Exhibit 99.1
TECHCFO
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CONSULTING SERVICES AGREEMENT
Services performed by TechCFO, LLC are governed by the general terms and
conditions attached. Agreement to the terms and conditions is indicated by
specification of the required information below and signature of CFO and
authorized agents for both TechCFO, LLC, and Concurrent Computer Corporation.
(hereinafter, "Client").
Effective Date of this Agreement: March 8, 2007
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Termination Date of this Agreement: NA
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CLIENT EXECUTIVE CONTACT: TECHCFO CLIENT EXECUTIVE:
Name: T. Xxxx Xxxxx Name: Xxxxx X. Xxxxx
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Address: 0000 Xxxxx Xxxxx Xxxxxxx Address: 00 0xx Xxxxxx XX
Xxxxx 000 Xxxxx 000
Xxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
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Telephone: 000-000-0000 Telephone: 000-000-0000
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Fax: 000-000-0000 Cellphone 000-000-0000
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Email: Xxxx.xxxxx@xxxx.xxx Email: Xxxxx.xxxxx@xxxxxxx.xxx
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EXECUTED BY CLIENT: EXECUTED BY TECHCFO, LLC:
Signature: /s/ T. Xxxx Xxxxx Signature: /s/ Xxxxx X. Xxxxx
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Date: March 8, 2007 Date: March 8, 2007
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Printed Name: T. Xxxx Xxxxx Printed Name: Xxxxx X. Xxxxx
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Title: President & CEO Title: Partner
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EXECUTED BY CFO:
Signature: /s/ Xxxxx X. Xxxxx
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Date: March 8, 2007
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Printed Name: Xxxxx X. Xxxxx
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Confidential Page 1 January, 2007
TECHCFO
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TERMS AND CONDITIONS
1. CONSULTING SERVICES
TechCFO, LLC ("TechCFO") will provide Xxxxx Xxxxx as a full-time consultant
("CFO") to be Client's principal financial and accounting officer with
certification obligations for Client's SEC filings under the terms and
conditions of this Consulting Services Agreement (Agreement) and any
relevant proposal or work order. Any changes to the Agreement shall be
documented and approved by TechCFO and Client in writing and attached to
the Agreement.
2. STATUS OF PARTIES
TechCFO and its principals, employees, agents and subcontractors, including
CFO, (collectively, "Consultants") shall be, and at all times during this
Agreement shall remain, an independent contractor vis- -vis the Client.
Consultants shall not have any rights to the Client's usual employee fringe
benefits, including, but not limited to, worker's compensation benefits,
and in no event is any contract of agency or employment intended. As the
appointed principal financial and accounting officer, CFO shall have the
duties and responsibilities typical incumbent upon that position.
Throughout the term of engagement hereunder, the CFO shall devote his full
time and undivided attention during normal business hours to the business
and affairs of the Company, as appropriate to his responsibilities and
duties hereunder, but nothing in this Agreement shall preclude the CFO from
(i) engaging in charitable and community activities, (ii) managing his
personal investments or (iii) maintaining his current "partner" status with
TechCFO, provided such activities do not interfere with the performance of
his duties and responsibilities under this Agreement. Pursuant to this
Agreement, CFO specifically accepts the duties and responsibilities of
being the principal financial and accounting officer and executive officer
of Client.
3. INCIDENTAL EXPENSES
For any onsite services requested by Client, Client shall reimburse TechCFO
for actual, reasonable travel, lodging and out-of-pocket expenses incurred.
Travel expenses shall be in accordance with Client's standard travel
policy. Invoices shall reflect this policy.
4. FEES, INVOICING AND PAYMENT
TechCFO's fees shall be $30,000 per month. CFO will be eligible to take
necessary personal time off as needed and as such should CFO work less than
a full business month for any reason (exclusive of company holidays), the
monthly fee will be reduced based on a business daily rate of $1428.
Additionally, Client will grant 100,000 options to CFO at an exercise price
equal to the fair market value of Client's common stock on the date of
grant, and with a four year vesting schedule with 25% vesting on each of
the first four anniversary dates of the grant date; provided, that, the
options will provide for accelerated vesting in the event of a change of
control (as defined in the Company's option plan). Invoices will normally
be issued on a semi-monthly basis, unless otherwise provided. Fees for
services shall be payable when invoiced, and shall be deemed overdue if
they remain unpaid 31 days after the date of invoice. If Client's
procedures require that an invoice be submitted against a purchase order
before payment can be made, Client will be responsible for issuing such
purchase order 30 days before the payment due date. Payments are due
regardless of any third party action or responsibilities.
Remit to Address: TechCFO, LLC
0000 Xxxxxxx Xxxxxxx, Xxxxx 0/000
Xxxxxxx, XX 00000
5. TERM OF AGREEMENT
The term of engagement hereunder shall commence on the date hereof and
shall continue until otherwise terminated by either party at any time in
accordance with the terms hereof.
6. CLIENT OBLIGATIONS
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Confidential Page 2 January, 2007
TECHCFO
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As a condition to the effectiveness of this Agreement, Client's Board of
Directors shall have appointed CFO as Client's principal financial and
accounting officer. Throughout the term of this Agreement, Client shall
maintain directors and officers liability insurance covering CFO and
otherwise on commercially reasonable terms. In addition, as part of this
engagement, Client will furnish or make available any company financial
information and provide access to necessary personnel required to complete
the engagement. Other resources, such as Internet access while present on
Client premises and adequate work space facilities, shall be as agreed with
Client.
7. CHANGES IN SCOPE
Any changes in scope shall be mutually agreed upon prior to commencement of
the change. This includes any required changes in funding and schedule.
TechCFO will provide an estimate for the change in a timely manner and the
Client shall approve or disapprove this change in a timely manner.
8. TAXES
The fees quoted do not include taxes. If TechCFO is required to pay any
federal, state, or local taxes based on the services provided under this
Agreement, such taxes, except taxes based on TechCFO's income, shall be
billed to and paid by the Client.
9. RIGHTS TO WORK PRODUCT
With the exception of all tools, business processes or work products
brought into the engagement by TechCFO, all deliverables under this
Agreement shall be considered works-made-for-hire ("Deliverables") and all
ownership rights relating to the Deliverables shall vest in Client. Nothing
herein shall be construed to grant TechCFO any right or license to use the
confidential, proprietary information of Client. If at any time or times
during the term of this Agreement (or within six (6) months thereafter if
based on trade secrets or confidential information), CFO makes or
discovers, either alone or with others, any invention, modification,
development, improvement, process or secret, whether or not patented or
patentable (collectively, "Inventions") based on work done for the Client,
CFO will disclose in reasonable detail the nature of such Invention to the
Client in writing, and if it relates to the business of the Client or any
of the products or services being developed, manufactured or sold by the
Client, such Invention and the benefits thereof shall immediately become
the sole and absolute property of the Client provided the Client notifies
CFO in reasonable detail within ninety (90) days after receipt of the
disclosure of such Invention that it believes such Invention relates to the
business of the Client or any of the products or services being developed,
manufactured or sold by the Client. CFO also agrees to transfer such
Inventions and benefits and rights resulting from such Inventions to the
Client without compensation and will communicate without cost, delay or
prior publications all available information relating to the Inventions to
the Client. At the Client's expense CFO will also, whether before or after
termination of this Agreement, sign all documents (including patent
applications) and do all acts and things that the Client may deem necessary
or desirable to effect the full assignment to the Client of CFO's and title
to the Inventions or necessary to defend any opposition thereto. CFO also
agrees to assign to the Client all copyrights and reproduction rights to
any materials prepared by CFO in connection with this Agreement.
10. WARRANTY
TechCFO warrants that its services hereunder will be of a professional
quality, conforming to generally accepted industry standards and practices.
Any modifications made to product or services provided by TechCFO that are
not authorized and executed by TechCFO, or the original manufacturer, shall
void the warranty.
11. LIMITATIONS ON WARRANTY
The warranty above is exclusive and in lieu of all other warranties,
whether express or implied, including the implied warranties of
merchantability and fitness for a particular purpose. The stated warranty
is valid for a period of thirty (30) days from the date of task completion
or until the client acceptance document, if applicable, is executed,
whichever occurs earlier. Should the client acceptance document not be
executed within thirty (30) days of the completion, the task shall be
deemed accepted.
12. TERMINATION OF AGREEMENT
Either party can terminate this Agreement for cause if either party
considers the other party is not performing its obligations according to
this Agreement and provides written notice to the other party of such
non-performance. The party receiving such written notice will have fifteen
(15) days from the date of notice receipt to correct the situation. If this
situation is not corrected, the Agreement can be terminated immediately
upon written notice. Client is obligated and agrees to pay for services
provided through the date of termination.
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If Client terminates this Agreement without cause or undergoes a "Change in
Control" (as defined in the Indemnification Agreement) prior to the first
anniversary or between the first and second anniversary, TechCFO will be
paid a lump-sum amount of $180,000 or $90,000, respectively, as liquidated
damages and not as a penalty. If Client terminates after the second
anniversary of this Agreement, no liquidated damages will be paid.
TechCFO or CFO shall have the right to terminate this Agreement without
cause at any time on no less than ninety days prior written notice to
Client.
13. TECHCFO CONSULTANTS
TechCFO warrants that all Consultants sent to the Client facility will act
in accordance with good business ethics and behaviors. Additionally,
TechCFO will ensure that all Consultants assigned to the Client will be
fully qualified to perform the task contracted for. If for any reason the
Client feels that the TechCFO Consultant is not technically qualified,
TechCFO will investigate the claim and provide substitute Consultant to the
Client at no additional cost. If the Client requests a TechCFO Consultant
be replaced for any reason other than job performance, a cost may be
incurred. This cost will be mutually agreed to at the time.
14. FORCE MAJEURE
Neither party shall be responsible for any failure to perform or delay in
performing any of its obligations under this Agreement (other than the
obligation to pay fees due hereunder) where and to the extent that such
failure or delay results from causes outside the reasonable control of the
party. Such causes shall include, without limitation, Acts of God or of the
public enemy, acts of the government in either its sovereign or contractual
capacity, fires, floods, epidemics, quarantine restrictions, freight
embargoes, civil commotions, or the like. Notwithstanding the above,
strikes and labor disputes shall not constitute an excusable delay for
either party under this Agreement.
15. NON-SOLICITATION OF EMPLOYEES
Each party agrees not to solicit, offer or promise employment or employ the
other party's personnel during and for a period of one (1) year following
termination of this Agreement for any reason, unless written consent is
received from the non-hiring party. In the event an employee is solicited
and hired in violation of this Agreement, the breaching party shall
promptly pay to the other party 30% of the employee's yearly compensation
for expenses associated with replacing and training a new employee.
16. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, incidental,
special or consequential damages, including loss of profits, revenues,
data, or use, incurred by either party or any third party, whether in an
action in contract or tort, even if the other party or any other person has
been advised of the possibility of such damages. TechCFO's liability for
damages hereunder shall in no event exceed the amount of fees paid by
Client under this Agreement for the relevant services.
17. INDEMNIFICATION
Client shall indemnify and hold TechCFO harmless against any and all third
party claims, costs, expenses, losses and liabilities claimed by third
parties, arising out of the products or services referenced in this
Agreement unless TechCFO did not act in good faith in the reasonable belief
that his/her action was in the best interest of Client or TechCFO acted
with gross negligence or willful misconduct. In addition, Client shall
indemnify CFO pursuant to the terms of that certain Indemnification
Agreement between Client and CFO dated of even date herewith (the
"Indemnification Agreement").
18. NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information.") For
purposes of this Agreement, "Confidential Information" may include, but is
not limited to, information regarding proprietary products, potential
product and/or service offerings, source code, documentation, customer
names, customer data, business plans, financial analysis, future plans and
pricing, the marketing or promotion of any product, and business policies
and practices. The parties agree, both during the term of this Agreement
and for a period of two years after termination, for any reason, of this
Agreement and of all work orders hereunder, to hold each other's
Confidential Information in strict confidence. The parties agree not to
make each other's Confidential Information available in any form to any
third party or to use each other's
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Confidential Page 4 January, 2007
TECHCFO
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Confidential Information for any purpose other than the performance of this
Agreement. Each party agrees to take all reasonable steps to ensure that
Confidential Information is not disclosed or distributed in violation of
the provisions of this Agreement, except a disclosure pursuant to any
judicial or government request or order or NASDAQ or other stock exchange
rule or applicable law.
19. ARBITRATION
Any controversy, dispute or claim of whatever nature arising out of, in
connection with, or in relation to the interpretation, performance or
breach of this agreement, including any claim based on contract, tort, or
statute, shall be resolved, at the request of any party to this agreement,
by final and binding arbitration conducted at a location determined by the
arbitrator in Atlanta, Georgia administered by and in accordance with the
then existing rules and procedures of the American Arbitration Association,
and judgment upon any reward rendered by the arbitrator may be entered by
any state or federal court having jurisdiction thereof.
20. NOTICE
Any notice required or permitted to be given by one party to the other
shall be deemed to be given when notice is mailed via certified mail with
the United States Postal Service with sufficient postage prepaid, or by
recognized courier service with verification of delivery, addressed to
respective party to whom notice is intended at the address specified above
in this Agreement.
21. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Georgia,
without regard to its choice of laws rules. Any dispute arising out of or
relating to this Agreement shall be determined by a federal or state court
in Xxxxxx County, State of Georgia, and in no other forum. The parties
hereby submit to the jurisdiction of such courts.
22. SEVERABILITY
If any provision of this Agreement is held by final judgment of a court of
competent jurisdiction to be invalid, illegal or unenforceable, such
invalid, illegal or unenforceable provision shall be severed from the
remainder of this Agreement, and the remainder of this Agreement shall be
enforced. In addition, the invalid, illegal or unenforceable provision
shall be deemed to be automatically modified, and, as so modified, to be
included in this Agreement, such modification being made to the minimum
extent necessary to render the provision valid, legal and enforceable.
Notwithstanding the foregoing, however, if the severed or modified
provision concerns all or a portion of the essential consideration to be
delivered under this Agreement by one party to the other, the remaining
provisions of this Agreement shall also be modified to the extent necessary
to equitably adjust the parties' respective rights and obligations
hereunder.
23. AGREEMENT NOT TO COMPETE.
CFO shall not directly during the term of this Agreement and for a period
of one (1) year thereafter: (i) accept employment with any Concurrent
Competitor (defined below), its successors or assigns; (ii) participate in
any activity known to CFO to be materially detrimental to the business
interests of Concurrent, regardless of location; or (iii) perform the same
or substantially similar services as those performed under this Agreement
for any Concurrent Competitor. For the purposes of this Agreement,
"Concurrent Competitor" means any entity the engages in the sale of
products and services that enable (1) broadband providers to stream video
to customers, and (2) high performance computing designed to acquire,
process, store, analyze, and display large amounts of rapidly changing
information with microsecond response as changes occur
24. NONDISPARAGEMENT CLAUSE.
CFO and TechCFO specifically agrees and promise that they will not directly
or indirectly disparage the Client, or any of Client's parent, sister,
subsidiary or affiliated companies or entities or any of its or their
officers, board of directors, committee members, agents, supervisors,
employees, contractors, attorneys, representatives, or any of the Client's
products or services in any manner, at any time, to any person or entity.
"Disparage" is defined as any public statement, either verbal or in
writing, intended to actually harm or injure Client
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25. MISCELLANEOUS.
CFO hereby gives the Client permission to use photographs of CFO, during
the term of this Agreement, with or without using my name, for any purposes
the Client deems necessary or desirable.
26. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the Client
or any corporation or other entity to which the Client may transfer all or
substantially all its assets and business and to which the Client may
assign this Agreement, in which case "Client" as used herein shall mean
such corporation or other entity. TechCFO may not assign this Agreement or
any part thereof without the prior written consent of the Client, which
consent may be withheld by the Client for any reason it deems appropriate.
27. ENTIRE AGREEMENT
This Agreement, along with the Indemnification Agreement, constitutes the
complete agreement between the parties and supersedes all previous
agreements or representations, written or oral, with respect to the
services and developments described herein. This Agreement may not be
modified or amended except in writing signed by a duly authorized
representative of each party. This Agreement may be executed in
counterparts. Facsimile transmissions of the signature page shall be
binding upon the parties.
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