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EXHIBIT 10.41
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made this 26th day of
September, 1996, between Xxxxxx X. Xxxxx ("Xxxxx") and Datum, Inc. ("Datum"), a
Delaware corporation.
R E C I T A L S
A. At the time of execution of the Agreement, Xxxxx has been an
employee and a vice President of Datum for many years; and
B. Datum and Xxxxx now desire to provide a consulting relationship
between the parties for a period after Xxxxx'x retirement from Datum.
NOW THEREFORE, the parties agree as follows:
1. EMPLOYMENT - TERMINATION. In the event that Xxxxx'x service with
Datum is severed for any reason between the time of the execution of this
Agreement and July 9, 1999, this Agreement becomes automatically null and void,
unless reaffirmed by agreement of both parties.
2. CONSULTING. Upon Xxxxx'x retirement on July 9, 1999 or thereafter at
a mutually agreeable date, Datum shall engage Xxxxx as a business consultant and
Xxxxx shall serve Datum in such capacity.
3. CONSULTING TERM. The period of Xxxxx'x engagement as a consultant
shall begin on Xxxxx'x retirement and extend for a period of one year
thereafter. During this Consulting Term, Xxxxx shall, at the direction of Datum,
make himself available at mutually agreed upon times for consulting assistance.
Datum may, at its sole option, extend this Agreement for
successive additional twelve (12) month periods or any fraction thereof, subject
to the willingness of Xxxxx to continue to serve in the capacity as consultant.
Should this Agreement be in force at the time of a change in
control (defined in Paragraph 6), this Agreement shall automatically convert to
a five year consulting term commencing on Xxxxx'x termination of employment,
with all terms and conditions as set forth herein.
4. DUTIES. During the Consulting Term, so long as Xxxxx is being
compensated hereunder, Xxxxx shall, form time to time as needed by Datum, render
such advice and consultation in such manner as Datum shall make known, including
without limitation, advice and consultation regarding business planning,
management, financial analysis and other corporate matters.
Subject to Paragraph 8 regarding non-competition, Xxxxx may
engage in other activities during the Consulting Term, provided he is able to
make himself reasonably available to Datum from time to time for consultation
assignments.
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5. COMPENSATION - CONSULTING TERM
(a) FEE. As compensation for Xxxxx'x services as a consultant,
Datum shall pay Xxxxx a fee in the sum of $2,500 per day plus travel expenses,
if any, for each day Xxxxx is called upon to render such services. During the
Consulting Term, Xxxxx shall be guaranteed a minimum of twelve (12) days of
consulting services. In the event he is called upon for a lesser number of days,
he shall, nonetheless, be compensated for the minimum number of days set forth.
Payment shall be within five days of the first day of each month.
(b) BENEFITS. Xxxxx shall be entitled to those benefits provided for
any other retiree of Datum. This Agreement is limited to services, with
compensation thereof, and implies no further benefits not specifically set forth
herein.
6. CHANGE IN CONTROL. "Change in control" of Datum shall mean a change in
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended ("Exchange Act"); provided that, without limitation,
such a change in control shall be deemed to have occurred if (a) any "person"
[as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act] is or
becomes the beneficial owner, directly or indirectly, of securities of Datum
representation 30% or more of the combined voting power of Datum's then
outstanding securities ordinarily (apart from rights accruing under special
circumstances) having the right to vote at elections of directors, (b) the
persons who were directors of Datum immediately prior to any merger,
consolidation, sale of assets or securities, contested election, or any
combination of the foregoing, shall as a result thereof cease to constitute a
majority of the Board of Directors of Datum or its successor, or (c) the persons
who were directors of Datum immediately prior to a tender offer or exchange
offer for the voting stock of Datum (other than by Datum or a subsidiary) shall,
within two (2) years after the making of such tender offer or exchange offer,
cease to constitute a majority of the Board of Director of Datum or its
successor. However, no change of control shall be deemed to have occurred by
reason of the direct or indirect ownership by Ball Corporation of shares of
Datum's stock.
7. DEATH OR DISABILITY.
(a) In the event of the consultant's death or disability prior to a
change in control as set froth in Paragraph 6 above:
(i) If, during the course of the Consulting Term,
Xxxxx dies, the consulting provisions of this
Agreement, as applicable, shall terminate, and
Xxxxx'x estate shall be paid, within fifteen (15)
days, a termination settlement of twelve (12)
months of fee as set forth in Paragraph 5(a).
(ii) If, during the course of the Consulting Term,
Xxxxx suffers a physical or mental disability due
to illness or incapacity such that, based on
competent medical evidence, Xxxxx is unable to
carry out the duties to be performed by him
hereunder, the consulting provisions of this
Agreement shall terminate, and Xxxxx'x estate
shall be paid, within fifteen (15) days, a
termination settlement of twelve (12) months of
fee as set forth in paragraph 5(a).
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(b) In the event of Consultant's death or disability following a
change in control, the Consultant or his estate shall continue to receive
payments as set forth in Section 5 for the remainder of the term of the
Agreement, as defined in Section 3.
8. NON-COMPETITION. During the Consulting Term, Xxxxx shall refrain from
directly or indirectly, for his account or as agent, servant, employee or member
of any firm (a) engaging in any business which is in competition with any
business then being carried on by Datum (including for purposes of this Section
8 Datum's subsidiaries), (b) disclosing to any other person or entity any
confidential information or trade secrets of Datum, without Datum's written
consent, and (c) engaging, hiring, employing or soliciting the employment of any
of Datum's then employees or of the then employees of any of Datum's affiliates
or subsidiaries. The violation of any of these provisions shall provide just
cause for the full and unconditional release without liability to Datum, of all
of Datum's obligations hereunder.
9. MISCELLANEOUS.
(a) Assignment. The performance of Xxxxx contemplated hereunder is
personal in nature and, accordingly, neither this Agreement nor any part thereof
may be assigned by either party hereto.
(b) Successors and Affiliates. Except as otherwise provided herein,
this Agreement is binding upon and shall inure to the benefit of the parties
hereto and their respective successors, assigns, heirs and personal
representatives, and, in the case of Datum, any successor by operation of law or
otherwise. Datum shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Datum, by agreement in form satisfactory to Xxxxx, to
expressly assume and perform this Agreement in the same manner and to the same
extent that Datum would be required to perform and if no such succession had
taken place.
(c) Waiver and Amendment. A party's failure to enforce any of its
rights hereunder shall not be deemed to be a waiver of such rights, unless such
waiver is in writing and signed by the waiving party. Waiver of any one breach
shall not be deemed to be a waiver of any other breach of the same or any other
provision hereof. This Agreement may be amended only by a written agreement
executed by either party hereto.
(d) Governing Law. The validity of this Agreement, the construction of
its terms and the determination of the rights and duties of the parties hereto
shall all be governed by the laws of the State of California.
(e) Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the subject matter
hereof, and any and all prior discussions, negotiations, commitments, letters of
intent, memoranda, writings and understandings related hereto, are hereby
superseded. No representations oral or otherwise, express or implied, other than
those contained herein, have been made by any party hereto.
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(f) Severability. This Agreement is severable to the extent that if
any of its provisions should be declared invalid by a court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not thereby be adversely affected.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
DATUM INC.,
a Delaware corporation
By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
/s/ Xxxxxx X. Xxxxx /s/ Xxx X. XxXxxx
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Xxxxxx X. Xxxxx Xxx X. XxXxxx
Compensation Committee
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