Exhibit 10.11
CONSULTING AND NON-COMPETITION AGREEMENT
The Consulting and Non-Competition Agreement (the "Agreement') is made
as of June 9th, 1998, between Xxxxx Xxxx Xxxx (the "Consultant") and Catapult
Communications Corporation, a California corporation which is in the process
of changing its state of incorporation to Nevada (the "Company").
RECITALS
WHEREAS, Consultant is presently a Director and Corporate Secretary to
the Company and has since the Company's formation in 1985 performed
substantive services for the Company, for example, and not by way of
limitation, in the areas of business planning, accounting services, officer
manager, facilities management, human resources, customer relations support
for sales and marketing and corporate communications/operations;
WHEREAS, the Company desires to assure itself of the continued
availability and support of the Consultant.
AGREEMENT
ACCORDINGLY, IT IS AGREED between the parties as follows:
1. ENGAGEMENT OF THE CONSULTANT. The Company hereby engages the
Consultant as an independent contractor, and the Consultant accepts such
engagement. The Consultant shall perform such research, projects and work
"Projects") as are assigned to her by the President of the Company
"President") from time to time consistent with the scope of work as
described in Exhibit A. The Consultant and the President shall mutually agree
to a scope of work for each Project, which shall describe the Project, the
services to be performed and set a schedule for completing the services (the
"Scope of Work"). The initial Scope of Work is attached hereto as Exhibit A.
The manner and method of performance of each Project shall be at the
discretion of the Consultant and shall not be subject to the control of the
Company.
2. COMPENSATION.
2.1 DAILY RATE. The Company shall pay (subject to applicable
withholdings) the Consultant for services rendered a rate of $1,500 per day.
A day shall consist of an eight-hour period within a standard twenty-four
hour period, and should any Project require more or less than eight hours to
perform, the applicable rate shall be pro-rated over an eight-hour period.
2.2 MINIMUM MONTHLY PROJECTS. The Company shall, during the term
of the Agreement, assign Projects to Consultant which result in
compensation,to Consultant under the Agreement of not less than $4,500 per
calendar month (subject to applicable withholdings). Should the Company fail
to provide such minimum level of Projects, then, within thirty (30)days of
the end of the month in which such minimum level was not satisfied, the
Company
shall pay to Consultant the difference between the amount actually earned by
Consultant during such month hereunder and $4,500.
2.3 PAYMENT FOR SERVICES. The Consultant shall submit to the
Company written invoices on a monthly basis for services rendered, describing
the Project, the services performed and the total hours spent. The Consultant
shall be paid within thirty (30) days from the date each invoice. Consultant
agrees that she will not be entitled to payment for services she may render
to the Company as Corporate Secretary.
3. TERM AND TERMINATION.
3.1 TERM. Subject to Section 7.4 below, the Agreement shall be
effective for a period of three years from the date of the Agreement unless
earlier terminated in accordance with Section 3.2.
3.2 TERMINATION.
a. The Company shall have the right to terminate the Agreement
only for a Material Breach (defined below) upon two weeks' written notice
("Termination Notice"). Upon receipt of the Termination Notice, the
Consultant shall perform only such services necessary to wind up or complete
any outstanding Project in an orderly manner and shall perform no further
services.
b. "Material Breach" shall mean any one or more of the
following actions or events: (i) the Consultant's gross or continuing
negligence in the performance of her services, provided that such negligence
shall have been continuing for a period of thirty (30)days after delivery to
Consultant by the Company of notice of such negligence; (ii)Consultant's
refusal to perform such Projects as are reasonably assigned by the Company,
provided that such refusal shall have been continuing for a period of thirty
(30) days after delivery to Consultant by the Company of notice of such
refusal; (iii) embezzlement or attempted embezzlement from Company, its
successors, assigns, affiliates or clients; (iv) dishonesty with respect to
the Company, its operation or finances or its successors, assigns, affiliates
and clients; (v) commission of a felony violation under federal or state law;
(vi) commission of any act involving willful or intentional injury to the
Company or its reputation; or (vii) a material breach of this Agreement.
4. EXPENSES. The Consultant shall be reimbursed for all reasonable
expenses incurred by her in connection with performing a Project which are
approved by the President in advance. For all expenses, the Consultant shall
furnish to the Company detailed statements, receipts and vouchers to verify
the expenses, and shall submit the expenses with the monthly invoices for
services rendered in Section 2.3 of the Agreement. The Consultant shall use
all forms required by the Company for submission of expenses.
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5. INDEPENDENT CONTRACTOR.
5.1 NATURE OF RELATIONSHIP. It is specifically understood agreed
that the Consultant is an independent contractor with respect to all services
performed for the Company, and the Consultant shall be responsible to Company
only for completion of a Project in compliance with the Scope of Work.
Nothing in the Agreement is intended to or should be construed to create a
partnership, joint venture or employment relationship. Since the Consultant
will not be an employee of Company, the Consultant will not be entitled to
any of the benefits which the Company provides to its employees, including,
without limitation, group health or life insurance, profit-sharing or
retirement benefits. The Consultant is not an agent of Company as a result of
the Agreement, and the Consultant is not authorized to make any
representation, contract or commitment on behalf of Company as a consequence
of the Agreement. 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 benefit.
5.2 RESPONSIBILITY FOR TAXES. The Consultant will be solely
responsible for and will file, on a timely basis, all tax returns and
payments required to be filed and paid as a result of the services the
Consultant performs under the Agreement and all compensation received for
such services performed. Company shall report amounts paid to the Consultant
by filing form 1099-MISC with the Internal Revenue Services, as required by
law.
6. CONFIDENTIAL INFORMATION. The Consultant recognizes that in the
course of performing one or more Project(s) and rendering services under the
Agreement, she will have access to and she may develop confidential and
proprietary information, and trade secrets concerning the Company's business
and operations, including, without limitation, financial and tax information,
customer lists and data bases, business plans and development strategy, price
lists, marketing methodology, marketing research, salary data and other
information regarding the Company's employees, technical and engineering data
and software and production, manufacturing and engineering processes
(collectively referred to as "Confidential Information"). Confidential
Information does not include any information which is or becomes part of the
public domain not as a result of any violation by Consultant of any agreement
with the Company. The Consultant recognizes that unauthorized use by
Consultant or others or disclosure of the Confidential Information to
competitors, non-authorized third parties or the general public would be
detrimental to the Company. Accordingly, the Consultant covenants and agrees
with the Company that she will keep secret and treat confidentially the
Confidential Information, and she will not, either during the term of the
Agreement or thereafter, disclose any of the Confidential Information to any
person or entity nor shall she use the Confidential Information for any
purpose other than purposes expressly authorized by the Company. The
Consultant agrees that all restrictions contained in this paragraph are
reasonable and valid under the circumstances and all defenses to the strict
enforcement of the provision by the Company are hereby waived by the
Consultant. Upon termination of the Agreement, the Consultant agrees to
surrender promptly to the Company all software, databases, figures,
calculations, reports, papers, documents, writings and other property
produced by her or coming into her possession as a
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result of her services under the Agreement and relating to the Confidential
Information, and the Consultant understands and agrees that all such
materials will at all times remain the exclusive property of the Company.
Consultant hereby agrees that her obligations and agreements with respect to
Confidential Information in this paragraph shall apply equally to
Confidential Information to which she has had access in the course of
rendering services to the Company prior to the date of this Agreement.
7. NON-COMPETITION COVENANTS
7.1 RESTRICTIONS. In consideration for a lump sum cash payment of
$18,000 payable upon execution of this Agreement, for a period of three (3)
years from the date of this Agreement, the Consultant agrees that she will
not, directly or indirectly, in the capacity of sole proprietor or
independent contractor or as a member of a partnership or as an officer,
director, employee, or shareholder of or investor of 3% or more in a
corporation or other business entity or otherwise, do any of the following:
a. perform services or offer advice or technical expertise
involving, or for any entity involved in, the research, development,
marketing, sale, installation or performance of software based test systems
for the telecommunications marketplace, including but not limited to
manufacturers of telecommunications equipment and network providers in the
United States of America and the other geographic locations where the Company
conducts its business between the date of the Agreement and the date of
termination; or
b. solicit or encourage any customer of the Company either
(i) to purchase products, technology or services from an entity other than
the Company ("customer" defined as any person or entity to whom the Company
has sold products or for which the Company has performed services during the
three (3) years preceding the date of this Agreement or from the date of the
Agreement to the date of termination), or (ii) to cease conducting business
with the Company; or
c. induce, solicit or encourage an employee of the Company to
terminate his or her employment with the Company.
7.2 MODIFICATION BY COURT. The parties hereto agree that in the
event that either the length of time or the geographical area is deemed
unenforceable in any court proceeding, the court may reduce such restrictions
to those which it deems enforceable and consistent with the intent of the
parties insofar as possible.
7.3 CONFLICT WITH EXISTING AGREEMENTS. The Consultant warrants
and represents to Company that she is not party to or obligated by any other
contract, agreement or duty of any nature which conflicts with or is
inconsistent with the Agreement. The Agreement will not cause a default under
any agreement or obligation to which the Consultant is bound.
8. DISCOVERIES AND INVENTIONS. The Consultant assigns and agrees to
assign to Company all her right, title, and interest worldwide in and to any
and all inventions, copyright works, discoveries, developments,
modifications, improvements, ideas, service marks,
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trademarks, copyrights know-how, techniques, designs, data, programs,
processes, manufacturing techniques, formulae, computer programs, software
and all other work product relating to the business of the Company
(collective, "Work Product"), whether tangible or intangible, which the
Consultant conceives, reduces to practice, reduces to writing, creates in
software form, or other storage media either alone or jointly with others in
the course of performing services for Company. The Work Product need not be
subject to federal or state patent, copyright or trade xxxx protection to be
subject to the provision. The Consultant agrees and acknowledges that the
Work Product is the exclusive property of the Company.
The Consultant agrees to perform all acts necessary to enable the
Company to learn of, understand and protect the Work Product, including
making full and immediate disclosure to Company of the Work Product, and
assisting in preparation and execution of documents required to vest in
Company patent and copyright protection. The Consultant agrees to execute
upon request patent, copyright or similar applications and assignments to the
Company as needed to vest title in the Company of the Work Product. In the
event that the Company is unable for any reason whatsoever to secure the
Consultant's signature to documentation required to apply for any patent,
copyright or other applications regarding the Work Product, the Consultant
hereby irrevocably designates and appoints Company and its duly authorized
officers as her agent to act for and in her behalf and instead of the
Consultant, to execute and file any such application and to do all other
lawfully permitted acts to further the prosecution and issuance of patent
copyrights or other rights thereon with the same legal force and effect as if
executed by the Consultant.
The Consultant warrants and represents that Work Product which the
Consultant has developed, conceived or reduced to practice in the course of
performing services for the Company prior to the date of the Agreement
(collectively, "Prior Work Product") has been disclosed to Company prior to
the execution of the Agreement. The Consultant hereby assigns and transfers
to the Company all Prior Work Product (if not already assigned) as of the
date hereof.
9. REMEDIES. The Consultant acknowledges that the provisions of
Sections 6, 7 and 8 are necessary for the protection of Company. Company and
its affiliates would be irreparably damaged in the event any of the
provisions contained in these Sections were not performed in accordance with
their specific terms or were to be otherwise breached. It is accordingly
agreed that Company shall be entitled to temporary restraining orders and
temporary and permanent injunction or injunctions to specifically enforce the
restrictions and obligations of Section 6, 7 and 8 in any court, without the
necessity of proving actual damages, in addition to any other remedy to which
Company may be entitled, at law or in equity.
10. VALIDITY OF COVENANTS. If any covenant or provision of the
Agreement is determined to be void or unenforceable in whole or in part, it
shall be deleted from the remaining Agreement shall be modified so as to
render it enforceable in a manner consistent with the intent of the parties
insofar as possible, and shall not affect or impair the validity of any other
covenant or provision of the Agreement. The Consultant hereby agrees that all
restrictions in the Agreement are reasonable and valid and defenses to the
strict enforcement thereof by the
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Company are hereby waived by her. NOTICE. Any notice required by the
Agreement shall be sent by certified U.S. mail, correctly addressed and
postage prepaid, return receipt requested, or by facsimile transmission, or
by overnight courier or hand delivery, to the addresses set forth below:
Company: Catapult Communications Corporation
000 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
phone:
fax:
The Consultant: Xxxxx Xxxx Xxxx
000 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
phone: 000-000-0000
fax: 000-000-0000
11. WAIVER. A waiver by any party of any breach of the Agreement shall
not constitute a waiver of future recurrences of such breach or other
breaches. A waiver by any party of any terms, conditions, rights or
obligations under the Agreement shall not constitute a waiver of such term,
condition, rights or obligation in the future.
12. GOVERNING LAW. THE PROVISIONS OF the AGREEMENT SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
13. SUCCESSORS AND ASSIGN. The provisions hereof, where the context
permits, shall inure to the benefit of and be binding upon the heirs,
executors, administrators or other legal representatives of the Consultant
and the successors and assigns of the Company, respectively, including in the
case of the company its anticipated successor Nevada corporation, provided
that the obligations of the Consultant hereunder may not be assigned without
the express prior written consent of the Company.
14. Entire Agreement; Amendment; Headings. The Agreement constitutes
the entire understanding between the parties with reference to the subject
matter hereof, supersedes all prior or contemporaneous promises or
representations, written or oral; and shall not be changed or modified except
by written instrument signed by each party. The Consultant agrees that all
provisions of confidentiality, or assignment of inventions which may be
applicable to her under agreements between Consultant and the Company
existing on the date of the Agreement shall continue in full force and effect
to the extent there is no conflict with the Agreement. The headings used in
the Agreement are solely for convenience and are not to be used in construing
or interpreting the Agreement.
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15. SURVIVAL OF COVENANTS. The parties expressly agree the provisions
of Sections 6, 7.3 and 8 shall survive the termination of the Agreement, and
shall continue to bind the Consultant as stated therein.
Dated: June 9th, 1998
CATAPULT COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Xxxxxxx X. Xxxx, President
By: /s/ Xxxxx Xxxx Xxxx
-----------------------------
Xxxxx Xxxx Xxxx
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EXHIBIT A
SCOPE OF WORK
Consulting Projects in the following areas:
HUMAN RESOURCES
- Employee relocation
- Interface with employee/INS immigration processes
FACILITIES
- Assist in Company facilities expansion and relocation on a worldwide basis
MARKETING
- Assist sales/marketing in customer relations and corporate event planning
- Assist in developing end-user surveys to determine required features,
packaging and new product improvements
- Assist in developing surveys for application specific products
- Assist in developing surveys of "installed base" for other product
improvements and needs for new products
- Perform strategic market analysis of new ventures/acquisitions
GENERAL BUSINESS
- Assist in developing Company's ongoing business plan
