exv10w43



 



EXHIBIT 10.43



May 5, 2003


Mr. Rick Dutkiewicz

Chief Financial Officer

VARI-L Company, Inc.


Dear Rick:


     The purpose of this letter (this “Letter Agreement”) is to set forth the
agreement by and among Cloyses Partners, LLC, a Colorado limited liability
company (“Cloyses”), and Vari-L Company, Inc., a Colorado corporation (the
“Company”) whereby, during the term of this Letter Agreement, Cloyses will
provide consulting services to the Company in connection with the wind-up of
the Company’s operations.


SERVICES



     During the term of this Letter Agreement, Cloyses will provide the
following services (the “Services”):


	 	•
	 	Oversee the daily operations of the Company following the closing
of the asset sale contemplated by that certain Asset Purchase Agreement
(the “Purchase Agreement”), dated December 2, 2002, between Sirenza
Microdevices, Inc. (“Sirenza”), Olin Acquisition Corporation (“Olin”)
and the Company, which shall consist primarily of winding up the
Company’s operations and making, on behalf of the Company, payments or
the provision for the payment of the Company’s liabilities and
distributions to the Company’s shareholders;




	 	•
	 	Assist the Company in its performance of any executory obligations
under the Purchase Agreement;




	 	•
	 	Timely report any material issues which come to Cloyses’ attention
that arise during the wind-up process to the Company’s Board of
Directors, including, but not limited to, any indemnity claims by
Sirenza or Olin under the Purchase Agreement;




	 	•
	 	General business and financial advisory work as required by the
Company’s Board of Directors and/or its senior management;




	 	•
	 	Provide members of the Company’s senior management with such
information as they may reasonably request in preparing the Company’s
public filings with the Securities and Exchange Commission; provided,
however, that Cloyses shall have no responsibility for the preparation
or filing




 







 


Rick Dutkiewicz

May 5, 2003

Page 2


	 	 
	 	of any such reports, which responsibility shall be retained solely by
the Company’s board of directors and authorized officers;




	 	•
	 	Subject to the direction of the Board of Directors, oversee the
defense of any claims or litigation against the Company, and the
prosecution of claims on behalf of the Company;




	 	•
	 	Act as trustee for any liquidating trust created by the Company to
further complete the liquidation and wind-up of the Company’s
operations pursuant to a form of mutually acceptable liquidating trust
agreement; and




	 	•
	 	Such other actions as may be reasonably requested by the Company in
furtherance of the actions described above.




FEES



     The Company agrees to pay Cloyses $275.00 per hour for each hour that a
Managing Director of Cloyses renders services to the Company, and $250.00 per
hour for each hour that a Principal of Cloyses renders services to the Company.
The Company shall provide an initial retainer to Cloyses of $5,000 prior to
commencement of the Services and make advance deposits of $1,500 on the first
and fifteenth day of each month beginning May 15, 2003. If in any month the
full amount of the deposit is not earned, the excess of such deposit shall be
credited toward the following deposit due.


     Cloyses agrees to submit monthly invoices to the Company. Such invoice
shall include a description of the services rendered and the number of hours
expended. Because Cloyses is an independent contractor and not an employee of
the Company, the Company will not withhold or make payments for state or
federal income tax or social security; make unemployment insurance or
disability insurance contributions; or obtain workers’ compensation insurance
on Cloyses’ behalf. Cloyses will be solely responsible for all tax returns and
payments required to be filed with or made to any federal, state or local tax
authority with respect to Cloyses’ performance of Services and receipt of fees
under this Letter Agreement.


EXPENSES



     The Company shall reimburse Cloyses for all reasonable expenses incurred
by Cloyses in providing services under this Letter Agreement, including travel,
lodging, car rental costs and other reasonable third party fees and expenses
incurred to perform the Services. When possible, Cloyses will take advantage
of any lodging or car rental agreements the Company may have in place to
minimize these costs. Cloyses will bill these expenses to the Company every
two weeks and the Company shall promptly reimburse Cloyses upon receipt
thereof. The Company agrees that the payment of fees


 







 


Rick Dutkiewicz

May 5, 2003

Page 3


earned and expenses incurred pursuant to this Letter Agreement is not
contingent on the outcome or results of Cloyses’ services to the Company.


TERM



     This Letter Agreement may be terminated by either party by providing
forty-five (45) days prior written notice to the other party. The Company may
also terminate this Letter Agreement immediately upon Cloyses’ material breach
of any provisions hereof. Cloyses will perform the services set forth herein
until the termination of this Letter Agreement. If this Letter Agreement is
terminated prior to the conclusion of the liquidation, dissolution and wind-up
of the Company’s operations, Cloyses agrees to work with the Company in order
to effect the orderly transition of Cloyses’ duties hereunder to such other
party as designated by the Company.


     In the event of any termination of this Letter Agreement, the Company
shall immediately pay Cloyses all fees earned and expenses incurred through the
effective date of termination, if not satisfied by any previously-provided
retainer. Cloyses shall return any portion of any retainer not earned.


REPRESENTATIONS AND WARRANTIES



     The Company understands and confirms that, (i) Cloyses will be using and
relying on data, material and information furnished to it by the Company, its
employees, officers, directors and agents (the “Company Information”) and (ii)
Cloyses shall not have any responsibility for the accuracy or completeness of
such Company Information, whether or not it makes an independent verification.
The Company hereby represents and warrants to Cloyses that all such information
will not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not misleading.


     Cloyses hereby represents and warrants that: (a) Cloyses is not a party to
any agreement or arrangements that prohibits Cloyses from performing the
Services hereunder; (b) the Services to be rendered to the Company hereunder
will not conflict with any obligations that Cloyses has or may have had to any
party for whom Cloyses has performed services; (c) Cloyses has full right and
power to enter into and perform its obligations under this Letter Agreement
without the consent of any third party; and (d) Cloyses will perform all work
hereunder in compliance with applicable law.


INDEMNIFICATION



     Cloyses and David Corsaut shall be added to the Company’s Directors and
Officers insurance policy as insured parties, which coverage shall not be less
than $5,000,000, shall be effective as of the date of Cloyses’ engagement and
shall have a “tail” of at least three (3) years. The Company, and its
subsidiaries, if any, agree to


 







 


Rick Dutkiewicz

May 5, 2003

Page 4


indemnify and hold harmless Cloyses, its partners, members, managers,
employees, agents, transferees and successors (collectively, the “Cloyses
Indemnified Parties”) from and against any and all losses, claims, expenses,
damages, or liabilities, joint or several, to which any Cloyses Indemnified
Party becomes subject under federal or state statutes, regulations, common law
or otherwise, arising out of, in connection with, or based upon any matter
contemplated by this Letter Agreement, whether or not resulting in any
liability; and to reimburse the Cloyses Indemnified Parties for any reasonable
legal or other expenses incurred by such Cloyses Indemnified Parties in
connection with investigating or defending against any such loss, claim, damage
or liability (whether or not such Cloyses Indemnified Parties are defendants
in, or targets of, such action, proceeding or investigation) with reasonable
promptness after Cloyses has provided the Company with written notice, in
reasonable detail, of the costs incurred as a result of any such loss, claim,
expense, damage or liability. In no event shall the Company be liable to any
Cloyses Indemnified Party under this paragraph, however, to the extent that any
such loss, claim, expense, damage or liability is found in a final judicial
determination, not subject to further appeal, to have resulted from Cloyses’
gross negligence or willful misconduct. The foregoing reimbursement,
indemnification and hold harmless provisions shall survive any termination of
this Letter Agreement and are in addition to, and not subject to the
limitations of, the fees and reimbursement of expenses specifically provided
for elsewhere in this Letter Agreement.


OTHER MATTERS



     Each party agrees that all information it receives from the other party
will be treated as strictly confidential and shall only be used by the
receiving party for the purposes set forth herein. Cloyses further agrees not
to disclose any of the Company’s Confidential Information (as defined below) to
any third party, other than counsel to the Company and the Company’s public
auditors, without the Company’s prior written consent. “Confidential
Information” includes, but is not limited to, all nonpublic information
pertaining to the Company, its financial position, its liabilities, and claims
against the Company’s assets.


     Cloyses is, and at all times shall be, an independent contractor for the
Company, with control over the accomplishment of its services.


     The validity and interpretation of this Letter Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Colorado (excluding the conflicts of law rules).


     Notwithstanding anything herein (or in any other agreement) to the
contrary, Cloyses shall have the right, upon the Company’s acceptance of the
work hereunder, to reference the Company and the general nature of the services
to prospects, clients or investors. Cloyses shall also have the right, from
time to time, to create case studies, presentations, articles and the like
related to the services provided hereunder


 







 


Rick Dutkiewicz

May 5, 2003

Page 5


(“Materials”), and to utilize the Materials in public speaking
engagements, publications, and other similar uses.


     The benefits of this Letter Agreement shall inure to the parties hereto,
their respective successors and assigns, and to the indemnified parties
hereunder and their respective successors and assigns, and the obligations and
liabilities assumed in this Letter Agreement by the parties hereto shall be
binding upon their respective successors and assigns. No party to this Letter
Agreement may assign its rights and/or obligations hereunder without the
consent of all parties hereto.


     We appreciate the opportunity to work with you and are prepared to begin
this engagement immediately after the execution of this Letter Agreement. If
the foregoing is agreeable to you, please signify by signing below and
returning one copy to us, whereupon this letter will be a binding agreement
between us.



	 	 	 
	 	 	
Sincerely,
	 	 	 
	 	 	
CLOYSES PARTNERS, LLC
	 	 	 
	 	 	
By: /s/ David Corsaut

Name: David Corsaut

Title: Managing Director





Accepted and Agreed to on May 6, 2003.


By: /s/ Richard P. Dutkiewicz

Name: Richard P. Dutkiewicz

Title: Chief Financial Officer