der Hagen
With a copy to: G. Thomas MacIntosh, Esq.
MACKALL, CROUNSE & MOORE, PLC
1400 AT&T Tower
901 Marquette Avenue
Minneapolis, MN 55402-2859
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Notice given by mail as set out above shall be deemed delivered only when
actually received.
12. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning of or construction of any of the provisions hereof.
13. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas (without regard to
the conflicts of law principles thereof). The parties agree that in the event
any litigation arises in connection with this Agreement, jurisdiction will lie
in a federal or state court of competent jurisdiction in Travis County, Texas.
IN WITNESS WHEREOF, the parties have duly executed this Non-Competition and
Confidentiality Agreement as of the date first set forth above.
/s/James K. Olson
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James K. Olson
SURREY, INC.
By: /s/John B. van der Hagen
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John B. van der Hagen
Its President
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