CONSULTING AGREEMENT
Exhibit 10.2
Effective August 1, 2010, Xxxxxxx Xxxxxx (“Consultant”) and Aruba Networks, Inc. (“Company”)
agree as follows:
1. Services and Payment. Consultant agrees to undertake and complete the Services
(as defined in Exhibit A) in accordance with and on the schedule
specified in Exhibit A. As
the only consideration due Consultant regarding the subject matter of this Agreement, Company will
pay Consultant in accordance with Exhibit A.
2. Ownership; Rights; Proprietary Information; Publicity.
a. Company shall own all right, title and interest (including patent rights, copyrights, trade
secret rights, mask work rights, trademark rights, sui generis database rights and all other
intellectual and industrial property rights of any sort throughout the world) relating to any and
all inventions (whether or not patentable), works of authorship, mask works, designations, designs,
know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by
Consultant that relate to the subject matter of, or arise out of, the Services or any Proprietary
Information (as defined below) (collectively, “Inventions”) and Consultant will promptly disclose
and provide all Inventions to Company. Consultant hereby makes all assignments necessary to
accomplish the foregoing ownership. Consultant shall further assist Company, at Company’s
expense, to further evidence, record and perfect such assignments, and to perfect, obtain,
maintain, enforce, and defend any rights assigned. Consultant hereby irrevocably designates and
appoints Company as its agents and attorneys-in-fact, coupled with an interest, to act for and in
Consultant’s behalf to execute and file any document and to do all other lawfully permitted acts to
further the foregoing with the same legal force and effect as if executed by Consultant.
b. Consultant agrees that all Inventions and all other business, technical and financial
information (including, without limitation, the identity of and information relating to customers
or employees) Consultant develops, learns or obtains that relate to Company or the business or
demonstrably anticipated business of Company or that are received by or for Company in confidence,
constitute “Proprietary Information.” Consultant will hold in confidence and not disclose or,
except in performing the Services, use any Proprietary Information. However, Consultant shall not
be obligated under this paragraph with respect to information Consultant can document is or becomes
readily publicly available without restriction through no fault of Consultant. Upon termination
and as otherwise requested by Company, Consultant will promptly return to Company all items and
copies containing or embodying Proprietary Information, except that Consultant may keep its
personal copies of its compensation records and this Agreement. Consultant also recognizes and
agrees that Consultant has no expectation of privacy with respect to Company’s
telecommunications, networking or information processing systems (including, without limitation,
stored computer files, email messages and voice messages) and that Consultant’s activity, and any
files or messages, on or using any of those systems may be monitored at any time without notice.
c. As additional protection for Proprietary Information, Consultant agrees that during
the period over which it is to be providing Services (i) and for one year thereafter, Consultant
will not encourage or solicit any employee or consultant of Company to leave Company for any reason
and (ii) Consultant will not engage in any activity that is in any way competitive with the
business or demonstrably anticipated business of Company, and Consultant will not assist any other
person or organization in competing or in preparing to compete with any business or demonstrably
anticipated business of Company.
d. To the extent allowed by law, Section 2.a and any license to Company hereunder includes all
rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as
or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like. Furthermore,
Consultant agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or
not statutory) anywhere in the world and without any further compensation, Company may and is
hereby authorized to use Consultant’s name in connection with promotion of its business, products
and services and to allow others to do so. To the extent any of the foregoing is ineffective under
applicable law, Consultant hereby provides any and all ratifications and consents necessary to
accomplish the purposes of the foregoing to the extent possible. Consultant will confirm any such
ratifications and consents from time to time as requested by Company. If any other person provides
any Services (subject to Section 6 herein), Consultant will obtain the foregoing ratifications,
consents and authorizations from such person for Company’s exclusive benefit.
e. If any part of the Services or Inventions is based on, incorporates, or is an improvement
or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and
otherwise exploited without using or violating technology or intellectual property rights owned or
licensed by Consultant and not assigned hereunder, Consultant hereby grants Company and its
successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and
license to exploit and exercise all such technology and intellectual property rights in support of
Company’s exercise or exploitation of the Services, Inventions, other work performed hereunder,
or any assigned rights (including any modifications, improvements and derivatives of any of
them).
3. Warranty. Consultant warrants that: (i) the Services will be performed in a
professional and workmanlike manner and that none of such Services or any part of this Agreement is
or will be inconsistent with any obligation Consultant may have to others; (ii) all work under this
Agreement shall be Consultant’s original work and none of the Services or Inventions or any
development, use, production, distribution or exploitation thereof will infringe, misappropriate or
violate any intellectual property or other right of any person or entity (including, without
limitation, Consultant); and, (iii) Consultant has the full right to allow it to provide the
Company with the assignments and rights provided for herein.
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4. Termination. If either party materially breaches this Agreement, the other party
may terminate this Agreement upon five (5) days’ written notice unless the breach is cured within
the notice period. Company also may terminate this Agreement at any time, with or without cause,
upon ten (10) days’ written notice, but, if (and only if)
without cause, Company shall upon
termination pay Consultant all unpaid amounts due for Services completed prior to
termination. Sections 2 (subject to the limitations on Section 2.c stated therein)
through 8 of this Agreement and any remedies for breach of this Agreement shall survive any
termination or expiration. Company may communicate such obligations to any other (or potential)
client or employer of Consultant.
5. Relationship of the Parties; Independent Contractor; No Employee Benefits.
Notwithstanding any provision hereof, Consultant is an independent contractor and not an
employee, agent, partner or joint venturer of Company and shall not bind nor attempt to bind the
Company to any contract. Consultant shall accept any directions issued by the Company pertaining to
the goals to be attained and the results to be achieved but shall be solely responsible for the
manner and hours in which Services are performed under this Agreement. Consultant shall not be
eligible to participate in any of the Company’s employee benefit plans, fringe benefit programs,
stock plans, group insurance arrangements or similar programs. Company shall not provide
workers’ compensation, disability insurance, Social Security or unemployment
compensation coverage or any other statutory benefit to Consultant. Consultant shall comply at
Consultant’s expense with all applicable provisions of workers’ compensation laws,
unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal,
state and local income tax laws, and all other applicable federal,
state and local laws,
regulations and codes relating to terms and conditions of employment required to be fulfilled by
employers or independent contractors. Consultant agrees to indemnify Company from any and all
claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of
the foregoing or any breach of this Agreement or any other action or inaction of Consultant. If
Consultant is a corporation, it will ensure that its employees and agents are bound in writing to
Consultant’s obligations under this Agreement.
6. Assignment. This Agreement and the services contemplated hereunder are personal
to Consultant and Consultant shall not have the right or ability to assign, transfer, or
subcontract any obligations under this Agreement without the written consent of Company. Any
attempt to do so shall be void. Company may assign its rights and obligations under this
agreement in whole or part.
7. Notice. All notices under this Agreement shall be in writing, and shall be deemed
given when personally delivered, or three days after being sent by prepaid certified or registered
U.S. mail to the address of the party to be noticed as set forth herein or such other address as
such party last provided to the other by written notice.
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8. Miscellaneous. Any breach of Section 2 or 3 will cause irreparable harm to
Company for which damages would not be a adequate remedy, and, therefore, Company will be entitled
to injunctive relief with respect thereto in addition to any other remedies. The failure of either
party to enforce its rights under this Agreement at any time for any period shall not be construed
as a waiver of such rights. No changes or modifications or waivers to this Agreement will be
effective unless in writing and signed by both parties. In the event that any provision of this
Agreement shall be determined to be illegal or unenforceable, that provision will be limited or
eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable. This Agreement shall be governed by and construed in accordance
with the laws of the State of California without regard to the conflicts of laws
provisions thereof. In any action or proceeding to enforce rights under this Agreement,
the prevailing party will be entitled to recover costs and attorneys fees. Headings herein are for
convenience of reference only and shall in no way affect interpretation of the Agreement.
| Xxxxxxx Xxxxxx | Aruba Networks, Inc. | |||||||||
| (Consultant) | ||||||||||
By
|
/s/ Xxxxxxx Xxxxxx
|
By | /s/ Xxxxx Xxxx
|
|||||||
Name
|
XXXXXXX XXXXXX | Name | Xxxxx Xxxx | |||||||
Title
|
CONSULTANT | Title | VP, General Counsel | |||||||
| Address 0 Xxxxx xx Xxxxxxx Xxxx XXXXXX Xxxxx and Zip Code 00000 XXXXXX Telephone x00 000 00 00 00 Email XXXXXXX@XXX.XXX |
||||||||||
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EXHIBIT A to Xxxxxxx Xxxxxx Consulting Agreement
SERVICES
If the services are for a fixed term, state it here: two years, from August 1, 2010 until July 31,
2012.
If no fixed term is stated the term will continue until the services are completed or the Agreement
is terminated under section 4, whichever occurs first.
Describe services:
Sales and marketing support
FEES (APPLICABLE ONLY WHERE CHECKED AND COMPLETED)
AT THE NEXT BOARD MEETING FOLLOWING THE DATE OF THIS AGREEMENT, COMPANY WILL RECOMMEND TO THE BOARD
THAT IT APPROVE A GRANT OF RESTRICTED STOCK UNITS TO CONSULTANT WITH A TOTAL DOLLAR VALUE OF
$110,000 USD, PURSUANT TO THE COMPANY’S EQUITY AWARD GRANT POLICY (THE “POLICY”). SUCH GRANT SHALL
BE PAYABLE AND FULLY VEST ON THE DATE OF GRANT AS DETERMINED PURSUANT TO THE POLICY.
IF COMPANY HAS NOT TERMINATED THIS AGREEMENT PRIOR TO JULY 31, 2011, COMPANY WILL RECOMMEND TO THE
BOARD THAT IT APPROVE A SECOND GRANT OF RESTRICTED STOCK UNITS TO CONSULTANT WITH A TOTAL DOLLAR
VALUE OF $110,000 USD, PURSUANT TO THE POLICY; PROVIDED, HOWEVER, THAT SUCH SECOND GRANT SHALL NOT
OCCUR PRIOR TO THE DATE FOLLOWING THE ANNIVERSARY DATE OF THE FIRST GRANT AND SHALL BE PAYABLE AND
FULLY VEST ON THE DATE OF GRANT.
Any increase in fees must be discussed with and approved in writing in advance by the Company.
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