EXHIBIT 10.09
CONSULTING AGREEMENT
(AMENDED AND RESTATED CONSULTING AGREEMENT DATED MARCH 1, 1998)
This Consulting Agreement (the "AGREEMENT") is effective 1st day of March,
1999 (the "EFFECTIVE DATE") by and between Silicon Image, Inc., a California
corporation with its principal place of business at 00000 Xxxx Xxxx,
Xxxxxxxxx, XX 00000 ("COMPANY") and Doeg-Xxxxx Xxxxx, with a principal place
of business at Seoul National University, Seoul, Korea ("CONSULTANT") (As
used herein, "PARTY" or "PARTIES" will refer to Company, Consultant or both,
as the case may be.)
RECITAL
Consultant desires to perform, and Company desires to have Consultant
perform, consulting services as an independent contractor to Company.
NOW, THEREFORE, the Parties agree as follows:
1. SERVICES
1.1. REQUEST. From time to time during the Period of Consultancy
(as defined below), Company may request Consultant to provide
certain services to Company. However, Company has no obligation to
request Consultant to perform any services, and if such a request
is made by Company, Consultant has no obligation to agree to
perform such services. Company's request will specify the services
to be performed and the specific results to be achieved (the
"SERVICES") by use of the form attached hereto as Exhibit A (the
"PROJECT DESCRIPTION").
1.2. PERFORMANCE. Upon agreement between Consultant and Company to the
Services, compensation and completion date terms of the Project
Description, Consultant will perform the Services. Consultant
agrees to use best efforts to perform the Services during the
Period of Consultancy.
1.3. PERIOD OF CONSULTANCY. The "Period of Consultancy" will
commence on the Effective Date and will terminate on OCTOBER 31,
2002, unless at that time Services are being performed pursuant to
a Project Description which specifies a later completion date, in
which case the Period of Consultancy will terminate on such
completion date.
1.4. PAYMENT. As sole compensation for the performance of the
Services, Company will pay Consultant a monthly fee stated in the
Project Description. Any expenses incurred by Consultant in
performing the Services will be the sole responsibility of
Consultant. Consultant will invoice Company on a monthly basis
for the number of hours spent in performing the Services. Company
will pay each such invoice no later
1
than thirty (30) days after its receipt. Consultant will receive
no further royalty or other remuneration on the production or
distribution of any products developed pursuant to this Consulting
Agreement AND THE LICENCE AGREEMENT DATED MARCH 15, 1995, AS
AMENDED.
2. RELATIONSHIP OF THE PARTIES.
2.1. INDEPENDENT CONTRACTOR. Consultant is an independent
contractor and is not an agent or employee of, and has no
authority to bind, Company by contract or otherwise. Consultant
will perform the Services under the general direction of Company,
but Consultant will determine, in Consultant's sole discretion,
the manner and means by which the Services are accomplished,
subject to the requirement that Consultant shall at all times
comply with applicable law. Company has no right or authority to
control the manner or means by which the Services are
accomplished.
2.2. EMPLOYMENT TAXES AND BENEFITS. Consultant will report as
self-employment income all compensation received by Consultant
pursuant to this Agreement. Consultant will indemnify Company and
hold it harmless from and against all claims, damages, losses and
expenses, including reasonable fees and expenses of attorneys and
other professionals, relating to any obligation imposed by law on
Company to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in
connection with compensation received by Consultant pursuant to
this Agreement. Consultant will not be entitled to receive any
vacation or illness payments, or to participate in any plans,
arrangements, or distributions by Company pertaining to any bonus,
stock option, profit sharing, insurance or similar benefits for
Company's employees.
2.3. LIABILITY INSURANCE. Consultant will maintain adequate insurance
to protect Consultant from the following: a) claims under worker's
compensation and state disability acts; b) claims for damages
because of bodily injury, sickness, disease or death which arise
out of any negligent act or omission of Consultant; and c) claims
for damages because of injury to or destruction of tangible or
intangible property, including loss of use resulting therefrom,
which arise out of any negligent act or omission of Consultant.
3. PROPERTY OF COMPANY
3.1. DEFINITION. For the purpose of this Agreement, "Designs and
Materials" shall mean all designs, discoveries, inventions,
products or product ideas, manufactured semiconductor devices,
test results, computer programs, procedures, improvements,
developments, drawings, notes,
2
documents, information and materials made, conceived or developed
by Consultant alone or with others which result from or relate to
the Services.
3.2. ASSIGNMENT OF OWNERSHIP. Consultant hereby irrevocably
transfers and assigns any and all of its rights, title, and
interest in and to Designs and Materials, including but not
limited to all copyrights, patent rights, trade secrets and
trademarks, to Company. Designs and Materials will be the sole
property of Company and Company will have the sole right to
determine the treatment of any Designs and Materials, including
the right to keep them as trade secrets, to file and execute
patent applications on them, to use and disclose them without
prior patent application, to file registrations for copyright or
trademark on them in its own name, or to follow any other
procedure that Company deems appropriate. Consultant agrees: a)
to disclose promptly in writing to Company all Designs and
Materials; b) to cooperate with and assist Company to apply for,
and to execute any applications and/or assignments reasonably
necessary to obtain, any patent, copyright, trademark or other
statutory protection for Designs and Materials in Company's name
as Company deems appropriate; and c) to otherwise treat all
Designs and Materials as "Confidential Information" as defined
below. These obligations to disclose, assist, execute and keep
confidential will survive any expiration or termination of this
Agreement.
3.3. MORAL RIGHTS WAIVER. "Moral Rights" means any right to claim
authorship of a work, any right to object to any distortion or
other modification of a work, and any similar right, existing
under the law of any country in the world, or under any treaty.
Consultant hereby irrevocably transfers and assigns to Company any
and all Moral Rights that Consultant may have in any Services,
Designs and Materials or Products. Consultant also hereby forever
waives and agrees never to assert against Company, its successors
or licensees any and all Moral Rights Consultant may have in any
Services, Designs and Materials or Products, even after expiration
or termination of the Period of Consultancy.
4. CONFIDENTIAL INFORMATION
Consultant acknowledges that Consultant will acquire information and
materials from Company and knowledge about the business, products,
programming techniques, experimental work, customers, clients and
suppliers of Company and that all such knowledge, information and
materials acquired, the existence, terms and conditions of this
Agreement, and the Designs and Materials, are and will be the trade
secrets and confidential and proprietary information of Company
(collectively "CONFIDENTIAL INFORMATION"). Confidential Information will
not include, however, any information which is or becomes part of the
public domain through no fault of Consultant or that Company regularly
gives to third parties
3
without restriction on use or disclosure. Consultant agrees to hold all
such Confidential Information in strict confidence, not to disclose it
to others or use it in any way, commercially or otherwise, except in
performing the Services, and not to allow any unauthorized person access
to it, either before or after expiration or termination of this
Agreement. Consultant further agrees to take all action reasonably
necessary and satisfactory to protect the confidentiality of the
Confidential Information including, without limitation, implementing and
enforcing operating procedures to minimize the possibility of
unauthorized use or copying of the Confidential Information.
5. INDEMNIFICATION BY CONSULTANT.
Consultant will indemnify Company and hold it harmless from and against
all claims, damages, losses and expenses, including court costs and
reasonable fees and expenses of attorneys, expert witnesses, and other
professionals, arising out of or resulting from, and, at Company's
option, Consultant will defend Company against:
a) any action by a third party against the Company that is based on
any claim that any Services performed under this Agreement, or
their results, infringe a patent, copyright or other proprietary
right or violate a trade secret; and
b) any action by a third party that is based on any negligent act or
omission or willful conduct of Consultant which results in i) any
bodily injury, sickness, disease or death ii) any injury or
destruction to tangible or intangible property (including computer
programs and data) or any loss of use resulting therefrom; or iii)
any violation of any statute, ordinance, or regulation.
6. TERMINATION AND EXPIRATION
6.1. TERMINATION.
6.1.1. BREACH. Either party may terminate this Agreement in the
event of a breach by the other party if such breach
continues uncured for a period of ten (10) days after
written notice.
6.1.2. AT WILL. Either party may terminate this Agreement at any
time, for any reason or no reason, by written notice to the
other party.
6.2. EXPIRATION. Unless terminated earlier, this Agreement will expire
at the end of the Period of Consultancy.
6.3. NO ELECTION OF REMEDIES. The election by Company to terminate
this Agreement in accordance with its terms shall not be deemed an
election of remedies, and all other remedies provided by this
Agreement or available at law or in equity shall survive any
termination.
7. EFFECT OF EXPIRATION OR TERMINATION.
4
Upon the expiration or termination of this Agreement for any reason:
a) each party will be released from all obligations to the other
arising after the date of expiration or termination, except that
expiration or termination of this Agreement will not relieve
Consultant of its obligations under Sections 2.2, 3, 4, 5, 8, 9c
and 10 nor will expiration or termination relieve Consultant or
Company from any liability arising from any breach of this
Agreement; and
b) Consultant will promptly notify Company of all Confidential
Information, including but not limited to the Designs and
Materials, in Consultant's possession and, at the expense of
Consultant and in accordance with Company's instruction, will
promptly deliver to Company all such Confidential Information.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT,
EVEN IF COMPANY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES.
9. COVENANTS
a) COMPETITIVE ACTIVITIES. Consultant will not during the term of
this Agreement, and for a period of one year after the termination
or expiration of this Agreement, directly or indirectly, in any
individual or representative capacity, engage or participate in or
provide services to any business that is competitive with the
types and kinds of business being conducted by Company.
b) PRE-EXISTING OBLIGATIONS. Consultant represents and warrants
that Consultant is not under any pre-existing obligations
inconsistent with the provisions of this Agreement.
c) SOLICITATION OF EMPLOYMENT. Because of the trade secret subject
matter of Company's business, Consultant agrees that it will not
solicit the services of any of the employees, consultants,
suppliers or customers of Company for the Period of Consultancy
and for six (6) months thereafter.
10. GENERAL
a) ASSIGNMENT. Consultant may not assign Consultant's rights or
delegate Consultant's duties under this Agreement either in whole
or in part without
5
the prior written consent of Company. Any attempted assignment
or delegation without such consent will be void.
b) EQUITABLE REMEDIES. Because the Services are personal and unique
and because Consultant will have access to Confidential
Information of Company, Company will have the right to enforce
this Agreement and any of its provisions by injunction, specific
performance or other equitable relief without prejudice to any
other rights and remedies that Company may have for a breach of
this Agreement.
c) ATTORNEYS' FEES. If any action is necessary to enforce the terms
of this Agreement, the substantially prevailing party will be
entitled to reasonable attorney's fees, costs and expenses in
addition to any other relief to which such prevailing party may be
entitled.
d) GOVERNING LAW; SEVERABILITY. This Agreement will be governed by
and construed in accordance with the laws of the State of
California excluding that body of law pertaining to conflict of
laws. If any provision of this Agreement is for any reason found
to be unenforceable, the remainder of this Agreement will continue
in full force and effect.
e) NOTICES. Any notices under this Agreement will be sent by
certified or registered mail, return receipt requested, to the
address specified below or such other address as the party
specifies in writing. Such notice will be effective upon its
mailing as specified.
f) COMPLETE UNDERSTANDING; MODIFICATIONS. This Agreement, together
with each version of Exhibit A executed by the parties,
constitutes the complete and exclusive understanding and agreement
of the parties and supersedes all prior understandings and
agreements, whether written or oral, with respect to the subject
matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing
and signed by the parties hereto.
EXHIBITS
Exhibit A Project Description
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
6
COMPANY CONSULTANT
By: /s/ Xxxxx X. Xxx /s/ Xxxx-Xxxxx Xxxxx
-------------------------------- ----------------------------------
Name: Xxxxx X. Xxx Xxxx-Xxxxx Xxxxx
------------------------------ ----------------------------------
Title: Chairman & CEO
----------------------------- ----------------------------------
Date: 6/24/99 6-24-99
------------------------------ ----------------------------------
7
EXHIBIT A
PROJECT DESCRIPTION
This Project Description is issued under and subject to all of the terms
and conditions of the Amended and Restated Consultant Agreement dated as
of March 1, 1999 by and between Company and Xxxx-Xxxxx Xxxxx.
1. Services to be performed and results to be achieved:
MANAGEMENT OF RESEARCH AND DEVELOPMENT ACTIVITIES OF GIGABIT
ETHERNET PHY CHIP, PLESIOCHROUOUS NETWORK CHIP, BIDIRECTIONAL
PANELLINK.
2. Period of Agreement:
Start Date: March 1, 1999.
End Date: October 31, 2002.
3. Monthly Consulting Rate
$8,000 per month for March 1, 1999 - December 31, 1999;
$9,000 per month for January 1, 2000 - December 31, 2000;
$10,000 per month for January 1, 2001 - December 31, 2001;
$11,000 per month for January 1, 2002 - October 31, 2002.
AGREED as of March 1, 1999.
COMPANY: CONSULTANT:
/s/ Xxxxx X. Xxx /s/ Xxxx-Xxxxx Xxxxx
--------------------- ------------------------------
By: Xxxxx X. Xxx DEONG-XXXXX XXXXX
Title: Chairman & CEO
8
