Exhibit 10.28
CONSULTING SERVICES AGREEMENT
EFFECTIVE DATE: JANUARY 17, 2004
THIS CONSULTING SERVICES AGREEMENT (the "Agreement") is made by and
between OPLINK COMMUNICATIONS, INC. ("Client"), a Delaware corporation, and
XXXXX XXX, an individual ("Consultant").
1. ENGAGEMENT OF SERVICES. Client may issue Project Assignments to
Consultant in the form attached to this Agreement as EXHIBIT A ("Project
Assignment"). Subject to the terms of this Agreement, Consultant will render the
services set forth in Project Assignment(s) accepted by Consultant by the
completion dates set forth therein.
2. COMPENSATION. Consultant will be compensated as set forth in each
Project Assignment for services rendered pursuant to this Agreement. Consultant
will be reimbursed only for expenses that are expressly provided for in a
Project Assignment or that have been approved in advance in writing by Client,
provided Consultant has furnished such documentation for authorized expenses as
Client may reasonably request. Upon termination of this Agreement for any
reason, Consultant will be compensated on the basis stated in the Project
Assignment(s) for work that has been completed.
3. OWNERSHIP OF WORK PRODUCT. Consultant hereby assigns to Client all
right, title and interest in and to any work product created by Consultant, or
to which Consultant contributes, pursuant to this Agreement (the "Work
Product"), including all copyrights, trademarks and other intellectual property
rights contained therein. Consultant agrees to execute, at Client's request and
expense, all documents and other instruments necessary or desirable to confirm
such assignment, including without limitation, the copyright assignment set
forth as EXHIBIT B ("Assignment of Copyright"). In the event that Consultant
does not, for any reason, execute such documents within a reasonable time of
Client's request, Consultant hereby irrevocably appoints Client as Consultant's
attorney-in-fact for the purpose of executing such documents on Consultant's
behalf, which appointment is coupled with an interest.
4. ARTIST'S AND MORAL RIGHTS. If Consultant has any rights, including
without limitation "artist's rights" or "moral rights," in the Work Product
which cannot be assigned, Consultant agrees to waive enforcement worldwide of
such rights against Client. In the event that Consultant has any such rights,
that cannot be assigned or waived, Consultant hereby grants to Client an
exclusive, worldwide, irrevocable, perpetual license to use, reproduce,
distribute, create derivative works of, publicly perform and publicly display
the Work Product in any medium or format, whether now known of later developed.
5. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants that:
(a) Consultant has the right and unrestricted ability to assign the Work Product
to Client as set forth in Section 3 (including without limitation the right to
assign any Work Product created by Consultant's employees or contractors), and
(b) the Work Product will not infringe upon any copyright, patent, trademark,
right of publicity or privacy, or any other proprietary right of any person,
whether contractual, statutory or common law. Consultant agrees to indemnify
Client from any and all damages, costs, claims, expenses or other liability
(including reasonable attorneys' fees) arising from or relating to the breach or
alleged breach by Consultant of the representations and warranties set forth in
this Section 5.
6. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant's relationship with
Client is that of an independent contractor, and nothing in this Agreement is
intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship. Consultant will not be entitled to any of
the benefits which Client may make available to its employees, including, but
not limited to, group health or life insurance, profit-sharing or retirement
benefits. Consultant is not authorized to make any representation, contract or
commitment on behalf of Client unless specifically requested or authorized in
writing to do so by a Client officer. Consultant is solely responsible for, and
will file, on a timely basis, all tax returns and payments required to be filed
with, or made to, any federal, foreign, state or local tax authority with
respect to the performance of services and receipt of fees under this Agreement.
Consultant is solely responsible for, and must maintain adequate records of,
expenses incurred in the course of performing services under this Agreement. No
part of Consultant's compensation will be subject to withholding by Client for
the payment of any social security, federal, foreign, state or any other
employee payroll taxes. Client will regularly report amounts paid to Consultant
by filing Form 1099-MISC with the Internal Revenue Service as required by law.
7. CONFIDENTIAL INFORMATION. Consultant agrees to hold Client's
Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. "Confidential Information" as
used in this Agreement shall mean all information disclosed by Client to
Consultant that is not generally known in the Client's trade or industry and
shall include, without limitation, (a) concepts and ideas relating to the
development and distribution of content in any medium or to the current, future
and proposed products or services of Client or its subsidiaries or affiliates;
(b) trade secrets, drawings, inventions, know-how, software programs, and
software source documents; (c) information regarding plans for research,
development, new service offerings or products, marketing and selling, business
plans, business forecasts, budgets and unpublished financial statements,
licenses and distribution arrangements, prices and costs, suppliers and
customers; (d) existence of any business discussions, negotiations or agreements
between the parties; and (e) any information regarding the skills and
compensation of employees, contractors or other agents of the Client or its
subsidiaries or affiliates. Confidential Information also includes proprietary
or confidential information of any third party who may disclose such information
to Client or Consultant in the course of Client's business. Consultant's
obligations set forth in this Section 7 shall not apply with respect to any
portion of the Confidential Information that Consultant can document by
competent proof that such portion: (a) was in the public domain at the time it
was communicated to Consultant by Client; (b) entered the public domain through
no fault of Consultant, subsequent to the time it was communicated to Consultant
by Client; (c) was in Consultant's possession free of any obligation of
confidence at the time it was communicated to Consultant by Client; (d) was
rightfully communicated to Consultant free of any obligation of confidence
subsequent to the time it was communicated to Consultant by the Client; (e) was
developed by employees or agents of Consultant independently of and without
reference to any information communicated to Consultant by Client; or (f) was
communicated by Client to an unaffiliated third party free of any obligation of
confidence. In addition, Consultant may disclose Client's Confidential
Information in response to a valid order by a court or other governmental body,
or as otherwise required by law. All Confidential Information furnished to
Consultant by Client is the sole and exclusive property of Client or its
suppliers or customers. Upon request by Client, Consultant agrees to promptly
deliver to Client the original and any copies of such Confidential Information.
Consultant further agrees to immediately return to Client all Client documents
(and all copies thereof) and other Client property in Consultant's possession or
control, including, but not limited to: Client files, notes, memoranda,
correspondence, agreements, draft documents, notebooks, logs, drawings, records,
plans, proposals, reports, forecasts, financial information, sales and marketing
information, research and development information, personnel information,
specifications, computer-recorded information, tangible property and equipment,
credit cards, entry cards, identification badges and keys; and any materials of
any kind that contain or embody any proprietary or confidential information of
Client (and all reproductions thereof in whole or in part); provided, however,
that Consultant is permitted during the term of this Agreement to retain
possession of any Client documents or property necessary to carry out
Consultant's duties under this Agreement.
8. NO CONFLICT OF INTEREST. During the term of this Agreement, Consultant
will not accept work, enter into a contract, or accept an obligation from any
third party, inconsistent or incompatible with Consultant's obligations, or the
scope of services rendered for Client, under this Agreement. Consultant warrants
that there is no other contract or duty on his part inconsistent with this
Agreement. Consultant agrees to indemnify Client from any and all loss or
liability incurred by reason of any alleged breach by Consultant of any services
agreement with any third party.
9. TERM AND TERMINATION.
9.1 TERM. The term of this Agreement is for one (1) year from the
Effective Date set forth above, unless earlier terminated as provided in this
Agreement.
9.2 TERMINATION BY CLIENT. Client may terminate this Agreement with or
without cause, at any time upon fifteen (15) days prior written notice to
Consultant, or immediately in its sole discretion upon Consultant's material
breach of Section 7 ("Confidential Information") or 10 ("Noninterference with
Business").
9.3 SURVIVAL. The rights and obligations contained in Sections 3
("Ownership of Work Product"), 4 ("Artist's and Moral Rights"), 5
("Representations and Warranties"), 7 ("Confidential Information") and 10
("Noninterference with Business") will survive any termination or expiration of
this Agreement.
10. NONINTERFERENCE WITH BUSINESS. During this Agreement, and for a period
of two (2) years immediately following its termination, Consultant agrees not to
interfere with the business of Client in any manner. By way of example and not
of limitation, Consultant agrees not to solicit or induce any employee or
independent contractor to terminate or breach an employment, contractual or
other relationship with Client.
11. SUCCESSORS AND ASSIGNS. Consultant may not subcontract or otherwise
delegate its obligations under this Agreement without Client's prior written
consent. Subject to the foregoing, this Agreement will be for the benefit of
Client's successors and assigns, and will be binding on Consultant's assignees.
12. NOTICES. Any notice required or permitted by this Agreement shall be in
writing and shall be delivered as follows with notice deemed given as indicated:
(i) by personal delivery when delivered personally; (ii) by overnight courier
upon written verification of receipt; (iii) by telecopy or facsimile
transmission upon acknowledgment of receipt of electronic transmission; or (iv)
by certified or registered mail, return receipt requested, upon verification of
receipt. Notice shall be sent to the Client at its San Xxxx headquarters, and to
Consultant at the address set forth below or such other address as Consultant
may specify in writing.
13. GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the United States of America and by the laws of the State of California,
as such laws are applied to agreements entered into and to be performed entirely
within California between California residents.
14. SEVERABILITY. Should any provisions of this Agreement be held by a
court of law to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired thereby.
15. WAIVER. The waiver by Client of a breach of any provision of this
Agreement by Consultant shall not operate or be construed as a waiver of any
other or subsequent breach by Consultant.
16. INJUNCTIVE RELIEF FOR BREACH. Consultant's obligations under this
Agreement are of a unique character that gives them particular value; breach of
any of such obligations will result in irreparable and continuing damage to
Client for which there will be no adequate remedy at law; and, in the event of
such breach, Client will be entitled to injunctive relief and/or a decree for
specific performance, and such other and further relief as may be proper
(including monetary damages if appropriate).
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
contemporaneous oral or written agreements concerning such subject matter. The
terms of this Agreement will govern all services undertaken by Consultant for
Client; PROVIDED, HOWEVER, THAT in the event of any conflict between the terms
of this Agreement and any Project Assignment, the terms of the applicable
Project Assignment will control. This Agreement may only be changed by mutual
agreement of authorized representatives of the parties in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
OPLINK COMMUNICATIONS, INC. XXXXX XXX
By: /s/ Xxxxxx X. Xxx /s/ Xxxxx Xxx
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Name: Xxxxxx X. Xxx Address:
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Title: CEO Address:
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EXHIBIT A
PROJECT ASSIGNMENT #1
UNDER CONSULTING SERVICES AGREEMENT
DATED: JANUARY 17, 2004
PROJECT:
Consultant shall render such services as Client may from time to time request,
including (without limitation) the following: providing strategic advice to
Client concerning Asian affairs; assisting with Client shareholder
communications; identifying and building business development opportunities for
Client in Asia; and helping to maintain and develop Client's customer
relationships and goodwill in Asia. Services required shall not exceed [fifteen
(15)] hours per month.
COMPENSATION:
Consultant shall be compensated in the form of accelerated vesting of all shares
subject to the stock options that he was granted by Client while serving as a
member of Client's Board of Directors (the "Options"), such that all shares
subject to the Options shall be fully vested and exercisable as of the Effective
Date of this Agreement. The Options shall continue to be governed in all
respects by the terms of the applicable stock option agreements, grant notices,
and plan documents, and shall also be subject to the extended post-termination
exercise period provided to members of Client's Board of Directors as approved
on March 18, 2002.
EXPENSES:
Consultant shall be reimbursed for the following, as approved in advance in
writing by Client:
1. Outside services at cost.
2. Direct charges at cost.
3. Travel and subsistence at cost.
Consultant shall invoice Client monthly for expenses and shall provide such
reasonable receipts or other documentation of expenses as Client might request.
IN WITNESS WHEREOF, the parties have executed this Project Assignment
as of the date first written above.
OPLINK COMMUNICATIONS, INC. XXXXX XXX
By: /s/ Xxxxxx X. Xxx /s/ Xxxxx Xxx
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Name: Xxxxxx X. Xxx
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Title: CEO
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B-1
EXHIBIT B
ASSIGNMENT OF COPYRIGHT
For good and valuable consideration which has been received, the undersigned
sells, assigns and transfers to Client and its successors and assigns, the
copyright in and to the following work, which was created by the following
indicated author(s):
Title: N/A
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Author(s): N/A
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Copyright Office Identification No. (if any):
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and all of the right, title and interest of the undersigned, vested and
contingent, therein and thereto.
Executed this _________ day of ____________________, 20__.
Signature: /s/ Xxxxx Xxx
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Printed Name: Xxxxx Xxx
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