AVID TECHNOLOGY, INC.
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CONSULTING AGREEMENT - INDIVIDUAL
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This Agreement is made this 25th day of July, 2005 by and between Avid
Technology, Inc., a Delaware corporation with principal offices at Avid
Technology Park, Xxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("AVID") and Xxx
Xxxxxxxx, an individual residing at the address set forth on the signature page
hereto ("CONSULTANT").
1. Position and Responsibilities:
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1.1 Consultant agrees to serve as a consultant for Avid and perform the
services set forth in each Avid Consulting Work Order attached to this
Agreement ("Work Order"). Avid and Consultant may have multiple Work
Orders associated with this Agreement.
1.2 The parties agree that Avid shall have approval of the activities set
forth in each Work Order, including any acceptance criteria, final
approval, and deadlines. Consultant agrees to abide by the
specifications and schedule as set forth in each Work Order. Consultant
agrees to abide by Avid standard employee guidelines, including, but not
limited to, Avid's security policies.
2. Term and Termination:
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2.1 The initial term of this Agreement shall begin on the date of the
closing of the acquisition of Pinnacle Systems, Inc. by Avid and
continue through December 31, 2005.
2.2 Avid may terminate this Agreement at any time without cause upon
fourteen (14) calendar days prior written notice to Consultant,
provided, that if Avid terminates this Agreement prior to October 31,
2005, Consultant shall be entitled to be paid through October 31, 2005.
Such payment shall constitute full settlement of any and all claims of
the Consultant of every description against Avid. Notwithstanding the
foregoing, Avid may terminate this Agreement effective immediately for
"cause", which shall mean misconduct, including but not limited to (1)
participation in a fraud or act of dishonesty against Avid; (2) willful
breach of any Avid policy; (3) intentional damage to Avid's property;
(4) material breach of this Agreement or (5) failure by you to
substantially perform your duties for Avid (other than any such failure
resulting from your incapacity due to physical or mental illness).
3. Compensation:
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3.1 As sole and complete consideration for the services provided under any
Work Order, Avid shall pay Consultant the amounts set forth in such Work
Order and all amounts shall be due and payable as provided in such Work
Order.
4. Confidential Information:
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4.1 Consultant agrees to keep confidential and not disclose or make any use
of, either during or subsequent to this Agreement, any Inventions (as
defined in Section 5.1), trade secrets, confidential information,
knowledge, data or other information of Avid relating to products,
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processes, know-how, designs, formulas, test data, customer lists,
business plans, marketing plans and strategies, or other subject matter
pertaining to any business of Avid or any of its affiliates, customers,
or suppliers, or of any other third parties who may have disclosed or
entrusted such information to Avid, which Consultant may learn, obtain,
produce, or otherwise acquire during the course of this consulting
relationship (collectively, "Confidential Information"), except as
herein provided. The parties agree that no information shall be subject
to the Confidential Information provisions of this Agreement if
Consultant can prove, using tangible evidence, that subsequent to the
receipt thereof (i) it has been published by Avid or disclosed by Avid
to others without restriction, (ii) it has been lawfully obtained by
Consultant from another source, provided such other source did not
receive it due to a breach of this Agreement or any other agreement,
(iii) it otherwise has come within the public knowledge or become
generally known to the public through no breach of any agreement; or
(iv) it has been independently developed by the Consultant without
reference to or use of the Confidential Information.
4.3 In the event this consulting arrangement with Avid terminates for any
reason whatsoever, or upon Avid's request, Consultant agrees to promptly
surrender and deliver to Avid all Confidential Information, which
Consultant may have obtained from Avid or produced for Avid during the
course of the consulting arrangement, and further Consultant agrees not
to take with him/her any description containing or pertaining to any
Confidential Information, which Consultant may obtain or produce during
the course of this consulting arrangement.
5. Inventions:
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5.1 For the purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or improvements
in any of the foregoing or other ideas, whether or not patentable and
whether or not reduced to practice, made or conceived by Consultant
(whether solely or jointly with others) during the period of this
Agreement, which relate specifically to Avid's business, work, or
research and development, or to any work performed by Consultant for or
on behalf of Avid. Consultant agrees to keep and maintain adequate and
current written records of all Inventions made by Consultant (in the
form of notes, sketches, drawings and other records as may be specified
by Avid), which records shall be available to and remain the sole
property of Avid at all times.
5.2 Consultant hereby acknowledges and agrees that Avid is the exclusive
owner of all Inventions. In order to protect Avid's rights to such
Inventions, Consultant hereby irrevocably assigns and agrees to assign
all of his/her right, title and interest in and to all Inventions to
Avid. Consultant acknowledges and agrees that all copyrightable
Inventions shall be "works made for hire" as that term is defined in the
United States Copyright Act (17 U.S.C., Section 101), and shall be
exclusively owned by Avid. Consultant agrees to promptly disclose any
and all Inventions to Avid in order to permit Avid to enforce its
proprietary rights to any such Inventions in accordance with this
Agreement.
5.3 Any discovery, process, design, technology, device, or improvement in
any of the foregoing or other ideas, whether or not patentable and
whether or not reduced to practice, made or conceived by Consultant
(whether solely or jointly with others) which Consultant develops
entirely on his/her own time not using any of Avid's equipment,
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supplies, facilities, or trade secret information ("Personal Invention")
is excluded from this Agreement provided such Personal Invention: (a)
does not relate to the actual or demonstrably anticipated business,
research and development of Avid, and (b) does not result, directly or
indirectly, from any work performed by Consultant for Avid.
5.4 Upon request, Consultant agrees to assist Avid or its nominee (at Avid's
expense) in every reasonable way, at any time, to obtain for Avid's
exclusive benefit, patents and copyrights for Inventions in any and all
countries. Such patents and copyrights shall be and remain the sole and
exclusive property of Avid or its nominee. Consultant agrees to perform
such lawful acts as Avid deems necessary to allow it to exercise all
right, title and interest in and to such patents and copyrights.
Further, Consultant agrees to execute, acknowledge and deliver to Avid
or its nominee upon request and at Avid's expense all documents,
including assignments of title, patent or copyright applications,
assignments of such applications, assignments of patents or copyrights
upon issuance, as Avid may determine necessary or desirable to protect
Avid's or its nominee's interest in Inventions, and/or to use in
obtaining patents or copyrights in any and all countries and to vest
title thereto in Avid or its nominee to any of the foregoing.
5.5 Consultant acknowledges that Avid from time to time may have agreements
with other persons or with the U.S. Government or agencies thereof,
which impose obligations or restrictions on Avid regarding Inventions
made during the course of work thereunder or regarding the confidential
nature of such work. Consultant agrees to be bound by all such
obligations and restrictions to the extent that they are disclosed to
Consultant and further to take all action necessary to discharge Avid's
obligations thereunder.
6. No Conflicting Agreements; Other Activities during Employment:
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6.1 Consultant represents, warrants and covenants that his/her obligations
to Avid will not conflict with, be constrained by, or constitute a
breach of any prior, current or future consulting or other agreements,
whether written or oral. Consultant further represents, warrants and
covenants that he/she will neither disclose to Avid, nor induce Avid to
use, any confidential or proprietary information or material belonging
to any third party, in his/her performance of this Agreement.
6.2 Consultant agrees to devote his/her efforts to providing the services
specified in any Work Order. Consultant agrees not to take on outside
duties that would conflict with, or hinder, his/her ability to perform
under this Agreement. If Consultant currently has any outside employment
or directorships, Consultant shall list them in Exhibit A attached
hereto and keep such Exhibit up to date throughout the term of this
Agreement as necessary. If no Exhibit A is attached, then Consultant
represents that he/she has no such outside employment or directorships.
7. License to Consultant Materials: To the extent that Consultant
incorporates any pre-existing Consultant technology or intellectual
property into the work performed or products delivered by Consultant to
Avid, Consultant hereby grants Avid a worldwide, non-exclusive,
transferable, perpetual, fully paid-up and royalty free license to use
such Consultant technology or intellectual property as embodied in any
work performed or products delivered to the extent necessary for Avid to
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license, market, distribute, sell, and otherwise make full use of the
work performed or products delivered alone or in combination with other
technology as part of Avid's business.
8. Post Consulting Activities: In consideration of Avid's agreement to make
the payments offered hereunder, Consultant agrees not to, at any time
during the one-year period following the earlier of (a) termination of
this Agreement or (b) December 31, 2005, either directly or indirectly,
solicit or recruit (a) any employee of Avid, including any Avid
subsidiary, to leave his or her employment with Avid or (b) any Avid
client to terminate or reduce their business relationship with Avid.
Consultant agrees to make the provisions of this Section 8 known to each
of employers, and to each organization to which Consultant deliver
services, through such one year period.
9. Exclusion Of Damages: IN NO EVENT SHALL AVID BE LIABLE TO CONSULTANT FOR
ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOST PROFIT
DAMAGES, ARISING UNDER THIS AGREEMENT OR CONSULTANT'S WORK FOR AVID,
REGARDLESS OF WHETHER AVID HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES.
10. General:
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10.1 Neither this Agreement nor any rights or benefits hereunder may be
assigned by Consultant and any attempt to do so shall be null and void.
10.2 Consultant and Avid agree that if any provision of this Agreement is
held to be invalid, illegal, or unenforceable, for any reason, such
provision will be revised to the extent necessary to make it enforceable
and this revision will not affect the other provisions of this
Agreement.
10.3 Sections 4, 5, 7, 8, 9 and 10 of this Agreement shall survive the
expiration or termination of this Agreement.
10.4 Notices under this Agreement shall be given by personal delivery,
courier service, or registered or certified mail, return receipt
requested. The date of personal delivery of such notice, or one (1)
business day after the date on which such notice is sent via courier
service, or three (3) business days after such notice is mailed, shall
be deemed to be the delivery date.
10.5 No waiver of any right under this Agreement shall be effective unless in
writing, signed by the party charged with such waiver, and no waiver of
any right arising from any breach or failure to perform shall be deemed
to be a waiver of any future such right or of any other right arising
under this Agreement.
10.6 This Agreement, including all Work Orders and exhibits, constitutes the
entire agreement of the parties with respect to the subject matter
hereof, and supersedes any previous oral or written communications,
representations, understandings, discussions, or agreements with Avid.
Any amendments or modification to this Agreement or waiver by Avid of
any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto.
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10.7 This Agreement shall be governed by and construed under the laws of the
Commonwealth of Massachusetts without regard to its rules governing the
conflict of laws that would cause the laws of any other jurisdiction to
apply.
10.8 Consultant is an independent contractor, not an employee or agent of
Avid. Consultant has no authority to represent or bind Avid in any way.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Agreement as of the day and year first above written.
AVID TECHNOLOGY, INC. CONSULTANT
By: /s/ Xxxxxxx Xxxxxxxx /s/ Xxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx Name: Xxx Xxxxxxxx
Title: COO, M-Audio Date: July 25, 2005
Date: July 21, 2005
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Exhibit A
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Employment and Directorships
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Consulting Work Order
Consultant: Xxx Xxxxxxxx
Scope of Work:
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Xx. Xxxxxxxx will perform services for Avid in the role of Integration Leader
from the date of the closing of the Pinnacle acquisition through December 31,
2005. Xx. Xxxxxxxx'x responsibilities will include:
o explaining historical policies and practices at Pinnacle and assisting
Avid with the integration of such policies and practices;
o assisting with employee retention and morale issues;
o serving as a communication channel and focal point for the Avid integration
team; and
o monitoring implementation of integration plans.
Specific Working Conditions
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Standard Working Hours: 8:30a.m. to 5:00p.m., Monday through Friday, except for
Avid recognized holidays.
Work Site Location:
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Avid Technology, Inc.
Avid Technology Park
Xxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Compensation:
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While performing these Consultant services, Consultant will earn compensation on
a monthly bases based on an annual rate of three hundred and thirty-six thousand
dollars ($336,000.00). Consultant shall have the option to have such
compensation (a) paid in monthly increments or (b) paid in a single lump-sum
payment following termination of this Agreement.
Loaned Equipment:
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Mountain View, CA and San Francisco Bay Area
AVID TECHNOLOGY, INC. XXX XXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxx /s/ Xxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx Date: July 25, 2005
Title: COO M-Audio
Date: July 21, 2005
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