EXHIBIT 10.99
ELECTROSOURCE, INC.
CONSULTING AGREEMENT
95-C-076
THIS CONSULTING AGREEMENT (the "Agreement"), made
effective the 1st day of November 1995, is between Electrosource,
Inc., ("Electrosource") a Delaware corporation, having its
principal offices at 0000-X Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx, 00000-
0000, XXX ("Electrosource") and, Xxxxxxx X. Xxxxxxx ("Consultant")
having his principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx,
Xxxxx 00000.
W I T N E S S E T H:
WHEREAS, Consultant possesses the knowledge and experience
in battery technology, engineering, production technology, production
equipment and related fields; and
WHEREAS, Consultant has the knowledge and ability and is
duly licensed or authorized to assist Electrosource in the
development, testing, production and commercialization of its
technology; and
WHEREAS, Electrosource desires the assistance of Consultant.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter contained, the parties hereto agree as follows:
1. Term. Electrosource hereby engages Consultant as an
independent contractor for a term commencing on the date hereof
and ending two (2) years thereafter, unless sooner terminated in
accordance with the terms hereof. The parties may extend this
agreement by mutual agreement.
Notwithstanding any other provision of this Agreement,
if Consultant materially breaches any of its provisions,
Electrosource may terminate this Agreement immediately upon
written notice to Consultant. Electrosource may also
terminate this Agreement at any time after June 30, 1996 if
Electrosource has or is ordering lead, lead billet makers
and/or co-extruders from Consultant under separate
agreements in amounts sufficient to provide contractor a
reasonable profit in Electrosource's opinion for Consultant
to have a self-sustaining business.
Upon termination of this Agreement, Electrosource shall
have no obligation to make further payments to Consultant for
services performed after notice is received by Consultant.
Notice may be hand carried or sent by certified mail.
Notice is effective upon receipt or within five days of
mailing, whichever is earlier.
2. Duties. Consultant shall use his best efforts on
behalf of Electrosource to assist Electrosource with respect
to all matters pertaining to battery development, engineering,
production equipment, materials and related matters. Consultant
shall not, during the term of this Agreement accept any other engagement
as a cconsultant, or enter into any employment relationship with
respect to which any portion of his duties would entail assisting any
other entity in the field of battery research, development or
production. Consultant shall be reasonably available on an on-call,
as-needed basis to perform such consulting duties as may be assigned
from time to time by Electrosource by its President or his designee.
Consulting services shall be provided either at the offices of
Electrosource or of Consultant, or at such other location as the
parties may agree.
3. Compensation. As full compensation for the services which
Consultant renders to Electrosource under this Agreement, Electrosource
shall pay to Consultant $5,000 per month on the 1st and 15th day of
each month. It is anticipated that for a substantial and indefinite
period, Consultant's services will be needed on a regular basis for
approximately one-half his time. It is further understood that
Consultant may supply equipment or supplies to Electrosource under
separate agreement and for separate compensation (see Section 1).
Consultant shall invoice monthly for his services hereunder.
4. Expenses. Electrosource shall reimburse Consultant for
all proper and reasonable expenses incurred by him pursuant
to Consultant's consulting duties hereunder. Such expenses
may include necessary actual expenses of out-of-town travel
costs, communications, hotel accommodations, meals and the
like, provided that Consultant shall keep and provide
Electrosource an accurate and complete accounting of all
such expenses so incurred, and shall obtain Electrosource's
prior written consent to any such expenses. Reimbursement
of expenses will be issued within fifteen (15) days of receipt
of complete accounting of same.
5. Confidential and Proprietary Information. The parties
agree that from time to time during performance of this
Agreement, confidential or proprietary technical or business
information may be provided either orally or in written form
to Consultant. Such information will be specifically
designated by Electrosource as confidential or proprietary.
Consultant shall keep confidential all such designated
information furnished by Electrosource and safeguard same
from disclosure or use by any unauthorized individuals for
any purpose other than in performance of this Agreement.
Consultant shall restrict the disclosure of
Electrosource's confidential or proprietary technical and
business information to those of his employees who need to
know the same for purposes of carrying out this contract.
Consultant shall advise all such employees of Consultant's
obligations of confidentiality under this Agreement.
In event of termination or cancellation of this
Agreement for any reason whatsoever, Consultant agrees
promptly to deliver to Electrosource all written information
of any sort made available to Consultant or created by it
under the terms of this Agreement.
Work product created by Consultant shall become the
confidential proprietary property of Electrosource.
Consultant agrees to treat such work product in the same
manner as confidential proprietary information of
Electrosource. Consultant agrees that any remedy at law
would be inadequate or a violation of this provision;
consequently, Consultant agrees that Electrosource is
entitled to obtain an injunction against Consultant's
disclosure of any confidential proprietary information.
Neither expiration of this Agreement nor its earlier
termination for any reason shall release Consultant from its
obligations under this Section 5.
6. Classified Information. Except in connection with
authorized visits, classified material shall not be
possessed by the Consultant off the premises of the Company.
The Company shall not furnish classified material to the
Consultant at any other location than the premises of the
Company and performance of the consulting services by the
Consultant shall be accomplished at the premises of the
Company.
The Consultant and his certifying employees shall not
disclose classified information to unauthorized persons.
Electrosource shall brief the Consultant as to the
security controls and procedures applicable to the
Consultant's performance.
7. Works of Authorship and Inventions. Consultant shall
convey to Electrosource all rights to each invention, whether or
not patentable, which is conceived, developed, written, or reduced to
practice by Consultant in performing this Agreement. Consultant
agrees to execute all necessary patent and copyright
applications, assignments and other instruments at
Electrosource's expense and to give all lawful and proper
testimony in aid of Electrosource obtaining and maintaining
in its name full and complete patent protection on any such
invention. Before final payment is made under this
Agreement, Consultant shall furnish Electrosource complete
information with respect to any invention and all work
product subject to this Section.
Consultant hereby irrevocably appoints each officer and
director of Electrosource as his attorney-in-fact for
purposes of filing any applications or assignments necessary
to properly reflect the sole ownership by Electrosource of
any invention or work of authorship subject to this Section.
8. Assignment and Subcontracting. Neither this Agreement
nor its performance, either in whole or in part, shall be
assigned or subcontracted by Consultant to a third party
without, in each case, the prior written consent of
Electrosource, which may be withheld for any reason.
9. No Conflicts. Consultant represents and warrants that:
(a) He has full authority to enter into this Agreement and
to perform his obligations hereunder; and
(b) Performance by Consultant of his obligations hereunder will
not be in conflict with any other of his obligations.
Notwithstanding any other provision of this Agreement,
Electrosource shall have the right to terminate this
Agreement if, in Electrosource's sole opinion, a conflict of
interest rises or may arise between Consultant's
representation of Electrosource and its representation of
its other clients. Such termination shall become effective
upon five (5) days written notification by Electrosource.
10. Independent Contractor. Consultant's relationship to
Electrosource shall be solely to provide personal services
on an independent contractor basis. In this capacity,
Consultant will not be an employee of Electrosource and will
not be entitled to worker's compensation coverage, unemployment
insurance, or any other type or form of insurance or benefit
normally provided by Electrosource for its employees, and
Electrosource will not be responsible for withholding federal income
or social security taxes from the fees paid to Consultant. The
Consultant will be solely responsible for reporting and paying all
Federal, State and Local taxes arising from his performance of this
Agreement. The Consultant is generally free to perform the services
hereunder in any manner desired, subject to satisfactory completion
of the subject task.
11. Notice. A notice communicated to Electrosource shall
be sent to: President, Electrosource, Inc., 0000-X Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxx 00000-0000, or to such other place or places as
Electrosource, by notice in writing, shall specify. Any
notice to Consultant shall be sent to Xxxxxxx X. Xxxxxxx at
000 Xxxxxxxx Xxxxx, Xxxxx, Xxxxx 00000. Any notice to be served shall
be deemed to be served if the same be sent by registered or
certified mail through the United States mail, addressed to
the party on which service is to be effected at the address
stated in the immediately preceding sentences and shall be
deemed to have been received on the day indicated on the
return receipt relating thereto.
12. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns
of Electrosource, and to the successors and assigns of
Consultant.
13. Modification. This Agreement supersedes all prior
agreements or understandings between Consultant and
Electrosource relating to the subject matter hereof, and no
change, termination or attempted waiver of any of the
provisions hereof shall be binding unless reduced to writing
and signed by duly authorized officers of Electrosource and
by Consultant.
14. Construction. This Agreement shall be construed and
enforced in accordance with the laws of the State of Texas.
Consultant hereby submits to the continuing jurisdiction of
the laws and the courts of the State of Texas in the
prosecution of any interpretation or dispute under or
arising out of this Agreement. Should any portion of this
Agreement be adjudged or held to be invalid, unenforceable
or void, such judgment shall not have the effect of
invalidating or voiding the remainder of this Agreement, and
the parties hereto agree that the portion to be held
invalid, unenforceable or void shall, if possible be deemed
amended or reduced in scope or to otherwise be stricken from
this Agreement to the extent required for the purposes of
validity and enforcement thereof.
IN WITNESS WHEREOF, this Agreement is dated and is effective
the date and year first above written.
ELECTROSOURCE, INC.
By: /S/ By: /S/
Xxxxx X. Xxxxx, Vice President Xxxxxxx X. Xxxxxxx
and General Counsel
Date: October 31, 1995 Date:October 31, 1995
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER:
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