Exhibit 10.32
- 1 -
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into on February
16, 2002 by and between Xxxxx X. Xxxxxxxx (the "Consultant") and Visual
Networks, Inc. (the "Company").
RECITALS
WHEREAS, Consultant has agreed to perform consulting work for the Company
in connection with the activities specified herein;
NOW, THEREFORE, THE PARTIES hereby agree as follows:
1. Consultant's Services. Consultant shall be available and shall provide
to the Company professional services as set forth on Exhibit A hereto. Such
services shall be for a period of two months unless the parties hereto agree in
writing to extend such period.
2. Consideration.
a. Rate. In consideration of the services to be performed by Consultant
under this Agreement, the Company will pay Consultant at the rate of $18,750 per
month payable monthly for a period of two months.
b. Expenses. Additionally, the Company will reimburse Consultant for the
reasonable, direct expenses incurred specifically in connection with consulting
work performed for the Company, provided that the Consultant receives advance
written approval from Xxxxx Xxxx for individual expense items for amounts in
excess of $1,000. Consultant shall submit written documentation and receipts
itemizing the dates on which expenses are incurred. The Company shall pay
Consultant the amounts due pursuant to submitted reports within fifteen (15)
days after a report is received by the Company.
3. Independent Contractor.
a. No Employment Relationship. Nothing contained herein or any document
executed in connection herewith shall be construed to create an
employer-employee, partnership or joint venture relationship between the Company
and Consultant. Consultant is an independent contractor and not an employee of
the Company or any of its subsidiaries or affiliates. The consideration set
forth in Section 2 of this Agreement shall be the sole consideration due
Consultant for the services rendered hereunder unless the parties agree in
writing to extend the consultancy period. It is understood that the Company will
not withhold any amounts for payment of taxes from the compensation of
Consultant hereunder. Consultant will not represent to be, or hold himself out
as, an employee of the Company, and Consultant acknowledges that he shall not
have the right or entitlement to any of the pension, retirement or other benefit
programs now or hereafter available to the Company's regular employees. Any and
all sums subject to deductions, if any, required to be withheld and/or paid
under any applicable state, federal or local laws shall be Consultant's sole
responsibility and Consultant shall indemnify and hold Company harmless from any
and all damages, claims and expenses arising out of or resulting from any claims
asserted by any taxing authority as a result of or in connection with
Consultant's failure to make payments as a independent contractor.
Consultant agrees and acknowledges that, as an independent contractor, he
is not entitled to participate in any of the benefit plans or programs that the
Company now or hereafter maintains for its employees.
b. Time Commitment. Consistent with the parties' intent that the
relationship created by this Agreement be that of service recipient and
independent contractor, Consultant shall not be required to devote any
particular hours during the term of this Agreement; however, Consultant shall
use all reasonable efforts to meet any project or task deadlines or milestones.
c. Non-Exclusivity. Consistent with the parties' intent that the
relationship created by this Agreement be that of service recipient and
independent contractor, Consultant shall have the right to perform services for
others during the duration of this agreement, provided that such performance is
not rendered for a competitor. For the purposes of this provision, a
"competitor" is defined as any company, partnership, business organization or
the like that engages in the sale of, service of, or production of product(s)
that are substantially the same or similar to those of, or offered by, Company.
4. Term. This Agreement shall commence on the date hereof and shall
terminate on the expiration of the consultancy period or at the election of the
Company, with or without cause, upon three days prior written notice to
Consultant or by the Consultant, with or without cause, upon three days prior
written notice to the Company.
5. Competent Work. All work hereunder will be performed in a professional
fashion.
6. Representations and Warranties. Consultant will make no representations,
warranties, or commitments binding the Company without the Company's prior
consent.
7. Confidential Information and Works for Hire.
a. Confidentiality. Consultant acknowledges and agrees that in the course
of the performance of services pursuant to this Agreement, Consultant may be
given access to, or come into possession of, confidential information of the
Company, which information contains trade secrets, proprietary data or other
confidential information. Consultant further agrees that Company is entitled to
exclusive protection against use by Consultant of any and all information
relative to the activities of Company, including, but not limited to, identity
of customers, contracts, technical and production know-how, developments,
formulae, devices, inventions, processes, administrative procedures or financial
information. Consultant acknowledges and agrees that she will not use, duplicate
or divulge to others any such trade secrets, proprietary data, or confidential
information of the Company except in connection with the performance of services
under this Agreement, so long as the secret or confidential nature of such trade
secrets, proprietary data, or confidential information of the Company is
preserved by Company; it being understood that it shall not be deemed a breach
of this Agreement if by means other than Consultant's deliberate or inadvertent
disclosure, trade secrets, proprietary data, or confidential information of the
Company become well known or easily accessible to the public or competitors of
Company or if Consultant is compelled by judicial or administrative proceedings
to disclose trade secrets, proprietary data, or confidential information of the
Company and Consultant has afforded the Company the opportunity to obtain
assurance that compelled disclosure will be kept confidential. The obligations
of this Section shall survive the termination of this Agreement.
b. Works for Hire. Consultant acknowledges and agrees that as part of his
engagement with the Company he is expected to make new contributions of value to
the Company and agrees to promptly disclose to the Company any and all ideas,
discoveries, works of authorship, writings, computer software programs,
know-how, processes, formulas, improvements or revisions (collectively,
"Works"), whether copyrightable or not copyrightable, patentable or
unpatentable, which he may make, devise, conceive, create, design, invent,
develop or discover, either solely or jointly with another or others, during his
engagement by and at the request of the Company. Any and all of the foregoing
shall belong exclusively to the Company and be deemed to be "Works for Hire,"
and the Company shall be deemed the author or creator thereof.
c. Assignment of Works. Consultant shall assign to the Company, and hereby
does so assign, all Works disclosed, or required to be disclosed, in accordance
with this Section and assigns the right to obtain patents or copyright
registrations on any and all such Works in any or all countries in his name or
otherwise. Upon the request of the Company, whether or not made during the
period of his engagement with the Company, Consultant shall, without further
compensation, assist the Company in any way necessary, including, but not
limited to executing documents, to accomplish the following, in any or all
countries, with respect to any and all Works disclosed, or required to be
disclosed, in accordance with this Section: (i) to perfect in the Company all
right, title and interest in and to the Work; (ii) to file for and/or obtain a
patent or patents or a copyright registration or copyright registrations on the
Work; and (iii) to protect and enforce the Company's rights in the Work.
8. Company Property. Consultant agrees and covenants that Consultant shall
not remove or copy any computer programs, files or information contained in
files, or otherwise pertaining to the business of Company without the express
written consent of Company, who in all events shall be considered to be the
owner and possessor of all such programs, files, documents, and information.
Consultant covenants and agrees that Consultant shall in no way utilize any such
information in Consultant's possession for the gain or advantage of Consultant
and/or to the detriment of Company. Upon a termination of this Agreement, or at
such earlier date as Company may request, Consultant shall deliver forthwith to
Company all such programs, files, memoranda, notes, records, reports and other
documents (including all copies thereof) which are then in Consultant's
possession or control.
9. Miscellaneous.
a. Binding Effect, Assignment. This Agreement shall be binding upon and
shall insure to the benefit of Consultant and the Company and to the Company's
successors and assigns. Nothing in this Agreement shall be construed to permit
the assignment by Consultant of any of his rights or obligations hereunder, and
such assignment is expressly prohibited without the prior written consent of the
Company.
b. Amendment and Non-Waiver: No amendment or modification of this Agreement
shall be valid unless in writing and signed by the parties. No waiver of any of
the provisions of this Agreement shall be valid unless the same is in writing
and signed by the party against whom it is sought to be enforced. Any waiver of
any breach of this Agreement shall not be considered to be a continuing waiver
or consent to any subsequent breach on the part of either party.
c. Severability: All provisions of this Agreement are severable, and if any
of them is determined to be invalid or unenforceable for any reason, the
remaining provisions and portions of this Agreement shall be unaffected thereby
and shall remain in full force to the fullest extent permitted by law.
d. Governing Law: This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Maryland, without giving
effect to the principles of conflicts of law thereof.
e. Headings: The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any of the provisions of this Agreement.
f. Entire Agreement: This Agreement contains the entire understanding of
Consultant and the Company with respect to the subject matter hereof and
supersedes any and all prior understandings, written or oral, provided however,
that the Confidentiality, Non-Disclosure and Non-Solicitation Agreement between
the Company and Consultant, dated as of June 27, 1997, shall remain in full
force and effect.
WHEREFORE, the parties have executed this Agreement as of the date
written above.
VISUAL NETWORKS, INC.
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: President and Chief Executive Officer
CONSULTANT:
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
EXHIBIT A
Consultant shall provide to the Company, as requested by the President and
Chief Executive Officer, consulting services related to the Company's cost of
goods reduction effort. His services are required for a period of two months
commencing February 16, 2002 and ending April 15, 2002.
