Exhibit 10.34
INDIVIDUAL
ASSOCIATE SERVICES AGREEMENT
THIS AGREEMENT is entered into as of the 17th of December 1999, by and between
Xxxxxx X. Xxxxxxxxx ("Associate") and TCSI Corporation ("Company").
RECITALS
1. Associate is an individual and possesses certain skills and
abilities that may be useful to the Company from time to time.
2. The Company desires to engage Associate to perform certain
services and/or create deliverables for the Company in connection
with its business activities as described in Exhibit A, Statement
of Work, attached hereto and incorporated herein by this
reference.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the parties hereto hereby agree as follows:
1. Definition.
----------
"Proprietary Information" means the following classes of information
relating to the Company's business:
(a) Trade secrets and other proprietary and confidential information
which are owned by the Company and which have to do with:
(i) The operation of the Company's business, consisting, for
example, and not intending to be inclusive, of its lists or
other identifications of clients or prospective clients of
the Company (and key individuals employed or engaged by such
clients or prospective clients), and nature and type of
services rendered to such clients (or proposed to be rendered
to prospective clients), fees charged or to be charged,
proposals, inventions, methodologies, algorithms, formulae,
processes, compilations of information, form and content of
data bases, designs, drawings, models, equipment, results of
research proposals, job notes, reports, records,
specifications, software, firmware and procedures used in, or
related to, the Company's products; and
(ii) The Company's relations with its employees including without
limitation, salaries, job classifications and skill levels;
(b) Financial, sales and marketing data compiled by the Company as
well as the Company's financial, sales and marketing plans and
strategies, customer lists and non-public pricing;
(c) All ideas, concepts, information and written material about a
client disclosed to Associate by the Company, or acquired from a
client of the Company, and all financial, accounting, statistical,
personnel and business data and plans of clients, are and shall
remain the sole and exclusive property and Proprietary Information
of the Company or said client;
(d) Any other information designated by the Company to be
confidential, secret and/or proprietary.
2. Engagement. Associate agrees to provide services and/or deliverables
described in Exhibit A to the Company pursuant to the terms and
conditions as set forth in this Agreement.
3. Term of Agreement. This Agreement shall become effective on the date
first written above and shall continue in effect until the close of
business on June 30, 2000, provided, however, that this Agreement may
be terminated before said date as follows:
(a) At any time upon the provision of two (2) weeks prior written
notice by either party; or
(b) Upon material breach of this Agreement by either party, upon
written notice by the non-breaching party; or
(c) Automatically on the occurrence of any of the following events:
(i) Bankruptcy or insolvency of either party;
(ii) Upon sale of the business of either party;
(iii) Assignment of this Agreement by either party without the
written consent of the other party; or
(iv) Willful misconduct including, but not limited to,
Associate's breach of this Agreement, neglect of duty or
continued incapacity to perform services hereunder.
4. Scope of Services. Associate agrees to perform, to the reasonable
satisfaction of the Company, the work specified in Exhibit A, attached
hereto and made a part hereof. The parties may agree upon additional
services and/or deliverables to be provided by the Associate, and the
same shall be effective when agreed by the parties hereto in writing.
For purposes of this Agreement, the term "Services" shall mean and
include all services and/or deliverables to be provided by Associate.
5. Payment for Services/Reimbursements. Provided that the Associate
complies with the terms and conditions of this Agreement, the Company
shall pay Associate the amounts specified on, or computed in accordance
with, Exhibit A, or on such other basis as the parties may agree upon
in writing. (See attached Exhibit A.) The Company shall reimburse
Associate for all reasonable expenses incurred by Associate in
connection with activities hereunder, provided that such expenses have
been approved by the Company either verbally or in writing before the
same have been incurred. Associate shall submit to the Company each
month an invoice and an itemized statement of hours spent on services
or deliverables provided, or expenses incurred. Payment in U.S. dollar
funds shall be due in thirty (30) days after receipt of invoice; a
charge of 1% per month shall be allowed on any outstanding balance past
due more than 15 days.
6. Obligations of Associate.
(a) Because this Agreement is a personal one, Associate may not
assign or delegate any obligation, or any portion thereof, of
this Agreement.
(b) The relationship of Associate to Company is conclusively
deemed for all purposes to be that of an independent
contractor. Associate in no event shall be considered an
employee of Company within the meaning or application of any
national or state unemployment insurance law, old age benefit
law, workers' compensation or industrial accident law, or
other industrial or labor law, any tax law, or any Company
employee benefit plan.
Associate shall be fully and solely responsible for arranging
for and bearing the expense of his operations, subject only to
his right for reimbursement for reimbursable expenses
hereunder.
(c) Associate shall devote sufficient time, energy, attention and
efforts to the Company's business in order to promptly and
satisfactorily complete the Services. Company is interested
only in the results to be achieved under this Agreement; the
manner and method of performing the work shall be under the
control of Associate, except that the work contemplated herein
must meet the approval of Company and is subject to Company's
general right of inspection to ensure the satisfactory
performance and completion thereof.
(d) It is understood that Company does not agree to use Associate
exclusively. Further, Associate may represent, perform
services for and be employed by such additional clients,
persons or companies as Associate, in Associate's sole
discretion, sees fit, except as provided in Section 10 herein.
(e) In performing the Services required under this Agreement,
Associate shall comply with all applicable federal, state,
county, and city laws, ordinances and regulations including,
but not limited to, compliance with respect to payment for
FICA wages, SDI, and workers' compensation. Further, Associate
agrees not to use any Proprietary Information or copyright, of
others in performing the services under this Agreement.
(f) Company shall not be liable to Associate or any of its agents,
servants, subcontractors, for any consequential or special
damages resulting from, arising out of or in connection with
this Agreement.
(g) Associate acknowledges and agrees that all Proprietary
Information that comes into Associate's possession (including
any information originated or developed by Associate during
the term of this Agreement) is secret and is the exclusive
property of the Company or its clients. Associate agrees to
use the Proprietary Information only in connection with
Associate's work for the Company. Associate agrees, while
performing services for the Company in any capacity and
thereafter, to hold the Proprietary Information in confidence
and agrees not to disclose or reveal, in any manner, any
Proprietary Information to any person or entity.
7. Obligations of Company.
(a) Company agrees to comply with all reasonable requests of
Associate and to provide access to all documents reasonably
necessary for the performance of Associate's duties under this
Agreement.
8. Results Belong to Company. Associate acknowledges and agrees that the
results of all work, including but not limited to all intellectual
property rights, such as copyrights, inventions, discoveries or
improvements (hereinafter collectively referred to as "Inventions")
which Associate makes during Associate's performance of services for
the Company, whether made individually or jointly with others, which
relate or pertain to, or are in any way connected with, the specific
application systems and products, Company proprietary apparatus,
methods, and subjects of research or development by the Company shall
be the sole and exclusive property of the Company, and the inventions
shall be deemed to be works for hire.
(a) Associate agrees to make prompt and full disclosure to the
Company of all Inventions and advise the Company,
periodically, of all work being done by Associate on any
Inventions covered by this paragraph.
(b) To the extent Associate would be an owner of any rights to the
Invention, Associate hereby assigns to the Company all such
rights to the Inventions. Associate hereby agrees to execute
and sign any and all applications, assignments or other
instruments which the Company may deem necessary in order to
enable it, at its expense, to apply for, prosecute and obtain
Letters of Patent, trademarks, copyrights or other legal
protections in the United States or foreign countries for the
Inventions, or in order to assign or convey to or invest in
the Company the sole and exclusive right, title and interest
in and to the Inventions.
(c) The obligations contained in this Paragraph 8, do not apply to
any rights Associate may have acquired in connection with an
invention, discovery or improvement for which no equipment,
supplies, facility or Proprietary Information of the Company
was used and which was developed entirely on the Associate's
own time, and provided that such invention, discovery or
improvement does not result from any work performed by
Associate for, or on behalf of, the Company.
(d) Upon request and/or upon the termination of this Agreement,
Associate shall promptly deliver to the Company all notes,
writings, lists, files, reports, correspondence, tape cards,
maps, machines, technical data or any other tangible products
or documents which Associate produced or received while
performing this Agreement.
9. Governing Law and Disputes. This Agreement shall be governed by the
laws of the State of California, and California shall be the
appropriate forum.
In case a dispute in connection with this Agreement arises between the
parties, both parties shall negotiate in good faith to resolve such
dispute. However, if the parties are unable to reach an agreement
within thirty (30) days after the occurrence of such dispute, then the
parties shall submit the dispute to binding arbitration in San
Francisco, California in accordance with rules of commercial
arbitration of the American Arbitration Association ("AAA"). If within
thirty (30) days no single arbitrator is mutually acceptable, then the
AAA shall designate an arbitrator. The arbitrator shall be a
knowledgeable individual familiar with the fields of the subject of
this Agreement. Under the arbitration, both parties shall cooperate
with and agree to abide finally by any decision of the arbitration
process. The arbitrator shall first undertake to mediate the dispute
and the parties shall cooperate in good faith with said arbitrator. The
costs of the arbitration proceeding shall be borne according to the
decision of the arbitrator, who may apportion costs equally, or in
accordance with any finding of fault or lack of good faith of either
party. The award of the arbitrator including the grant of injunctive
relief shall be non-appealable and enforceable in any court of
competent jurisdiction.
10. Business Opportunities. While performing work under this Agreement,
Associate shall not undertake or participate in any marketing or
business development activities related to opportunities which may be
brought to his/her attention due to his/her involvement in this work or
due to his/her knowledge of Company business activities. Associate
acknowledges that the identity of Company's customers, the needs of
such customers, and work product of Associate all represent proprietary
information as defined in Section 1 above. Associate promises that
he/she will not become directly or indirectly engaged with or employed
by any customer of Company for whom Associate has performed services
under this Agreement for at least one year after termination of the
Agreement.
11. Assignment. This Agreement may not be assigned by Associate voluntarily
or by operation of law, in whole or in part, without the prior written
consent of Company.
12. Notices. All notices or other communications provided for by this
Agreement shall be made in writing and shall be deemed properly
delivered when (i) delivered personally or (ii) by the mailing of such
notice by registered or certified mail, postage prepaid, to the parties
at the addresses set forth on the signature page of this Agreement (or
to such other address as one party designates to the other in writing).
13. Entire Agreement and Waiver. This Agreement is the entire agreement
between the parties relating to the engagement of Associate. It
supersedes all prior agreements, arrangement, negotiations and
understandings related thereto. No waiver of any term, provision or
condition of the Agreement shall be deemed to be, or shall constitute,
a waiver of any other term, provision or condition herein, whether or
not similar. No such waiver shall be binding unless in writing and
signed by the waiving party.
14. Amendments. No supplement, modification or amendment of any term,
provision or condition of this Agreement shall be binding or
enforceable unless evidenced in writing executed by the parties hereto.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
16. Reformation/Severability. If any of this Agreement is declared invalid
by any tribunal, then such provision shall be deemed automatically
adjusted to the minimum extent necessary to conform to the requirements
for validity as declared at such time and, as so adjusted, shall be
deemed a provision of this Agreement as though originally included
herein. In the event that the provision invalidated is of such a nature
that it cannot be adjusted, the provision shall be deemed deleted from
this Agreement as though such provision had never been included herein.
In either case, the remaining provisions of this Agreement shall remain
in effect.
17. Survival. The provisions of paragraphs 6, 7, 8 and 9 shall survive the
termination of this Agreement.
After carefully reading and considering the foregoing provisions and Exhibit A,
Associate has voluntarily signed this Agreement to be effective as of the date
first written above.
TCSI Corporation: Associate:
/s/ Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------- ------------------------------------
Signature Signature
Xxxx Xxxxxx
Chairman of the Board Xxxxxx X. Xxxxxxxxx
January 1, 2000 February 1, 2000
-------------------------------------- ------------------------------------
Date Date
TCSI Corporation 0000 Xxxxxx Xxxxx
0000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 000 000-0000
Fax: (000) 000-0000
Federal ID #/Social Security #: ###-##-####
Exhibit A
STATEMENT OF WORK FOR INDIVIDUAL ASSOCIATE
Pursuant to the Individual Associate Services Agreement between Xxxxxx X.
Xxxxxxxxx ("Associate"), and TCSI Corporation ("Company"), dated December 17,
1999, Associate and Company agree as follows:
Associate agrees to perform the following services:
1. Describe the services to be rendered:
Interim President and Chief Executive Officer.
2. Estimated length of time for services described above:
From December 17, 1999 until appointment of a permanent
President and Chief Executive Officer, estimated to be 3 - 6
months.
3. Billing Rate: $2,750 per day
This Statement of Work may be amended from time-to-time, by mutual consent.