Exhibit 10.28


 


IKANOS COMMUNICATIONS, INC.


 


CONSULTING AGREEMENT


 


This
Consulting Agreement (“Agreement”) is
entered into as of the date of approval by the Board of Directors which date
shall be entered in the signature page of this Agreement by and between
Ikanos Communications, Inc. (the “Company”) and
Texan Ventures (“Consultant”). This Agreement
replaces, in it’s entirety, any Pre-existing Consulting Agreements between the
Company and Consultant. The Company desires to retain Consultant as an
independent contractor to perform consulting services for the Company, and
Consultant is willing to perform such services, on the terms described
below. In consideration of the mutual promises contained herein, the parties
agree as follows:


 


1.                                       Services and Compensation. Consultant agrees to perform for the
Company the services described in Exhibit A (the “Services”), and the Company agrees to pay Consultant the
compensation described in Exhibit A for Consultant’s performance of
the Services.


 


2.                                       Confidentiality.


 


A.           Definition.
“Confidential Information” means any
non-public information that relates to the actual or anticipated business or
research and development of the Company, technical data, trade secrets or
know-how, including, but not limited to, research, product plans or other
information regarding Company’s products or services and markets therefor,
customer lists and customers (including, but not limited to, customers of the
Company on whom Consultant called or with whom Consultant became acquainted
during the term of this Agreement), software, developments, inventions,
processes, formulas, technology, designs, drawing, engineering, hardware
configuration information, marketing, finances or other business information. Confidential
Information does not include information that (i) is known to Consultant
at the time of disclosure to Consultant by the Company as evidenced by written
records of Consultant, (ii) has become publicly known and made generally
available through no wrongful act of Consultant or (iii) has been
rightfully received by Consultant from a third party who is authorized to make
such disclosure.


 


B.             Nonuse and
Nondisclosure. Consultant will not, during or subsequent to the term
of this Agreement, (i) use the Confidential Information for any purpose
whatsoever other than the performance of the Services on behalf of the Company
or (ii) disclose the Confidential Information to any third party. Consultant
agrees that all Confidential Information will remain the sole property of the
Company. Consultant also agrees to take all reasonable precautions to prevent
any unauthorized disclosure of such Confidential Information.


 


C.             Former
Client Confidential Information. Consultant agrees that Consultant
will not, during the term of this Agreement, improperly use or disclose any
proprietary information or trade secrets of any former or current employer of
Consultant or other person or entity with which Consultant has an agreement or
duty to keep in confidence information acquired by Consultant, if any. Consultant
also agrees that Consultant will not bring onto the Company’s premises any


 

















 


unpublished document or
proprietary information belonging to any such employer, person or entity unless
consented to in writing by such employer, person or entity.


 


D.            Third Party
Confidential Information. Consultant recognizes that the Company has
received and in the future will receive from third parties their confidential
or proprietary information subject to a duty on the Company’s part to
maintain the confidentiality of such information and to use it only for certain
limited purposes. Consultant agrees that, during the term of this Agreement and
thereafter, Consultant owes the Company and such third parties a duty to hold
all such confidential or proprietary information in the strictest confidence
and not to disclose it to any person, firm or corporation or to use it except
as necessary in carrying out the Services for the Company consistent with the
Company’s agreement with such third party.


 


E.              Return of
Materials. Upon the termination of this Agreement, or upon Company’s
earlier request, Consultant will deliver to the Company all of the Company’s
property, including but not limited to all electronically stored information
and passwords to access such property, or Confidential Information that
Consultant may have in Consultant’s possession or control.


 


3.                                       Conflicting Obligations.


 


A.           Conflicts.
Consultant certifies that Consultant has no outstanding agreement or obligation
that is in conflict with any of the provisions of this Agreement or that would
preclude Consultant from complying with the provisions of this Agreement. Consultant
will not enter into any such conflicting agreement during the term of this
Agreement.


 


4.                                       Reports. Consultant also agrees that Consultant will, from
time to time during the term of this Agreement or any extension thereof, keep
the Company advised as to Consultant’s progress in performing the Services
under this Agreement. Consultant further agrees that Consultant will, as
requested by the Company, prepare written reports with respect to such progress.
The Company and Consultant agree that the time required to prepare such written
reports will be considered time devoted to the performance of the Services.


 


5.                                       Term and Termination.


 


A.           Term.
The term of this Agreement shall have been deemed to commence January 1,
2006 upon Board approval of this Agreement and will continue until December 31,
2006. This Agreement may not be renewed without prior Board approval.


 


B.             Termination.
Either party may terminate this Agreement upon giving the other party
fourteen (14) days’ prior written notice of such termination pursuant to Section 9.E
of this Agreement. The Company may terminate this Agreement immediately
and without prior notice if Consultant refuses to or is unable to perform the
Services or is in breach of any material provision of this Agreement.


 


C.             Survival.
Upon such termination, all rights and duties of the Company and Consultant
toward each other shall cease except:


 

















 


(1)                                  The
Company will pay, within thirty (30) days after the effective date of
termination, all amounts owing to Consultant for Services completed and
accepted by the Company prior to the termination date and related expenses, if
any, submitted in accordance with the Company’s policies and in accordance with
the provisions of Section 1 of this Agreement; and


 


(2)                                  Section 2
(Confidentiality), Section 3 (Conflicting Obligations), Section 6
(Independent Contractor; Benefits), Section 7 (Nonsolicitation) and Section 8
(Arbitration and Equitable Relief) will survive termination of this Agreement.


 


6.                                       Independent Contractor; Benefits.


 


A.           Independent
Contractor. It is the express intention of the Company and
Consultant that Consultant perform the Services as an independent
contractor to the Company. Nothing in this Agreement shall in any way be
construed to constitute Consultant as an agent, employee or representative of
the Company. Without limiting the generality of the foregoing, Consultant is
not authorized to bind the Company to any liability or obligation or to
represent that Consultant has any such authority. Consultant acknowledges and
agrees that Consultant is obligated to report as income all compensation
received by Consultant pursuant to this Agreement. Consultant agrees to and
acknowledges the obligation to pay all self-employment and other taxes on such
income.


 


B.             Benefits.
The Company and Consultant agree that Consultant will receive no
Company-sponsored benefits from the Company. If Consultant is reclassified by a
state or federal agency or court as Company’s employee, Consultant will become
a reclassified employee and will receive no benefits from the Company, except
those mandated by state or federal law, even if by the terms of the Company’s
benefit plans or programs of the Company in effect at the time of such
reclassification, Consultant would otherwise be eligible for such benefits.


 


7.                                       Nonsolicitation. From the date of this Agreement until 12 months
after the termination of this Agreement (the “Restricted
Period”), Consultant will not, without the Company’s prior written
consent, directly or indirectly, solicit or encourage any employee or
contractor of the Company or its affiliates to terminate employment with, or
cease providing services to, the Company or its affiliates. During the
Restricted Period, Consultant will not, whether for Consultant’s own account or
for the account of any other person, firm, corporation or other business
organization, intentionally interfere with any person who is or during the
period of Consultant’s engagement by the Company was a partner, supplier,
customer or client of the Company or its affiliates.


 

















 


8.                                       Arbitration and Equitable Relief.


 


A.           Arbitration.
Consultant agrees that any and all controversies, claims or disputes with
anyone (including the Company and any employee, officer, director, shareholder
or benefit plan of the Company, in its capacity as such or otherwise) arising
out of, relating to or resulting from Consultant’s performance of the Services
under this Agreement or the termination of this Agreement, including any breach
of this Agreement, shall be subject to binding arbitration under the
Arbitration Rules set forth in California Code of Civil Procedure Section 1280
through 1294.2, including Section 1283.05 (the “Rules”) and pursuant to California law. CONSULTANT AGREES TO
ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH
RESPECT TO, ALL DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING
BUT NOT LIMITED TO: ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, CLAIMS
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH
DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE
OLDER WORKERS BENEFIT PROTECTION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND
HOUSING ACT, THE CALIFORNIA LABOR CODE, CLAIMS OF HARASSMENT, DISCRIMINATION OR
WRONGFUL TERMINATION AND ANY STATUTORY CLAIMS. Consultant understands that
this Agreement to arbitrate also applies to any disputes that the Company may have
with Consultant.


 


B.             Procedure.
Consultant agrees that any arbitration will be administered by the American
Arbitration Association (“AAA”), and that
a neutral arbitrator will be selected in a manner consistent with its National Rules for
the Resolution of Employment Disputes. Consultant agrees that the arbitrator
will have the power to decide any motions brought by any party to the
arbitration, including discovery motions, motions for summary judgment and/or
adjudication and motions to dismiss and demurrers, prior to any arbitration
hearing. Consultant agrees that the arbitrator will issue a written decision on
the merits. Consultant also agrees that the arbitrator will have the power to
award any remedies, including attorneys’ fees and costs, available under
applicable law. Consultant understands that the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA, except that
Consultant shall pay the first $200.00 of any filing fees associated with any
arbitration Consultant initiates. Consultant agrees that the arbitrator will
administer and conduct any arbitration in a manner consistent with the Rules and
that, to the extent that the AAA’s National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules will take
precedence.


 


C.             Remedy.
Except as provided by the Rules, arbitration will be the sole, exclusive and
final remedy for any dispute between the Company and Consultant. Accordingly,
except as provided for by the Rules, neither the Company nor Consultant will be
permitted to pursue court action regarding claims that are subject to
arbitration. Notwithstanding the foregoing, the arbitrator will not have the
authority to disregard or refuse to enforce any lawful Company policy, and the
arbitrator shall not order or require the Company to adopt a policy not
otherwise required by law which the Company has not adopted.


 


D.            Availability
of Injunctive Relief. In addition to the right under the Rules to
petition the court for provisional relief, Consultant agrees that any party may also
petition the court for injunctive relief where either party alleges or claims a
violation of Sections 2 (Confidentiality), 3


 

















 


(Ownership) or 4
(Conflicting Obligations) of this Agreement or any other agreement regarding
trade secrets, confidential information, nonsolicitation or Labor Code §2870. In
the event either the Company or Consultant seeks injunctive relief, the
prevailing party will be entitled to recover reasonable costs and attorneys’
fees.


 


E.              Administrative
Relief. Consultant understands that this Agreement does not prohibit
Consultant from pursuing an administrative claim with a local, state or federal
administrative body such as the Department of Fair Employment and Housing, the
Equal Employment Opportunity Commission or the workers’ compensation board. This
Agreement does, however, preclude Consultant from pursuing court action
regarding any such claim.


 


F.              Voluntary
Nature of Agreement. Consultant acknowledges and agrees that
Consultant is executing this Agreement voluntarily and without any duress or
undue influence by the Company or anyone else. Consultant further acknowledges
and agrees that Consultant has carefully read this Agreement and has asked any
questions needed to understand the terms, consequences and binding effect of
this Agreement and fully understand it, including that Consultant is waiving
its right to a jury trial. Finally, Consultant agrees that Consultant has been
provided an opportunity to seek the advice of an attorney of its choice before
signing this Agreement.


 


9.                                       Miscellaneous.


 


A.           Governing
Law. This Agreement shall be governed by the laws of California
without regard to California’s conflicts of law rules.


 


B.             Assignability.
Except as otherwise provided in this Agreement, Consultant may not sell,
assign or delegate any rights or obligations under this Agreement.


 


C.             Entire
Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter of this Agreement and supersedes
all prior written and oral agreements between the parties regarding the subject
matter of this Agreement.


 


D.            Headings.
Headings are used in this Agreement for reference only and shall not be
considered when interpreting this Agreement.


 

















 


E.              Notices.
Any notice or other communication required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed given if delivered
personally or by commercial messenger or courier service, or mailed by U.S.
registered or certified mail (return receipt requested), or sent via facsimile
(with receipt of confirmation of complete transmission) to the party at the
party’s address or facsimile number written below or at such other address or
facsimile number as the party may have previously specified by like notice.
If by mail, delivery shall be deemed effective 3 business days after mailing in
accordance with this Section o9(E).


 


	
   

  	
   

  	
  (1)

  	
  If to the
  Company, to:

  	
   

  	
  Ikanos
  Communications

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  47669 Fremont
  Boulevard

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Fremont, CA
  94538

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Attention: Rajesh Vashist, President &
  CEO

  
	
   

  	
   

  	
   

  	
  Telephone: (510) 979-0400

  
	
   

  	
   

  	
   

  	
  Facsimile: (510) 979-0500

  



 


(2)                                  If
to Consultant, to the address for notice on the signature page to this
Agreement or, if no such address is provided, to the last address of Consultant
provided by Consultant to the Company.


 


F.              Attorneys’
Fees. In any court action at law or equity that is brought by one of
the parties to this Agreement to enforce or interpret the provisions of this
Agreement, the prevailing party will be entitled to reasonable attorneys’ fees,
in addition to any other relief to which that party may be entitled.


 


G.             Severability.
If any provision of this Agreement is found to be illegal or unenforceable, the
other provisions shall remain effective and enforceable to the greatest extent
permitted by law.


 


(Remainder
of page intentionally left blank.)


 

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Consulting Agreement as of the date first
written above.


 


	
  CONSULTANT: Texan Ventures

  	
   

  	
  IKANOS COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ G. Venkatesh

  	
   

  	
   

  	
  By:

  	
  /s/ Rajesh Vashist 

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  G. Venkatesh

  	
   

  	
  Name:

  
	
   

  	
   

  
	
  Title:

  	
  Managing Member

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Address for Notice:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
									



 


 


The effective date of this Agreement is                              ,
2006, the date on which the Board approved this Agreement.


 

















 


EXHIBIT A


 


Services
and Compensation


 


1.                                       Contact. Consultant’s principal Company contact:


 


	
  Name:

  	
  Texan Ventures c/o G. Venkatesh

  	
   

  
	
   

  
	
  Title:

  	
  Managing Member

  	
   

  
				



 


2.                                       Services. The Services shall include, but shall not be
limited to, the following:


 


Consultant
shall be available to management of the Company on a reasonable basis as
reasonably requested to provide, among other things, general business advise, including
general business advice relating to the operation of a public company, guidance
and strategic advice in analyzing acquisition opportunities, assisting in
negotiations of acquisition agreements and providing assistance and guidance in
integration of acquired companies.


 


3.                                       Compensation.


 


A.           The
Company shall compensate Consultant at the rate of $3000.00 per month
retroactive to January 1, 2006 upon approval of the Agreement by the
Board.


 


The Company will reimburse Consultant for all
reasonable expenses incurred by Consultant in performing the Services pursuant
to this Agreement, if Consultant receives written consent from an authorized
agent of the Company prior to incurring such expenses and submits receipts for
such expenses to the Company in accordance with Company policy.