EXHIBIT 10.11
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (this "AGREEMENT"), made this ___ day of
__________, 1997, is by and between ORCAD, INC., a Delaware corporation
("ORCAD"), and WOLFRAM ▇. ▇▇▇▇▇ who resides at ▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ADVISOR"), who are referred to herein separately as a "PARTY"
and collectively as the "PARTIES". This Agreement is entered into in accordance
with that certain Agreement and Plan of Merger (the "MERGER AGREEMENT") by and
among OrCAD, OCA MERGER CORPORATION, an Oregon corporation ("MERGER SUB"), and
MICROSIM CORPORATION, a California corporation ("MICROSIM"), pursuant to which
Merger Sub merges with and into MicroSim and all of Advisor's shares of
MicroSim's common stock are exchanged for shares of OrCAD's common stock.
The parties agree as follows:
1. CONSULTING.
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A. TERM. The term of this Agreement relating to Advisor's advisory
services for OrCAD shall begin as of the Effective Time (as defined in the
Merger Agreement) and shall continue until the second anniversary of the
Effective Time (the "EXPIRATION DATE") unless earlier terminated as provided
herein.
B. TIME. Advisor will consult up to twenty (20) hours per month for
OrCAD, at specific times mutually agreeable to the Parties. Advisor will devote
his best efforts in support of OrCAD's operations and goals during the entire
term of this Agreement.
2. DUTIES.
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A. GENERALLY. Advisor will take responsibility for his advisory
duties as OrCAD's Board of Directors (the "BOARD") or Chief Executive Officer
(the "CEO") assigns them from time to time. Advisor will serve in the capacity
of Chief Technical Advisor, and all assigned duties will be commensurate with
that advisory role. Advisor's working environment shall in all respects be of
at least a like grade and quality as that of OrCAD's senior executive officers.
Advisor will perform his duties with full application of Advisor's professional
talents and skills, using the best judgment Advisor can bring to bear.
B. GOALS. Advisor will use his best efforts to achieve the goals
contained in the Compensation Plan and Goals attached hereto as Exhibit A.
C. DIRECTOR POSITION. During the term of this Agreement, Advisor
shall continually be a recommended candidate by OrCAD's management for election
to the Board.
3. COMPENSATION.
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A. PAY. OrCAD will pay Advisor initially as described in Exhibit A.
Exhibit A may be amended from time to time, by notice to Advisor, but only if
and to the extent the change increases Advisor's compensation.
B. BENEFITS. OrCAD will not make available employee benefits to
Advisor.
4. TERMINATION.
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A. VOLUNTARY. Advisor may voluntarily resign from his advisory role
upon giving OrCAD thirty (30) days' advance written notice of Advisor's intent
to resign. In the event that Advisor resigns at the request of the Board or the
CEO, such resignation shall not be treated as a voluntary resignation by Advisor
for purposes of this Agreement, but shall instead be treated as a termination by
OrCAD.
B. WITHOUT CAUSE. OrCAD may terminate this Agreement and Advisor's
consulting without Cause (as defined below) upon giving Advisor thirty (30)
days' advance written notice.
C. FOR CAUSE. OrCAD may terminate this Agreement and Advisor's
consulting immediately upon written notice at any time for Cause. For purposes
of this Agreement, "CAUSE" means any one of the following events:
(1) Advisor's repeated and willful failure or refusal to comply with
the reasonable policies, standards or regulations from time to time
established in writing by OrCAD and previously delivered to Advisor;
(2) Advisor's engaging in criminal conduct or other fundamentally
improper conduct with respect to OrCAD that is dishonest, fraudulent or
materially detrimental to the reputation, character or standing of OrCAD;
(3) Advisor's misappropriation of OrCAD monies or assets; or
(4) Advisor's repeated and willful failure to perform duties properly
assigned to him by the Board or the CEO or to abide by the terms of this
Agreement.
D. DEATH. This Agreement shall automatically terminate upon the
death of Advisor.
E. DISABILITY. This Agreement and Advisor's consulting shall
terminate upon the effective date of notice sent to Advisor stating the Board's
determination, made in good faith and after consultation with a physician
selected by the Board, that: (i) Advisor is incapable of performing his
essential consulting functions under this Agreement, with reasonable
accommodation, because of a physical or mental incapacity; (ii) the incapacity
has prevented Advisor from performing such functions for a period of one hundred
twenty (120) days in a rolling twelve (12) month period or ninety (90)
consecutive calendar days; and (iii) such incapacity is likely to continue for a
least another ninety (90) days in a twelve (12) month period. If and when
Advisor's incapacity substantially impacts his consulting performance or
attendance,
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OrCAD may require Advisor to undergo a physical examination reasonably designed
to determine his ability to work.
F. COMPENSATION ON TERMINATION. Upon termination of Advisor by
OrCAD without Cause prior to the Expiration Date, and in consideration of the
covenants that survive termination of this Agreement, OrCAD will: (i) pay
Advisor's consulting fee as earned through the termination date; and (ii) pay
Advisor a lump-sum severance at the time of termination in an amount equal to
one (1) year's consulting fees. Upon termination for Cause, termination due to
disability, or Advisor's voluntary resignation or death, OrCAD will pay
Advisor's consulting fees earned through the termination date. Upon Advisor's
voluntary resignation, death, disability, or termination for Cause by OrCAD,
Advisor is not entitled to severance pay.
5. CONFIDENTIALITY.
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A. CONFIDENTIALITY OF ORCAD DATA. During Advisor's consulting for
OrCAD and for two (2) years after termination, Advisor will keep OrCAD Data, as
that term is defined below, confidential. Advisor will not disclose OrCAD Data
directly or indirectly to any person, other than to an employee of OrCAD or a
person or entity to which disclosure is reasonably necessary or appropriate to
further OrCAD's business. "ORCAD DATA" includes, without limitation, any trade
secret or proprietary or confidential information of OrCAD or of any OrCAD
affiliate, including all confidential records, files, memoranda, reports, price
lists, software, customer lists, drawings, sketches or documents.
B. CONFIDENTIALITY OF THIRD PARTY DATA. Advisor will also keep
Third Party Data, as that term is defined below, confidential during Advisor's
consulting for OrCAD and for two (2) years after termination or as long as is
required by any agreement OrCAD enters into with the third party and which is
provided to Advisor, whichever period is longer. Advisor will not disclose
Third Party Data in violation of any such agreement with the third party.
"THIRD PARTY DATA" means data obtained by Advisor in the course of his
consulting for OrCAD from a third party, including without limitation suppliers
and customers, which data is considered by the third party to be proprietary or
confidential.
C. RETURN ON TERMINATION. All OrCAD Data is the property of OrCAD.
Advisor will return to OrCAD all OrCAD Data and Third Party Data upon
termination of this Agreement.
6. OWNERSHIP OF INVENTIONS.
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A. DEFINITIONS. "INVENTIONS" means ideas, improvements, designs,
discoveries or authored works (whether software or other form), whether or not
patentable or copyrightable, as well as other newly discovered or newly applied
information or concepts. An Invention is a "COVERED INVENTION" if it was
developed in any part using OrCAD resources (time, supplies, facilities or
data); or if it results from or is suggested by a task assigned to, or work
performed for OrCAD by, Advisor. As used in this Section 6, "ORCAD" includes
OrCAD and its affiliates, including OrCAD's clients or its respective
consultants and contractors.
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B. ASSIGNMENT. All Advisor's right, title and interest in and to
any Covered Inventions that Advisor makes or conceives while providing advisory
services to OrCAD, belong to OrCAD. This Agreement operates as a prospective
assignment of all those rights to OrCAD. Advisor agrees to execute such
documents as may be necessary to perfect this assignment upon request by OrCAD.
C. OWNERSHIP. All records, files, memoranda, reports, price lists,
software, customer lists, drawings, sketches, documents, equipment and the like,
relating to the business of OrCAD or its affiliates which Advisor shall have use
of, prepare, or come into contact with in the course of his consulting work for
OrCAD ("ORCAD PROPERTY") shall remain the sole and exclusive property of OrCAD.
Advisor will return to OrCAD all OrCAD Property upon termination of his
consulting for OrCAD.
7. NON-COMPETITION.
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A. COMMITMENT. During Advisor's consulting for OrCAD, and for a
period of one (1) year after termination of such consulting, unless OrCAD
consents in writing, Advisor will not Compete, as that term is defined below,
with OrCAD or its affiliates.
(1) "COMPETE" means directly or indirectly:
(i) to have any financial interest in (except for stock ownership
as permitted in subparagraph (ii) below);
(ii) to join, operate, control or participate in, as an officer,
director, employee, agent, independent contractor, partner,
shareholder (except as holder of not more than five percent (5%) of
the outstanding stock of any class of a corporation, the stock of
which is actively publicly traded) or principal with;
(iii) to provide services in any capacity to those participating
in the ownership, management, operation or control of; or
(iv) to act as a consultant or subcontractor to:
any corporation, proprietorship, association or other entity or person engaged
in the sale or production of products or the rendering of services of a kind
similar to or competitive with any products produced or developed or under
active consideration by, or services provided by or under active consideration
by, OrCAD or its affiliates at the time of Advisor's termination of consulting
for OrCAD.
8. NON-SOLICITATION, NON-HIRE.
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A. COMMITMENT. During Advisor's consulting for OrCAD, and for a
period of one (1) after termination of such consulting, unless OrCAD consents in
writing, Advisor will not Solicit Business, as that term is defined below.
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B. SOLICIT BUSINESS DEFINED. "SOLICIT BUSINESS" means contacting or
dealing with an OrCAD Customer, as that term is defined below, for purposes of
seeking employment, or providing goods or services of a kind similar to or
competitive with any products produced or developed or under active
consideration by, OrCAD or its affiliates at the time of Advisor's termination
of consulting for OrCAD, or providing knowledge or assistance to another for any
of those purposes. Upon Advisor's request on or after termination of his
consulting for OrCAD, OrCAD will promptly advise Advisor of the identities of
the OrCAD Customers in order to enable him to comply with this provision.
C. ORCAD CUSTOMERS DEFINED. "ORCAD CUSTOMERS" include Existing
Customers and Prospective Customers, as those terms are defined below:
(1) "EXISTING CUSTOMERS" means entities or individuals who have
purchased consulting or programming services, software, or products from
OrCAD or its affiliates at any time within one (1) year before the date
Advisor's consulting for OrCAD terminates.
(2) "PROSPECTIVE CUSTOMERS" means entities or individuals upon whom at
any time within one (1) year before the date Advisor's consulting for OrCAD
terminates either (i) more than three (3) calls have been made in any one-
month period by OrCAD or its affiliates or (ii) to whom a proposal has been
submitted or by whom a proposal has been requested by OrCAD or its
affiliates, and from whom, on the date Advisor's consulting terminates,
OrCAD or any of its affiliates reasonably believes it may secure work or
product or service orders.
D. NON-HIRING. During Advisor's consulting for OrCAD, and for a
period of one (1) year after termination of Advisor's consulting, unless OrCAD
consents in writing, Advisor will not directly or indirectly (i) hire or use the
services of any then-current employee of OrCAD or its affiliates or any person
who has left the employ of OrCAD or its affiliates within three (3) months prior
to the termination of Advisor's consulting for OrCAD, or (ii) solicit or in any
manner attempt to induce any such person to leave the employ of OrCAD or its
affiliates or (iii) aid others in performing the actions referred to in either
clause (i) or (ii) of this Section 8(D).
9. OTHER MATTERS.
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A. NOTICE. Notice to Advisor shall be sent to Advisor's most recent
address shown in OrCAD's personnel records. Notice to OrCAD shall be sent to
OrCAD's headquarters address, marked "Attention: CEO." Either party may change
its address by written notice. Notice shall be effective when the person to
whom it is sent actually receives it, if sent by any method that leaves a paper
or electronic record in the hands of the recipient. If sent certified or
registered mail, postage prepaid, return receipt requested, to the proper
address this Section 9(A) defines, notice shall be considered effective, whether
or not actually received, on the date the return receipt shows the notice was
accepted, refused, or returned undeliverable.
B. SEVERABILITY. Each clause of this Agreement is severable. If
any clause is ruled void or unenforceable, the balance of the Agreement shall
nonetheless remain in effect.
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C. NON-WAIVER. A waiver of one or more breaches of any clause of
this Agreement shall not act to waive any other breach, whether of the same or
different clauses.
D. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of OrCAD, and shall be binding upon Advisor, and Advisor's
administrators, executors, legatees and heirs. This Agreement shall not be
assigned by Advisor.
E. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Oregon.
F. JURISDICTION. Employee acknowledges that he has substantial
contacts with Oregon and the Parties agree that litigation, if any, may be
brought only in the state or federal courts located in Portland, Oregon and in
no other place unless the parties expressly agree in writing to waive this
requirement. Each Party consents to jurisdiction in Oregon.
G. INJUNCTIVE RELIEF. Because violation of the obligations of
Sections 5, 6, 7 and 8 of this Agreement would result in damage to OrCAD that
could not be cured by an award of money alone, OrCAD shall be entitled to
injunctive relief in cases where a violation of those obligations is shown.
This remedy shall be in addition to any other remedies available at law or in
equity.
H. ATTORNEYS' FEES. The prevailing party in any suit, action,
arbitration or appeal filed or held concerning this Agreement shall be entitled
to reasonable attorneys' fees and disbursements and the actual, reasonably
necessary costs of the proceeding.
I. INTEGRATION. This Agreement is the complete agreement between
the Parties regarding the subject matter hereof. The parties expressly agree
that it constitutes the agreement that was and is in force between them as of
the date of this Agreement. It supersedes all prior agreements, written or
oral. It may be modified only in writing signed by the original Parties hereto,
or by their successors or superiors in office.
J. SURVIVAL. The obligations of Sections 5, 6, 7 and 8 of this
Agreement shall survive termination of this Agreement.
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IN WITNESS WHEREOF, OrCAD has caused this Agreement to be signed by
its duly authorized representative, and Advisor has hereunder set his name as of
the date of this Agreement.
WOLFRAM ▇. ▇▇▇▇▇ ORCAD, INC.
By: By:
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Wolfram ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
EXHIBIT:
A: Compensation Plan
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EXHIBIT A
COMPENSATION PLAN AND RESPONSIBILITIES
AS OF COMMENCEMENT OF CONSULTING
ADVISOR: WOLFRAM ▇. ▇▇▇▇▇
1. INITIAL ASSIGNMENT: ▇▇. ▇▇▇▇▇ will serve in the advisory role of Chief
Technical Advisor. ▇▇. ▇▇▇▇▇ will report directly to the President and the
CEO.
2. RESPONSIBILITIES: ▇▇. ▇▇▇▇▇ will be responsible for providing strategic
advice to OrCAD, but shall not have staff reporting to him. ▇▇. ▇▇▇▇▇'▇
office shall be in Orange County, California.
3. CONSULTING FEES: OrCAD will pay ▇▇. ▇▇▇▇▇ initially total monthly
consulting fees of $4,000 per month. ▇▇. ▇▇▇▇▇ shall be responsible for
payment of, and shall indemnify OrCAD with respect to, all federal, state
and local income taxes payable with respect to the consulting fees.
WOLFRAM ▇. ▇▇▇▇▇ ORCAD, INC.
By: By:
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Wolfram ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Date: Date:
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