Exhibit 10.01
CROSSROADS SYSTEMS, INC.
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of the
15th day of February, 2005 by and. between Crossroads Systems, Inc. (the
"Company"), and Xxxxxxx X. Xxxxxx ("Consultant"). The Company desires to retain
Consultant as an. independent contractor to perform consulting services for the
Company and Consultant is willing to perform such services, on terms set forth
more fully below. In consideration of the mutual promises contained herein, the
parties agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services ("Services")
described in Exhibit A, attached hereto.
(b) The Company agrees to pay Consultant the compensation set forth in
Exhibit A for the performance of the Services.
2. CONFIDENTIALITY
(a) Definition. "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed by the Company
either directly or indirectly in writing, orally or by drawings or inspection of
parts or equipment.
(b) Non-Use and Non-Disclosure. Consultant will not, during or subsequent
to the term of this Agreement, use the Company's Confidential Information for
any purpose whatsoever other than the performance of the Services on behalf of
the Company or disclose the Company's Confidential Information to any third
party. It is understood that said Confidential Information shall remain the sole
property of the Company. Consultant further agrees to take all reasonable
precautions to prevent any unauthorized disclosure of such Confidential
Information including, but not limited to, having each employee of Consultant,
if any, with access to any Confidential Information, execute a nondisclosure
agreement containing provisions in the Company's favor identical to Sections 2,
3 and 4 of this Agreement. Confidential Information does not include information
which is known to Consultant at the time of disclosure to Consultant by the
Company as evidenced by written records of Consultant, has become publicly known
and made generally available through no wrongful act of Consultant, or has been
rightfully received by Consultant from a third party who is authorized to make
such disclosure. Without the Company's prior written approval, Consultant will
not directly or indirectly disclose to anyone the existence of this Agreement or
the fact that Consultant has this arrangement with the Company.
(c) Former Employer's Confidential Information. Consultant agrees that
Consultant will not, during the term of this Agreement, improperly use or
disclose any proprietary information or trade secrets of any former or current
employer or other person or entity with which Consultant has an agreement or
duty to keep in confidence information acquired by Consultant, if any, and that
Consultant will not bring onto the premises of the Company any unpublished
document or proprietary information belonging to such employer, person or entity
unless consented to in writing by such employer, person or entity. Consultant
will indemnify the Company and hold it harmless from and against all claims,
liabilities, damages and expenses, including reasonable attorneys' fees and
costs of suit, arising out of or in connection with any violation or claimed
violation pf a third party's rights resulting in whole or in part from the
Company's use of the work product of Consultant under this Agreement.
(d) Third party Confidential Information. Consultant recognizes that the
Company has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. Consultant agrees that Consultant owes the Company and
such third parties, during the term of this Agreement and thereafter, a duty to
hold all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out the Services for the Company consistent
with the Company's agreement with such third party.
(e) Return of Materials. Upon the termination of this Agreement, or upon
Company's earlier request, Consultant will deliver to the Company all of the
Company's property or Confidential Information that Consultant may have in
Consultant's possession or control.
3. OWNERSHIP
(a) Assignment. Consultant agrees that all copyrightable material, notes,
records, drawings, designs, inventions, improvements, developments, discoveries
and trade secrets (collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others, during the period of this
Agreement which relate in any manner to the business of the Company that
Consultant may be directed to undertake, investigate or experiment with, or
which Consultant may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder, are the sole property of the Company. Consultant further agrees to
assign (or cause to be assigned) and does hereby assign fully to the Company all
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Consultant further acknowledges that all
Inventions which constitute original works of authorship (solely or jointly with
others) within the scope of and during the term hereof which qualify for
protection by copyright are "works made for hire" as that term is defined in the
United States Copyright Act.
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(b) Further Assurances. Consultant agrees to assist Company, or its
designee, at the Company's expense, in every proper way to secure the Company's
rights in the Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns and nominees the sole and exclusive right,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to be executed,
when it is in Consultant's power to do so, any such instrument or papers shall
continue after the termination of this Agreement.
(c) Pre-Existing Materials. Consultant agrees that if in the course of
performing the Services, Consultant incorporates into any Invention developed
hereunder any invention, improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which Consultant has an
interest, (i) Consultant shall inform Company, in writing before incorporating
such invention, improvement, development, concept, discovery or other
proprietary information into any Invention; and (ii) the Company is hereby
granted and shall have a nonexclusive, royalty-free, perpetual, irrevocable,
worldwide license to make, have made, modify, use and sell such item as part of
or in connection with such Invention. Consultant shall not incorporate any
invention, improvement, development, concept, discovery or other proprietary
information owned by any third party into any Invention without Company's prior
written permission.
(d) Attorney in Fact. Consultant agrees that if the Company is unable
because of Consultant's unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant's signature to apply
for or to pursue any application for any United States or foreign patents or
mask work or copyright registrations covering the Inventions assigned to the
Company above, then Consultant hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as Consultant's agent and
attorney in fact, to act for and in Consultant's behalf and stead to execute and
file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed by
Consultant.
4. CONFLICTING OBLIGATIONS
Consultant certifies that Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this Agreement, or
that would preclude Consultant from complying with the provisions hereof, and
further certifies that Consultant will not enter into any such conflicting
agreement during the term of this Agreement.
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5. TERM AND TERMINATION
(a) Term. This Agreement will commence on February 15, 2005 and will
continue until the earlier of (i) final completion of the Services or (ii)
termination as provided below.
(b) Termination. The Company may terminate this Agreement upon giving two
weeks prior written notice thereof to Consultant. Any such notice shall be
addressed to Consultant at the address shown below or such other address as
either party may notify the other of and shall be deemed given upon delivery if
personally delivered, or forty-eight (48) hours after deposited in the United
States mail, postage prepaid, registered or certified mail, return receipt
requested. The Company may terminate this Agreement immediately and without
prior notice if Consultant refuses to or is unable to perform the Services or is
in breach of any material provision of this Agreement or if the Company provides
payment for 20 hours of work, the compensation Consultant would have been paid
had she worked during the two week period.
(c) Survival. Upon such termination all rights and duties of the parties
toward each other shall cease except:
(i) that the Company shall be obliged to pay, within thirty (30) days
of the effective date of termination, all amounts owing to Consultant for
Services completed and accepted by the Company prior to the termination date and
related expenses, if any, in accordance with the provisions of Section 1
(Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and 7 (Independent
Contractors) shall survive termination of this Agreement.
6. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may be
assigned or transferred by Consultant without the express written consent of the
Company.
7. INDEPENDENT CONTRACTOR
It is the express intention of the parties that Consultant is an
independent contractor. Nothing in this Agreement shall in any way be construed
to constitute Consultant as an agent, employee or representative of the Company,
but Consultant shall perform the Services hereunder as an independent
contractor. Consultant agrees to furnish (or reimburse the Company for) all
tools and materials necessary to accomplish this contract, and shall incur all
expenses associated with performance, except as expressly provided on Exhibit A
of this Agreement. Consultant acknowledges and agrees that Consultant is
obligated to report as income all compensation received by Consultant pursuant
to this Agreement, and Consultant agrees to and acknowledges the obligation to
pay all self-employment and other taxes thereon. Consultant further agrees to
indemnify and hold harmless the Company and its directors, officers, and
employees from and against all taxes, losses, damages, liabilities, costs and
expenses, including attorneys' fees and other legal expenses, arising directly
or indirectly from (i) any negligent, reckless or intentionally wrongful act of
Consultant or Consultant's assistants, employees or agents, (ii) a determination
by a court or agency that the Consultant is not an independent contractor, or
(iii) any breach by the Consultant or Consultant's assistants, employees or
agents of any of the covenants contained in this Agreement.
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8. BENEFITS
Consultant acknowledges and agrees and it is the intent of the parties
hereto that Consultant receive no Company-sponsored benefits from the Company
either as a Consultant or employee. Such benefits include, but are not limited
to, paid vacation, sick leave, medical insurance, and 401(k) participation. If
Consultant is reclassified by a state or federal agency or court as an employee,
Consultant will become a reclassified employee and will receive no benefits
except those mandated by state or federal law, even if by the terms of the
Company's benefit plans in effect at the time of such reclassification
Consultant would otherwise be eligible for such benefits.
9. OTHER AGREEMENTS AND POLICIES
Prior to performing any Services hereunder, Consultant shall execute the
Company's form of Indemnification Agreement for its officers and directors.
Prior to performing any Services hereunder, Consultant shall review and agree to
comply with the Company's Policy Against Xxxxxxx Xxxxxxx.
10. GOVERNING LAW
This Agreement shall be governed by the internal substantive laws, but not
the choice of law rules, of the State of Texas.
11. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes any
prior agreements between them, whether written or oral, with respect to the
subject matter hereof. No waiver, alteration, or modification of any of the
provisions of this Agreement shall be binding unless in writing and signed by
duly authorized representatives of the parties hereto.
12. ATTORNEYS' FEES
In any court action at law or equity which is brought by one of the parties
to enforce or interpret the provisions of this Agreement, the prevailing party
will be entitled to reasonable attorneys' fees, in addition to any other relief
to which that party may be entitled.
13. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement, or
any terms thereof, shall not affect the validity of this Agreement as a whole,
which shall at all times remain in full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CROSSROADS SYSTEMS, INC. XXXXXXX X. XXXXXX
By: By:
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Print Name: Print Name:
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Title: Title:
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Address: Address:
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EXHIBIT A
SERVICES AND COMPENSATION
1. Contact: Consultant's principal Company contact:
Name: Xxx Xxxx
Title: Chief Executive Officer
2. Services. Consultant will render to the Company the following Services:
Overseeing the financial function of the Company, including financial plans
and policies, accounting practices and procedures, and the Company's
relationship with the financial community, as well as other activities that
the Company may prescribe. Services must be provided during direct meetings
with the Company's employees (telephonic or face-to-face), except for
authorized offsite work requested by the Company and accepted by the
Consultant and accompanied by a specified time estimate.
3. Compensation.
(a) The Company shall pay Consultant $ 150 per hour.
(b) Only if pre-approved by the Company in writing, the Company shall
reimburse Consultant for all reasonable travel expenses for which an
invoice is submitted and which are incurred by Consultant in
performing Services pursuant to this Agreement.
(c) Consultant shall submit all statements for services and expenses in a
form prescribed by the Company every two weeks and such statement
shall be approved by the contact person listed above or other
designated agent of the Company.
