Exhibit 10.11
[KOMAG LOGO]
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000-1873
Telephone (000) 000-0000
Facsimile (000) 000-0000
CONSULTING SERVICES AGREEMENT
The following confirms the agreement (the "Agreement") between XXXX
XXXXXXX (the "Consultant", being an individual, business, corporation, or other
entity) and Komag, Incorporated ("Komag") with respect to the provision of
consulting services to the Komag.
Term of Agreement. This Agreement is effective as of JANUARY 11,
2005 and will continue for six months (JULY 11, 2005) or until either party
terminates the contract, pursuant to Paragraph 9 of this Agreement.
1. Independent Contractor Status. It is the express intention of
the parties to this Agreement that the Consultant is an independent contractor,
and Komag shall classify Consultant as such for all employee benefit purposes;
and is not an employee, agent, joint venturer, or a partner of Komag. Both
parties understand and agree that the Consultant may, and probably will, perform
services for others during the term of this Agreement.
2. Warranties. Consultant warrants that he/she is in the business
of providing to other companies services similar to those provided to Komag
under this Agreement; Consultant , further warrants that he/she either is
providing, or has provided, such services to other companies.
3. Services. Consultant agrees to render consulting services (the
"Services") to Komag for the term of this Agreement. The Services shall include,
but are not limited to, those duties set forth in Exhibit A hereto. The parties
understand and agree that Consultant will have the sole discretion to determine
the method, means, and location of performing the Services, and that Komag has
no right to, and will not, control or determine the method, means, or place of
the performance of the Services.
4. Employment of Assistants. Should the Consultant, in his/her
sole discretion, deem it necessary to employ assistants to aid him/her in the
performance of the Services, the parties agree that Xxxxx will not direct,
supervise, or control in any way such assistants to the Consultant in their
performance of Services. The parties further agree that such assistants are
employed solely by the Consultant, and that he/she alone is responsible for
providing workers' compensation insurance for his/her employees, for paying the
salaries and wages of his/her employees, and for ensuring that all required tax
withholdings are made.
XXXX XXXXXXX CONSULTING AGREEMENT
JANUARY 11, 2005
PAGE 2 OF 6
Consultant further represents and warrants that he/she maintains
workers' compensation insurance coverage for his/her employees and acknowledges
that he/she alone has responsibility for such coverage.
5. Obligations of the Consultant.
a. The Consultant will supply all tools, equipment and
utilize Komag, Inc. tools and equipment necessary to perform the Services (refer
to amendment 16).
b. Consultant is solely responsible for all taxes,
withholdings and other similar statutory obligations; and Consultant agrees to
defend, indemnify and hold Company harmless from any and all claims made by any
entity on account of an alleged failure by the Consultant to satisfy any such
tax or withholding obligations attributable to Consultant's provision of
services pursuant to this agreement.
c. Consultant will indemnify and hold Komag harmless from,
and will defend Komag against, any and all loss, liability, damage, claims,
demands, or suits and related costs and expenses to persons or property that
arise, directly or indirectly, from acts or omissions of the Consultant, or from
the breach of any term or condition of this Agreement attributable to Consultant
or his/her agents.
6. Reporting to Komag's Facilities. Consultant is not required to
report to work at the offices of Komag during any particular work hours. Rather,
Consultant is free to report or not report to Xxxxx's offices as he/she sees
fit. When Consultant does visit Xxxxx's offices, he/she will be required to sign
in or wear the standard issued Identification badge.
7. Compensation. Consultant shall be paid upon completion of each
project(s), which he/she has been hired, to perform on behalf of the Chief
Executive Officer and Chief Financial Officer regarding Board related matters.
The retainer feel will be $1,000.00 per month for five (5) hours of service
requested by the CEO and/or CFO in respect to Board matters. Additional hours
worked beyond the initial five (5) hours shall be billed at $200.00 an hour upon
approval of the CEO and/or CFO for board related matters. In addition, there
will be an engagement bonus in the amount of $70,000. Consultant shall submit to
Komag invoices for all services rendered and, assuming timely and satisfactory
completion of the project(s), Xxxxx agrees to adhere to the payment schedule
attached hereto in Exhibit A. The foregoing fees are Consultant's sole
compensation for rendering Services to Komag. The parties agree that Xxxxx is
not responsible to reimburse any costs or expenses incurred by Consultant in
performing the Services (refer to amendment 17).
8. Confidential Information. Consultant understands that Xxxxx
possesses Proprietary Information as defined below which is important to its
business and that this Agreement creates a relationship of confidence and trust
between Consultant and Komag with regard to Proprietary Information.
XXXX XXXXXXX CONSULTING AGREEMENT
JANUARY 11, 2005
PAGE 3 OF 6
a. For purposes of this Agreement, "Proprietary
Information" is information that was or will be developed, created, or
discovered by or on behalf of Komag, or is developed, created or discovered by
Consultant while performing Services, or which became or will become known by,
or was or is conveyed to Komag which has commercial value in Komag's business.
"Proprietary Information" includes, but is not limited to, trade secrets,
computer programs, ideas, techniques, inventions (whether patentable or not),
business and product development plans, customers and other information
concerning Komag's actual or anticipated business, research or development,
personnel information, Inventions (as defined in subsection e below), or which
is received in confidence by or for Komag from any other person.
b. At all times, both during the term of this Agreement and
after its termination, Consultant will keep in confidence and trust, and will
not use or disclose, any Proprietary Information without the prior written
consent of an officer of Komag, except as may be necessary in the ordinary
course of performing the Services under this Agreement.
c. Consultant understands that Komag possesses or will
possess "Company Documents" which are important to its business. For purposes of
this Agreement, "Company Documents" are documents or other media that contain or
embody Proprietary Information or any other information concerning the business,
operations or plans of Komag, whether such documents have been prepared by
Consultant or by others. "Company Documents" include, but are not limited to,
blueprints, drawings, photographs, charts, graphs, notebooks, customer lists,
computer disks, personnel files, tapes or printouts, sound recordings and other
printed, typewritten or handwritten documents. All Company Documents are and
shall remain the sole property of Komag. Consultant agrees not to remove any
Company Documents from the business premises of Komag or deliver any Company
Documents to any person or entity outside Komag, except as required to do in
connection with performance of the Services under this Agreement. Consultant
further agrees that, immediately upon Xxxxx's request and in any event upon
completion of the Services, Consultant shall deliver to Komag all Company
Documents, apparatus, equipment and other physical property or any reproduction
of such property, excepting only Consultant's copy of this Agreement.
d. During the term of this Agreement and for one (1) year
thereafter, Consultant will not encourage or solicit any employee of Komag to
leave Komag for any reason.
e. Consultant will promptly disclose in writing to Komag
all "Inventions" (which term includes improvements, inventions, designs,
formulas, works of authorship, trade secrets, technology, mask works, circuits,
layouts, algorithms, computer programs, ideas, processes, techniques, know-how
and data, whether or not patentable) made or conceived or reduced to practice or
developed by Consultant, either alone or jointly with others, during the term of
this Agreement in connection with the Services or which relate to any
Proprietary Information.
XXXX XXXXXXX CONSULTING AGREEMENT
JANUARY 11, 2005
PAGE 4 OF 6
f. All Proprietary Information and all title, patents,
patent rights, copyrights, mask work rights, trade secret rights, and other
intellectual property and rights anywhere in the world (collectively "Rights")
in connection therewith shall be the sole property of Komag. Consultant hereby
assigns to Komag any Rights Consultant may have or acquire in such Proprietary
Information. Any works which are copyrightable subject matter are agreed by the
parties to be works made for hire.
g. Consultant agrees that all Inventions which Consultant
makes, conceives, reduces to practice or develops (in whole or in part, either
alone or jointly with others) during the term of this Agreement in connection
with the Services or which relate to any Proprietary Information shall be the
sole property of Komag. Consultant agrees to assign and hereby assigns to Komag
all Rights to any such Inventions.
h. Consultant agrees to perform, during and after the term
of this Agreement, all acts deemed necessary or desirable by Xxxxx to permit and
assist it, at Consultant's reasonable rate, in evidencing, perfecting,
obtaining, maintaining, defending and enforcing Rights and/or Consultant's
assignment with respect to such Inventions in any and all countries. Such acts
may include, but are not limited to, execution of documents and assistance or
cooperation in legal proceedings. Consultant hereby irrevocably designates and
appoints Komag and its duly authorized officers and agents, as Consultant's
agents and attorneys-in-fact to act for and in behalf and instead of Consultant,
to execute and file any documents and to do all other lawfully permitted acts to
further the above purposes with the same legal force and effect as if executed
by Consultant.
i. Consultant represents that performance of all 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. Consultant has not entered into, and
Consultant agrees not to enter into, any agreement either written or oral that
conflicts or might conflict with Consultant's performances of the Services under
this Agreement.
j. If any Rights or Inventions assigned hereunder are based
on, or incorporate, or are improvements or derivatives of, or cannot be
reasonably made, used, reproduced and distributed without using or violating
technology or Rights owned or licensed by Consultant and not assigned hereunder,
Consultant hereby grants Komag a perpetual, worldwide royalty-free,
non-exclusive sublicensable right and license to exploit and exercise all such
technology and Rights in support of Komag's exercise or exploitation of any
assigned Rights or Inventions (including any modifications, improvements and
derivatives thereof).
9. Termination of Agreement. This Agreement may be terminated by
either Xxxxx or the Consultant at any time prior to the Termination Date by
giving thirty (30) days' written notice of termination. Such notice may be given
at any time for any reason, with or without cause.
XXXX XXXXXXX CONSULTING AGREEMENT
JANUARY 11, 2005
PAGE 5 OF 6
10. Enforceability of Agreement. Consultant agrees that any
dispute in 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 unenforceable under applicable
California law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
11. Assignment. This Agreement shall not be assignable by either
the Consultant or Komag without the express written consent of the other party.
12. Arbitration. Any controversy between the parties hereto
involving the construction or application of any terms, covenants, or conditions
of this Agreement or any claim arising out of or relating to this Agreement will
be submitted to and be settled by final and binding arbitration in San Jose,
California, in accordance with the rules of the American Arbitration Association
then in effect, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
13. Entire Understanding. This Agreement contains the entire
understanding of the parties regarding its subject matter and can only be
modified by a subsequent written agreement executed by the Consultant and the
President of Komag.
14. Notices. All notices required or given herewith shall be
addressed to Komag or Consultant at the designated addresses shown below by
registered mail, special delivery, or by certified courier service:
a. To Komag:
Komag, Incorporated
ATTN: Human Resources
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
b. To Consultant:
Xxxx Xxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
XXXX XXXXXXX CONSULTING AGREEMENT
JANUARY 11, 2005
PAGE 6 OF 6
15. Attorneys' Fees. 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 necessary
disbursements, in addition to any other relief to which the party may be
entitled.
16. Amendment
Authorized travel expenses associated with business travel
within scope of contract will be reimbursed by Xxxxx, Incorporated.
17. Amendment
Consultant will have access to use of existing Komag
equipment, systems and leased lines.
CONSULTANT
Dated: , 2005. By:
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Its:
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Komag, Incorporated
Dated: , 2005. By:
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Its: Chief Executive Officer
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[KOMAG LOGO]
EXHIBIT A
DUTIES OF INDEPENDENT CONSULTANT
AND PAYMENT SCHEDULE FOR COMPLETION OF SAME
PLEASE PRINT CLEARLY:
CONSULTANT NAME: DATE:
Xxxxxxx Xxxxxxx January 11, 2005
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(Last) (First) (MI)
ADDRESS: SS#:
00 Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxx, XX ###-##-####
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MGR/SUPV: DEPT. NAME/NUMBER:
T.H. Tan 19506 G&A Executive Management
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ANTICIPATED COMPLETION
SCOPE OF WORK: DATES
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Assistance to CEO and CFO regarding Compensation and Board of Director matters. July 11, 2005
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* Renewal by mutual consent at least
thirty days before the expiration date.
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JOB DUTIES/SPECIFICATIONS:
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OTHER CONSIDERATIONS: This agreement is subject to Compensation Committee's approval on January 31, 2005.
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ENGAGEMENT BONUS: $70,000.00
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HOURLY RATE: $1,000/month retainer for up to 5 hours. ANTICIPATED CONTRACT LENGTH: 6 months *
Additional time per month to bill at $200/hr. ----------------
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BILLING TERMS: Monthly
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APPROVALS:
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Manager/Supervisor Date VP/Sr. VP Date
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Human Resources Date CEO or President Date
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