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EXHIBIT 10.35
PROFESSIONAL SERVICES AGREEMENT 80005
THIS AGREEMENT is effective as of February 1, 1998 Xx. Xxxxxx Xxxxxxxx,
EMF Associates (hereinafter called the "EMF Associates") and Jaycor Networks,
Inc., a Delaware corporation (hereinafter called "Jaycor Networks, Inc.").
WITNESSETH:
WHEREAS, Jaycor Networks, Inc. is conducting certain programs of study and
development pursuant to its business.
WHEREAS, EMF Associates desires to so aid Jaycor Networks, Inc. by
performing such services (hereinafter called the "work");
NOW, THEREFORE, in consideration of the mutual covenants and premises
herein contained, the parties hereto agree as follows:
EMF Associates shall perform all the services set forth in the attached
schedule, for the consideration set forth therein, and the rights and
obligations of the parties to this Agreement shall be subject to and governed
by said Schedule and the General Provisions attached hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Jaycor Networks, Inc.
BY: /s/ XXXXXX XXXXXXXX BY: /s/ XXXXX X. XXXXXXX
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Xxxxxx Xxxxxxxx, EMF Associates Xxxxx X. Xxxxxxx
EMF Associates JAYCOR Contracts Manager
Social Security No.: 00-0000000
DATE: 7/13/98 DATE: 7/13/98
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SCHEDULE
ARTICLE I - TERM OF AGREEMENT
This Agreement shall commence on February 1, 1998 and shall continue in
effect until January 31, 1999, unless terminated earlier as hereinafter
provided.
ARTICLE II- STATEMENT OF WORK
A. During the above specified period of performance, EMF Associates
shall perform the work described below:
Consulting on Fibre Channel
B. EMF Associates agrees to perform such services as may be requested
by Jaycor Networks, Inc. to the best of his/her ability at such place or places
and during such hours as shall be mutually agreeable to the parties hereto.
C. EMF Associates will work under the technical direction of Xx. Xxxxx
Xxxxxxxx.
ARTICLE III - PAYMENT
A. For performing the work, EMF Associates shall be paid $10,000 per
month during the term of this agreement.
B. For periods during which EMF Associates is in authorized travel
status, he/she will be reimbursed reasonable, actual expenses for transportation
and lodging. A receipt is required for any reimbursable expenditure of $10.00
or more.
C. Jaycor Networks, Inc. will reimburse EMF Associates for cost of
transportation by common carrier and/or automobile mileage when EMF
Associates's automobile is used as a means of transportation in connection with
work under this Agreement.
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ARTICLE IV - REQUIREMENTS
This Agreement is for services specified in ARTICLE II - STATEMENT OF
WORK, and for the period set forth therein. Performance of services shall be
made only as requested by Jaycor Networks, Inc.
GENERAL PROVISIONS
SECTION I - EQUIPMENT AND DATA
Jaycor Networks, Inc. shall furnish without cost to EMF Associates such
equipment and data as Jaycor Networks, Inc. in its discretion deems necessary
for the performance of the work. Upon completion of the work or termination of
the work, as provided in Section VII hereof, EMF Associates shall promptly
return such equipment and data to Jaycor Networks, Inc.
Jaycor Networks, Inc. shall have title to all software, designs,
processes, materials and or improvements thereof, developed under this
Agreement.
SECTION II - PATENT RIGHTS
EMF Associates shall (i) disclose promptly to Jaycor Networks, Inc. all
ideas, inventions, discoveries and improvements (whether or not patentable)
relative to the field of work set forth in the Schedule, conceived or first
reduced to practice by him/her in connection with his/her work under this
Agreement during the period it is in effect, or (ii) certify to Jaycor
Networks, Inc. that, to the best of EMF Associates's knowledge and belief, no
such ideas, inventions, discoveries or improvements have been conceived or
first reduced to practice during the term of this Agreement. EMF Associates
further agrees that all such ideas, inventions discoveries and improvement
shall be the sole and absolute property of Jaycor Networks, Inc. and that
he/she will, at any time, at the request and expense of Jaycor Networks, Inc.,
execute any and all papers, and do whatsoever is reasonably required to insure
that Jaycor Networks, Inc. shall obtain full title to such ideas, inventions,
discoveries and improvements.
SECTION III - COPYRIGHTS
EMF Associates agrees that all writings, sound recordings, pictorial
reproductions, drawings or other graphical representations, and works of any
similar nature, which he develops for Jaycor Networks, Inc. in connection with
this Agreement, shall be the property of Jaycor Networks, Inc., and that Jaycor
Networks, Inc. may duplicate, use, or disclose the same in any manner and for
any purpose whatsoever, and have others do so. EMF Associates shall not deliver
to Jaycor Networks, Inc. under this Agreement any copyrighted matter, without
the prior written approval of Jaycor Networks, Inc., and agrees that Jaycor
Networks, Inc. shall have the right to copyright anywhere any and all matter
delivered under this Agreement.
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SECTION IV - INDEPENDENT CONTRACTOR STATUS
A. EMF Associates is retained by Jaycor Networks, Inc. as an independent
contractor, pursuant to this Agreement and is not authorized to act as Jaycor
Networks, Inc.'s agent unless Jaycor Networks, Inc. shall expressly authorize
such agency in writing. EMF Associates shall not enter into any contract,
agreement or other obligation as an agent for Jaycor Networks, Inc. without
Jaycor Networks, Inc.'s prior written consent to entering the specific
agreement, contract or obligation under consideration.
B. EMF Associates shall not be deemed an employee of Jaycor Networks, Inc.
for the purpose of participation in any pension, bonus, insurance, medical plan
or other employee benefit program offered by Jaycor Networks, Inc. for its
employees, nor shall Jaycor Networks, Inc. be obligated to carry Workmen's
Compensation Insurance or pay for state disability compensation insurance for
EMF Associates. EMF Associates agrees to pay all State and Federal imposed
insurance costs and taxes while retained by Jaycor Networks, Inc.
C. EMF Associates will not subcontract or otherwise employ anyone to do any
of the services described in this Agreement without the prior written consent
of Jaycor Networks, Inc.
SECTION V - INDEMNIFICATION
EMF Associates shall indemnify, protect and save Jaycor Networks, Inc.
harmless from all loss, damage, cost and expense that Jaycor Networks, Inc. may
sustain or for which Jaycor Networks, Inc. shall become liable resulting from
death or injury to persons or loss or destruction of or damage to property
which may be caused by EMF Associates during the performance of services
rendered pursuant to this Agreement.
SECTION VI - COMPLIANCE WITH LAWS
EMF Associates shall comply with any applicable laws, statutes,
regulations or ordinances of the United States of America, or any Federal
Government agency or other State or local governmental agency, which is
applicable to the conduct of the consulting services which are the subject of
this Agreement. EMF Associates shall take all action, or refrain from any
action, which may be required for unconditional compliance with State and
Federal laws, statutes, regulations or ordinances.
SECTION VII - TERMINATION
This Agreement may be terminated by Jaycor Networks, Inc. at any time
within the period of its duration upon not less than fifteen (15) days written
notice by Jaycor Networks, Inc. to EMF Associates. EMF Associates, with the
written consent of Jaycor Networks, Inc. may terminate this Agreement upon not
less than fifteen (15) days written notice to Jaycor Networks, Inc., and the
consent of Jaycor Networks, Inc. shall not be unreasonably withheld.
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SECTION VIII - ASSIGNMENT
Neither this agreement nor any claim arising under this Agreement shall be
assigned by EMF Associates without first obtaining the written consent of
Jaycor Networks, Inc.
SECTION IX - ARBITRATION
A. Except as otherwise provided in this Agreement, any dispute concerning
a question of fact arising under this Agreement which is not disposed of by
agreement shall be submitted for arbitration in the City of San Diego, State of
California, or such other place as may be selected by mutual agreement of the
parties, in accordance with the rules then obtaining of the American
Arbitration Association, and judgment upon any award rendered in such
arbitration may be entered in any court having jurisdiction thereof.
B. Pending disposition of any dispute by agreement or by arbitration
award, as provided hereunder, EMF Associates shall proceed diligently with the
performance of this Agreement in accordance with the final written decision of
Jaycor Networks, Inc. regarding the matter in dispute.
SECTION X - DISCLOSURE OF INFORMATION
EMF Associates hereby agrees that all information received from Jaycor
Networks, Inc. is received in confidence and is the property of Jaycor
Networks, Inc. and that such information will not be duplicated, used or
disclosed to any third party without the prior written permission of Jaycor
Networks, Inc.
SECTION XI - GENERAL INFORMATION FOR EMF ASSOCIATES
The following information has been prepared to acquaint you with some of
Jaycor Networks, Inc.'s policies as they may pertain to you.
A. SECURITY CLEARANCE - When a security clearance is required, EMF
Associates will be provided with the appropriate Department of Defense forms
for completion and return to Jaycor Networks, Inc. These forms should be
completed and returned as soon as possible so that the processing of a security
clearance may be initiated. When required, EMF Associates must have an active
security clearance before providing any classified services to Jaycor Networks,
Inc.
B. TRAVEL - This Professional Service Agreement provides for reimbursement
of authorized travel expenses involving air, train, bus, personal automobile,
rental car or taxi. The individual (See Article II. C of Schedule) with which
EMF Associates is working must authorize each trip in advance.
1. Travel Status - EMF Associates residing at a location other than
one at which he will work requires Jaycor Networks, Inc.'s prior approval for
reimbursement of his initial travel to report for work. A per diem allowance of
$25/day will be paid while in authorized travel status for Jaycor Networks,
Inc., which is expected to cover reasonable actual expenses of meals and
incidentals. Time spent in travel will not be considered time worked for fee
purposes unless actual work is performed during such period of travel. Air
travel accommodations shall be less than first class except when other
accommodations are the only
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means that will ensure completion of urgent business. (Any exceptions must be
explained and documented in the request for reimbursement.)
2. Air Travel - EMF Associates may request a prepaid ticket from the
individual with whom he/she is consulting or may purchase a ticket and be
reimbursed on his/her expense report by attaching the ticket stub and making
the proper entry in his/her report.
3. Car Rental - Car rentals (not to exceed "Standard" car rates) must be
authorized in advance by the individual with whom EMF Associates in working.
4. Use of Personal Auto - With prior approval from the individual with
whom he/she is working, EMF Associates may use his/her personal automobile for
transportation to a work location, reimbursable at a rate of $.30/mile.
5. Expense Reports - EMF Associates must file an expense report with
appropriate receipts. When returning from a short trip, expenses should be
filed immediately and when on an extended trip, expenses should be filed on a
weekly basis. All expense reports are to be submitted to the individual with
whom EMF Associates is working.
C. ENGAGING IN OTHER EMF ASSOCIATES ACTIVITIES - When EMF Associates
divides his time between Jaycor Networks, Inc. and other clients, EMF
Associates shall prorate expenses proportional to time spent for each client.
D. MUTUAL CONSENT FOR CHANGE OF DUTIES - The duties of EMF Associates
may be changed from time to time by the mutual consent of Jaycor Networks, Inc.
and EMF Associates without resulting in a rescission of this Agreement.
Notwithstanding any such change, the agreement of EMF Associates to provide the
services which are the subject of this Agreement shall be construed as
continuing under this Agreement as modified.
This Agreement supersedes any and all other agreements, either oral or
written, between the parties hereto with respect to the retaining of EMF
Associates by Jaycor Networks, Inc. and contains all the covenants and
agreements between the parties with respect to such consulting services in any
manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone action on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding. Any modification of this Agreement
will be effective only if it is in writing signed by the parties to be charged.
If any provision in this Agreement is held by a court of competent
jurisdiction to be valid, void or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or invalidated in
any way.
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JAYCOR NETWORKS, INC.
AMENDMENT XX. 00
XXXXXXXXXXXX XXXXXXXX XXXXXXXXX Xx. 00000-00
The undersigned agrees to the following Amendment to the Professional Services
Agreement dated February 1, 1998.
This Amendment is for additional consulting services:
Period of Performance: February 1, 1998 to January 31, 2000
1. Article II - A. Statement of Work - by adding additional work "As Directed,"
charge number 7801-01 and C. "Consultant will work under the technical
direction of Xx. Xxxxx Xxxxxxxx.
2. Article III - Payment - an additional not-to-exceed ONE HUNDRED TWENTY
THOUSAND DOLLARS AND ZERO CENTS ($120,000)) along with ZERO for Expenses
have been added to this work order. JNI is not obligated to
All other terms and conditions of the original Agreement and subsequent renewals
remain in effect.
By: Jaycor, Inc.:
/s/ XXXXXX XXXXXXXX /S/ XXXXX X. XXXXXXX
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(Consultant) Xxxxxx Xxxxxxxx Xxxxx X. Xxxxxxx
EMF Associates Contracts Manager
S.S.#: 00-0000000
DATE DATE
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EMF ASSOCIATES 2/11/99
EXHIBIT "A"
PROFESSIONAL SERVICES AGREEMENT NO. 80005-01
NOT-TO-EXCEED HOURS/FUNDS*
WORK ORDER: 7801-01
Period of Performance: 2/1/98 - 1/31/00
PREVIOUS AMEND 01 TOTAL
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Hours N/A N/A
Labor $ $120,000 $120,000 $240,000
Expense $ $30,000 $0.00 $30,000.00
* It should be noted that the funds are the maximum available, by Work Order
Number. You will be provided guidance by the Program Manager with respect to
how to allocate your time.