EXHIBIT 10.9
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of May 18, 1998 (this "AGREEMENT"), between
California Microwave Services Division, Inc., a Delaware corporation
(the "COMPANY"), and Xxxxxxxx Xxxxxx ("CONSULTANT").
WHEREAS, Consultant is a highly valued and trusted Executive of the Company;
and
WHEREAS, the Company desires for Consultant to return from his leave of absence
and rejoin the Management Team as an Executive of the Company; and
WHEREAS, the Company desires to offer Consultant employment upon his return and
Consultant desires to accept such employment.
In consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
EMPLOYMENT. The Company shall retain Consultant to provide consulting
services as set forth herein, and Consultant hereby agrees to provide such
consulting services for the Company, upon the terms and conditions set forth in
this Agreement for the period specified in paragraph 4 hereof (the "CONSULTING
PERIOD").
POSITION AND DUTIES.
During the Consulting Period, Consultant shall provide consulting
services (the "Duties") to the Company as specified in the "Statement of Work",
attached as Exhibit "A" and incorporated herein.
During the Consulting Period, Consultant shall report to the
President, Satellite Services, of the Company, and Consultant shall devote his
best efforts to accomplish the Duties specified in the Statement of Work.
CONSULTING FEE AND EXPENSES.
During the Consulting Period, Consultant shall be entitled to
receive from the Company as compensation for his performance of the Duties
hereunder the consulting fees (the "CONSULTING FEES") specified in Exhibit "`B"
attached hereto and incorporated herein.
The Company shall reimburse Consultant for all reasonable expenses
incurred by him in the course of performing the Duties provided for in this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel and other business
expenses, subject to the Company's requirements with respect to reporting and
documentation of such expenses.
TERM.
The Consulting Period shall commence on June 30, 1998, and shall
terminate no later than July 15, 1999; provided that (i) the Consulting Period
shall terminate prior to such date upon Consultant's resignation, death or
Disability (as defined below) and (ii) the Consulting Period may be terminated
by the Company at any time prior to such date for Cause (as defined below) or
without Cause.
If the Consulting Period is terminated by the Company, whether for
Cause or without cause, Consultant shall only be entitled to receive the unpaid
pro rata portion of the Consulting Fee which was earned by Consultant in
accordance with paragraph 3(a) of this Agreement through the date of such
termination.
Consultant shall immediately cease to incur expenses as of the date
of termination of the Consulting Period (other than expenses reasonably incurred
by Consultant to return home should Consultant be traveling at the request of
the Company as of the date of termination). The Company shall reimburse
Consultant for such expenses and all other previously incurred but unreimbursed
expenses of Consultant through the date of termination of the Consulting Period
in accordance with paragraph 3(b) of this Agreement.
The Company may offset any amounts Consultant owes it against any
amounts the Company owes Consultant hereunder.
For purposes of this Agreement, "CAUSE" shall mean Consultant's
conviction of a crime involving an act or acts of dishonesty, fraud or moral
turpitude by Consultant with regard to the Company, which act or acts constitute
a felony and the willful and continued failure to substantially perform
Consultant's duties hereunder after receipt of written notice from the Company
specifically setting forth such failure. For purposes of this Agreement,
'Disability' shall mean the inability of Consultant, in the reasonable judgment
of a physician approved by the Board (which approval shall not be unreasonably
withheld), to perform his duties of employment for the Company because of any
physical or mental disability or incapacity, where such disability shall exist
for an aggregate period of more than 120 days in any 365-day period or for any
period of 90 consecutive days. The Company shall by written notice to Consultant
specify the event relied upon for termination pursuant to this Subsection 5(a),
and the Consulting Period hereunder shall be deemed terminated as of the date of
such notice; provided, that in the event of Consultant's death, such termination
shall occur automatically as of the date of death. In the event of any
termination under this Subsection 5(a), the Company shall pay all amounts then
due to Consultant under Section 3(a) of this Agreement, in addition to any
severance payments required by law, and, if such termination was due to Cause,
the Company shall have no further obligations to Consultant under this
Agreement..
NON-COMPETITION. During the Consulting Period hereunder and for the one
year period thereafter, the Consultant shall not, anywhere within the United
States of America or anywhere
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else in the world in which the Company is then doing business, engage as an
individual in activities in competition with the business of the Company,
including, but not limited to, any aspect of the Business (as defined in the
Stock Purchase Agreement of even date herewith among the Company, California
Microwave, Inc. and Telescape International, Inc.). In addition, for one year
following the later of the last day of the Consulting Period or the payment of
the last Consulting Fee hereunder, the Consultant shall not, within any
jurisdiction in which the Company is then doing business, or within a
one-hundred (100) mile radius of any such jurisdiction, engage in activities in
competition with the Business of the Company. Investments in less than five
percent (5%) of the outstanding securities of any class of a publicly-traded
company shall not be prohibited by this Section 5. Should the Company terminate
Consultant without Cause, then this Section 5 shall be null and void.
INVENTIONS AND CONFIDENTIAL INFORMATION. The parties hereto recognize that
a major need of the Company is to preserve its specialized knowledge, trade
secrets and confidential information. The strength and good will of the Company
is derived from the specialized knowledge, trade secrets and confidential
information generated from experience with the activities undertaken by the
Company. The disclosure of this information and knowledge to competitors would
be beneficial to them and detrimental to the Company as would the disclosure of
information about the marketing practices, pricing practices, costs, profit
margins, design specifications, analytical techniques and similar items of the
Company. By reason of his being a senior executive of the Company, the
Consultant has or will have access to, and has obtained or will obtain,
specialized knowledge, trade secrets and confidential information about the
Company's operations wherever it does business. Therefore, Consultant hereby
agrees as follows, recognizing that the Company is relying on these agreements
in entering into this Agreement:
During and for three years after the Consulting Period hereunder,
Consultant will maintain as confidential and will not use, disclose to others or
publish or otherwise make available to any other party any inventions or any
confidential business information about the affairs of the Company, including,
but not limited to, confidential information concerning its products, methods,
product purchasing arrangements and agreements, engineering designs, systems
designs and standards, analytical techniques, technical information, customer
information, employee information and other confidential information acquired by
him in the course of his past or future services for the Company. Consultant
agrees to hold as the Company's property, all memoranda, books, papers, letters,
formulas and other data and all copies thereof and therefrom, in any way
relating to the Company's Business and affairs, whether made by him or otherwise
coming into his possession, and, on termination of his employment, or on demand
of the Company, at any time, to deliver the same to the Company within twelve
(12) hours of such termination or demand.
During the Consulting Period hereunder, and for one year following
the last day of the Consulting Period, Consultant will not induce or otherwise
attempt to influence any employee of the Company to leave the employ of the
Company (unless the Board of Directors shall have authorized such employment and
the Company shall have consented thereto in writing).
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SURVIVAL OF OBLIGATIONS. Sections 5, 6, 7, 8 and 18 of this Agreement
shall survive its termination for any reason, regardless of whether such
termination is by the Company, by Consultant, upon the expiration of the
Consulting Period or otherwise; provided, however, that should the Company
terminate Consultant without Cause, Section 5 shall not survive the termination
of this Agreement.
SEVERABILITY. In case any one or more of the provisions or part of a
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect any
other jurisdiction or any other provision or part of a provision of this
Agreement, nor shall such invalidity, illegality or unenforceability affect the
validity, legality or enforceability of this Agreement or any provision or
provisions hereof in any other jurisdiction; and this Agreement shall be
reformed and construed in such jurisdiction as if such provision or part of a
provision held to be invalid, illegal or unenforceable had never been contained
herein and such provision or part reformed so that it would be valid, legal and
unenforceable in such jurisdiction to the maximum extent possible. In
furtherance and not in limitation of the foregoing, the Company and Consultant
each intend that the covenants contained in Sections 5 and 6 of this Agreement
shall be deemed to be a series of separate covenants, one for each state,
territory or jurisdiction of the United States of America and any foreign
country referenced therein. If in any judicial proceeding, a court shall refuse
to enforce any of such separate covenants, then such unenforceable covenants
shall be deemed eliminated from the provision hereof for the purpose of such
proceedings to the extent necessary to permit the remaining separate covenants
to be enforced in such proceedings. If, in any judicial proceedings, a court
shall refuse to enforce any one or more of such separate covenants because the
total time thereof or the geographical area covered thereby is deemed to be
unreasonable, then it is the intent of the parties hereto that such covenants,
which would otherwise be unenforceable due to such excessive or unreasonable
period of time or geographic area, be enforced for such lesser period of time as
shall be deemed reasonable and not excessive by such court.
CONSULTANT'S REPRESENTATIONS. Consultant hereby represents and warrants to
the Company that (i) the execution, delivery and performance of this Agreement
by Consultant do not and shall not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which Consultant is a party or by which he is bound, (ii) Consultant is not a
party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Consultant, enforceable in accordance with
its terms. Consultant hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
NOTICES. Any notice provided for in this Agreement shall be in writing and
shall be either sent via reputable overnight courier, charges prepaid, or mailed
by certified first class mail, return receipt requested, to the recipient at the
address below indicated:
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NOTICES TO CONSULTANT:
Xxxxxxxx Xxxxxx
c/o California Microwave Services Division, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
NOTICES TO THE COMPANY:
California Microwave Services Division, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when received as
evidenced by the date on the overnight courier, xxxx of lading or other delivery
records or the certified mail return receipt.
COMPLETE AGREEMENT. This Agreement, those documents expressly referred to
herein and the other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
NO STRICT CONSTRUCTION. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
The parties hereto have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
COUNTERPARTS. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Consultant, the Company and their
respective heirs, successors and assigns, except that Consultant may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company.
CHOICE OF LAW. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of California, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
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jurisdiction other than the State of California. In furtherance of the
foregoing, the internal law of the State of California shall control the
interpretation and construction of this Agreement (and all schedules and
exhibits hereto), even though under that jurisdiction's choice of law or
conflict of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.
AMENDMENT AND WAIVER. The provisions of this Agreement may be amended or
waived only with the prior written consent of the Company and Consultant, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
CONSULTING ARRANGEMENT. This Agreement is intended to provide a consulting
arrangement only and Consultant shall be deemed to be an independent contractor,
and not an employee, of the Company during the Consulting Period.
EMPLOYMENT AGREEMENT. Upon termination of the Consulting Period (other
than termination by the Company for Cause or upon Consultant's death),
Consultant shall become a full-time employee of the Company, and shall serve as
the Vice President, Sales of the Company at an annual salary of $100,000 per
annum, and on terms and conditions substantially similar to those set forth in
[the Employment Agreements of even date herewith between the Company and each of
E. Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx (except with respect to
the bonus payable with respect to the twelve month period ending June 30, 1999)
(the "Employment Agreements"), and Company and Consultant shall execute an
employment agreement containing such terms and otherwise substantially in the
form of the Employment Agreements as of the date of such termination.
ARBITRATION. Any dispute among the parties arising out of or relating to
this Agreement or breach hereof, shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association. The arbitration shall be
conducted by three (3) neutral arbitrators who sit in San Jose, California. Any
award made by such arbitrators shall be binding and conclusive for all purposes
hereof, may include injunctive relief, as well as orders for specific
performance and may be entered as a final judgement in any court of competent
jurisdiction. No arbitration arising out of or relating to this Agreement shall
include, by
consolidation or joinder or in any other manner, parties other than the parties
hereto and other persons substantially involved in common questions of fact or
law whose presence is required if complete relief is to be afforded in
arbitration. The costs and expense of such arbitration shall be born in
accordance with the determination of the arbitrators and may include reasonable
attorney fees. Each party hereunder further agrees that service of process may
be made upon it by registered or certified mail or personal service at the
address for notices provided herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement
as of the date first written above.
CALIFORNIA MICROWAVE SERVICES
DIVISION, INC.
By: __________________________
Name:
Title:
______________________________
Xxxxxxxx Xxxxxx
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EXHIBIT "A"
STATEMENT OF WORK
During the term of this Agreement, CONSULTANT will perform services defined as
follows:
Routine Duties shall include:
Retrieving and responding to Internet mail received from the Company and others
requesting information pertaining to the Company's products and services
Assisting the Company's employees, via the Internet and via telephone, with
providing responses to customer or potential customer issues
Directly interacting with customers or potential customers via telephone or
via the Internet
Contributing marketing, business planning and sales information no less often
than bi-weekly, or in response to specific requests from the Company
Occasional Duties shall include:
Writing proposals, preparing quotations and developing sales support materials
Traveling for the purpose of meeting with customers, potential customers
and/or Company employees
Such other Duties as may be requested from time-to-time by the President,
Satellite Services.
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EXHIBIT "B"
For the performance of the Duties described in the Statement of Work, Consultant
shall be entitled to receive compensation as follows:
Routine Duties -- US $3,000.00 per month or partial month
Occasional Duties -- US $1,000 per day*
"Such other" Duties -- As mutually agreed by the parties
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* With the prior written approval of such duties by the President, Satellite
Services or his designee.
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