Consulting Agreement - Manugistics Inc. and The Kendall Group Inc.
MANUGISTICS
================================================================================
Manugistics, Inc., 2115 East Jefferson Street, Rockville, Maryland 20852
CONSULTING AGREEMENT
Consultant Name and Address:
John K. Willoughby and Jo Anne Gardner Willoughby
The Kendall Group, Inc.
7740 South Glencoe Way
Littleton, CO 80122
THIS AGREEMENT made by and between The Kendall Group, Inc., a Colorado
corporation ("CONSULTANT") and Manugistics, Inc., a Delaware corporation, with
headquarters located at 2115 East Jefferson Street, Rockville, Maryland 20852
(hereinafter "MANUGISTICS").
WHEREAS, MANUGISTICS wishes to engage the services of CONSULTANT for a limited
period of time in a field in which CONSULTANT is a leading expert, and
CONSULTANT is willing to render such services for MANUGISTICS on an agreed
basis as hereinafter specified.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. MANUGISTICS hereby retains CONSULTANT to render advisory services on a
nonexclusive basis at MANUGISTICS' call for the term provided on the
Supplement(s) attached hereto ("SUPPLEMENT"). CONSULTANT understands
and agrees that all consulting work under this AGREEMENT shall be
performed by either John K. Willoughby and Jo Anne Gardner Willoughby,
who are deemed to be key personnel for purposes of this AGREEMENT.
Any change in the key personnel under this AGREEMENT must be
specifically authorized in writing by MANUGISTICS.
2. The services MANUGISTICS may request of CONSULTANT will be as
described on the attached SUPPLEMENT(s), which are incorporated herein
by reference. CONSULTANT will engage in discussions and meetings with
MANUGISTICS personnel when so requested, and will use best efforts to
provide solutions and answers to questions submitted by MANUGISTICS.
CONSULTANT's point of contact at MANUGISTICS with respect to the
specific nature and scope of the services to be provided hereunder and
the days CONSULTANT is to engage in work hereunder is as indicated in
the SUPPLEMENT(s), unless CONSULTANT is informed otherwise by
MANUGISTICS.
3. Subject to the provisions of paragraph 1 hereof, the days when
CONSULTANT is to engage in work hereunder will be designated by
MANUGISTICS, subject to any prior work commitments of CONSULTANT and
where practicable selected on the basis of the mutual convenience of
the parties. CONSULTANT agrees to use its best efforts to accommodate
the work schedule requests of MANUGISTICS within standard working
hours and balancing such scheduling requests with other work
commitments. CONSULTANT will be paid for its services hereunder and
for travel and expenses in accord with the attached SUPPLEMENT(s).
At the close of each month hereunder CONSULTANT may bill MANUGISTICS
for the time worked during such month, and for travel and expenses in
accord with the SUPPLEMENT(s). Such billings will
-1-
<PAGE> 2
be sent to Accounts Payable, Manugistics, Inc., 2115 East Jefferson
Street, Rockville, Maryland 20852, with a copy to CONSULTANT's point
of contact and will be paid within 30 days following receipt.
4. CONSULTANT hereby represents and warrants that no part of the fee paid
by MANUGISTICS will be used directly or indirectly to make payments,
gratuities, or emoluments, or to confer any other benefit, to an
official of any government or any political party.
5. CONSULTANT agrees that any and all ideas, documentation, computer
programs, improvements, developments and inventions conceived of,
developed, or first reduced to practice in the performance of work
hereunder for MANUGISTICS shall become the exclusive property of
MANUGISTICS and that any ideas, information and data received by
MANUGISTICS hereunder and ideas and developments accruing therefrom
shall all be fully disclosed to MANUGISTICS and shall all be the
exclusive property of MANUGISTICS and may be dealt with by MANUGISTICS
as such, all without payment of further consideration than is herein
specified. CONSULTANT further agrees to preserve all such ideas,
developments, agreements, information, improvements and inventions as
confidential during and after the term of this AGREEMENT, and to
execute all papers and documents necessary to vest title to such
ideas, developments, information, data, improvements and inventions in
MANUGISTICS and to enable MANUGISTICS to apply for and, where
possible, obtain copyrights, patents and/or other proprietary rights
on such ideas, developments, information, data, improvements and
inventions in any and all countries and to assign to MANUGISTICS the
entire right, title and interest thereto.
Notwithstanding the above, CONSULTANT shall retain all of its
copyright and other proprietary rights to materials developed by
CONSULTANT exclusively during CONSULTANT's own time and independently
of CONSULTANT's work to be performed under SUPPLEMENT. MANUGISTICS
agrees that CONSULTANT may use such materials in the performance of
his work for MANUGISTICS without surrendering his proprietary rights
to such materials. During and subsequent to the termination of
AGREEMENT or any supplement thereto, CONSULTANT agrees to make such
materials available to MANUGISTICS at the then-current prices for such
materials for the purposes of distributing them to MANUGISTICS
employees or to employees of MANUGISTICS' customers.
6. CONSULTANT will comply with, and do all things necessary to comply
with and, solely with respect to CONSULTANT's work hereunder, for
MANUGISTICS to comply with, United States Government laws and
regulations. CONSULTANT will also comply with and do all things
necessary for MANUGISTICS to comply with provisions of contracts
between agencies of the United States Government or their contractors
and MANUGISTICS which (i) relate either to patent rights or to the
safeguarding of information pertaining to the security of the United
States and (ii) copies of which, or adequate descriptions of which,
have previously been provided in writing by MANUGISTICS to CONSULTANT.
Both parties agree that this entire AGREEMENT and/or its contents may
be disclosed to the United States Government.
7. CONSULTANT shall maintain appropriate time and expense records
pertaining to the services performed under this AGREEMENT. Said
records may be examined and audited by MANUGISTICS and the Government
for three (3) years after final payment hereunder.
8. Each of CONSULTANT and MANUGISTICS shall indemnify the other party for
any claims brought by any third party against such other party as a
result of any personal injury or property damage incurred by such
third party as a result of any action or omission on the part of the
indemnifying party.
9. CONSULTANT warrants that no person or selling agency has been or will
be employed or retained to solicit or secure on behalf of MANUGISTICS
any contract, including but not limited to a United States Government
contract, upon an agreement or understanding for a commission,
percentage, brokerage, or
-2-
<PAGE> 3
contingent fee, excepting bona fide employees or bona fide established
commercial or selling agencies maintained by CONSULTANT for the
purpose of receiving business. For breach or violation of this
warranty, MANUGISTICS shall have the right to annul this AGREEMENT
without liability or in its discretion to deduct from the fee or
consideration, or otherwise recover, the full amount of such
commission, percentage, brokerage or contingent fee.
10. It is contemplated that this AGREEMENT will involve disclosure to
CONSULTANT of MANUGISTICS' and/or MANUGISTICS' customers' proprietary
information and trade secrets, including, but not limited to, customer
lists, proprietary programs and other documents, secret formulae,
programs, devices, compilations of information, and methods of
operation or fabrication and the like. The CONSULTANT agrees to
regard and preserve as confidential and not to disclose or use in any
manner, during and after the term of this AGREEMENT, all such
information and any other confidential information pertaining to
MANUGISTICS or MANUGISTICS' customers' business obtained by CONSULTANT
from whatever source during the term of this AGREEMENT; provided
however, that if disclosure or use of said proprietary information is
required in the performance of CONSULTANT's work hereunder for
MANUGISTICS or MANUGISTICS' customers, MANUGISTICS or MANUGISTICS'
customers may waive the provisions of this paragraph 10 in writing at
CONSULTANT's request.
11. CONSULTANT will not disclose to MANUGISTICS or induce MANUGISTICS to
use any secret process, trade secret, or other confidential knowledge,
information or property belonging to others.
12. CONSULTANT further covenants that there is no agreement between
CONSULTANT and any other person, firm, or corporation which would
cause this AGREEMENT not to have full force and effect.
13. This AGREEMENT shall terminate upon the death or disability of any of
CONSULTANT's key employees which prevents CONSULTANT from efficiently
performing its services. Either MANUGISTICS or CONSULTANT may
terminate this AGREEMENT after a minimum of two thousand (2,000) hours
of consulting services have been performed by providing the other
party with sixty (60) days written notice of such intent to terminate.
Notwithstanding the foregoing, MANUGISTICS may, at its option,
terminate this AGREEMENT at any time, after ten (10) days written
notice and opportunity to cure, if the failure is curable, and
otherwise without prior written notice, if either CONSULTANT fails to
provide services in a manner that conforms with prevailing commercial
standards for comparable services. In the event of termination,
MANUGISTICS' only obligation or liability shall be payment for
services performed or any outstanding expenses incurred up to the date
of termination.
14. CONSULTANT shall not hold itself out as an agent or representative of
MANUGISTICS. CONSULTANT shall render its services hereunder as an
independent contractor, and it shall have no authority to obligate
MANUGISTICS in any manner.
15. This AGREEMENT may not be assigned by either party without the written
consent of the other, except by MANUGISTICS to wholly-owned
subsidiaries and related corporate entities.
16. This AGREEMENT shall be construed and interpreted in accordance with
the laws of the State of Maryland.
17. The parties to this AGREEMENT mutually agree that this AGREEMENT
contains the final and entire agreement between the parties with
respect to the consulting relationship described herein and neither
they nor their agents shall be bound by any terms, conditions,
statements, warranties, or representations, oral or written, relating
to such consulting relationship and not herein contained.
-3-
<PAGE> 4
18. This AGREEMENT shall not be varied in its terms by any oral agreement
or representation or otherwise than by an instrument in writing of
subsequent date executed by both parties hereto. Any purchase order
issued by MANUGISTICS in connection herewith is for administrative
purposes only.
19. CONSULTANT shall complete and return to MANUGISTICS with this
AGREEMENT, Exhibit A hereto entitled "CONSULTANT's FEDERAL INCOME TAX
INFORMATION", which information CONSULTANT hereby certifies is true
and correct. The parties understand that MANUGISTICS will provide this
information to the Internal Revenue Service in accordance with federal
tax law.
Accepted by CONSULTANT: Accepted by MANUGISTICS:
By: /s/ JOHN K. WILLOUGHBY By: /s/ WILLIAM M. GIBSON
--------------------------------- ----------------------------------
Signature Signature
Print Name: John K. Willoughby Print Name: William M. Gibson
------------------------- --------------------------
Title: President Title: President & CEO
------------------------------ -------------------------------
Date: May 24, 1996 Date: May 24, 1996
------------------------------- -------------------------------
Accepted by CONSULTANT's Key Employees:
/s/ JOHN K. WILLOUGHBY
-------------------------------------
John K. Willoughby
May 24, 1996
-------------------------------------
Date
/s/ JO ANNE GARDNER WILLOUGHBY
-------------------------------------
Jo Anne Gardner Willoughby
May 24, 1996
-------------------------------------
Date
-4-
<PAGE> 5
EXHIBIT A TO CONSULTING AGREEMENT
CONSULTANT'S FEDERAL INCOME TAX INFORMATION
The Tax Equity and Fiscal Responsibility Act of 1982 significantly increased
the penalties for failure to file form 1099 information returns and to include
the recipient's taxpayer identification number with the return. To comply with
these laws, it is necessary for us to obtain the federal identification number
or social security number of every vendor with whom we do business. Please
provide us with the information in the spaces below. If there is valid
exemption for your organization, please provide a description of that exemption
in the appropriate space.
Nature of Organization: Corporation (x)
Partnership ( )
Individual ( )
Federal Tax-Exempt Organization ( )
State, City or Other Governmental Unit ( )
Other (Explain) ( )
Federal Identification Number Applied For
--------------------------------------
or
Social Security Number
--------------------------------------
Description of Valid Exemption
---------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-5-
<PAGE> 6
MANUGISTICS
=============================================================================
Manugistics, Inc., 2115 East Jefferson Street, Rockville, Maryland 20852
SUPPLEMENT NO. 1
TO
CONSULTING AGREEMENT
1. This Supplement modifies and amends the Consulting Agreement dated May
23, 1996 between Manugistics, Inc. ("MANUGISTICS") and The Kendall
Group, Inc. ("CONSULTANT"). The term of this Supplement
("SUPPLEMENT") is for a maximum of three (3) years during the term
commencing May 23, 1996 and ending May 23, 1999 .
2. CONSULTANT's point of contact at MANUGISTICS for purposes of
SUPPLEMENT is Mike Sullivan .
3. It is anticipated that CONSULTANT's work will be generally performed
at its office in Colorado, but MANUGISTICS may, through its contact
person designated above, require that CONSULTANT perform services at
MANUGISTICS' office in Rockville, MD to the extent reasonable
necessary to the accomplishment of the objectives of the work to be
performed by CONSULTANT hereunder.
4. CONSULTANT shall be paid at the rate of $125.00 per hour for a minimum
of 2,000 hours, and MANUGISTICS agrees that (i) at least 667 of such
hours shall be performed and paid for in the first year of the term of
the aforesaid CONSULTING AGREEMENT and (ii) at least 1,333 of such
hours shall be performed and paid for, in the aggregate, in the first
two years of the term of such CONSULTING AGREEMENT. In no event shall
CONSULTANT receive a total fee of more than $250,000.00 for services
performed hereunder or be required to work more than 2,000 hereunder,
unless and to the extent mutually agreed in writing by the parties
hereto.
5. MANUGISTICS will reimburse CONSULTANT for CONSULTANT's reasonable
travel expenses to such places as, with MANUGISTICS' prior approval,
CONSULTANT may travel in the performance of services for MANUGISTICS.
MANUGISTICS shall also reimburse CONSULTANT for its reasonable
non-travel expenses incurred with MANUGISITCS' prior approval in the
performance of services hereunder. Notwithstanding the foregoing,
CONSULTANT shall be entitled to reimbursement of expenses of up to
$300 per calendar month (including without limitation travel, parking
and long-distance telephone expenses) reasonably incurred by it in
connection with its performance of services hereunder, with no
necessity of prior approval of such expenses by MANUGISTICS. Approved
travel expenses shall be included on CONSULTANT's monthly bill.
Unless specifically approved in writing in advance by Mike Sullivan,
travel and transit time will not be considered working time for
purposes of this SUPPLEMENT.
-6-
<PAGE> 7
6. The services MANUGISTICS may request of CONSULTANT will be in the
general areas of the business of Avyx, Inc. and software consulting
and, except to the extent that such request is inconsistent with a
pre-existing contractual obligation of CONSULTANT, CONSULTANT shall
use its best efforts to accommodate such request.
Accepted by CONSULTANT: Accepted by MANUGISTICS:
By: /s/ JOHN K. WILLOUGHBY By: /s/ WILLIAM M. GIBSON
-------------------------------- ----------------------------------
Signature Signature
Print Name: John K. Willoughby Print Name: William M. Gibson
------------------------ --------------------------
Title: President Title: President & CEO
----------------------------- -------------------------------
Date: May 24, 1996 Date: May 24, 1996
------------------------------ --------------------------------
Accepted CONSULTANT's Key Employees by:
/s/ JOHN K. WILLOUGHBY
--------------------------------------
John K. Willoughby
May 24, 1996
--------------------------------------
Date
/s/ JO ANNE GARDNER WILLOUGHBY
--------------------------------------
Jo Anne Gardner Willoughby
May 24, 1996
--------------------------------------
Date
-7-