SHARED SERVICES AGREEMENT
Exhibit
10.1
This
SHARED
SERVICES AGREEMENT (the “Agreement”) is made as of the 20th day of
September, 2007 by and between Oakley, Inc., a Washington corporation
(“Oakley”) and Xxx.xxx, Inc. dba Red Digital Cinema Camera Company, a
Washington corporation (“Red”).
RECITALS
A. Red,
a digital cinema camera company owned by Xx. Xxx Xxxxxxx, the Chairman of
Oakley, wishes to purchase certain services from Oakley for the benefit of
Red
from time to time.
X. Xxxxxx
wishes to provide limited services for Red.
AGREEMENT
NOW,
THEREFORE, in consideration of the terms and conditions set forth in this
Agreement, Oakley and Red agree as follows:
1. Shared
Services. From time to time, certain of Oakley’s employees shall perform
defined, agreed-upon services for Red at a fair market value hourly rate
of pay
as detailed in Schedule 1, which schedule shall be updated from time to
time to reflect changes in the fair market value rates charged and/or changes
in
the list of Oakley employees who perform some services for
Red. Additionally, Red shall reimburse Oakley at cost for all other
out-of-pocket costs incurred by Oakley on behalf of Red.
2. Payment.
Red shall maintain a deposit with Oakley to prepay any costs incurred that
shall
be replenished on an as needed basis. Oakley shall determine the
costs actually incurred by Red monthly and shall submit an invoice to Red
on a
monthly basis. Payment is due upon receipt of
invoice. Should any invoice remain unpaid for more than thirty (30)
days, interest shall be paid at a rate equal to the lower of one and one-half
percent (1.5%) per month or the highest rate permitted by applicable
law.
3. Indemnification.
Red agrees to indemnify, defend and hold Oakley, its affiliates, directors,
officers, employees, vendors, and contractors harmless against any and all
losses, damages or liabilities (including costs, expenses and reasonable
attorney’s fees) resulting from or related to any work performed pursuant to
this Agreement, including any negligence or misconduct in performing such
services. Red shall reimburse Oakley promptly for any legal or other
expenses reasonably incurred by Oakley in connection with providing evidence
in
or preparing to serve or serving as a witness with respect to, any lawsuits,
investigations, claims or other proceedings arising in any manner out of
or in
connection with the rendering of services by Oakley hereunder.
4. Limitation
of Liability. In no event, regardless of the legal theory asserted
(including without limitation breach of contract, negligence or any tort
claim),
shall Oakley be liable to Red or any person asserting claims on behalf of
or in
the right of Red for (i) any claim, liability, loss, damage or expense; or
(ii)
consequential, indirect, incidental or special damages of any nature suffered
by
Red (including, without limitation, lost profits or business opportunity
costs).
5. Term
and Termination. This Agreement shall commence on the date first written
above and shall run for a term of one (1) year, automatically renewing for
additional one (1) year terms unless terminated at any time, including within
the first year, by either party, with or without cause, pursuant to thirty
(30)
days written notice.
6. Non-Solicitation.
For the term of this Agreement and for a period of two (2) years thereafter,
Red
shall not either directly or indirectly solicit, induce, recruit, or encourage
to leave the employment of Oakley for any reason any employee of Oakley or
person who left the employ of Oakley less than six (6) months prior to such
solicitation without receiving prior written permission from the Oakley Chief
Executive Officer to make such solicitation. It is expressly agreed
that Oakley would suffer irreparable injury if Red were to breach any of
the
provisions of this Section 6 and that Oakley would by reason of any such
breach be entitled to injunctive relief in a court of appropriate jurisdiction
without the need to post a bond or other security and without the need to
demonstrate special damages. The aforementioned injunctive relief is
and shall be in addition to any other remedies that may be available to Oakley
under this Agreement or otherwise. Attached hereto as Schedule
2 is a list of current Oakley employees who shall be allowed to leave
Oakley
for Red upon the agreement of Oakley’s President.
7. Miscellaneous
Provisions.
7.1 No
Partnership. Oakley and Red expressly acknowledge and agree that they
are not joint ventures or partners, and do not have fiduciary duties with
respect to one another, in any manner whatsoever. Nothing in this
Agreement, nor any communication or other action between the parties related
to
this Agreement, is intended or shall be construed to create a joint venture,
partnership or fiduciary relationship between Oakley and Red or their respective
owners, partners, shareholders or affiliates.
7.2 Benefits.
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns, heirs and legal
representatives.
7.3 Entire
Agreement. This Agreement contains the entire agreement of the parties, and
supersedes all prior agreements, understandings and negotiations, whether
written or oral, with respect to the subject matter hereof. It may not be
changed orally but only by an agreement in writing.
7.4 Governing
Law. This Agreement shall be construed in accordance with the laws of the
State of California, without reference to principles governing choice or
conflict of laws.
7.5 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.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the date set forth above.
Oakley:
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Oakley,
Inc.,
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a
Washington corporation
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By: __________________________ |
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Name: ________________________ |
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Its: ___________________________ |
Red:
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Xxx.xxx,
Inc.,
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a
Washington corporation
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By: __________________________ |
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Name: ________________________ |