[BENTHOS Logo Appears Here]
TECHNICAL CONSULTANCY AGREEMENT
BETWEEN:
Benthos, Inc. (BENTHOS)
North Falmouth, Massachusetts
AND:
Xxxxxxx X. XxXxxxx (The Consultant)
Falmouth, Massachusetts
DATED: July 12, 1994
Benthos. Inc.
00 Xxxxxxxx Xxxxx. Xxxxx Xxxxxxxx XX X0000-0000 XXX
Telephone 000-000-0000 000-000-0000 Telex 820673 Fax 000-000-0000
A. RELATIONSHIP
1. This Agreement supersedes all previous agreements, defines the terms and
conditions under which, upon execution hereof, the Consultant shall act as
such for BENTHOS and defines the rights and obligations of the parties under
such relationship.
2. The Consultant has no authority to commit BENTHOS in any matter, cause, or
undertaking whatever, without the prior written consent of BENTHOS; and,
similarly, BENTHOS has no authority to commit the Consultant in any matter,
cause or undertaking whatever, without the prior written consent of the
Consultant.
3. The relationship of the Consultant to BENTHOS is that of an independent
contractor and not that of an employee of BENTHOS and the Consultant agrees
that he shall not hold himself out as an employee of BENTHOS. All expenses
for the operation of the Consultant's offices and activities, as such
independent contractor, shall be borne by the Consultant, and the Consultant
shall be solely responsible for the payment of same, except as described
herein. BENTHOS agrees to pay the expenses of trips requiring air travel
and/or overnight travel. Said expenses must be approved by BENTHOS in advance
of the trip taking place.
4. The Consultant has no authority to make, vary, alter, enlarge, or limit
contracts or letters of intent, or to make representations or guarantees not
specifically authorized in writing by BENTHOS. The Consultant has no
authority to bind BENTHOS to any contract of employment, no authority to
receipt for monies payable to BENTHOS, and the Consultant is solely
responsible for the Consultant's employees and for their acts and the things
done by them.
5. The Consultant represents that (a) he has described his background truly and
completely to BENTHOS; (b) his engagement by the Company does not and will
not violate or interfere with any other obligation or agreement to which the
Consultant is subject; and (c) the Consultant did not and will not bring to
BENTHOS or use in his work any confidential material or any documents or
other property of any former employer or person for whom the Consultant has
performed services.
6. Upon a breach of any of the terms and conditions of this Agreement by either
party, or should either party become insolvent, bankrupt, make an assignment
or trust mortgage for the benefit of creditors, or enter into a receivership,
this Agreement may be terminated immediately at the option of the other
party, by written notice to the other.
7. The failure of either party to enforce at any time, or for any period of
time, provisions of the Agreement shall not be construed as a waiver of such
provisions or of the right of such party thereafter to enforce each and every
such provision.
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B. DURATION OF AGREEMENT
This Agreement is effective August 19, 1994 and remains effective for three
years. It is the intention of the parties to renew this agreement for an
additional three year period. Written notice shall be provided from one party to
the other at least one year prior to the termination date in the event that
party does not wish to renew the agreement.
C. TASKS
The Consultant agrees to act upon the behalf of BENTHOS as defined and set forth
on the attached Schedule A, entitled "Scope of Responsibilities". Said Schedule
A may be amended at any time with the prior written agreement of both parties,
and shall be included as an amendment to this contract.
D. REMUNERATION
BENTHOS agrees to remunerate the Consultant at the base rate of $1,390 per week
for the life of the Agreement. The base weekly remuneration will be increased 5%
at each anniversary of the execution of the Agreement. This remuneration shall
be the extent of BENTHOS' responsibility. THE CONSULTANT ACKNOWLEDGES THAT, AS
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AN INDEPENDENT CONTRACTOR, ALL OTHER COSTS ASSOCIATED WITH THIS AGREEMENT IN THE
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FORM OF STATE AND FEDERAL INCOME TAXES, INSURANCE OF ANY KIND, AND PERSONAL
LIABILITIES ARE THE SOLE RESPONSIBILITY OF THE CONSULTANT.
E. OTHER PRINCIPLES
BENTHOS is not desirous of limiting the potential of its representatives,
agents, or Consultants. In the interest of good business practice, a firm
requirement of this Agreement is the prior written approval by BENTHOS of any
additional consultancies which the Consultant may entertain. Guidelines for non-
approval of additional consultant agreements shall include competitive products
or services or other conflicts of interest.
F. NON-ASSIGNMENT
A consideration of this Agreement is the personal reputation, qualifications and
abilities of the Consultant. Accordingly, the obligations of the Consultant
hereunder are not subject to assignment or delegation without the prior written
consent of BENTHOS.
G. AMENDMENTS
1. The Agreement may be modified, abridged or amended only by a document or
documents in writing executed by both parties hereto.
2. It is agreed that this Agreement shall be construed as a Massachusetts
contract and is governed by the internal laws of Massachusetts without giving
effect to the conflicts of law principles thereof.
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H. REPORTS
During the first week of each month the Consultant shall submit to BENTHOS a
Written report of his activities with respect to BENTHOS for the preceding
month. This will include comments and insights pertaining to the "Scope of
Responsibilities" as outlined in Schedule A.
I. CONFIDENTIAL INFORMATION
1. The Consultant agrees and acknowledges that in the course of rendering
services to BENTHOS and its clients he has had and may have in the future
access to and has become and will become acquainted with confidential
information about the professional, business, technical and financial affairs
of BENTHOS and its clients and may have contributed to or may in the future
contribute to such information. The Consultant further recognizes that
BENTHOS is engaged in a highly competitive business, and that the success of
BENTHOS in the marketplace depends upon its good will and reputation for
quality and dependability. The Consultant agrees and acknowledges that
reasonable limits on his ability to engage in activities competitive with
BENTHOS are warranted to protect its substantial investment in developing
such status in the marketplace, reputation and good will. The Consultant
recognizes that in order to guard the legitimate interests of BENTHOS it is
necessary for it to protect all such confidential information, good will and
reputation.
2. In the course of his engagement by BENTHOS, the Consultant may have had or
may have in the future access to confidential know-how, business documents or
information, marketing data, client lists and trade secrets which are
confidential. Such information shall hereinafter be called "Proprietary
Information" and shall include any and all items enumerated in the preceding
sentence as well as New Developments as defined in paragraph "K" above which
come within the scope of the business activities of BENTHOS as to which the
Consultant has had or may have access, whether previously existing, now
existing or arising hereafter, whether conceived or developed by others or by
the Consultant alone or with others during the period of his service to
BENTHOS. "Proprietary Information" shall not include any information which is
in the public domain during the period of service by the Consultant, provided
such information is not in the public domain as a consequence of disclosure
by the Consultant in violation of this Agreement.
3. The Consultant agrees and acknowledges that Proprietary Information is of
critical importance to BENTHOS and a violation of this paragraph would
seriously and irreparably impair and damage the business of BENTHOS. The
Consultant therefore agrees to keep all Proprietary Information in a
fiduciary capacity for the sole benefit of BENTHOS.
4. The Consultant shall not disclose, directly or indirectly (except as required
by law), any Proprietary Information to any person other than (a) BENTHOS,
(b) authorized employees thereof at the time of such disclosure, or (c) such
other persons to whom the Consultant has been instructed to make disclosure
by the President of BENTHOS, and in all such cases only to the extent
required in the course of the Consultant's services to BENTHOS hereunder. At
the termination of his engagement by BENTHOS, the Consultant shall deliver to
BENTHOS all
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notes, letters, documents and records which may contain Proprietary
Information which are then in his possession or control and shall not retain
or use any copies or summaries thereof.
J. RIGHTS IN CONSULTANT'S PRODUCT DEVELOPMENTS
As a condition of this agreement, the Consultant agrees to grant Benthos, Inc.,
the right of first refusal to acquire the rights to any products developed by
the Consultant that the Consultant wishes to sell and which are not New
Developments as defined in paragraph "M".
K. USE OF BENTHOS STOCKROOM
The Consultant may purchase mechanical, electrical, and electronic components
from the Benthos stockroom at Benthos' standard cost plus a 10% handling fee.
Purchases to paid for in cash at the time of withdrawal from the stockroom.
Purchases to be approved by Benthos Materials Manager to ensure non-interference
with Benthos' operations. Items purchased from the Benthos stockroom are for the
Consultant's use in his product development efforts and are not for resale.
L. USE OF BENTHOS PRESSURE TEST AND TEST POOL FACILITIES
The Consultant may use the Benthos pressure test facility or the Benthos test
pool on a not to interfere basis. The only charge for the use of these
facilities will be for technician services which will be charged at the current
published rate. A technician is required for the operation of the pressure test
facility. A technician is not required for the use of the test pool facility.
M. NEW DEVELOPMENTS
1. The Consultant shall promptly and fully disclose in writing to BENTHOS, or
such other person as BENTHOS may designate, all ideas, designs, programs,
methods, inventions, improvements, discoveries and writings, including any
modifications or improvements of products, new products or applications
thereof, whether or not patentable or copyrightable, and whether or not
reduced to practice, made or conceived by him (either solely or in
collaboration with others) during the term of his engagement by BENTHOS,
whether or not during regular working hours. All of such ideas, designs,
programs, methods, inventions, improvements, modifications, applications,
discoveries and writings described in this paragraph shall be herein referred
to as "New Developments." The Consultant acknowledges that all such New
Developments are the exclusive property of BENTHOS and hereby assigns all
right, title and interest in and to such New Developments to BENTHOS.
2. The term "New Developments" shall not include, and the foregoing paragraphs
shall not apply to, any development conceived by the Consultant for which no
equipment, supplies, facility or trade secret information of BENTHOS was used
and which was developed entirely on the Consultant's own time, unless the
invention results from any work performed by the Consultant for BENTHOS.
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3. The Consultant will, during the term of his engagement by BENTHOS and
thereafter, at the request of BENTHOS, cooperate in the procurement in the
name of BENTHOS of patent, utility model, design and copyright protection to
cover New Developments, including the execution of domestic, foreign,
continuing and reissue applications for letters patents, utility models,
designs and copyright registrations and assignments thereof, and execute all
documents, make all rightful oaths, testify in all proceedings in
governmental offices or in the courts concerning New Developments, and
generally do everything possible to aid BENTHOS in obtaining, enjoying and
enforcing proper protection on New Developments.
4. All of the Consultant's rights in and to any New Developments, including the
right to publish or not publish any New Developments, and his rights in and
to all letters patent and copyright. registrations and applications for
letters patent, utility models, designs and copyright registrations and
convention and other priority rights relating thereto, hereby are assigned to
BENTHOS and shall become and remain the property of BENTHOS, unless released
in writing by BENTHOS.
N. NON-COMPETITION AND NON-SOLICITATION
1. The Consultant covenants and agrees that during the term of his engagement by
BENTHOS (the "Restrictive Covenant Period"), the Consultant shall not,
whether for his own account or for any other person or organization, directly
or indirectly engage, within the Restricted Market (as hereinafter defined)
in the business of, or render service to, any enterprise which carries on the
business in which BENTHOS is principally engaged at the time of the
Consultant's termination of engagement by BENTHOS (collectively, the
"Competitive Businesses"). The parties hereto acknowledge and agree that the
business in which BENTHOS is principally engaged as of the date hereof
consists of: the design, development and manufacture of underwater products
and systems for use in the oceanographic research, government, offshore
energy, nuclear, and related markets and; the design, development and
manufacture of products and systems for use in the inspection of sealed
containers of all kinds. The Consultant further agrees that, during the
Restrictive Covenant Period, he shall not knowingly call upon, solicit,
divert, attempt to solicit or divert, or conduct or carry on any business
with any of the former clients, current clients or potential clients of
BENTHOS known to the Consultant as the result of his work for BENTHOS with
respect to any business similar to any of the Competitive Businesses or any
other business conducted by BENTHOS during the Restrictive Covenant Period.
Nothing herein shall be construed to prohibit the Consultant from making a
passive investment of less than 5% in the outstanding shares of capital stock
of a corporation engaged in the Competitive Businesses whose securities are
registered pursuant to the Securities Exchange Act of 1934, as amended.
2. The Consultant further agrees that, during the Restrictive Covenant Period,
he will not knowingly, directly or indirectly, (i) solicit the employment or
engagement for his own account or for others, nor hire, any employee, agent,
consultant or business contact of BENTHOS who was such at any time during the
last twelve (12) months of the Consultant's engagement by BENTHOS, or (ii)
induce any employee of BENTHOS to leave the employ of BENTHOS, unless in each
case the Consultant obtains the prior written consent of BENTHOS.
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3. The parties agree and acknowledge that the duration, scope and geographic
area of the covenant not to compete described in this paragraph are fair;
reasonable and necessary in order to protect the good will and other
legitimate interests of BENTHOS, that adequate consideration has been
received by the Consultant for such obligations, and that these obligations
do not prevent the Consultant from earning a livelihood. If, however, for any
reason any court determines that the restrictions in this paragraph are not
reasonable, that consideration is inadequate or that the Consultant has been
prevented unlawfully from earning a livelihood, such restrictions shall be
interpreted, modified or rewritten to include as much of the duration, scope
and geographic area identified in this paragraph as will render such
restrictions valid and enforceable.
4. It being acknowledged and agreed by the Consultant that BENTHOS distributes
its products and performs services throughout the [world), the term
"Restricted Market" shall mean and refer to the entire world.
O. REMEDIES
The Consultant acknowledges that he has carefully read and considered the terms
of this Agreement and knows them to be essential to induce BENTHOS to enter into
this Agreement and that any breach of the provisions contained herein will
result in serious and irreparable injury to BENTHOS. Therefore, in the event of
a breach of this Agreement, BENTHOS shall be entitled, in addition to any other
remedy at law or in equity to which BENTHOS may be entitled, to (i) an
accounting and repayment of all profits, compensation, remuneration or other
benefits that the Consultant may realize arising from or related to any such
breach, (ii) recovery of all payments made by the Company to the Consultant
hereunder, and (iii) equitable relief against the Consultant, including, without
limitation, an injunction to restrain the Consultant from such breach and to
compel compliance with this Agreement in protecting or enforcing its rights and
remedies and enforcement of specific performance by the Consultant of this
Agreement.
P. SIGNATURES
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their duly authorized officers of representatives, and have caused their
seals to be hereto affixed as of the day and year first below written.
ATTEST BY DATE
Benthos, Inc. /s/ [SIGNATURE ILLEGIBLE 18 JUL 94
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Xxxxxxx X. XxXxxxx /s/ Xxxxxxx X. XxXxxxx 7/18/94
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SCHEDULE A
SCOPE OF RESPONSIBILITIES
1. The primary responsibility of the Consultant under the terms of this
Agreement is to provide technical support to BENTHOS in support of its
ongoing projects and programs. The Consultant agrees to provide such
electronic engineering and design services as may from time to time be
requested by BENTHOS and agreed to by the Consultant. Such services shall
include, but are not limited to:
Electronic/electrical design
Software design
Systems design
Circuit/system troubleshooting
Proposal/technical writing Pricing/costing of products and projects
2. It is intended that the services required to fulfill this Agreement will be
performed either at the offices of the Consultant, or the offices of BENTHOS.
In either event, the work would be carried out in or near the town of
Falmouth, MA. If, from time to time, travel is requested by BENTHOS to better
serve their needs, it will be scheduled by mutual agreement.
3. BENTHOS understands that the Consultant will be providing consulting services
only, and that any material and or special test equipment required to
accomplish the tasks detailed by BENTHOS as part of this contract will either
be supplied by BENTHOS or paid for by BENTHOS at the Consultant's cost plus
10% for handling. No such material commitments will be made by the Consultant
without the approval of BENTHOS. Any material or special equipment paid for
by BENTHOS will become the property of BENTHOS.
4. BENTHOS is contracting with the Consultant for services at a rate prescribed
in paragraph D of the Agreement. It is the intent that for this fee the
Consultant will provide services 24 hours per week. It is understood by
BENTHOS that the actual scheduling of the tasks will be made by mutual
agreement with the Consultant. The Consultant will provide an average of 24
hours per week of engineering services. If effort above the level contracted
for in this Agreement is required to meet the needs of BENTHOS, additional
hours can be authorized by BENTHOS, with the consent of the Consultant, at
the rate prescribed in section D.
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