Exhibit 10.43
CONSULTING
AGREEMENT
This Agreement is made as of
December 22, 2008 (“Effective Date”), by and
between Semiconductor Components Industries, LLC, a Delaware
corporation, with offices at 5005 E. McDowell Rd. Phoenix, AZ 85008
dba ON Semiconductor (“SCI”), and Phil Hester
with offices at 3320 Ranch Road 620 North, Austin, Texas 78734
(“CONSULTANT”).
WHEREAS, SCI desires to obtain
services in connection with its business, and CONSULTANT wishes to
provide such services;
NOW, THEREFORE, in consideration of
the mutual promises hereinafter stated, the parties agree as
follows:
1. SCOPE AND STATEMENT OF
SERVICES
(A) CONSULTANT is a member of the
Board of Directors of SCI’s parent company, ON Semiconductor
Corporation, which is listed on the NASDAQ Stock Market. The
parties acknowledge and agree that this Agreement is structured and
intended to maintain CONSULTANT’s status as an independent
director under NASDAQ Marketplace Rule 4200, as well as under any
other applicable laws, rules or regulations.
(B) CONSULTANT agrees to provide
those services as are specified on the Statement of Work, attached
hereto and incorporated herein. CONSULTANT shall complete such
services within the time and monetary limitations specified in the
Statement of Work. CONSULTANT agrees that all work will be done in
a competent fashion in accordance with applicable standards of the
profession and that all services are subject to final approval by a
representative of SCI prior to final payment.
2. PAYMENT
(A) CONSULTANT shall be paid, upon
the submission of invoices, at the rate(s) set forth in the
Statement of Work. CONSULTANT shall not exceed the amount specified
for the services without prior written authorization from SCI. All
invoices and supporting documentation shall be sent by CONSULTANT
to the SCI location as designated by SCI.
(B) CONSULTANT agrees to pay and to
be solely responsible for any and all city, state, and/or federal
unemployment insurance premiums, worker’s compensation
insurance premiums, income taxes, social security taxes, and any
other employment-related taxes incurred as a result of the
performance of services by CONSULTANT under this Agreement, and to
be responsible for all obligations, reports, and timely
notifications relating to such matters. SCI shall have no
obligation to pay or withhold any sums for taxes or unemployment
insurance on any amounts due CONSULTANT.
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(C) All costs, including specifically, but not
limited to, travel and other expenses, which are incurred by
CONSULTANT or its agents and employees in connection with the
performance of services under this Agreement shall be borne by
CONSULTANT, except such actual and reasonable travel and other
expenses which SCI has agreed in the Statement of Work to reimburse
CONSULTANT. All travel and other expenses which SCI has agreed to
reimburse must be submitted with supporting documentation and
receipts, and must be reasonable in amount.
3. TERM OF
AGREEMENT
The Term of this Agreement is set
forth in the Statement of Work.
4. TERMINATION
(A) Either SCI or CONSULTANT may
terminate this Agreement at any time, with no liability whatsoever
to the other, and for any reason, upon providing written notice of
such termination to the other at least thirty (30) days in
advance. In the event of such termination, CONSULTANT shall be
entitled to recover for all services performed prior to the date of
termination, including reasonable travel and other expenses
incurred pursuant to this Agreement. No payments shall be incurred
by SCI for any work or services performed or expenses or costs
incurred after the effective date of termination.
(B) Either party may, by written
notice of default to the other party, terminate this if the other
fails to fulfill any of its material obligations
hereunder.
5. SAFETY AND
SECURITY
(A) CONSULTANT agrees that it will
comply with all applicable SCI rules and regulations of which it
has notice, including, but not limited to, those relating to
security, use of SCI property and systems, and entry into and
departure from SCI facilities.
(B) Any classified or restricted
data, information, or item(s) required by CONSULTANT in the
performance of services under this Agreement will be furnished only
after necessary security clearance has been granted and the
nondisclosure agreement(s) required by SCI have been
executed.
6. CONFIDENTIAL
INFORMATION
(A) CONSULTANT agrees not to
disclose to SCI, nor use in any work it performs for SCI, any
confidential or proprietary information belonging to others, unless
it has first obtained written authorization of the owner to do so,
nor to disclose to SCI any intellectual property of which SCI is
not otherwise entitled to learn or use, and that SCI shall be
entitled to rely upon CONSULTANT to comply with this
clause.
(B) Confidential Information may be
disclosed in oral, written, graphic, machine recognizable, and/or
sample form, by the parties hereto, being clearly designated,
labeled or marked as “Confidential”. Confidential
Information which is disclosed orally shall be confirmed in writing
by the disclosing party within thirty (30) days after such
disclosure by submitting a letter containing substantially similar
information to the other party. CONSULTANT shall (1) use
reasonable care in safeguarding against disclosure of SCI
Confidential Information (2) not use SCI Confidential
Information for its own purpose or to benefit a third party, and
(3) not disclose SCI Confidential
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Information to any third party. However, this
Agreement imposes no obligation upon CONSULTANT with respect to SCI
Confidential Information disclosed under this Agreement which
(1) is now available or becomes available to the public
without breach of this Agreement, (2) is explicitly approved
for release by written authorization of SCI, (3) is lawfully
obtained from a third party or parties without a duty of
confidentiality, (4) is disclosed to a third party by SCI
without a duty of confidentiality, (5) is known to CONSULTANT
prior to such disclosure, or (6) is at any time developed by
CONSULTANT independently of any such
disclosure(s) from SCI.
(C) After the tasks relating to SCI
Confidential Information are completed and upon written request,
CONSULTANT will return all the SCI Confidential Information to SCI
along with all copies and/or derivatives made, including copies of
portions of the SCI Confidential Information, or certify by written
memorandum that all such SCI Confidential Information has been
destroyed, except that CONSULTANT may retain archival copies of the
SCI Confidential Information, which are to be used only in case of
a dispute concerning this Agreement.
7. INTELLECTUAL
PROPERTY
(A) CONSULTANT hereby assigns to SCI
all rights in data and deliverables prepared in connection with the
performance of services under this Agreement, including, but not
limited to, all reports, drawings, sketches, formulas, designs,
code, analyses, graphs, notes, notebooks, presentations, work
product and other deliverables, and that materials and information
are SCI Proprietary and Confidential. CONSULTANT agrees that all
rights, title and interest to such materials and information shall
vest immediately in SCI upon preparation and that such property is
SCI Proprietary and Confidential, and that CONSULTANT shall mark
such property “SCI Proprietary and Confidential” or
“ON Semiconductor Proprietary and
Confidential.”
(B) CONSULTANT agrees to disclose
promptly, and agrees to and does hereby assign, to SCI, as
SCI’s exclusive property, CONSULTANT’S entire right,
title, and interest in intellectual property, including inventions,
innovations, discoveries, improvements, ideas, and copyrights,
conceived or made by CONSULTANT solely, or jointly with others,
during the term of its work for or at SCI which result from
information made availa
