EXHIBIT 10.92
AMENDED AND RESTATED
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CONSULTING SERVICES AGREEMENT
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As of January 9, 1997
Microelectronic Packaging, Inc.
9350 Trade Place
San Diego, California 92126
The following confirms the agreement by and among The Watley Group,
LLC, Messrs. Alfred J. Moran, Jr., Anthony J. A. Bryan and Anthony J. A. Bryan,
Jr. (each, a "Consultant," and collectively, the "Consultants"), and
Microelectronic Packaging, Inc., a California corporation (the "Company"), with
respect to consulting services for the Company to be performed by the
Consultants:
1. This Agreement became effective on November 21, 1996. Each
Consultant understands that the Company (which for all purposes of this
Agreement shall also include its subsidiaries) possesses and will possess
Proprietary Information that is important to the Company's business. For
purposes of this Agreement, "Proprietary Information" is information that was or
will be developed, created, or discovered by or on behalf of the Company, or
which became or will become known by, or was or is conveyed to the Company,
which has commercial value in the Company's business. "Proprietary Information"
includes, but is not limited to, information about operations and maintenance,
patents, financial information, trade secrets, computer programs, design,
technology, ideas, know-how, processes, formulas, data, techniques,
improvements, inventions (whether patentable or not), works of authorship,
business and product development plans, customers and other information
concerning the Company's actual or anticipated business, research or
development, or which is received in confidence by or for the Company from any
other person.
Each Consultant understands that this consulting arrangement creates a
relationship of confidence and trust between each Consultant and the Company
with regard to Proprietary Information.
2. Each Consultant understands that the Company possesses or will
possess "Company Materials" which are important to its business. For purposes
of this Agreement, "Company Materials" are documents or other media or tangible
items that contain or embody Proprietary Information or any other information
concerning the business, operations or plans of the Company, whether such
documents have been prepared by Consultant or by others. "Company Materials"
include, but are not limited to, blueprints, drawings, charts, graphs,
notebooks, customer lists, computer disks, tapes
or printouts, projections and all other financial information and other printed,
typewritten or handwritten documents, as well as samples, prototypes, models,
products and the like.
3. In consideration of the mutual covenants and agreements hereafter
set forth, the parties agree as follows:
a. This Agreement will terminate automatically without any act
of any party to this Agreement on November 21, 1997, unless terminated earlier
by (i) any Consultant or (ii) the Company for any event of Misconduct by any
Consultant. For purposes of this Agreement, the term Misconduct shall be defined
to include, without limitation, any of the following grounds: (i) a Consultant's
gross negligence or repeated failure or willful failure or refusal to perform
his duties and responsibilities as a Consultant of the Company, any breach of
any provision of this Agreement or a breach of fiduciary duties of any such
Consultant, (ii) conviction of any felony or crime involving moral turpitude,
fraud or misrepresentation, (iii) acts of dishonesty, fraud or embezzlement
affecting the Company, (iv) any unauthorized use or disclosure by Consultant of
confidential information or trade secrets of the Company, and (v) any willful or
intentional act having the effect of materially injuring the reputation,
business or business relationships of the Company.
If this Agreement is terminated by any Consultant or by the Company
for any event of Misconduct prior to November 21, 1997, the Consultants shall be
paid their fees and reimbursed for their reasonable business expenses up to the
date of termination, but the Consultants shall not be entitled to any
compensation or benefits thereafter.
b. Between January 9, 1997 and November 21, 1997, upon the
mutual agreement of the parties to this Agreement, the parties may extend the
term of this Agreement to November 21, 1998. At any time during this extended
time period, (i) any Consultant may terminate this Agreement, (ii) the Company
may terminate this Agreement for any act of Misconduct or (iii) the Company may
terminate this Agreement for any reason whatsoever (other than an event of
Misconduct which is governed by (ii) above) upon three months' prior written
notice to The Watley Group, LLC. Upon such termination during such time period,
the Consultants shall be paid their fees and shall be reimbursed for their
reasonable business expenses up to the date of termination, but the Consultants
shall not be entitled to any compensation or benefits thereafter.
c. Between November 21, 1997 and November 21, 1998, upon the
mutual agreement of the parties to this Agreement, the parties may extend the
term of this Agreement to November 21, 1999. During the third year of this
Agreement, all of the termination events, rights and liabilities resulting
therefrom, if any, shall be governed by the terms of the last two sentences of
the immediately preceding paragraph b.
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d. Each Consultant agrees to render consulting services
("Services") to the Company during the term of this Agreement. Each Consultant
shall perform as diligently as possible such duties as the Board of Directors or
the actual President and Chief Executive Officer shall from time to time
prescribe. Each Consultant also agrees to submit to the Board and to the
management of the Company, in written form, all work product developed or
produced under this Agreement in a timely manner. Each Consultant shall report
directly to the Board of Directors and shall provide his or its services in
accordance with the instructions of the Board or the actual President and Chief
Executive Officer.
e. The Consultants shall be paid an aggregate monthly fee of
$15,000.00, plus all reasonable business expenses, for time actually spent
performing each such Consultant's duties under this Agreement during the term of
this Agreement. In addition, the Company shall reimburse Consultants for
reasonable business travel (transportation, lodging and meals) and telephone
expenses Consultants are required to incur in providing the Services. All long-
distance travel and lodging will be coach class or equivalent, although business
class is acceptable for international travel. The Consultants shall be
responsible for designating to the Company which Consultant shall receive
payment of fees and expenses. Each Consultant must provide a detailed written
accounting of such expenses prior to being reimbursed. Any expense item over
$3,000 shall require written pre-authorization by the chief financial officer of
the Company prior to such expense being incurred.
f. All stock options to be granted to Messrs. Moran, Bryan and
Bryan, Jr. will be determined at a subsequent Board meeting but shall generally
contain those provisions discussed at the January 9, 1997 Compensation Committee
meeting held at the Company's U.S. headquarters. Effective immediately, Mr.
Moran shall be retained as a full-time employee and shall be paid the prevailing
minimum wage. In addition, The Watley Group shall also be paid an aggregate of
fifty thousand dollars ($50,000) over the next six months starting as of January
9, 1997, such fifty thousand dollars ($50,000) to be reduced by the amount of
minimum wages paid directly to Mr. Moran.
g. For purposes of this Agreement, death or disability shall be
considered termination events and Consultants shall be entitled to be
compensated to the date of termination pursuant to such event, but not
thereafter.
4. All Proprietary Information and Company Materials shall be the
sole property of the Company. At all times during the term of this Agreement and
hereafter, each Consultant will keep in confidence and trust and will not use or
disclose any Proprietary Information or Company Materials without the prior
written consent of an unrelated officer of the Company. Each Consultant
acknowledges that any disclosure or unauthorized use of Proprietary Information
or Company Materials will constitute a breach of this Agreement and cause
substantial harm to the Company for which damages would not be a fully adequate
remedy, and, therefore, in the event of any such breach, in
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addition to other available remedies, the Company shall have the right to obtain
injunctive and other forms of equitable relief.
5. Each Consultant agrees that, immediately upon the Company's
request and in any event upon completion of the Services, each Consultant shall
deliver to the Company all Company Materials, excepting only each Consultant's
copy of this Agreement. At all times before completion of Services, the Company
shall have the right to examine any materials relating thereto to ensure
Consultant's compliance with the provisions of this Agreement.
6. Each Consultant agrees that during the term of this Agreement,
each Consultant will not engage in any employment, business, or activity that is
in any way competitive with the business or proposed business of the Company,
and each Consultant will not assist any other person or organization in
competing with the Company or in preparing to engage in competition with the
business or proposed business of the Company.
7. Each Consultant represents that the performance of each of the
terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by Consultant in confidence or in trust prior
to the execution of this Agreement. No Consultant has entered into, and no
Consultant will enter into, any agreement either written or oral that conflicts
or might conflict with such Consultant's performances of the Services under this
Agreement.
8. Except for Mr. Moran, effective as of January 9, 1997, each
Consultant is an independent contractor and is solely responsible for all taxes,
withholdings, and other similar statutory obligations, including, but not
limited to, workers' compensation insurance; and each Consultant agrees to
defend, indemnify and hold the Company harmless from any and all claims made by
any entity on account of an alleged failure by Consultant to satisfy any such
tax or withholding obligations.
9. Each Consultant's performance under this Agreement shall be
conducted with due diligence and in full and strict compliance with the highest
professional standards of practice in the industry. Each Consultant is in
compliance with and shall comply with all applicable laws, rules, statutes and
regulations in the course of performing the Services. If Consultant's work for
the Company requires a license or regulatory authorization or approval,
Consultant has obtained or will obtain that license and the license is in full
force and effect. Each Consultant shall indemnify the Company and its officers
and directors for any breach of the representations, covenants and agreements
set forth in this Agreement.
10. The Company shall maintain directors' and officers' liability
insurance in an aggregate minimum coverage amount of no less than five million
dollars, which insurance policy shall include Mr. Moran as Acting Chief
Executive Officer of the
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Company and Mr. Bryan as a member of the Board of Directors. In addition, the
Company shall indemnify Messrs. Moran, Bryan and Bryan, Jr. pursuant to the
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Company's Articles of Incorporation and Bylaws and shall enter into its standard
indemnification agreement for officers and directors with each of such three
Consultants.
11. Consultant agrees that any dispute as to the meaning, effect or
validity of this Agreement shall be resolved in accordance with the laws of the
State of California without regard to the conflict of laws provisions thereof.
Consultant further agrees that if one or more provisions of this Agreement are
held to be illegal or unenforceable under California law, such illegal or
unenforceable portion(s) shall be limited or excluded from this Agreement to the
minimum extent required and the balance of the Agreement shall be interpreted as
if such portion(s) were so limited or excluded and shall be enforceable in
accordance with its terms.
12. This Agreement shall be binding upon all Consultants, and shall
inure to the benefit of the parties hereto and their respective heirs,
successors, assigns, and personal representatives; provided, however, that this
Agreement shall not be assignable by any Consultant.
13. Except with respect to the stock option plan, stock option
agreement and related plan documents which shall govern the terms of the stock
options granted and to be granted to such Consultant, this Agreement contains
the entire understanding of the parties regarding its subject matter, supersedes
all prior or oral representations, warranties, covenants and agreements,
including the term sheet dated as of this date, and can only be modified by a
subsequent written agreement executed by the President of the Company or members
of the Board of Directors (provided neither person is a Consultant at the time)
and the Consultants.
14. All notices required or given herewith shall be addressed to the
Company or Consultant at the designated addresses shown below by registered
mail, special delivery, or by certified courier service:
a. To Company:
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Microelectronic Packaging, Inc.
9350 Trade Place
San Diego, California 92126
With a Copy to:
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Warren T. Lazarow
Brobeck, Phleger & Harrison LLP
2200 Geng Road
Two Embarcadero Place
Palo Alto, California 94303
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b. To Consultant:
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The Watley Group, LLC
Mr. Alfred J. Moran, Jr.
Mr. Anthony J. A. Bryan
Mr. Anthony J. A. Bryan, Jr.
8811 Burton Way
Los Angeles, California 90048
15. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and disbursements, in addition to any other
relief to which the party may be entitled.
16. This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
17. Each Consultant acknowledges and agrees to act as an advisor to
the Company and will perform only those services as agreed to pursuant to
directions from the Board of Directors or directions from the actual President
and Chief Executive Officer who shall report directly to the Board of Directors.
Each Consultant understands and agrees that he is not authorized and cannot
legally bind the Company to any action or inaction unless and until specific
Board of Directors' approval has been solicited and obtained in writing.
Moreover, Consultants may not discuss the Company's plans or business or
operations unless and until specific Board of Directors approval has been
solicited and obtained.
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EACH CONSULTANT HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND
ACCEPTS THE OBLIGATIONS THAT IT IMPOSES UPON EACH CONSULTANT WITHOUT
RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ANY CONSULTANT TO
INDUCE EACH CONSULTANT TO SIGN THIS AGREEMENT. EACH CONSULTANT SIGNS THIS
AGREEMENT VOLUNTARILY AND FREELY.
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The Watley Group, LLC
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Alfred J. Moran, Jr.
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Anthony J. A. Bryan
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Anthony J. A. Bryan, Jr.
Dated: January 9, 1997
ACCEPTED AND AGREED TO:
Microelectronic Packaging, Inc.
By
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