EXHIBIT 10.1
[REGENT PACIFIC LETTERHEAD]
November 20, 2001
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
Auspex Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: SECOND AMENDMENT TO RETAINER AGREEMENT BETWEEN REGENT PACIFIC MANAGEMENT
CORPORATION AND AUSPEX SYSTEMS, INC.
This Second Amendment to Retainer Agreement sets forth certain amendments to
the Retainer Agreement between Regent Pacific Management Corporation, a
California corporation ("Regent Pacific"), and Auspex Systems, Inc., a
California corporation, and its wholly-owned and controlled subsidiaries
(collectively, "Auspex") dated February 10, 2000, as amended October 17, 2000
(the "Original Retainer Agreement" and "First Amendment," respectively). Except
for the amendments expressly contained herein, the Original Retainer Agreement
and First Amendment shall remain in full force and effect.
1. The paragraph regarding "Fees" of the Original Retainer Agreement is
hereby amended in its entirety as follows:
"FEES: We have agreed to provide the work product included in this
agreement for the period beginning February 14, 2000 through June 30,
2003, including a non-cancelable period which extends through December 31,
2002. The fees for these services shall be $75,000 per week payable in
four (4) week increments, each to be paid in advance of each Regent
Pacific standard four-week billing period. It is agreed and understood
that the fees payable and the level of services provided will remain at
their current levels. It is further agreed and understood that the
payments of such cash fees are to be made immediately preceding the start
of each four-week billing period, and that failure to pay such periodic
payments when due shall constitute a breach of this agreement by Auspex.
It is further understood that Regent Pacific's fees are to be paid in
advance of the work to be performed, and that the initial payment is to be
paid on or before the start of the engagement. It is further agreed that
such cash payments are earned in full upon receipt by Regent Pacific, by
virtue of our accepting this agreement and the responsibilities it entails,
and are nonrefundable."
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director [REGENT PACIFIC LOGO]
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
November 20, 2001
Page 2
2. The paragraph regarding "Term of agreement" of the Original Retainer
Agreement is hereby amended in its entirety as follows:
"TERM OF AGREEMENT: The full term of this agreement shall be from
February 14, 2000 through June 30, 2003. The agreement will be
non-cancelable through December 31, 2002, unless earlier terminated by
either party in accordance with the terms of this paragraph. Regent
Pacific hereby commits the availability of its resources to Auspex
under this agreement for the full term of the engagement, through
June 30, 2003. Auspex may discharge Regent Pacific at any time after
the non-cancelable period provided that Auspex delivers a 60-day
written notice of intent to cancel this agreement. Regent Pacific may
withdraw from this assignment at any time with ▇▇▇▇▇▇'s consent or
for good cause without Auspex's consent. Good cause includes Auspex's
breach of this agreement (including Auspex's failure to pay any
invoice within five working days of presentation), or any fact or
circumstance that would render our continuing participation in the
assignment unethical or unlawful."
3. A new paragraph regarding "Stock Options" is hereby added to the Original
Retainer Agreement. It reads in its entirety as follows:
"STOCK OPTIONS: In addition to the cash fees payable to Regent Pacific
under the terms of this agreement, it is agreed that Auspex will
grant stock options to ▇▇▇▇ ▇. ▇▇▇▇▇ and/or his designees from time
to time, initially as an inducement for employment and subsequently
as an incentive for agreeing to extend the term of this agreement.
The initial stock option grant to ▇▇▇▇ ▇. ▇▇▇▇▇, dated February 14,
2000, was for two million four hundred thousand (2,400,000) shares of
Auspex common stock. As part of the First Amendment, Auspex granted
an option to ▇▇▇▇ ▇. ▇▇▇▇▇ on October 17, 2000 for an additional
seven hundred fifty thousand (750,000) shares of Auspex common stock.
As part of this amendment, ▇▇▇▇▇▇ agrees that it will grant an option
for an additional seven hundred fifty thousand (750,000) shares of
Auspex common stock to ▇▇▇▇ ▇. ▇▇▇▇▇, plus five additional options to
five designees of ▇▇▇▇ ▇. ▇▇▇▇▇. These five options will be for the
following number of shares: One designee to receive an option for
four hundred thousand shares of Auspex common stock; one designee to
receive an option for three hundred thousand shares; one designee to
receive an option for two hundred fifty thousand shares; and two
designees to receive options for one hundred thousand shares each.
All six of these option grants are to be granted as of the date
Auspex next grants options to its key employees, at the market
closing price as of that date. The total number of shares for all six
options amounts to one million nine hundred thousand (1,900,000)
shares of Auspex common stock. The terms of these six options grants,
and of any subsequent option grants, shall be substantially similar
to the February 14, 2000 and October 17, 2000 option grants,
including but no limited to: a) vesting to commence immediately after
the grant date, b) vesting to be monthly over a
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director [REGENT PACIFIC LOGO]
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
November 20, 2001
Page 3
period of one year, or the remaining term of the Agreement, whichever
is less, and c) the same "Change of Control" and the same Termination
Period provisions as in the February 14, 2000 and October 17, 2000
option grants. Stock options in addition to those referenced in this
amendment may be granted to ▇▇▇▇ ▇. ▇▇▇▇▇ and/or his designees from
time to time at the sole discretion of Auspex Board of Directors."
Very truly yours,
REGENT PACIFIC MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and Chief Executive Officer
THE FOREGOING IS HEREBY APPROVED AND AGREED TO:
Dated: November 20, 2001
AUSPEX SYSTEMS, INC.
(Signifies full agreement with all terms and conditions)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
Authorized on behalf of the Board of Directors