SoundBite Communications, Inc. Consulting Agreement
Exhibit 10.5
SoundBite Communications, Inc.
Consulting Agreement
Consulting Agreement
This Agreement is made as of April 21, 2009 between SoundBite Communications, Inc., a
Delaware corporation with its principal place of business at 00 Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (“SoundBite”), and Xxxxx X. Xxxxxxx, residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (“Xxxxxxx”).
Whereas, Xxxxxxx has been serving as an employee of SoundBite for a period of time,
and the parties now intend to terminate that aspect of their relationship; and
Whereas, SoundBite desires to retain the services of Xxxxxxx, and Xxxxxxx desires to
perform certain services for SoundBite, for a period following termination of SoundBite’s
employment of Xxxxxxx;
Now, Therefore, in consideration of the mutual covenants and promises contained
herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties agree as follows:
1. Term. It is understood that the employment relationship between the parties will
terminate as of the close of business on April 30, 2009 (the “Termination Date”). This Agreement
shall take effect as of May 1, 2009 and shall continue through April 30, 2010 (the “Consultation
Period”), unless sooner terminated in accordance with the provisions of Section 4 hereof.
2. Services. Xxxxxxx agrees that he will, upon the request of any officer or director
of SoundBite from time to time, consult with such officer or director in connection with such
matters involving the business and operations of SoundBite as may be reasonably requested. Any
such consultation shall be held, to the extent reasonably practicable, during normal business
hours. Notwithstanding the foregoing, Xxxxxxx shall not be required to devote more than ten hours
in any of the first three calendar months of the Consultation Period, or more than five hours in
any of the last nine calendar months of the Consultation Period, to the performance of consulting
services under this Agreement.
3. Compensation.
3.1. Schedule I hereto sets forth a list of all of the stock option
agreements that have been previously granted to Xxxxxxx by SoundBite and that remain in effect
as of the date of this Agreement (collectively, the “Option Agreements”), which list includes
the number of shares of common stock of SoundBite for which each of the Option Agreements will
be exercisable as of the Termination Date (“Vested Shares”), assuming no exercise thereof
prior to the Termination Date.
3.2. Under the existing terms of each of the Option Agreements as in effect as of the
date of this Agreement, Xxxxxxx has either three months or ninety days after the Termination
Date to exercise the Vested Shares under such Option Agreement. As the sole compensation
payable to Xxxxxxx for his services under this Agreement, Xxxxxxx shall have until August 1,
2010 (or such earlier date as of which this Agreement is terminated in accordance with the
provisions of Section 4 hereof) to exercise each of the Option Agreements to acquire Vested
Shares.
3.3. Xxxxxxx acknowledges that vesting under the Option Agreements shall cease as of the
Termination Date and that the extension of the exercise periods of the Option Agreements
pursuant to Section 3.2 hereof shall not be deemed to extend vesting under the Option
Agreements beyond the Termination Date.
4. Termination. SoundBite may, without prejudice to any right or remedy it may have
due to any failure of Xxxxxxx to perform his obligations under this Agreement, terminate the
Consultation Period in the event Xxxxxxx fails to perform in any material respect his obligations
pursuant to Section 2 hereof and such failure continues for a period of five days after notice
thereof from SoundBite to Xxxxxxx.
5. Independent Contractor Status. Xxxxxxx shall perform all services under this
Agreement as an “independent contractor” and not as an employee or agent of SoundBite. Xxxxxxx is
not authorized to assume or create any obligation or responsibility, express or implied, on behalf
of, or in the name of, SoundBite or to bind SoundBite in any manner.
6. Miscellaneous.
6.1. All notices required or permitted under this Agreement shall be in writing and shall
be deemed effective upon personal delivery or upon deposit in the U.S. Post Office, by
registered or certified mail, postage prepaid, addressed to the other party at the address
shown above, or at such other address as either party shall designate to the other in
accordance with this Section 6.1.
6.2. This Agreement constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings, whether written or oral, relating to the subject
matter of this Agreement. It is understood that the terms of this Agreement shall not affect
in any manner the terms and provisions of (a) the Employee Noncompetition, Nondisclosure and
Developments Agreement executed by Xxxxxxx in favor of SoundBite or (b) the Indemnification
Agreement dated October 10, 2007, the Change in Control Agreement dated November 28, 2008, or
the Executive Retention Agreement dated November 28, 2008, each as entered into between
SoundBite and Xxxxxxx.
6.3. This Agreement may be amended or modified only by a written instrument executed by
both SoundBite and Xxxxxxx.
6.4. This Agreement shall be construed, interpreted and enforced in accordance with the
laws of the Commonwealth of Massachusetts.
6.5. This Agreement shall be binding upon, and inure to the benefit of, both parties and
their respective successors and assigns, including any corporation with which, or into which,
SoundBite may be merged or that may succeed to its assets or business, provided, however, that
the obligations of Xxxxxxx are personal and shall not be assigned by him.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of April 21, 2009.
| SoundBite Communications, Inc. |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Chief Operating Officer and Chief Financial Officer | ||||
| Xxxxx X. Xxxxxxx |
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| /s/ Xxxxx X. Xxxxxxx | ||||
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