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Exhibit
10.23
BIGBAND NETWORKS,
INC.
TRANSITION SERVICES
AGREEMENT
This Transition Services
Agreement (the Agreement) is entered as of October 18, 2007
(the Effective Date) into by and between BigBand Networks, Inc.,
having a principle place of business at 475 Broadway Street,
Redwood City, California 94063 (the “Company”) and
Frederick Ball (the “Mr. Ball”, and collectively with
the Company, the “Parties”).
WHEREAS, the Company has
employed Mr. Ball as its chief financial officer since August
2004.
WHEREAS, Mr. Ball has
indicated his desire and intention to terminate him employment with
the Company.
WHEREAS, Mr. Ball and
the Company desire to provide for a smooth transition of the
services currently provided by Mr. Ball to another
person.
NOW THEREFORE, in
consideration of the foregoing, the Parties agree as
follows:
1. Employment
.
1.1 Continued
Service . From the Effective Date until November 26,
2007 (the “Termination Date”), Mr. Ball shall
remain an employee with the Company, serving in all aspects and
performing all responsibilities of the Company’s chief
financial officer; provided however, the Company may terminate such
employment in the event Mr. Ball fails remain to acquit
himself in accordance with Company policies during such
time.
1.2 Release
Agreement . Following the Termination Date, Mr. Ball
shall execute a release agreement substantially in the form
attached hereto as Exhibit A .
1.3 Consideration
. In exchange for continued service under this Section 1
and for a release of the claims as outlined in Exhibit A
hereto, BigBand will provide Mr. Ball with the consideration
outlined in Exhibit A .
2. Consulting
Services .
2.1 Scope of Work
. Following the Termination Date until termination of this
Agreement by either Party (the “Consulting Period”),
Mr. Ball will provide the Company’s chief executive
officer and the Company’s new chief financial officer with up
to twenty (20) hours of consulting and advisory services per
week (the “Services”) on mutually agreeable terms.
Mr. Ball shall use his best efforts to perform the Services in
a professional and workman-like manner satisfactory to the
Company.
2.2 Amount.
During the Consulting Period, the Company shall pay Mr. Ball
$10,000 per month for Services to be performed under this
Section 2. Mr. Ball shall be solely liable for any
federal, state, or local withholding, or other payroll taxes
relating to performance of the Services under this Section 2.
Mr. Ball shall be solely liable for all expenses of
performance hereunder except to the extent such expense has been
authorized by the Company’s chief executive officer in
advance.
2.3 Invoices .
Mr. Ball shall invoice only for time devoted directly to
actual performance of the Services and shall not receive
compensation for travel time related to such
performance.
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Mr. Ball shall submit invoices for
payment monthly. All invoices shall: (i) state the amount of
time expended by Mr. Ball; and (ii) identify any other
authorized expenses. The terms of payment are net 45 days after
receipt of invoice.
2.4 Independence
. From and after the Termination Date, Mr. Ball’s
relationship with the Company will be that of an independent
contractor and not that of an employee. Mr. Ball shall have
control over the method, manner, and means of the performance of
Services, subject to the express provisions of this Agreement.
Mr. Ball will not be eligible for any employee benefits, nor
will the Company make deductions from payments made to
Mr. Ball for taxes, all of which will be Mr. Ball’s
responsibility. Mr. Ball will have no authority to enter into
contracts that bind the Company or create obligations on the part
of the Company without the prior written authorization of the
Company.
3. Term and
Termination .
3.1 Term .
Mr. Ball shall serve as an employee until the Termination Date
and shall serve as a consultant to the Company for a period of six
(6) months, commencing on December 1, 2007 and
terminating on May 1, 2008, unless terminated earlier pursuant
to Section 3.2 hereof.
3.2 Termination
. After December 1, 2007, either party may terminate this
Agreement at any time on 10 days’ written notice, in which
case Mr. Ball shall be entitled to compensation for Services
performed under this Agreement prior to the effective date of such
termination. Mr. Ball’s obligations relating to
Confidentiality and Inventions shall survive termination of this
Agreement.
4. Consulting or Other
Services for Competitors . Mr. Ball represents and
warrants that he will not, during the term of this Agreement,
perform any consulting or other services for any company, person or
entity whose business or proposed business in any way involves
products or services which could reasonably be determined to be
competitive with the products or services or proposed products or
services of the Company.
5. Confidentiality
. Consultant understands that Company possesses and will
possess Confidential Information that is important to its business
and may disclose information in the course of this Agreement that
is considered to be trade secrets, highly confidential, or
sensitive. As a result, during the term of this Agreement,
Mr. Ball hereby agrees that, during the term of this Agreement
and the performance of Services under Section 2 hereof, he
will continue to be bound by and acquit himself in accordance with
that certain Employee Nondisclosure and Developments Agreement
between BigBand and Employee dated
(“Proprietary Rights Agreement”), a copy of which is
attached hereto as Exhibit B .
6. Miscellaneous
.
6.1 Amendments and
Waivers . Any term of this Agreement may be amended or
waived only with the written consent of the parties.
6.2 Sole Agreement
. This Agreement, including the Exhibits hereto, constitutes
the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter
hereof.
6.3 Notices .
Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as
Federal Express or UPS), or 48 hours after being deposited in the
U.S. mail as certified or
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registered mail with postage prepaid, if
such notice is addressed to the party to be notified at such
party’s address as set forth above or as subsequently
modified by written notice.
6.4 Choice of Law
. The laws of the State of California shall govern the
validity, interpretation, construction and performance of this
Agreement, without giving effect to the principles of conflict of
laws.
6.5 Severability
. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, then such provision shall be
excluded from this Agreement, the balance of the Agreement shall be
interpreted as if such provision were so excluded and the balance
of the Agreement shall be enforceable in accordance with its
terms.
6.6 Arbitration
. Any dispute or claim arising out of or in connection with any
provision of this Agreement, excluding Sections 5 hereof, will be
finally settled by binding arbitration in accordance with the rules
of the American Arbitration Association by one arbitrator appointed
in accordance with said rules. The arbitrator shall apply
California law, without reference to rules of conflicts of law or
rules of statutory arbitration, to the resolution of any dispute.
Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. Notwithstanding the
foregoing, the parties may apply to any court of competent
jurisdiction for preliminary or interim equitable relief, or to
compel arbitration in accordance with this paragraph, without
breach of this arbitration provision.
The parties have executed this Agreement
on October 18, 2007.
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| B IG B AND N
ETWORKS , I NC . |
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F REDERICK B
ALL |
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| By: |
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/s/ Rob Horton
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By: |
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/s/ Frederick Ball
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| Name: |
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Rob Horton
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Name: |
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Frederick Ball
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VP & General
Counsel
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Title: |
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CFO
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3
EXHIBIT A
CONFIDENTIAL SEPARATION
AGREEMENT
AND GENERAL RELEASE OF
CLAIMS
1. Frederick A. Ball
(“Employee”) and BigBand Networks, Inc.
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