SOURCEFORGE, INC. CONSULTING AGREEMENT
This
Consulting Agreement (“Agreement”)
is
entered into as of June 9, 2008 by and between SourceForge, Inc. (the
“Company”)
and
Xxx Xxxxx (“Consultant”).
The
Company desires to retain Consultant as an independent contractor to perform
consulting services for the Company, and Consultant is willing to perform such
services, on the terms described below. In consideration of the mutual promises
contained herein, the parties agree as follows:
1. Services
and Compensation.
Consultant agrees to perform for the Company the services described in
Exhibit A
(the
“Services”),
and
the Company agrees to pay Consultant the compensation described in Exhibit A
for
Consultant’s performance of the Services.
2. Confidentiality.
A. Definition.
“Confidential
Information”
means
any non-public information that relates to the actual or anticipated business
or
research and development of the Company, technical data, trade secrets or
know-how, including, but not limited to, research, product plans or other
information regarding Company’s products or services and markets therefor,
customer lists and customers (including, but not limited to, customers of the
Company on whom Consultant called or with whom Consultant became acquainted
during the term of this Agreement), software, developments, inventions,
processes, formulas, technology, designs, drawing, engineering, hardware
configuration information, marketing, finances or other business information.
Confidential Information does not include information that (i) is known to
Consultant at the time of disclosure to Consultant by the Company as evidenced
by written records of Consultant, (ii) has become publicly known and made
generally available through no wrongful act of Consultant or (iii) has been
rightfully received by Consultant from a third party who is authorized to make
such disclosure.
B. Nonuse
and Nondisclosure.
Consultant will not, during or subsequent to the term of this Agreement,
(i) use the Confidential Information for any purpose whatsoever other than
the performance of the Services on behalf of the Company or (ii) disclose
the Confidential Information to any third party. Consultant agrees that all
Confidential Information will remain the sole property of the Company.
Consultant also agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information. Without the Company’s
prior written approval, Consultant will not directly or indirectly disclose
to
anyone the existence of this Agreement or the fact that Consultant has this
arrangement with the Company.
C. Former
Client Confidential Information.
Consultant agrees that Consultant will not, during the term of this Agreement,
improperly use or disclose any proprietary information or trade secrets of
any
former or current employer of Consultant or other person or entity with which
Consultant has an agreement or duty to keep in confidence information acquired
by Consultant, if any. Consultant also agrees that Consultant will not bring
onto the Company’s premises any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented to in writing
by such employer, person or entity.
D. Third
Party Confidential Information.
Consultant recognizes that the Company has received and in the future will
receive from third parties their confidential or proprietary information subject
to a duty on the Company’s part to maintain the confidentiality of such
information and to use it only for certain limited purposes. Consultant agrees
that, during the term of this Agreement and thereafter, Consultant owes the
Company and such third parties a duty to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it
to
any person, firm or corporation or to use it except as necessary in carrying
out
the Services for the Company consistent with the Company’s agreement with such
third party.
E. Return
of Materials.
Upon
the termination of this Agreement, or upon Company’s earlier request, Consultant
will deliver to the Company all of the Company’s property, including but not
limited to all electronically stored information and passwords to access such
property, or Confidential Information that Consultant may have in Consultant’s
possession or control.
3. Ownership.
A. Assignment.
Consultant agrees that all copyrightable material, notes, records, drawings,
designs, inventions, improvements, developments, discoveries and trade secrets
conceived, discovered, developed or reduced to practice by Consultant, solely
or
in collaboration with others, during the term of this Agreement that relate
in
any manner to the business of the Company that Consultant may be directed to
undertake, investigate or experiment with or that Consultant may become
associated with in work, investigation or experimentation in the Company’s line
of business in performing the Services under this Agreement (collectively,
“Inventions”),
are
the sole property of the Company. Consultant also agrees to assign (or cause
to
be assigned) and hereby assigns fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating to all Inventions.
B. Further
Assurances.
Consultant agrees to assist Company, or its designee, at the Company’s expense,
in every proper way to secure the Company’s rights in Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating to all Inventions in any and all countries, including the disclosure
to
the Company of all pertinent information and data with respect to all
Inventions, the execution of all applications, specifications, oaths,
assignments and all other instruments that the Company may deem necessary in
order to apply for and obtain such rights and in order to assign and convey
to
the Company, its successors, assigns and nominees the sole and exclusive right,
title and interest in and to all Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating to all Inventions.
Consultant also agrees that Consultant’s obligation to execute or cause to be
executed any such instrument or papers shall continue after the termination
of
this Agreement.
C.
Pre-Existing
Materials.
Subject to Section 3.A,
Consultant agrees that if, in the course of performing the Services, Consultant
incorporates into any Invention developed under this Agreement any pre-existing
invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest,
(i) Consultant will inform Company, in writing before incorporating such
invention, improvement, development, concept, discovery or other proprietary
information into any Invention, and (ii) the Company is hereby granted a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make,
have made, modify, use and sell such item as part of or in connection with
such
Invention. Consultant will not incorporate any invention, improvement,
development, concept, discovery or other proprietary information owned by any
third party into any Invention without Company’s prior written
permission.
D. Attorney-in-Fact.
Consultant agrees that, if the Company is unable because of Consultant’s
unavailability, dissolution, mental or physical incapacity, or for any other
reason, to secure Consultant’s signature for the purpose of applying for or
pursuing any application for any United States or foreign patents or mask work
or copyright registrations covering the Inventions assigned to the Company
in
Section 3.A,
then
Consultant hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Consultant’s agent and attorney-in-fact, to
act for and on Consultant’s behalf to execute and file any such applications and
to do all other lawfully permitted acts to further the prosecution and issuance
of patents, copyright and mask work registrations with the same legal force
and
effect as if executed by Consultant.
4. Conflicting
Obligations.
A. Conflicts.
Consultant certifies that Consultant has no outstanding agreement or obligation
that is in conflict with any of the provisions of this Agreement or that would
preclude Consultant from complying with the provisions of this Agreement.
Consultant will not enter into any such conflicting agreement during the term
of
this Agreement. Consultant’s violation of this Section 4.A
will be
considered a material breach under Section 6.B.
B. Substantially
Similar Designs.
In view
of Consultant’s access to the Company’s trade secrets and proprietary know-how,
Consultant agrees that Consultant will not, without Company’s prior written
approval, design identical or substantially similar designs as those developed
under this Agreement for any third party during the term of this Agreement.
Consultant acknowledges that the obligations in this Section 4
are
ancillary to Consultant’s nondisclosure obligations under Section 2.
5. Reports.
Consultant also agrees that Consultant will, from time to time during the term
of this Agreement or any extension thereof, keep the Company advised as to
Consultant’s progress in performing the Services under this Agreement.
Consultant further agrees that Consultant will, as requested by the Company,
prepare written reports with respect to such progress. The Company and
Consultant agree that the time required to prepare such written reports will
be
considered time devoted to the performance of the Services.
6. Term
and Termination.
A. Term.
The
term of this Agreement will begin on the date of this Agreement and will
continue until the earlier of (i) September 8, 2008 or
(ii) termination as provided in Section 6.B.
B. Early Termination.
Either
party may terminate this Agreement prior to the expiration of the term following
the material breach of a material provision by the other party, by giving the
other party written notice of such termination pursuant to Section 11.E
of this
Agreement. In the event the Agreement is terminated prior to September 8, 2008
pursuant to this Section 6.B., then the Company shall pay Consultant a lump
sum
payment equal to $105,000 less
any
amounts previously paid hereunder. Notwithstanding the foregoing, in the event
that (i) the Company terminates this Agreement because of a material breach
of a
material provision by Consultant, then the Company shall only be required to
pay
Consultant an amount equal to the remainder of (X) the amount determined by
multiplying the number of days that have elapsed since the date of this
Agreement until the date of such termination by $1,166.70, the daily rate for
the Services, less
(Y) any
amounts previously paid hereunder. Further, notwithstanding the foregoing,
in
the event the Effective Date (as such term is defined in that certain Separation
Agreement and Release entered into by and between the Company and Consultant
as
of even date herewith) never occurs, then this Consulting Agreement shall be
deemed void from its inception, and no amounts shall be owed by Company to
Consultant hereunder.
C. Survival.
Upon
such early termination or following the running of the full term of the
Agreement, all rights and duties of the Company and Consultant toward each
other
shall cease except:
(1) The
Company will pay, within 15 days after the effective date of termination, all
amounts owing to Consultant for Services completed prior to the termination
date
and related expenses, if any, submitted in accordance with the Company’s
policies and in accordance with the provisions of Section 1
of this
Agreement; and
(2) Section 2
(Confidentiality), Section 3
(Ownership), Section 4
(Conflicting Obligations), Section 7
(Independent Contractor; Benefits), Section 8 (Indemnification),
Section 9
(Nonsolicitation) and Section 10
(Arbitration) will survive termination of this Agreement.
7. Independent
Contractor; Benefits.
A. Independent
Contractor. It
is the
express intention of the Company and Consultant that Consultant perform the
Services as an independent contractor to the Company. Nothing in this Agreement
shall in any way be construed to constitute Consultant as an agent, employee
or
representative of the Company. Without limiting the generality of the foregoing,
Consultant is not authorized to bind the Company to any liability or obligation
or to represent that Consultant has any such authority. Consultant agrees to
furnish (or reimburse the Company for) all tools and materials necessary to
accomplish this Agreement and shall incur all expenses associated with
performance, except as expressly provided in Exhibit A.
Consultant acknowledges and agrees that Consultant is obligated to report as
income all compensation received by Consultant pursuant to this Agreement.
Consultant agrees to and acknowledges the obligation to pay all self-employment
and other taxes on such income.
B. Benefits.
The
Company and Consultant agree that Consultant will receive no Company-sponsored
benefits from the Company. If Consultant is reclassified by a state or federal
agency or court as Company’s employee, Consultant will become a reclassified
employee and will receive no benefits from the Company, except those mandated
by
state or federal law, even if by the terms of the Company’s benefit plans or
programs of the Company in effect at the time of such reclassification,
Consultant would otherwise be eligible for such benefits.
8. Indemnification.
Consultant agrees to indemnify and hold harmless the Company and its directors,
officers and employees from and against all taxes, losses, damages, liabilities,
costs and expenses, including attorneys’ fees and other legal expenses, arising
directly from or in connection with (i) any reckless or intentionally
wrongful act of Consultant or Consultant’s assistants, employees or agents,
(ii) a determination by a court or agency that the Consultant is not an
independent contractor, (iii) any breach by the Consultant or Consultant’s
assistants, employees or agents of any of the covenants contained in this
Agreement, (iv) any failure of Consultant to perform the Services in accordance
with all applicable laws, rules and regulations, or (v) any violation of a
third party’s rights resulting in whole or in part from the Company’s use of the
work product of Consultant under this Agreement.
9. Nonsolicitation.
From
the date of this Agreement until 12 months after the termination of this
Agreement (the “Restricted
Period”),
Consultant will not, without the Company’s prior written consent, directly or
indirectly, solicit or encourage any employee or contractor of the Company
or
its affiliates to terminate employment with, or cease providing services to,
the
Company or its affiliates. During the Restricted Period, Consultant will not,
whether for Consultant’s own account or for the account of any other person,
firm, corporation or other business organization, intentionally interfere with
any person who is or during the period of Consultant’s engagement by the Company
was a partner, supplier, customer or client of the Company or its affiliates.
For
purposes of this paragraph, the term “solicit” shall be deemed not to include
advertisements or other generalized employment searches, including
advertisements in various media (including trade media) or any job posting
system, not specifically directed to employees of the Company and shall not
include any action by Consultant
following any response by any person to such advertisements or generalized
searches or any communication initiated by such person and not by Consultant.
10. Arbitration.
THE
PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS
AGREEMENT, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL
BE SUBJECT TO ARBITRATION IN SANTA XXXXX COUNTY, BEFORE JAMS, PURSUANT TO ITS
EMPLOYMENT ARBITRATION RULES & PROCEDURES (“JAMS
RULES”).
THE
ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH DISPUTES. THE
ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH
CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE
ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE
OR CLAIM, WITHOUT REFERENCE TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY
JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH CALIFORNIA LAW,
CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL
BE
FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES
AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO
INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE THE
ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY AN EQUAL SHARE
OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL SEPARATELY
PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT THE
ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT
AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE
ANY
DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT EITHER PARTY FROM
SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT
HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE
RELATING TO THIS AGREEMENT AND THE AGREEMENTS INCORPORATED HEREIN BY REFERENCE.
SHOULD ANY PART OF THE ARBITRATION AGREEMENT CONTAINED IN THIS PARAGRAPH
CONFLICT WITH ANY OTHER ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE PARTIES
AGREE THAT THIS ARBITRATION AGREEMENT SHALL GOVERN.
11. Miscellaneous.
A. Governing
Law.
This
Agreement shall be governed by the laws of California without regard to
California’s conflicts of law rules.
B. Assignability.
Except
as otherwise provided in this Agreement, Consultant may not sell, assign or
delegate any rights or obligations under this Agreement.
C. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter of this Agreement and supersedes all prior written and oral
agreements between the parties regarding the subject matter of this
Agreement.
D. Headings.
Headings are used in this Agreement for reference only and shall not be
considered when interpreting this Agreement.
E. Notices.
Any
notice or other communication required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed given if delivered
personally or by commercial messenger or courier service, or mailed by U.S.
registered or certified mail (return receipt requested), to the party at the
party’s address written below or at such other address as the party may have
previously specified by like notice. If by mail, delivery shall be deemed
effective three business days after mailing in accordance with this Section 11.E.
(1)
If
to the
Company, to:
000
Xxxxxx Xxxxxx - Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000
Attention:
Chief Executive Office
(2) If
to
Consultant, to the address for notice on the signature page to
this
Agreement or, if no such address is provided, to the last address of Consultant
provided by Consultant to the Company.
F. Attorneys’
Fees.
In any
court action at law or equity that is brought by one of the parties to this
Agreement to enforce or interpret the provisions of this Agreement, the
prevailing party will be entitled to reasonable attorneys’ fees, in addition to
any other relief to which that party may be entitled.
G. Severability.
If any
provision of this Agreement is found to be illegal or unenforceable, the other
provisions shall remain effective and enforceable to the greatest extent
permitted by law.
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement
as
of the date first written above.
|
CONSULTANT
|
SOURCEFORGE, INC. | ||||||||
|
By:
|
/s/ Xxx Xxxxx |
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx | ||||||
|
Name:
|
Xxx
Xxxxx
|
Name:
|
Xxxxxx
X. Xxxxxxxxxx
|
||||||
|
Title:
|
Title:
|
Chairman
& CEO
|
|||||||
|
Address
for Notice:
|
|||||||||
EXHIBIT
A
Services
and Compensation
1. Contact.
Consultant’s principal Company contact:
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Chairman & Chief Executive Officer
2. Services.
The
Services shall include, but shall not be limited to, the following:
Consultant
shall consult with the Company’s Chief Executive Officer and other appropriate
officers and employees of the Company, on a timely and as requested basis,
in
order to assist with the transition of management responsibilities resulting
from Xxxxxx X. Xxxxxxxxxx’x appointment as Chief Executive Officer and
President of the Company.
3. Compensation.
A. The
Company will pay Consultant $35,000 per month for a three (3) month period,
subject to the provisions of Section 6.B. of this Agreement. Payment due dates
shall be July 1, August 1 and September 8, 2008, and payments shall be made
within 10 days of their respective payment due dates.
B. The
Company will reimburse Consultant for all reasonable expenses incurred by
Consultant in performing the Services pursuant to this Agreement, if Consultant
receives written consent from an authorized agent of the Company prior to
incurring such expenses and submits receipts for such expenses to the Company
in
accordance with Company policy.
4. Term.
The
term of this Agreement shall commence on June 10, 2008 and conclude on September
8, 2008.
This
Exhibit
A
is
accepted and agreed as of June 9, 2008.
|
CONSULTANT
|
SOURCEFORGE, INC. | ||||||||
|
By:
|
/s/ Xxx Xxxxx |
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx | ||||||
|
Name:
|
Xxx
Xxxxx
|
Name:
|
Xxxxxx
X. Xxxxxxxxxx
|
||||||
|
Title:
|
Title:
|
Chairman & Chief Executive Officer | |||||||
