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EXHIBIT 99.4
CONSULTING AGREEMENT*
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of this 24th day of February, 1998, by and between Wonderware Corporation, a
Delaware corporation (the "Company"), and __________________ (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company is a party to an Agreement and Plan of Merger,
dated February 24th, 1998, by and among the Company, Xxxxx plc, WDR Acquisition
Corp. and WDR Sub Corp. (the "Merger Agreement");
WHEREAS, subject to certain conditions precedent, the Company desires to
retain the services of the Consultant and the Consultant desires to provide
services to the Company during the Consulting Term (as defined below), upon the
terms and conditions set forth herein;
WHEREAS, the parties desire to set forth the exact nature of the amount
of compensation and benefits to be provided to the Consultant and the rights and
obligations of the Company and the Consultant pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. Term. The term of the retention of the Consultant hereunder shall not
commence unless the Offer (as defined in the Merger Agreement) is consummated.
If the Offer is consummated and Consultant shall terminate his employment with
the Company, the term of the consulting arrangement hereunder shall commence
immediately after the termination by the Consultant of his employment with the
Company, and shall continue in full force and effect until the second
anniversary thereafter, unless earlier terminated as provided herein (the
"Consulting Term").
2. Compensation.
(a) Consulting Fee. In consideration of the performance by the
Consultant of the Consultant's obligations during the Consulting Term, the
Company will during the Consulting Term pay the Consultant a consulting fee (the
"Consulting Fee") at an annual rate of $25,000.* The Consulting Fee shall be
payable in accordance with the normal payroll practices of the Company then in
effect.
(b) Taxes. The parties hereto acknowledge that the Consultant
shall be acting as an "independent contractor" during the Consulting Term.
Nevertheless, the
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* The Consulting Agreement with Xxxxxxx Xxxxxxxx includes the following
language at the end of the first sentence of Section 2(a): "plus an initial
fee upon consummation of the Offer of $60,000."
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Consulting Fee, and all other forms of compensation, if any, paid or owing to or
earned by the Consultant, shall be subject to all applicable taxes and other
amounts, if any, required to be withheld by the Company pursuant to federal,
state or local law. The Consultant shall be solely responsible for all taxes
imposed on the Consultant attributable to any cash or non-cash compensation and
benefits provided by the Company.
(c) Lack of Employee Benefits. During the Consulting Term, the
Consultant shall not be entitled to any benefits ordinarily accrued to
employees, officers or directors of the Company.
3. Consulting Services.
The advisory and consulting services to be provided by the
Consultant pursuant to this Section 3 shall be rendered on a non-exclusive basis
as an independent contractor. The Consultant agrees to be available, upon
reasonable request, for consultation and advice on matters relating to the
business of the Company for at least 10 hours during each month during the
Consulting Period, which consultation and advice may be mutually agreed to be by
telephonic conversation and/or written report.
4. Consultant Covenants.
(a) Unauthorized Disclosure. The Consultant agrees and
understands that in the Consultant's position with the Company, the Consultant
has been exposed to and has received information relating to the business
affairs of the Company, including, but not limited to, technical information,
business and marketing plans, strategies, customer information, other
information concerning the Company's products, promotions, development,
financing, expansion plans, business policies and practices, and other forms of
information considered by the Company to be confidential and in the nature of
trade secrets. Except to the extent that the proper performance of the
Consultant's duties, services and responsibilities hereunder may require
disclosure, the Consultant agrees that during the Consulting Term and thereafter
the Consultant will keep such information confidential and not disclose such
information, either directly or indirectly, to any third person or entity
without the prior written consent of the Company. This confidentiality covenant
has no temporal, geographical or territorial restriction. Upon termination of
this Agreement, the Consultant will promptly supply to the Company all property,
keys, notes, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical
data or any other tangible product or document which has been produced by,
received by or otherwise submitted to the Consultant during or prior to the
Consulting Term.
(b) Non-competition. By and in consideration of the Company's
entering into this Agreement and the Consulting Fees and severance benefits to
be provided by the Company hereunder and otherwise, and further in consideration
of the Consultant's exposure to the proprietary information of the Company, the
Consultant agrees that the Consultant will not, during the Consulting Term,
directly or indirectly, own, manage, operate, join, control, be
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employed by, or participate in the ownership, management, operation or control
of, or be connected in any manner, including, but not limited to, holding the
positions of shareholder, director, officer, consultant, independent contractor,
employee, partner, or investor, with, any Competing Enterprise. For purposes of
this paragraph, the term "Competing Enterprise" means any person or entity
engaged in the development, marketing and sale of industrial automation and
process control software products or other business conducted by the Company or
Xxxxx Control Systems Division. The prohibition of this clause (c) shall not be
deemed to prevent Consultant from owning 2% or less of any class of equity
securities of an entity that has a class of equity securities registered under
Section 12 of the Securities Exchange Act of 1934, as amended.
(c) Non-solicitation. In consideration of the Consulting Fees,
during the Consulting Term, the Consultant shall not interfere with the
Company's relationship with, or endeavor to entice away from the Company, any
person who at any time during the Consulting Term was an employee or customer of
the Company or otherwise had a material business relationship with the Company.
(d) Remedies. The Consultant acknowledges and agrees that the
provisions of this Section 4 are reasonable and that the Company would not have
entered into this Agreement without the inclusion herein of such provisions. The
Consultant agrees that any breach of the terms of this Section 4 would result in
irreparable injury and damage to the Company or its affiliates for which the
Company or its affiliates would have no adequate remedy at law; the Consultant
therefore also agrees that in the event of said breach or any threat of breach,
the Company or its affiliates shall be entitled to an immediate injunction and
restraining order to prevent such breach and/or threatened breach and/or
continued breach by the Consultant and/or any and all persons and/or entities
acting for and/or with the Consultant, without having to prove damages, in
addition to any other remedies to which the Company or its affiliates may be
entitled at law or in equity. The terms of this paragraph shall not prevent the
Company or its affiliates from pursuing any other available remedies for any
breach or threatened breach hereof, including but not limited to the recovery of
damages from the Consultant.
The provisions of subsections (a), (b), (c) and (d) of this Section 4
shall survive any termination of this Agreement. The existence of any claim or
cause of action by the Consultant against the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the covenants and agreements of this Section 4.
(f) "Company". For the purposes of this Section 4, the term
"Company" shall mean, collectively, Wonderware Corporation, a Delaware
corporation, and its successors, assigns and nominees, and all individuals,
corporations and other entities that directly, or indirectly through one or more
intermediaries, control or are controlled by or are under common control with
any of the foregoing.
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5. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, or (ii) if mailed, three (3) business
days after having been placed in the United States mail, registered or
certified, postage prepaid, addressed to the party to whom it is directed at the
address set forth below:
If to the Company:
Wonderware Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Wonderware Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Consultant, at:
Wonderware Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Consultant
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
by registered or certified mail, postage prepaid, return receipt requested.
6. Binding Effect/Assignment. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, estates, successors (including, without limitation, by
way of merger) and assigns. Notwithstanding the provisions of the immediately
preceding sentence, the Consultant shall not assign all or any portion of this
Agreement without the prior written consent of the Company.
7. Entire Agreement. This Agreement sets forth the entire understanding
of the parties hereto with respect to the subject matter hereof as expressed in
the third recital to this Agreement and supersedes all prior agreements, written
or oral, between them as to such
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subject matter. Notwithstanding the foregoing, the severance arrangements
described in the minutes of the Compensation Committee of the Board of Directors
meeting held on October 27, 1997 previously awarded to the Consultant, shall
continue in full force and effect.
8. Severability. If any provision of this Agreement, or any application
thereof to any circumstances, is invalid, in whole or in part, such provision or
application shall to that extent be severable and shall not affect other
provisions or applications of this Agreement.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California, without reference
to the principles of conflict of laws.
10. Modifications and Waivers. No provisions of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions at the time
or at any prior or subsequent time.
11. Headings. The headings contained herein are solely for the purposes
of reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by authority of its Board of Directors, and the Consultant has hereunto set his
hand, as of the day and year first above written.
WONDERWARE CORPORATION
By:
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Name:
Title:
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Name:
(Consultant)
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