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Exhibit 10.30
TESSERA, INC.
CONSULTING AGREEMENT
Xx. Xxxxxx Xxxxxx
Date: August 30, 2000
Dear Xxxxxx:
TESSERA, INC. (hereinafter "Tessera" or the "Company"), a Delaware
corporation, having a principal place of business at 0000 Xxxxxxx Xxxxx, Xxx
Xxxx, Xxxxxxxxxx 00000, wishes to obtain your services as an independent
consultant/contractor (hereinafter "Consultant", "you" or "your") on projects
agreed upon by you or to be assigned by the Company (hereinafter the
"Projects"), and you as an independent Consultant desire to offer your services
to the Company and accept the assignment to complete such Projects. This letter
shall constitute an agreement (the "Agreement") between you and the Company, and
contains all the terms and conditions relating to the services that you provide.
Independent Consultant.
Status. Your relationship with the Company shall be that of an
independent consultant; and both parties agree and understand that it is not an
employment relationship. Consultant shall report directly and provide services
in accordance with the instructions of Tessera's President and with such
reasonable instructions given to him by any other officer of the Company.
Tessera has selected you to provide consulting services based upon your
experience and expertise and, accordingly, does not anticipate to provide you
training or detailed instructions on the performance of such services. In
addition, as an independent Consultant, you may establish your own work
schedule, consistent with the needs of Projects. You may determine the location
where you perform services under this Agreement, consistent with the timeliness
and cost-effectiveness of completing Projects. If you desire to perform some
part of the services on the Company's premises, Company will make the
appropriate arrangements to accommodate such needs. At times that you may work
in the Company's premises and use Company's furniture and equipment to
facilitate the completion of Projects, such should not be construed as a
condition for employment as an employee. You confirm that the Tax Identification
Number given by you hereunder is the correct I.D. for tax reporting purpose. In
addition, you hereby represent and confirm that you are responsible for your own
worker compensation insurance and other liability insurance coverage as an
independent contractor and that the Company is not responsible for such
liability and insurance.
No Benefits. You will not be eligible for any employee benefits, nor
will the Company make deductions from payments made to you for taxes, which
shall be your sole responsibility as an independent Consultant. In this regard,
you hereby represent and confirm to the Company that you act as an independent
Consultant and that you will pay all taxes, including federal, state and local
income taxes, FICA, Medicare contributions, disability, and others.
No Authority to Enter into Agreements. As an independent Consultant, you
shall have no authority to enter into contracts which bind the Company or create
obligations on the part of the Company without the express prior written
authorization of the Company. Such authorization must be signed by an officer of
Tessera.
No Third Party Confidential Information. You agree and represent that
you will not use, copy, or otherwise incorporate any third party confidential or
proprietary information to complete Projects, other than the third party
confidential information that you may receive from Tessera to complete such
Projects. The Company will not authorize such use of third parties' confidential
and proprietary information.
Payment & Expenses
Payment. As consideration for your services, you will be paid $5,000 at
the end of each month of service provided you have performed a minimum of one
(1) day per week of service, averaged over the life of this Agreement, to
Tessera under this Agreement for work performed on Projects as authorized by an
officer of Tessera. This monetary payment schedule shall begin RETROACTIVELY
from June 1, 1999 and shall continue for the term of this Agreement. If this
Agreement is terminated early, any pay due you for a partial month of service
shall be pro rated and paid to you promptly.
Stock Options. Subject to Tessera's Board approval, you will receive an
option pursuant to Tessera's 1999 Stock Plan and standard form stock option
agreement to purchase 340,000 shares of the Common Stock of Tessera for an
exercise price of $1.00 per share as set as the fair market value by Tessera's
Board of Directors. As stated in the Tessera 1999 stock option plan, you may opt
to exercise the options granted hereunder prior to vesting of the
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options (please review the stock option plan for more information). This option
shall vest equally on a per month basis over a thirty six (36) month period
RETROACTIVELY beginning such vesting on June 1, 1999 and continuing such vesting
on the first day of each month thereafter, subject to your continued service to
Tessera under this Agreement. If this Agreement terminates prior to the end of
the fully vested thirty six month period, vesting of the unvested shares will
immediately stop and you shall be vested only in that number of shares that is
equal to the number of full months of service that this Agreement was effective
multiplied by the number shares per month. Notwithstanding, if this Agreement is
terminated by Tessera or any Tessera successor (other than for cause), an
additional 12 months of shares shall accelerate and be purchasable by you at
that time, unless there is less than one year left of vesting in which case only
the remaining possible unvested shares prior to such termination event (out of
the 340,000 total possible vesting shares) shall accelerate and be purchasable
by you at that time. Further, the first right of refusal clause in Tessera's
1999 stock option plan shall be extended to include an exception for transfer
via will to PSERD Trust and to any 501C3 organization. This stock option grant
is separate and distinct from the stock option grant that you may receive for
being a Director on Tessera's Board. Any Tessera Board stock option grants shall
be issued on a non-discriminatory basis for outside Board members which shall
not take into account the shares granted herein. However, your duties hereunder
are viewed as being an extension of your duties and services as a Director of
Tessera's Board and therefor this stock option grant is also viewed as being
compensation for such extended duties and services.
Expenses. According to the nature of Projects, you will be reimbursed
for reasonable travel, telephone and other out-of-pocket expenses actually
incurred by you in connection with your services under this Agreement, provided
that you obtain prior approval of an officer of the Company's, and provided that
you submit proper receipts for reimbursement.
Confidentiality
Information you receive pursuant to Projects shall only be used for authorized
Tessera business. You shall keep in confidence and shall not disclose or make
available to third parties or make any use of any information or documents
relating to your services under this Agreement or to the products, methods of
manufacture, trade secrets, processes, business practices, vendor or customer
lists, or confidential or proprietary information of the Company (other than
information already in the public domain), except with the prior written consent
of the Company and as necessary to fulfill your duties to Tessera under this
Agreement. If a court of law, having competent jurisdiction, requires the
disclosure from you of the confidential or proprietary information you have
obtained under this contract, you may disclose such information to the extent so
required by the court provided that you have given Tessera notice and an
opportunity to seek a confidential court seal for such information. You
recognize 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. You agree that you owe the Company and
such third parties, during the term of this Agreement and thereafter, 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 connection with the Projects consistent with the
Company's agreement with such third party. Upon termination of this Agreement
you will return to the Company all documents, or other materials related to the
services provided hereunder or furnished to you by the Company. Your obligations
under this section shall survive termination of this Agreement.
Assignment of Inventions
Inventions. Consultant agrees that all copyrightable material, notes,
records, drawings, designs, inventions, improvements, developments, discoveries
and trade secrets (collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others in the area of semiconductor
packaging (and other areas as may be related to the Projects) and during the
period of this Consulting Agreement are the sole property of the Company.
Consultant further agrees to assign (or cause to be assigned) and does hereby
assign fully to the Company all Inventions which are recognized as the sole
property of the Company under this paragraph. You agree that if in the course of
working on Projects you incorporate into any invention, improvement,
development, concept, discovery or other proprietary information owned by you or
in which you have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make,
have made, modify, use and sell such item as part of or in connection therewith.
Further Assistance. Consultant agrees to assist Company at the Company's
request, at the Company's expense, in every proper way to secure the Company's
rights in the Inventions which are recognized in this
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Agreement as the sole property of the Company and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
deems 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 such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Consultant further agrees that Consultant's obligation to
execute or cause to be executed, when it is in Consultant's power to do so, any
such instrument or papers will continue after the termination of this Agreement.
Non-Compete
The Company understands that you do not presently perform or intend to
perform, during the term of this Agreement, consulting or other services for
companies whose business or proposed businesses in any way involve the design or
licensing of products that would be competitive with the products or proposed
products of the Company. If you believe your representation of a client or
potential client may violate this paragraph, you agree to notify the Company in
writing in advance (specifying the organization with which you propose to
consult) and provide general, but not confidential, information sufficient to
allow the Company to determine if such consulting would conflict with areas of
interest to the Company or further services which the Company might request of
you pursuant to this Agreement. This provision does not restrict you from
providing consulting services or board representation to companies whose
businesses do no involve the design or licensing of such competitive products or
conflict with the Company's other business activities. Further, this provision
does not restrict you from providing consulting services or board representation
to companies whose products may incorporate competitive products that have been
manufactured by third parties and that are not essential or primary to the
resulting product manufactured or sold by such represented companies.
"AT WILL" Consultantcy & Termination
Either you or the Company may terminate this Agreement at any time, with
or without good cause by providing the other party with written notice. Such
termination will take effect as of the date such termination is sent to the
other party by facsimile, mail, or courier service.
Arbitration and Equitable Relief.
Disputes. Except as provided in Section 14(c) below, the Company and the
Consultant agree that, to the extent permitted by applicable law, any dispute or
controversy arising under or in conjunction with this Agreement will be settled
exclusively by arbitration in San Jose, California, in accordance with the rules
of the American Arbitration Association then in effect by an arbitrator selected
by both parties within ten days after either party has notified the other in
writing that it desires a dispute between them to be settled by arbitration. In
the event the parties cannot agree on such arbitration within such ten-day
period, each party will select an arbitrator and inform the other party in
writing of such arbitrator's name and address within five days after the end of
such ten-day period and the two arbitrators so selected will select a third
arbitrator within 15 days thereafter; provided, however, that in the event of a
failure by either party to select an arbitrator and notify the other party of
such selection within the time period provided above, the arbitrator selected by
the other party will be the sole arbitrator of the dispute. The decision of the
arbitrator or a majority of the panel of arbitrators will be binding upon the
parties and judgment in accordance with that decision may be entered in any
court having jurisdiction therefor. Punitive damages will not be awarded.
Consent to Personal Jurisdiction. The arbitrator(s) will apply
California law to the merits of any dispute or claim, without reference to
conflicts of law rules. Consultant hereby consents to the personal jurisdiction
of the state and federal courts located in San Jose, California for any action
or proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.
Equitable Relief. The parties may apply to any court of competent
jurisdiction for a temporary restraining order, preliminary injunction, or other
interim or conservatory relief as necessary, without breach of this arbitration
agreement and without abridgement of the powers of the arbitrator.
Acknowledgement. CONSULTANT HAS READ AND UNDERSTANDS THIS AGREEMENT,
WHICH DISCUSSES ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING THIS
AGREEMENT, CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO,
OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION,
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PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING ARBITRATION AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF CONSULTANT'S RIGHT TO A JURY TRIAL
AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
RELATIONSHIP BETWEEN THE PARTIES.
Miscellaneous
Amendments. Any amendment to this Agreement must be in writing signed by
you and the Company.
Notices. All notices, requests or other communications called for by
this Agreement shall be deemed to have been given if made in writing and mailed,
postage prepaid, if to you at the address set forth above and if to the Company
at the principal office shown above, or to such other addresses as either party
shall specify to the other.
Conflicts with Board Obligations. To the extent that any term of this
Agreement conflicts with Consultant's obligations or duties as a member of
Tessera's Board of Directors, Consultant's Board of Director's obligations and
duties shall supercede such conflicting terms.
Entire Agreement. This Agreement is the entire agreement of the parties
and supersedes any prior agreements, whether verbal or written, whether express
or implied, between them with respect to the subject matter hereof.
If this Agreement is satisfactory and acceptable to you, please execute
and return one copy to us, retaining the second copy for your file.
Yours very truly,
COMPANY AGREED AND ACCEPTED:
By: By:
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Print Name: Xxxxx XxXxxxxxxx Print Name: Xxxxxx Xxxxxx
Title: President & CEO Tax I.D. #:
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Date: Date:
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