Exhibit 10.15
SERVICES AGREEMENT NO. 00-00-000
This Services Agreement No. 00-00-000 ("Agreement") is entered into as
of January 24, 2002 (the "Effective Date"), by and between ONI Systems Corp.,
located at 0000 Xxxxxx Xxxxx Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("ONI"),
and
Contractor Business Name: Xxxxxx Xxxxx ("Contractor")
Tax ID Number:
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Address:
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IN CONSIDERATION OF THE MUTUAL CONVENANTS AND AGREEMENTS CONTAINED
HEREIN, THE PARTIES HERETO AGREE TO THE FOLLOWING STATEMENT OF WORK:
1. Contractor shall, consistent with the terms of this Agreement, perform
services for, and on behalf of ONI for the three (3) month period following the
Effective Date ("Term").
2. Contractor shall perform financial consulting services for ONI
commencing during the Term ("Services"). Effective February 7, 2002 and
continuing through the remainder of the Term, Contractor shall act as ONI's
acting Chief Financial Officer.
3. As consideration for the Services set forth above, ONI will pay
Contractor twenty thousand dollars each month ($20,000/mo) during the Term and
grant Contractor a stock option to purchase twenty-four thousand (24,000) shares
of ONI's common stock with an exercise price equal to the fair market value on
the date of grant. The stock option must be approved by ONI's Board of
Directors. This option will vest and become exercisable over the Term with 8,000
shares vesting upon the monthly anniversary of the Effective Date, provided that
the total number of vested shares subject to the option will not exceed 24,000.
Vesting will depend upon Contractor continuing to provide Services to ONI during
the Term. Contractor will be able to exercise the option for a period of one (1)
year following the date on which Contractor ceases to provide Services to ONI,
provided that the option may not be exercised more than ten (10) years after the
date of grant. The option will be subject to the terms of ONI's 2000 Equity
Incentive Plan and a Stock Option Agreement between Contractor and ONI.
NOTE: Any out of pocket expenses incurred by Contractor in connection with
providing the Services will be the sole responsibility of Contractor, unless
otherwise approved in writing by ONI prior to incurring the expense.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement, agreeing to
the terms on this page and the attached General Terms and Conditions, as of the
Effective Date above.
ONI SYSTEMS CORP. XXXXXX XXXXX ("CONTRACTOR")
Signed Name: /s/ Xxxx X. Xxxxxx Signed Name: /s/ Xxxxxx Xxxxx
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Printed Name: Xxxx X. Xxxxxx
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Title: Chairman and CEO
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Date: 1/25/02 Date: 1/23/02
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GENERAL TERMS AND CONDITIONS
1. PERFORMANCE OF SERVICES
In accordance with the Statement of Work set forth on the first page of
this Agreement, ONI requests that Contractor perform certain Services.
The parties acknowledge that Services are subject to the terms and
conditions of this Agreement.
2. PAYMENT
As sole compensation for the performance of the Services, ONI will pay
Contractor the consideration identified in the Statement of Work.
Unless otherwise specified in the Statement of Work, any expenses
incurred by Contractor in performing the Services will be the sole
responsibility of Contractor. Contractor will submit monthly invoices
to ONI for all fees (and any agreed upon, pre-approved expenses)
payable under this Agreement with appropriate back-up information
sufficient to satisfy ONI's reasonable requirements. ONI will pay each
such invoice no later than thirty (30) days after its receipt.
3. RELATIONSHIP OF THE PARTIES
3.1 Contractor is an independent contractor and not an agent or
employee of ONI, and shall not, by virtue of this Agreement or
otherwise, be entitled to any benefits or privileges provided
by ONI to ONI's employees, and shall have no right or
authority whatsoever to create any obligation, express or
implied, on behalf of ONI, or to bind ONI in any manner
whatsoever.
3.2 Contractor will be responsible for the payment of any and all
taxes due as a result of the performance of the Services or
the payments therefor. Contractor is solely responsible for
reporting to the relevant taxing authorities all compensation
received hereunder and Contractor will indemnify and hold
harmless ONI from and against all claims, damages, losses, and
reasonable fees of attorneys and other professionals relating
to any obligation to pay any income taxes, withholding taxes,
sales tax, valued added tax (VAT), social security,
unemployment or disability insurance or similar items in
connection with any payments made to Contractor hereunder.
3.3 Contractor will, at all times, comply with all applicable
rules and procedures while working on ONI's premises,
including without limitation rules and procedures regarding
security and confidentiality.
3.4 If the parties agree that Contractor needs unescorted access
to ONI's facilities and/or resources, such as intranet or
email communication systems, then Contractor will first have
to provide ONI with a fully completed Background Investigation
("BI") questionnaire in order for ONI to have such a BI
conducted. Contractor acknowledges that such a BI will
include, but not necessarily be limited to, a check of
criminal records (seven year history of felonies and
misdemeanors), DMV, SSN verification, educational history and
employment/character references. Such a BI questionnaire will
require that Contractor provide ONI with individually
identifiable information such as full name, social security
number, seven-year address history and driver license number.
4. WARRANTY
Contractor represents and warrants that: (i) Contractor has the proper
skill, training and background so as to be able to perform in a
competent and professional manner; and (ii) all materials,
documentation and other items delivered under this Agreement
("Deliverables") will be completed in a thorough and professional
manner. Contractor will, at no additional charge to ONI, correct any
defects discovered by ONI after delivery of any Deliverables hereunder.
5. COPYRIGHTS, INVENTIONS, DISCOVERIES AND IMPROVEMENTS
5.1 Contractor agrees that all writings, software, drawings,
photographs, designs, copyrightable material, inventions,
improvements, developments and discoveries ("Protected
Material") made, conceived, or reduced to practice by
Contractor, solely or in collaboration with others during the
course of this Agreement which relate to the Services, are the
sole property of ONI, and Contractor further assigns (or
causes to be assigned) to ONI all right, title and interest in
and to all such Protected Material.
5.2 Contractor agrees to assist ONI, at ONI's expense, in every
proper way to enable ONI to obtain, perfect, defend and
enforce its rights in and to all such Protected Material in
any and all countries, including the disclosure to ONI of all
pertinent information and data with respect thereto, and the
execution of all applications, assignments and all other
instruments which ONI shall deem necessary in order to apply
for and obtain copyright protection, mask work registration
and/or letters patent and in order to assign and convey to
ONI, its successors, assigns and nominees, sole and exclusive
rights, title and interest in and to such copyrights, mask
works, inventions, patent applications or patents.
5.3 Contractor's obligation to execute (or cause to be executed)
instruments or papers such as those described in Section 5.2
above, shall continue after the termination of this Agreement
with respect to any and all copyrights, mask works, and/or
inventions to be assigned to ONI under the provisions of this
Agreement.
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5.4 If ONI should not seek copyright protection, mask work
registration or patent protection for any such Protected
Material but should desire to keep the same secret, Contractor
agrees to assist ONI in this and will not disclose any such
information without the written consent of ONI.
5.5 Contractor agrees that Deliverables, as well as any and all
notes, records, drawings made or kept by Contractor in
connection with the Services or in connection with any
Protected Material made, conceived, or reduced to practice by
Contractor which belong to ONI pursuant to this Section 5
shall be and are the sole and exclusive property of ONI and
ONI retains the sole right to obtain copyright protection,
mask work registration and/or letters patent in any and all
countries upon any such writings. Contractor agrees that upon
termination of this Agreement all notes, records and drawings
will be provided to ONI.
6. CONFIDENTIAL INFORMATION
6.1 Contractor acknowledges that Contractor may receive and have
access to certain information and materials that are
confidential to ONI, including without limitation, information
and materials relating to ONI's and its customers' products,
processes, designs, concepts, costs, prices, finances,
marketing plans, business opportunities, personnel, research,
and know-how ("Confidential Information"). During and after
Contractor's performance of Services hereunder, Contractor
will not use or disclose any Confidential Information, except
as may be necessary in the performance of Services. Contractor
will take all reasonable measures to maintain the
confidentiality of such Confidential Information, but not less
than the measures it uses for its confidential information of
similar importance. Contractor will not disclose to ONI nor
induce ONI to use trade secrets or other confidential
information belonging to others. Contractor agrees that it
shall not permit the publication or dissemination of any
information related to this Agreement through any press
release, public statement or marketing efforts. Upon
termination of this Agreement, Contractor shall return to ONI
all written materials constituting or incorporating any
Confidential Information obtained from ONI.
6.2 Contractor certifies that Contractor has read, understands and
agrees to comply with ONI's Procedures and Guidelines
Governing Securities Trades by Company Insiders. Contractor
agrees that Contractor will be subject to sanctions that may
be imposed by ONI, in its discretion, for violation of ONI's
policy, and that ONI may give stop-transfer and other
instructions to ONI's transfer agent against the transfer of
ONI securities by Contractor in a transaction that ONI
considers to be in contravention of its policy.
7. LIMITATION OF LIABILITY
Except for Contractor's obligations under Sections 6, in no event will
either party be liable for any indirect, special, incidental or
consequential damages arising out of this Agreement, even if a party
has been advised of the possibility of such damage.
8. TERM AND TERMINATION
8.1 This Agreement commences as of the Effective Date and will
continue until terminated in accordance with the terms and
conditions of this Agreement.
8.2 This Agreement may be terminated by either party if the other
party breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30)
days after written notice.
8.4 The rights and obligations of the parties contained in
Sections 3, 4, 5, 6, 7 and 8 will survive any the termination
of this Agreement.
9. GENERAL
9.1 Contractor may not assign any of its rights or obligations
under this Agreement, without ONI's prior written consent. Any
attempted assignment by Contractor without such consent will
be null and void. The rights and liabilities of the parties
will be binding upon and inure to the parties' successors and
permitted assigns.
9.2 Contractor will comply with all national, federal, state and
local laws applicable to Contractor's performance of Services.
Contractor will acquire and maintain in good standing, and at
its sole expense, all permits, licenses and other entitlements
required of it in the performance of Services under this
Agreement.
9.3 If given written authorization to use ONI's resources (e.g.
office space, computer resources), Contractor agrees to use
such resources strictly for performing the Services under this
Agreement. Any other use is unauthorized and will subject
Contractor to immediate termination without further payment,
notwithstanding anything to the contrary in Section 8 of this
Agreement.
9.4 This Agreement will be governed by and construed in accordance
with the laws of the State of California excluding that body
of law pertaining to conflict of laws.
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9.5 The failure of ONI to enforce any provisions of this Agreement
or to require at any time the performance by Contractor of any
provisions of this Agreement will not in any way be construed
to be a waiver of such provisions.
9.6 Contractor acknowledges that any breach of this Agreement may
result in irreparable harm to ONI for which damages may be an
inadequate remedy. Accordingly, in addition to its rights and
remedies otherwise available at law, ONI will be entitled to
obtain equitable relief, including injunctions, in the event
of such breach. Contractor waives any requirement for the
posting of a bond or other security in the event that ONI
seeks injunctive relief.
9.7 All notices required or permitted under this Agreement will be
in writing and delivered by confirmed facsimile transmission,
by courier or overnight delivery service, or by certified
mail, and in each instance will be deemed given upon receipt.
All communications will be sent to the addresses set forth
above or to such other address as may be specified by either
party to the other in accordance with this Section. Either
party may change its address for notices to the other party by
the means specified in this Section.
9.8 If a court of competent jurisdiction finds any provision of
this Agreement invalid or unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible
and the other provisions of this Agreement will remain in full
force and effect.
9.9 This Agreement, including the Statement of Work, constitute
the entire agreement of the parties regarding its subject
matter and supersedes all prior or contemporaneous oral or
written communications, proposals and representations with
respect to its subject matter. This Agreement may only be
modified or rights under it waived by a written document
executed by duly authorized representatives of both parties.
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