ERIC SALUS AGREEMENT (2008)
Exhibit (e)(9)
XXXX
XXXXX AGREEMENT (2008)
THIS AGREEMENT, dated as of October 8, 2008 (the
“Effective Date”), is between XXXXXXXX, INC., a
Delaware corporation and its successors or assignees
(“Xxxxxxxx”), and XXXX XXXXX, an individual
(“Xx. Xxxxx”).
1. ENGAGEMENT OF SERVICES. Xxxxxxxx is
engaging the services, advice, expertise and counsel of
Xx. Xxxxx on operational issues as specified by the Board
of Directors. Xx. Xxxxx agrees to provide such services at
the Company’s headquarters in Carlsbad, California
and/or at
such other locations as Xx. Xxxxx may choose for at least
fifteen (15) working days (including partial days which may
be aggregated to equal a full day) and his consulting engagement
hereunder shall continue until October 25, 2008;
provided, however, that the parties acknowledge
and agree that Xx. Xxxxx has already provided consulting
services to Xxxxxxxx since September 25, 2008, and Xx.
Xxxxx shall accordingly be credited for the same in satisfying
the fifteen (15) day service requirement. Xxxxxxxx will
make its employees, facilities and equipment reasonably
available to Xx. Xxxxx in order for him to perform his
duties under this Agreement. Xx. Xxxxx may not subcontract
or otherwise delegate or assign his obligations under this
Agreement without Xxxxxxxx’x prior written consent.
2. COMPENSATION. In view of the time
commitments associated with his duties under this Agreement,
Xx. Xxxxx shall be compensated for all services under this
Agreement with a cash retainer of $30,000, payable on the
earlier of October 25, 2008 and the date that Xxxxxxxx
experiences a “Change in Control.” As used herein,
“Change of Control” shall have the meaning given it in
Exhibit A attached hereto and incorporated by this
reference. The foregoing cash compensation will be in addition
to, and not in lieu of, any and all cash compensation paid to
Xx. Xxxxx for his continuing service on the Board of
Directors.
Xx. Xxxxx will promptly (out in any event within thirty
(30) calendar days) be reimbursed for reasonable
out-of-pocket expenses incurred in connection with the
performance of services under this Agreement provided
Xx. Xxxxx submits verification of such expenses as Xxxxxxxx
may reasonably require.
3. NON-EXECUTIVE BOARD
MEMBER. Xx. Xxxxx’x relationship with
Xxxxxxxx will be that of a non-executive board member and
nothing in this Agreement should be construed to create a
partnership, joint venture, or employer-employee relationship.
Xx. Xxxxx will not be entitled to any of the benefits that
Xxxxxxxx may make available to its employees, such as group
insurance, profit-sharing, vacation or retirement benefits.
Xx. Xxxxx will be solely responsible for all tax returns
and payments required to be filed with or made to any federal,
state or local tax authority with respect to his performance of
services and receipt of fees under this Agreement. Xxxxxxxx will
report amounts paid to Xx. Xxxxx by filing
Form 1099-MISC
with the Internal Revenue Service as required by law. Because
Xx. Xxxxx is a non-executive board member, Xxxxxxxx will
not withhold or make payments for social security, make
unemployment insurance or disability insurance contributions; or
obtain worker’s compensation insurance on
Xx. Xxxxx’x behalf. Xx. Xxxxx agrees to accept
exclusive liability for complying with all applicable state and
federal laws governing self-employed individuals, including
obligations such as payment of taxes, social security,
disability and other contributions based on fees paid to
Xx. Xxxxx, his agents or employees under this Agreement.
Xx. Xxxxx hereby agrees to indemnify and defend Xxxxxxxx
against any and all such taxes or contributions, including
penalties and interest.
4. NO CONFLICT OF
INTEREST. Xx. Xxxxx agrees during the term of this
Agreement not to accept work or enter into a contract or accept
an obligation, inconsistent or incompatible with
Xx. Xxxxx’x obligations under this Agreement or the
scope of his duties rendered for Xxxxxxxx. Xx. Xxxxx
warrants that there is no existing contract or duty on
Xx. Xxxxx’ part that may conflict with the terms of
this Agreement or the performance thereof.
5. GENERAL PROVISIONS.
5.1 Governing Law. This Agreement will
be governed and construed in accordance with the internal laws
of the State of California. Xx. Xxxxx hereby expressly and
irrevocably consents to the personal jurisdiction of the state
and federal courts located in San Diego County or Orange
County, California for any lawsuit filed arising from or related
to this Agreement and any suit arising from this Agreement shall
be brought in those courts.
5.2 Severability. In case any one or more
of the provisions contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
5.3 Counterparts. Facsimile transmission
of any signed original of this Agreement will be deemed the same
as delivery of an original. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original and each of which together shall be deemed one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their duly authorized representative
as of the Effective Date.
XXXXXXXX, INC. | XXXX XXXXX | |
By: /s/ Xxxxxxx X. Xxxxxxx
|
By: /s/ Xxxx Xxxxx
|
|
Name: Xxxxxxx X. Xxxxxxx
|
Xxxx Xxxxx | |
Title: Chairman
|
Exhibit A
As used in this Agreement, the phrase “Change in
Control” shall mean:
(a) Except as provided by subparagraph
(c) hereof, the acquisition (other than from Xxxxxxxx) by
any person, entity or “group”, within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) (excluding,
for this purpose, Xxxxxxxx or its subsidiaries, or any executive
benefit plan of Xxxxxxxx or its subsidiaries which acquires
beneficial ownership of voting securities of Xxxxxxxx), of
beneficial ownership (within the meaning of
Rule 13d-3
promulgated under the Exchange Act) of forty percent (40%) or
more of either the then outstanding shares of common stock or
the combined voting power of Xxxxxxxx’x then outstanding
voting securities entitled to vote generally in the election of
directors; or
(b) Individuals who, as of the date hereof,
constitute the Board of Directors of Xxxxxxxx (as of the date
hereof the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board of Directors of
Xxxxxxxx, Provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for
election by Xxxxxxxx’x stockholders, is or was approved by
a vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the Directors of Xxxxxxxx, as such terms are used in
Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) shall
be, for purposes of this Agreement, considered as though such
person were a member of the Incumbent Board; or
(c) Approval by the stockholders of Xxxxxxxx of a
reorganization, merger or consolidation with any other person,
entity or corporation, other than
(i) a merger or consolidation which would result in
the voting securities of Xxxxxxxx outstanding immediately prior
thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of another entity)
more than fifty percent (50%) of the combined voting power of
the voting securities of Xxxxxxxx or such other entity
outstanding immediately after such merger or
consolidation, or
(ii) a merger or consolidation effected to implement
a recapitalization of Xxxxxxxx (or similar transaction) in which
no person acquires forty percent (40%) or more of the combined
voting power of Xxxxxxxx’x then outstanding voting
securities; or
(d) Approval by the stockholders of Xxxxxxxx of a
plan of complete liquidation of Xxxxxxxx or an agreement for the
sale or other disposition by Xxxxxxxx of all or substantially
all of Xxxxxxxx’x assets.