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Exhibit (c)(2)
Triad Park, LLC
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Contractor: Xxxxx XxXxxxxxxx
Term: From February 27, 1997 to indefinite
INDEPENDENT CONTRACTOR SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is entered into by and between Triad Park,
LLC, a Delaware Limited Liability Company "Triad Park"); and Xxxxx XxXxxxxxxx
("Contractor") as of February 27, 1997 (the "Effective Date").
1. ENGAGEMENT OF SERVICES.
1.1 Project Assignments. TRIAD PARK may from time to time issue
Project Assignments to Contractor in the form of the attached Exhibit A. Subject
to the terms of this Agreement, Contractor will render services set forth in
Project Assignments accepted by Contractor. Services will be rendered to the
best of Contractor's ability, by the completion dates set forth in the relevant
Project Assignment.
1.2 Performance of Services. TRIAD PARK selected Contractor to
perform these services based upon TRIAD PARK receiving Contractor's personal
service and therefore Contractor may not subcontract or otherwise delegate its
obligations under this Agreement without TRIAD PARK's prior written consent. If
Contractor is not a natural person, then before any employee, agent, or
consultant of Contractor performs services in connection with this Agreement,
that employee, agent, or consultant must have entered into a written agreement
expressly for the benefit of TRIAD PARK and containing provisions substantially
equivalent to this Section 1.2 and to Section 4 below. Contractor must provide a
signed copy of that agreement to TRIAD PARK.
2. COMPENSATION.
2.1 Fees and Approved Expenses. TRIAD PARK will pay Contractor a
fee for services rendered by Contractor pursuant to this Agreement as set forth
in Exhibit "A". Contractor will not be reimbursed for any expenses incurred in
connection with the performance of services under this Agreement, unless those
expenses are approved in writing by an authorized manager of TRIAD PARK or
expressly authorized in the relevant Project Assignment. Upon termination of
this Agreement by either party for any reason, Contractor will be paid fees and
expenses on a proportional basis as stated in the relevant Project Assignment
for work which has been completed prior to and including the effective date of
such termination.
2.2 Timing. Unless other terms are set forth in the Project
Assignment for the work in progress, TRIAD PARK will pay Contractor for services
and will reimburse Contractor for approved expenses within thirty (30) days
after the date of Contractor's invoice, provided Contractor has furnished such
documentation for those authorized expenses as TRIAD PARK may reasonably
request. Contractor shall not issue an invoice to TRIAD PARK under this
Agreement more often than on a bi-weekly basis.
3. INDEPENDENT CONTRACTOR RELATIONSHIP.
3.1 Nature of Relationship. Contractor and TRIAD PARK understand,
acknowledge and agree that Contractor's relationship with TRIAD PARK will be
that of an independent Contractor and nothing in this Agreement is intended to
or should be construed to create a partnership, joint venture, or employment
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relationship. Since Contractor will not be an employee of TRIAD PARK, Contractor
will not be entitled to any of the benefits which TRIAD PARK may make available
to its employees, including, by way of example, group health or life insurance.
Contractor is not an agent of TRIAD PARK as a result of or in the course of
performing services pursuant to this Agreement and Contractor is not authorized
to make any representation, contract or commitment on behalf of TRIAD PARK
unless specifically requested or authorized in writing to do so by a duly
authorized manager of TRIAD PARK.
3.2 Contractor Responsible for Taxes and Records. Contractor will
be solely responsible for, and will file on a timely basis, all tax returns and
payments required to be filed with or made to any federal, state or local tax
authority with respect to Contractor's performance of services and receipt of
fees under this Agreement. Contractor will be solely responsible for and must
maintain adequate records of expenses incurred in the course of performing
services under this Agreement. No part of Contractor's compensation will be
subject to withholding by TRIAD PARK for the payment of social security,
federal, sate or any other employee payroll tax.
4. TRADE SECRETS -- INTELLECTUAL PROPERTY RIGHTS.
4.1 Representations. Contractor represents that his performance
of all of the terms of this Agreement does not, and will not, breach any
agreement to keep in confidence proprietary information, knowledge or data of a
third party and Contractor will not disclose to TRIAD PARK, or induce TRIAD PARK
to use, any confidential or proprietary information belonging to third parties
unless such use or disclosure is authorized in writing by such owners.
4.2 Confidential Information.
(a) Contractor will maintain in confidence and will not disclose
or use, either during or after the performance of his or her services hereunder,
any proprietary or confidential information or know-how belonging to TRIAD PARK
("Confidential Information"), whether or not in written form, except to the
extent required to perform duties on behalf of TRIAD PARK. Confidential
Information refers to any information, not generally known in the relevant trade
or industry, which was obtained from TRIAD PARK, or which was learned,
discovered, developed, conceived, originated or prepared by Contractor during
the term of this Agreement. Such Confidential Information includes, but is not
limited to, computer programs and routines, technical and business information
relating to TRIAD PARK's inventions or products, research and development,
production processes, manufacturing and engineering processes, machines and
equipment, finances, customers, marketing, and production and future business
plans and any information which is identified as confidential by TRIAD PARK.
Upon the termination of Contractor's services, Contractor will deliver to TRIAD
PARK all written and tangible material in Contractor's possession incorporating
the Confidential Information or otherwise relating to TRIAD PARK's business.
These obligations with respect to Confidential Information extend to information
belonging to third parties from whom information was received in confidence,
including without limitation customers and suppliers of TRIAD PARK, who may have
disclosed such information to Contractor as the result of Contractor's status as
an independent consultant of TRIAD PARK.
(b) All Confidential Information will remain the sole property of
TRIAD PARK, and Contractor will have no rights to the Confidential Information,
except as otherwise provided in this Agreement.
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(c) Contractor agrees that it will not use any Confidential
Information except in accordance with the provisions of this Agreement and will
not disclose any Confidential Information to any third party without the prior
written consent of TRIAD PARK. TRIAD PARK hereby consents to such disclosure of
its Confidential Information to the employees of Contractor as is necessary to
allow Contractor to perform this Agreement and to obtain the benefits thereof.
Contractor agrees to treat all Confidential Information in the same manner as it
treats its own confidential information, but in no case will the degree of care
used by Contractor be less than reasonable care.
(d) Notwithstanding the other provisions of this Agreement,
information shall not be deemed Confidential Information, and Contractor shall
have no obligation with respect to any information which: (i) was in the public
domain at the time it was disclosed or falls within the public domain, except
through the fault of the Contractor; (ii) was disclosed after written approval
of TRIAD PARK; or (iii) was rightfully communicated to Licensee from a party
other than TRIAD PARK free of any obligation of confidence subsequent to the
time it was communicated by TRIAD PARK to Contractor.
4.3 Conflict of Interest. Contractor agrees during the term of
this Agreement not to accept work, enter into a contract or accept an
obligation, inconsistent or incompatible with Contractor's obligations or the
scope of services rendered for TRIAD PARK under this Agreement. Contractor
warrants that to the best of his or her knowledge, there is no other contract or
duty on his or her part now in force which is inconsistent with this Agreement.
During the term of the Agreement, Contractor will not enter into any agreement,
whether oral or written, which conflicts with the provisions of this Agreement.
Contractor further agrees not to disclose to TRIAD PARK, or bring onto TRIAD
PARK's premises, or induce TRIAD PARK to use any confidential information that
belongs to anyone other than TRIAD PARK or Contractor. Contractor agrees to
indemnify TRIAD PARK from any and all loss or liability incurred by reason of
alleged breach by Contractor of any confidentiality or services agreement with
any party other than TRIAD PARK. Anything to the contrary in this agreement
notwithstanding, TRIAD PARK recognizes that Contractor is an employee of
CCI/Triad and waves and releases any claims against Contractor arising out of
any conflict of interest due to Contractor's employment with CCI/Triad.
4.4 Injunctive Relief for Breach. Contractor acknowledges and
agrees that the obligations and promises of Contractor under this Agreement are
of a unique, intellectual character that gives them particular value. Contractor
further acknowledges and agrees that his or her breach of any of the promises or
agreements contained in this Agreement will result in irreparable and continuing
damage to TRIAD PARK for which there is no adequate remedy at law and, in the
event of such breach, TRIAD PARK will be entitled to injunctive relief.
4.5 Return of TRIAD PARK's Property. Contractor acknowledges that
the following are TRIAD PARK's sole and exclusive property: all documents, such
as drawings, manuals, notebooks, reports, sketches, records, computer programs,
employee lists, customer lists and the like in his custody or possession,
whether delivered to Contractor by TRIAD PARK or made by Contractor in the
performance of services under this Agreement, relating to the business
activities of TRIAD PARK or its customers or suppliers and containing any
information or data whatsoever, whether or not Confidential Information.
Contractor agrees to promptly deliver all of TRIAD PARK's property and all
copies of TRIAD PARK's property and Confidential Information in Contractor's
possession to TRIAD PARK upon termination or expiration of this Agreement for
any reason, or at any time upon TRIAD PARK's request.
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5. TERM, TERMINATION, NON-INTERFERENCE WITH BUSINESS.
5.1 Term. The term of this Agreement will begin upon the
Effective Date and will continue in force indefinitely, unless terminated
earlier in accordance with Sections 5.2 or 5.3 below.
5.2 Termination by TRIAD PARK. Except while work by Contractor is
in progress under a Project Assignment, TRIAD PARK may terminate this Agreement
with or without cause, at any time upon thirty (30) days prior written notice to
Contractor. TRIAD PARK also may terminate this Agreement immediately in its sole
discretion upon Contractor's material breach of Article 4 and/or Section 5.4 of
this Agreement and/or upon any acts of gross misconduct by Contractor directly
affecting this Agreement or the independent contractor relationship. While work
by Contractor is in progress under any Project Assignment governed by this
Agreement, TRIAD PARK may terminate this Agreement for cause upon thirty (30)
days' prior written notice to Contractor. Cause will be defined as any failure
by Contractor to perform his or her obligations under this Agreement.
5.3 Termination by Contractor. Except while work by Contractor is
in progress under a Project Assignment, Contractor may terminate this Agreement
with or without cause at any time upon thirty (30) days' prior written notice to
TRIAD PARK.
5.4 Non-interference with Business. During and for a period of
two (2) years immediately following termination of this Agreement by either
party, Contractor agrees not t interfere with the business of TRIAD PARK in any
manner. By way of example and not limitation, Contractor agrees not to solicit,
induce or encourage or cause others to solicit, induce or encourage any employee
or independent contractor of TRIAD PARK to terminate or breach any employment,
contractual or other relationship with TRIAD PARK.
6. GENERAL PROVISIONS.
6.1 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the United States and the State of
California as applied to agreements entered into and to be performed entirely
within California between California residents.
6.2 Entire Agreement. This Agreement and the Exhibits attached
hereto contain the entire agreement between the parties hereto, and supersede
all simultaneous or prior oral or written agreements, regarding the subject
matter of this Agreement. No modifications or amendments to this Agreement shall
be binding upon the parties unless made by a writing signed by both parties.
6.3 Waiver. The waiver by either party of a breach of any
provision contained herein shall not be effective unless in writing signed on
behalf of the party against whom the waiver is asserted. Any waiver shall in no
way be construed as a waiver of any succeeding breach of such provision or the
waiver of the provision itself.
6.4 Assignment. This Agreement may not be assigned by Contractor
without the prior written consent of TRIAD PARK.
6.5 Notices. All notices or reports permitted or required under
this Agreement shall be in writing and shall be delivered by (i) personal
delivery, (ii) telegram, (iii) telex, (iv) telecopier, (v) facsimile
transmission or (vi) by certified or registered mail, return receipt requested,
and shall be deemed given upon
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personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to
the addresses set forth at the end of this Agreement or such other address as
either party may specify in writing and in accordance with this Section 6.5.
6.6 Survival. Each of the parties' obligations under Sections 4
and 5.4 will survive the termination or expiration of this Agreement.
6.7 Severability. In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or be so
held by applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole, and, in such event,
such provision shall be changed and interpreted so as to best accomplish the
intended objectives and economic effects of such unenforceable or invalid
provision within the limits of applicable law or applicable court decisions.
6.8 Choice of Forum. All disputes arising under this Agreement
may be brought (i) in the Superior Court of the State of California in Alameda
County, Hayward Branch, (ii) in the Municipal Court of the State of California,
County of Alameda, Livermore/Pleasanton Judicial District, or (iii) the United
States District Court for the Northern District of California (collectively the
"Courts"). The Courts shall together have exclusive jurisdiction over disputes
under this Agreement. Contractor hereby consents to personal jurisdiction of the
above courts.
6.9 Attorney's Fees. In the event any proceeding or lawsuit is
brought by TRIAD PARK or Contractor in connection with this Agreement, the
Contractor shall be entitled to receive its costs, expert witness fees and
reasonable attorneys' fees, including costs and fees on appeal.
THE PARTIES, INTENDING TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF,
HAVE CAUSED THIS AGREEMENT TO BE SIGNED BY THEIR DULY AUTHORIZED
REPRESENTATIVES.
TRIAD PARK, LLC CONTRACTOR:
XXXXX XxXXXXXXXX
/s/ XXXXX X. XXXXXX /s/ XXXXX XxXXXXXXXX
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Xxxxx X. Xxxxxx, Vice President Xxxxx XxXxxxxxxx
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