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EXHIBIT 10.3
February 10, 2000
The Board of Directors of Auspex Systems, Inc.
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇., President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Messrs. Moore, King, and Cheheyl:
RE: Retainer Agreement between Regent Pacific Management Corporation and
Auspex Systems, Inc.
I am writing this letter, pursuant to your request, to set forth the terms and
conditions upon which Regent Pacific Management Corporation, a California
corporation ("Regent Pacific"), will be engaged to perform certain management
services for Auspex Systems, Inc., a California corporation, and its wholly
owned and controlled subsidiaries (collectively, "Auspex"), under certain
guarantees and indemnities to be provided by the company. This agreement is
contingent upon and subject to an indemnification and guarantee agreement, in a
form acceptable to Regent Pacific.
Included within these services will be the following work product, which Regent
Pacific will supply to Auspex in accordance with the terms of this letter and
for the agreed-upon cash payments required by this letter:
1. Regent Pacific agrees to provide a five person team, to immediately
assume the chief executive and general management responsibilities of
Auspex, and to develop and implement a restructuring plan for Auspex.
The goal of this assignment shall be to redirect the company with
respect to the potential operational restructuring of the ongoing
business of Auspex.
2. Regent Pacific shall provide the services of ▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and
Chief Executive Officer of Regent Pacific Management Corporation, who
shall be a part of the team and lead the engagement on behalf of Regent
Pacific as the board-appointed Chairman and interim Chief Executive
Officer of Auspex. Regent Pacific shall be appointed by the Board of
Directors to provide General Management services to Auspex. Both Regent
Pacific and ▇▇. ▇▇▇▇▇ shall report
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
Page 2
to the Board of Directors of Auspex and shall be solely accountable to
the Board for fulfilling the obligations of this engagement.
3. Within four (4) weeks of the date of this agreement, Regent Pacific will
provide an appropriately qualified person to serve as principal
financial officer of Auspex. Until such time, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇ shall
serve as principal financial officer of Auspex.
Regent Pacific's services do not include the following activities and/or work
product:
With the exception of ▇▇▇▇ ▇. ▇▇▇▇▇, Regent Pacific personnel provided
under the terms of this engagement shall not be appointed officers of
Auspex, and shall not accept nor be held accountable for the fiduciary
obligations of an officer or director of Auspex.
Regent Pacific is prepared to begin our services this week, contingent upon:
1. This duly executed retainer agreement on the part of Auspex;
2. The transfer of and receipt by Regent Pacific of the required initial
payments of this retainer agreement;
3. Duly executed indemnification agreement between Auspex and ▇▇. ▇▇▇▇▇ and
Auspex and Regent Pacific in a form acceptable to Regent Pacific.
4. Duly executed employee stock option agreement in a form acceptable to
Regent Pacific.
In addition to ▇▇. ▇▇▇▇▇, the initial team assigned will be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. Service and/or ▇▇▇▇ ▇. ▇▇▇▇▇
and/or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Principals of Regent Pacific. You understand that
Regent Pacific retains the right to assign or interchange these people with
other people as the work progresses, in order to address your requirements, as
long as the fee paid for our services is not increased for the included work
product.
FEES: We have agreed to provide the work product included in this agreement for
a period of twelve months, including twenty-six (26) weeks of non-cancelable
services. This
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
Page 3
service shall be $75,000 per week payable in four (4) week increments, each to
be paid in advance of each Regent Pacific standard four-week billing period,
except that the parties agree to negotiate a mutually acceptable fee reduction
for the second (26) week period commensurate with a reduced level of service. It
is agreed and understood between us that the payments of such cash fees are to
be made immediately preceding the start of each four-week billing period, and
that failure to pay such periodic payments when due shall constitute a breach of
this agreement by Auspex. It is further understood that Regent Pacific's fees
are to be paid in advance of the work to be performed, and that the initial
payment is to be paid on or before the start of the engagement. It is further
agreed that such cash payments are earned in full upon receipt by Regent
Pacific, by virtue of our accepting this agreement and the responsibilities it
entails, and are nonrefundable.
ADVANCE RETAINER: In the light of the uncertainty of the situation facing
Auspex, Auspex agrees to pay Regent Pacific an advance four (4) weeks retainer
for services which may be rendered and expenses which may be incurred in
connection with this engagement. The amount of that retainer is to be in the sum
of $300,000. The funds shall be deposited in an escrow account titled "Regent
Pacific Management Corporation, for the benefit of Auspex". Immediately prior to
any cancellation by Auspex, prior to the expiration of the non-cancelable period
or, thereafter, without 60 days written notice, or immediately upon the filing
of any petition in bankruptcy by or against Auspex, the retainer, plus any
interest earned thereon, shall become the property of Regent Pacific, free and
clear of any claims of Auspex, and shall be transferred to Regent Pacific's
general account. In such an event the retainer shall be deemed earned in full by
virtue of Regent Pacific's undertaking this engagement and be nonrefundable.
This sum is in addition to and not in satisfaction of any damages which Regent
Pacific may otherwise recover against Auspex for breach of this agreement, and
reflects Auspex's agreement that the retainer represents the minimum fee for
Regent Pacific's acceptance of the agreement and the work undertaken,
irrespective of the amount of time actually spent by Regent Pacific in the
course of its employment. In the event that this agreement expires upon
completion of the term, or terminates in accordance with its cancellation
provisions, the escrow account, plus any interest, will be returned to Auspex
within five business days after such expiration or termination.
TERM OF AGREEMENT: The term of this agreement shall be for twelve (12) months,
unless earlier terminated in accordance with this paragraph. Regent Pacific
hereby commits the availability of its resources to Auspex under this agreement
for the full twelve (12) month
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
Page 4
term of the engagement. Auspex may discharge Regent Pacific at any time after
the non-cancelable period provided that Auspex had delivered 60-day written
notice of intent to cancel this agreement. Regent Pacific may withdraw from this
assignment at any time with Auspex's consent or for good cause without Auspex's
consent. Good cause includes Auspex's breach of this agreement (including
Auspex's failure to pay any invoice within five working days of presentation),
or any fact or circumstance that would render our continuing participation in
the assignment unethical or unlawful.
EXPENSE REIMBURSEMENT: In addition to the fees, any requests for compensation
will also include certain charges for costs and expenses. Such costs and
expenses will include, among others, charges for messenger services, air
couriers, word processing services, photocopying, travel expenses, postage, long
distance telephone, legal advice, and other charges customarily invoiced by
professional firms for reimbursement of out-of-pocket expenses. Said expenses
shall not include meal expenses except when Regent Pacific professionals are
engaged in business-related activities and company travel. Regent Pacific will
periodically present invoices, which shall include reasonable supporting detail,
to Auspex for reimbursement of such charges, and Auspex agrees to pay such
invoices within ten (10) working days of presentation.
We will provide regular progress reviews to Auspex and its Board of Directors at
approximately biweekly intervals, as the work progresses. These progress reviews
will include a discussion of the alternatives available to Auspex and the
performance of the company relative to the restructuring of the ongoing
business. In addition, Regent Pacific requires, and Auspex agrees, that the
Board of Directors of Auspex will be available to Regent Pacific on a reasonable
consultation and communication basis and will meet with Regent Pacific in person
in regularly scheduled monthly board meetings to review the status of the
engagement.
During the progress of the work, should circumstances warrant, we may apply for
additions to the retainer fees, and attendant increases in the payments
scheduled above. Should we seek such additional compensation in order to
continue the level of effort required by the undertaking, we will do so based
upon our professional guideline hourly rates. We understand and acknowledge that
nothing in this agreement obligates Auspex to pay such additional retainer fees
or other compensation unless the Auspex Board of Directors shall have agreed to
make such payments after a written request by Regent Pacific.
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
Page 5
Because of the breadth and nature of our practice, from time to time our firm
may work for one client whose interest may be opposed to that of another client,
for which we work in an unrelated matter. Please be assured that, despite any
potential difference in the interests of our clients, we strictly preserve all
client confidences and zealously pursue the interests of each of our clients.
Auspex agrees that it does not consider such concurrent work in unrelated
matters of Auspex and any other client of Regent Pacific to be inappropriate,
and therefore waives any objections to any such present or future concurrent
assignments provided, however, that such waiver shall not apply to any willful
misconduct or breach of confidentiality obligations of Regent Pacific hereunder.
Except in the case of willful misconduct or gross negligence, Auspex shall
indemnify, defend, and hold Regent Pacific, its officers, directors, principals,
associates, affiliates, employees, agents, and counsel, harmless against any
damages, costs, fines, penalties, liabilities, attorneys' and other professional
fees and disbursements, suffered, incurred by, or asserted against, Regent
Pacific, its officers, directors, principals, associates, affiliates, employees,
agents, and/or counsel, including any amounts incurred or paid in settlement or
any judgment of any action, suit, or proceeding brought under any statute, at
common law, or otherwise, which arises under or in connection with the
performance by Regent Pacific of services pursuant to this agreement and any
amendment or modification thereto. The obligations of Auspex under this
paragraph are hereinafter collectively referred to as "Indemnity Obligations."
The Indemnity Obligations shall survive, for a period of five (5) years, any
termination of Regent Pacific's services under this agreement and any amendment
or modification thereto. Auspex agrees to promptly tender any payments due to
Regent Pacific, its officers, directors, principals, associates, affiliates,
employees, agents, and/or counsel, under or in respect of the Indemnity
Obligations, within three (3) business days following written demand by Regent
Pacific, its officers, directors, principals, associates, affiliates, employees,
agents, and/or counsel. Auspex's Indemnity Obligations shall not apply to
amounts paid in settlement of any loss, claim, damage, liability, or action if
such settlement is effected without the consent of Auspex, which consent shall
not be unreasonably withheld.
CONFIDENTIAL INFORMATION: Regent Pacific and its team shall have access under
this agreement to certain proprietary and/or confidential information with
respect to Auspex's business. Regent Pacific hereby agrees to protect such
confidential information as though
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
Page 6
it were Regent Pacific's own confidential information, in accordance with the
following terms and conditions:
1. Auspex shall permit Regent Pacific to review financial and proprietary
information necessary to Regent Pacific's participation in Auspex's
management.
2. Auspex shall permit, and Regent Pacific shall require, review of all
Auspex Board of Directors minutes and all executive actions taken within
the three months prior to the execution of this agreement.
3. Regent Pacific shall maintain the confidentiality of all such
information and prevent the unauthorized disclosure thereof. No such
information shall be made available for the use of any other party or be
divulged to others unless it:
a. is independently developed by Regent Pacific, provided that the
person or persons developing same have had no access to
confidential information received from Auspex;
b. is or becomes publicly available; or
c. is rightfully and lawfully received by Regent Pacific from an
independent third party.
This agreement is made under the laws of the State of California. If any legal
action arises under this Agreement or by reason of an asserted breach of it, the
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorney's fees, incurred in enforcing or attempting to enforce the
terms of this agreement.
NON-SOLICITATION: in recognition of the fact that the Regent Pacific individuals
that we provide to Auspex under this agreement may perform similar services from
time to time for others, this agreement shall not prevent Regent Pacific from
performing such similar services or restrict Regent Pacific from using such
individuals. Regent Pacific and Auspex agree that they shall not, except by
mutual agreement between the parties, during the term of this agreement nor for
a period of three (3) years after its termination, solicit for employment nor
employ, whether as employee or independent contractor or agent, any person who
performs services under this agreement or employees of Auspex. It is
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
Page 7
agreed that in the event of a breach of this paragraph by Auspex, it would be
impractical or extremely difficult to fix actual damages and, therefore, Regent
Pacific and Auspex agree that either party in breach of this paragraph shall pay
to the other party $350,000 per individual solicited or employed as employee,
independent contractor or agent, as Liquidated Damages and not as a penalty,
which is agreed by Regent Pacific and Auspex to represent reasonable
compensation for the foreseeable loss that will, in all likelihood, be incurred
because of such breach.
It is our policy to provide such additional services as you may request, in
addition to those covered in this letter, when qualified individuals are
available to fulfill your request. In such instances, the additional services
will be provided and paid for in accordance with Regent Pacific's guideline
hourly rates as contained in Regent Pacific's published fee schedules, a copy of
which is enclosed with this agreement.
This constitutes the entire understanding between Regent Pacific and Auspex
regarding our services. Further, this agreement supersedes and replaces any
prior agreement(s) between the parties. By executing this agreement you
acknowledge that you have read it carefully and understand all of its terms.
This agreement cannot be modified except by further written agreement signed by
each party.
If you have any questions about the foregoing, please call me. If Auspex is in
agreement with the foregoing, and it accurately represents your understanding of
the agreement between Auspex and our firm, please approve the enclosed copy of
this letter, and return the approved copy to me, along with the advance retainer
of $300,000 and the first four (4) week service fee of $300,000. Said payments
may be wire-transferred to the account of Regent Pacific Management Corporation
at Comerica Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Account #
Routing number. Our contact there is ▇▇▇▇ ▇▇▇▇▇▇▇▇. If there are any questions
with regard to the terms set forth herein, kindly contact me immediately. In
order to maintain continuity in scheduling of our resources, we ask that we
receive your affirmative response as soon as possible. In any event, this offer
to provide our services will expire on February 11, 2000, unless accepted by you
prior to that date, or extended in writing by an officer of Regent Pacific.
Please understand that we can assume no responsibility in connection with the
services to be provided under this agreement until the signed copy has been
returned and the required funds, as agreed to by us, have been received.
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, ▇▇▇▇
▇▇▇▇ ▇
# # # # # #
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President, CEO & Director
Mr. W. ▇▇▇▇▇ ▇▇▇▇, Director
Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Auspex Systems, Inc.
February 10, 2000
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Very truly yours,
REGENT PACIFIC MANAGEMENT CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and Chief Executive Officer
THE FOREGOING IS HEREBY APPROVED AND AGREED TO:
DATED: February 15, 2000
AUSPEX SYSTEMS, INC.
(Signifies full agreement with all terms and conditions)
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇ President, CEO & Director
On Behalf of the Board of Directors
BY: /s/ W. ▇▇▇▇▇ ▇▇▇▇
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W. ▇▇▇▇▇ ▇▇▇▇ Director
On Behalf of the Board of Directors
BY: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Director
On Behalf of the Board of Directors
