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BIGBAND NETWORKS, INC. TRANSITION SERVICES AGREEMENT

Transition Agreement

BIGBAND NETWORKS, INC. TRANSITION SERVICES AGREEMENT | Document Parties: BIGBAND NETWORKS, INC. | Frederick Ball You are currently viewing:
This Transition Agreement involves

BIGBAND NETWORKS, INC. | Frederick Ball

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Title: BIGBAND NETWORKS, INC. TRANSITION SERVICES AGREEMENT
Governing Law: California     Date: 10/22/2007
Industry: Motion Pictures     Sector: Services

BIGBAND NETWORKS, INC. TRANSITION SERVICES AGREEMENT, Parties: bigband networks  inc. , frederick ball
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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.

 

B IG B AND N ETWORKS , I NC .     F REDERICK B ALL
By:  

/s/ Rob Horton

    By:  

/s/ Frederick Ball

Name:  

Rob Horton

    Name:  

Frederick Ball

Title:  

VP & General Counsel

    Title:  

CFO

 

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EXHIBIT A

CONFIDENTIAL SEPARATION AGREEMENT

AND GENERAL RELEASE OF CLAIMS

1. Frederick A. Ball (“Employee”) and BigBand Networks, Inc.


 
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