Ex. 10.14
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Agreement") is made and entered into
as of the 15th day of November, 2001, by and between LIQUIDMETAL TECHNOLOGIES, a
California corporation ("Company"), and XXXXXXX XXXXXXX, an individual
("Employee").
RECITALS:
A. Pursuant to that certain Employment Agreement, dated May 2, 2000,
between Company and Employee (the "Employment Agreement"), Employee was employed
by Company as Executive Vice President and Chief Operating Officer of Company.
B. Employee wishes to cease his employment with Company.
C. Employee and Company have reached agreement on the terms of
Employee's departure, and both parties view their separation as amicable.
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. RECITALS. The above recitals are true and correct and are made a
part hereof.
2. TERMINATION OF EMPLOYMENT AGREEMENT. Company and Employee hereby
agree that, except as specifically provided in Section 5 below, the Employment
Agreement is terminated effective as of November 15, 2001 (the "Separation
Date") and that neither Company nor Employee shall have any further rights,
obligations, or duties under the Employment Agreement as of the Separation Date.
3. SEPARATION PAYMENTS. In consideration of Employee's agreement to the
terms of this Agreement, for the period beginning on the Separation Date and
continuing until December 31, 2002 (the "Post-Employment Period"), Company will
continue to pay Employee a salary equal to $150,000 per year, pro rated on a
daily basis in the case of partial years (the "Separation Payments"). The
Separation Payments shall be paid in accordance with the prevailing payroll
schedule for Company executives.
4. HEALTH INSURANCE COVERAGE. During the Post-Employment Period,
Company shall continue to provide Employee with the same (or substantially
similar) health insurance coverage that is being provided to Employee by Company
as of the date of this Agreement; provided, however, that in the event that
Employee obtains full-time employment prior to the expiration of the
Post-Employment Period, then Company's obligation to provide such benefits shall
terminate upon the first day on which Employee would be eligible to receive
health insurance coverage from his new employer.
5. SURVIVAL OF CERTAIN PROVISIONS OF EMPLOYMENT AGREEMENT.
Notwithstanding anything to the contrary set forth in this Agreement, Section 9
of the Employment Agreement shall continue to remain in full force and effect in
accordance with the terms thereof at all times hereafter, and Employee shall
continue to be bound by the terms thereof (as well as by any other terms of the
Employment Agreement relating to the enforceability and construction of said
Section 9. In the event that Employee breaches any of the provisions of Section
9 of the Employment Agreement, the Company's obligation to make the Separation
Payments shall immediately terminate.
6. WAIVER AND RELEASE. In consideration of the obligations and duties
of Company set forth herein, Employee agrees as follows:
a. Employee hereby knowingly and voluntarily waives, releases
and forever discharges the Company and its officers, directors, employees,
shareholders, and affiliates from any and all claims, demands, damages,
lawsuits, obligations, promises, and causes of action of any kind whatsoever,
both known and unknown, at law or in equity, that he may have had or has against
them at any time from the beginning of time up to and including the Separation
Date, including, but not limited to, all matters relating to or arising out of
Employee's employment with Company, the Employment Agreement, compensation by
Company, or separation of employment from Company. This waiver and release
covers, without limitation, any suits under Title VII of the Civil Rights Act of
1964, as amended; the Rehabilitation Act of 1973, as amended; the Equal Pay Act
of 1963, as amended; the Age Discrimination in Employment Act of 1967, as
amended; the Older Workers Benefit Protection Act; the Americans with
Disabilities Act; the Civil Rights Act of 1991; Section 1981 of the Civil Rights
Act of 1866; the Florida Human Rights Act; the Florida Civil Rights Act of 1992;
and any applicable Florida state employment laws. This waiver and release also
covers administrative charges, actions and suits under the National Labor
Relations Act, as amended; the Fair Labor Standards Act of 1938, as amended; the
Employee Retirement Income Security Act of 1974, as amended; the Family and
Medical Leave Act; any other federal or state law or municipal ordinance; and
any lawsuits founded in tort (including negligence), contract (oral, written or
implied) or any other common law or equitable basis of action.
b. Employee shall not disclose, either directly or indirectly,
any information whatsoever regarding any of the terms or the existence of this
Agreement to any person or organization, including but not limited to members of
the press and media, present and former employees of Company, and persons or
companies who do business with Company.
c. In addition to the other provisions in this Agreement,
Employee acknowledges that the information in the following paragraphs is
included for the express purpose of complying with the Older Workers' Benefits
Protection Act, 29 U.S.C.Section626(f):
i. The Employee acknowledges that he was over 40
years of age as of the Separation Date and when he signed this Agreement.
Employee realizes there are many laws and regulations prohibiting employment
discrimination or otherwise regulating employment or claims related to
employment under which he may have rights or claims, including the Age
Discrimination in Employment Act of 1967, as amended (the "ADEA"). Employee
hereby waives and releases any rights or claims he may have under the ADEA.
ii. By signing this Agreement, Employee states that
he is receiving consideration to which he was not otherwise entitled. Employee
is waiving and releasing all claims against the Company that he may have based
on his age, although Employee is not
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waiving any claim or action under the ADEA based upon rights or claims that may
arise after the date he signs this Agreement.
iii. Employee is being given continued compensation
as specified in Section 3 hereof in exchange for the release and waiver of all
claims that he is agreeing to herein. A portion of this continued compensation
is in addition to anything of value to which the Employee is already entitled to
in that the Employee is receiving a portion of this consideration without having
to perform services of an equal value.
iv. The Employee acknowledges that he was informed in
writing that he could consult with an attorney before signing this Agreement.
Employee acknowledges that he was given the opportunity to consider this
Agreement for twenty-one (21) days before signing it, and, if he signs it, he
has the right to revoke it for a period of seven (7) days thereafter. Regardless
of when the Employee signs this Agreement, he acknowledges that his seven-day
period will not be waived. No payments will be made to Employee until after the
seven-day revocation period expires. In the event that the Employee revokes this
Agreement within such seven (7) day period, this Agreement will be of no force
and effect, and neither party shall have any obligations hereunder.
d. The Employee agrees that neither the Employee nor or any
person, organization, or other entity acting on the Employee's behalf will file
a lawsuit or administrative proceeding seeking legal, equitable, administrative,
or other relief asserting any claims or causes of action released by this
Agreement. If any such claim or cause of action is asserted, the Employee agrees
that he will indemnify and hold harmless each of the persons and entities
against whom the Employee has released claims and causes of action hereunder
from and against any and all losses, costs, damages, expenses, and attorneys'
fees incurred as a result of his attempt to assert such claims or cause of
action.
7. RESIGNATION FROM OFFICES. Employee hereby resigns, effective as of
the date hereof, from all offices which Employee holds with Company and any
subsidiary or affiliate of Company, provided that Employee does not resign as a
member of the Board of Directors of the Company.
8. CONSULTING ENGAGEMENT. Effective as of the Separation Date, Company
will engage Xxxxxxx Consulting, Inc. as a consultant pursuant to a Consulting
Agreement in the form attached hereto as Exhibit A.
9. STOCK OPTIONS. Company and Employee acknowledge that Employee has
been granted an Option to Purchase Common Stock, dated May 1, 2000 (the "Option
Agreement"), under the Company's 1996 Stock Option Plan (the "Plan"). The Option
Agreement provides for a grant of options (the "Options") to purchase a total of
1,600,000 shares of common stock (as adjusted for the Company's June 19, 2001
stock dividend) of the Company upon the terms and conditions set forth in the
Plan and the Option Agreement. Employee and Company agree and acknowledge that,
as of the Separation Date, 800,000 of the Options were vested (the "Vested
Options") and 800,000 of the Options were unvested (the "Unvested Options").
Company and Employee hereby further agree as follows:
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a. The Vested Options shall remain vested and shall be
exercisable in accordance with the terms of the Option Agreement and the Plan.
b. With respect to the 400,000 Unvested Options that are
scheduled to vest on May 1, 2002, such Unvested Options shall still be eligible
for vesting on May 1, 2002 and shall be exercisable thereafter in accordance
with the Option Agreement and the Plan, unless such Unvested Options terminate
earlier pursuant to the provisions of the Option Agreement or the Plan.
c. With respect to the 400,000 Unvested Options that are
scheduled to vest on May 1, 2003, such Unvested Options shall terminate as of
the Separation Date and no longer be exercisable thereafter, except for 48,000
of such Unvested Options (the "Surviving Options"). The Surviving Options shall
vest on May 1, 2002 and be exercisable thereafter in accordance with the terms
and provisions of the Plan, unless such Unvested Options terminate earlier
pursuant to the provisions of the Operating Agreement or the Plan.
d. The Options shall no longer qualify as "incentive stock
options" under Section 422 of the Internal Revenue Code of 1986, as amended, and
Employee acknowledges that this may have certain adverse Federal income tax
consequences to Employee.
e. This Section 9 shall be deemed to be an amendment to the
Option Agreement. Except as specifically set forth in this Section 9, the Option
Agreement shall continue to remain in full force and effect in accordance with
the terms thereof, and the Option Agreement shall continue to be subject to the
terms and conditions of the Plan, including the termination provisions set forth
in Sections 6(f), (g), and (h) of the Plan. The Company acknowledges that,
because Employee has been engaged as a consultant pursuant to the Consulting
Agreement, Employee's "Continuous Status as an Employee, Director or Consultant"
(as defined in the Plan) has not terminated under Section 6(f) of the Plan by
reason of this Agreement. However, Employee acknowledges that Employee's
"Continuous Status as an Employee, Director or Consultant" will terminate on the
later of (i) the date on which Employee ceases to be a consultant to the
Company, or (ii) the date on which Employee ceases to be a director of the
Company.
10. MISCELLANEOUS.
a. In the event any provision of this Agreement is found to be
unenforceable, void, invalid or unreasonable in scope, such provision shall be
modified to the extent necessary to make it enforceable, and as so modified,
this Agreement shall remain in full force and effect.
b. The paragraph headings in this Agreement are for
convenience only and do not form any part of or affect the interpretation of
this Agreement.
c. This Agreement may be executed in counterparts, each of
which shall be deemed an original of this Agreement and all of which, when taken
together, shall be deemed to constitute one and the same Agreement.
d. The waiver by any party of a breach of any condition of
this Agreement by the other party shall not be construed as a waiver of any
subsequent breach. No waiver of any right
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hereunder shall be effective unless in writing and signed by the party against
whom the waiver is sought to be enforced.
e. The rights and obligations of the parties under this
Agreement shall inure to the benefit of, and shall be binding upon, their
respective heirs, executors, administrators, successors, assigns, subsidiaries,
affiliates, directors, officers, employees, representatives and agents, as
applicable.
f. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes any previous
employment agreements or contracts, whether written or oral, between Company and
Employee.
g. This Agreement shall be construed under, and governed by,
the laws of the State of California.
h. Employee and Company acknowledge that each has had the
opportunity to read, study, consider and deliberate upon this Agreement, and to
consult with legal counsel, and both parties fully understand and are in
complete agreement with all of the terms of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
COMPANY: EMPLOYEE:
LIQUIDMETAL TECHNOLOGIES XXXXXXX XXXXXXX
By: /s/ Xxxx Xxxx /s/ Xxxxxxx Xxxxxxx
--------------------------------- ---------------------------------
Xxxx Xxxx, Xxxxxxx Xxxxxxx, individually
President and Chief Executive
Officer
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Exhibit A
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of November 15, 2001 (the "Effective Date"), by and among
LIQUIDMETAL TECHNOLOGIES, a California corporation (the "Company"), XXXXXXX
CONSULTING, INC., a California corporation (the "Consultant"), and XXXXXXX
XXXXXXX, an individual ("Xxxxxxx").
RECITALS
WHEREAS, Xxxxxxx owns all of the issued and outstanding common stock of
Consultant;
WHERAS, effective as of the date hereof, Consultant and Xxxxxxx entered
into a Separation Agreement pursuant to which Xxxxxxx ceased to be an employee
of the Company (the "Separation Agreement");
WHEREAS, this Agreement is being entered into pursuant to Section 8 of
the Separation Agreement;
WHEREAS, upon the terms and conditions set forth in this Agreement, the
Company desires to engage the Consultant to provide consulting services to the
Company; and
WHEREAS, the Consultant desires to provide consulting services to the
Company upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the parties hereto covenant and agree as
follows:
1. CONSULTING ENGAGEMENT. The Company hereby engages the Consultant to
provide consulting services to the Company, and the Consultant hereby accepts
such engagement, upon the terms and conditions set forth in this Agreement. The
consulting services to be provided by the Consultant hereunder will be provided
on an as needed basis (as requested by the Company, in its discretion), and such
consulting services will consist of the provision of advice, information, and
consultation regarding the development, manufacture, fabrication, marketing,
distribution, and sale of amorphous metal alloys (collectively, the "Consulting
Services"). Under this Agreement, Consultant will be required to provide a
maximum of twenty (20) hours of Consulting Services during each calendar month,
as requested by the Company on an as-needed basis. To the extent that the
Company shall have any parent company, subsidiaries, affiliated corporations,
partnerships, or joint ventures (collectively "Related Entities"), the
Consultant shall, without additional compensation, perform the Consulting
Services for these entities to the same extent as for the Company. Consultant
agrees that all Consulting Services shall be provided individually by Xxxxxxx,
as agent for Consultant. Additionally, because Xxxxxxx is the sole owner, sole
board member, and sole officer of Consultant, and because this Agreement and the
Consulting Fee hereunder
will result in substantial benefits to Xxxxxxx, Xxxxxxx shall be deemed a
"Consultant" under the Company's 1996 Stock Option Plan at all times during the
Consulting Term.
2. TERM. Subject to the terms and conditions of this Agreement,
including, but not limited to, the provisions for early termination set forth in
Section 5 hereof, the consulting engagement of the Consultant under this
Agreement shall commence on the Effective Date and shall continue through
December 31, 2005 (the "Consulting Term").
3. INDEPENDENT CONTRACTOR. At all times during the Consultant's
engagement, the Consultant will act as an independent contractor. Moreover, it
is expressly agreed by the parties that no agency relationship is, or will be
deemed to have been, created by this Agreement, and no party will by reason of
this Agreement have the power or authority to bind any other party contractually
or otherwise. The Consultant will be solely responsible for the payment and
reporting of any and all federal and state taxes and withholdings due on amounts
paid hereunder, and Company will not withhold any amounts for federal, state or
local income taxes or taxes, assessments or withholding liabilities, and the
Consultant will indemnify and hold Company harmless from and against any costs,
damages or liabilities relating to any such taxes, assessments or withholdings.
In addition to the foregoing, nothing set forth in this Agreement shall be
construed as creating a partnership or joint venture between the Consultant and
the Company.
4. CONSULTING FEE.
(a) Fee. As compensation for Consultant's services and in
consideration for the Consultant's covenants contained in this Agreement, the
Company shall pay the Consultant a consulting fee of fifty thousand dollars
(US$50,000) per year (pro rated on a daily basis in the event of partial years)
during the Consulting Term (the "Consulting Fee"). The Consulting Fee shall be
payable monthly in arrears.
(b) Reimbursement of Expenses. The Consultant shall be
reimbursed for all reasonable and customary travel and other business expenses
incurred by the Consultant and approved by the Company in connection with the
performance of Consultant's duties hereunder, provided that such reimbursement
shall be subject to, and in accordance with, any travel policies, expense
reimbursement policies and/or expense documentation requirements of the Company
that may be in effect from time to time.
(cc) SUPPLEMENTAL CONSULTING FEE. BEGINNING ON THE DATE ON
WHICH XXXXXXX CEASES TO RECEIVE HEALTH BENEFITS FROM THE COMPANY AND CONTINUING
AT ALL TIMES THEREAFTER DURING THE CONSULTING TERM, THE CONSULTANT SHALL RECEIVE
A SUPPLEMENTAL CONSULTING FEE OF $600 PER MONTH DURING THE PERIOD OF TIME THAT
XXXXXXX CONTINUES TO BE ELIGIBLE FOR COBRA COVERAGE UNDER THE COMPANY'S HEALTH
PLAN AND $400 PER MONTH THEREAFTER.
5. TERMINATION.
(a) Death. The Consulting Term shall terminate early
immediately upon Consultant's death. In the event of a termination pursuant to
this Section 5(a), the
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Consultant's estate shall be entitled to receive any unpaid Consulting Fees
owing to Consultant up through and including the date of the Consultant's death.
(b) Termination By Consultant. Consultant may, prior to the
scheduled expiration of the Consulting Term, terminate the Consulting Term at
any time without cause and without penalty, provided that at least thirty (30)
days' prior written notice of termination is provided by the Consultant to the
Company. In the event of a termination pursuant to this Section 5(b), the
Consultant shall be entitled to receive any unpaid Consulting Fees owing to
Consultant up through and including the effective date of the termination of the
Consulting Term.
(c) Termination By Company With Cause. The Company may
terminate the Consulting Term at any time with Cause. As used in this Agreement,
"Cause" shall include any of the following acts or omissions by Consultant or
Xxxxxxx: (1) the Consultant's failure or inability to perform Consultant's
duties under this Agreement; (2) dishonesty or other serious misconduct, (3) the
commission of an unlawful act material to Consultant's engagement hereunder, (4)
a material violation of the Company's policies or practices which reasonably
justifies immediate termination; (5) committing, pleading guilty, nolo contendre
or no contest (or their equivalent) to, entering into a pretrial intervention or
diversion program regarding, or conviction of, a felony or any crime or act
involving moral turpitude, fraud, dishonesty, or misrepresentation; (6) the
commission by the Consultant of any act which could reasonably affect or impact
to a material degree the interests of the Company or Related Entities or in some
manner injure the reputation, business, or business relationships of the Company
or Related Entities; or (7) any material breach by the Consultant of this
Agreement. The Company may terminate the Consulting Term for Cause at any time
without notice. In the event of a termination for Cause, the Company shall be
relieved of all its obligations to the Consultant provided for by this Agreement
as of the effective date of termination, and all payments to the Consultant
hereunder shall immediately cease and terminate as of such date, except that
Consultant shall be entitled to the Consulting Fee hereunder up to and including
the effective date of termination.
(d) Survival of Certain Provisions. The provisions set forth
in Sections 6 through 13 of this Agreement shall survive the expiration or
termination of the Consulting Term, regardless of the reason for termination and
regardless of which party causes the termination.
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6. NONSOLICITATION AND NONDISCLOSURE COVENANTS.
(a) Rationale for Restrictions. Consultant and Xxxxxxx
acknowledge that the Consulting Services to be provided hereunder are of a
special, unique, and extraordinary character, and Consultant's engagement by the
Company places Consultant and Xxxxxxx in a position of confidence and trust with
customers, suppliers, and other persons and entities with whom the Company and
its Related Entities have a business relationship. The Consultant and Xxxxxxx
further acknowledge that the rendering of services under this Agreement will
likely require the disclosure to Consultant of Confidential Information (as
defined below) relating to the Company and/or Related Entities. As a
consequence, the Consultant and Xxxxxxx agrees that it is reasonable and
necessary for the protection of the goodwill and legitimate business interests
of the Company and Related Entities that the Consultant and Xxxxxxx make the
covenants contained in this Section 6, that such covenants are a material
inducement for the Company to engage the Consultant and to enter into this
Agreement, and that the covenants are given as an integral part of and incident
to this Agreement.
(b) Nonsolicitation Covenants. As used herein, the term
"Restrictive Period" means the time period commencing on the Effective Date of
this Agreement and ending on the second (2nd) anniversary of the date on which
the Consulting Term expires or is terminated. In addition, the term "Covered
Business" means any business which is the same as, or similar to, any business
conducted by the Company or any of the Related Entities at any time during the
Restrictive Period. The Consultant and Xxxxxxx agree that the Consultant and
Xxxxxxx will not engage in any of the following acts anywhere in the world
during the Restrictive Period:
(i) directly or indirectly assist, promote or encourage
any existing or potential employees, customers,
clients, or vendors of the Company or any Related
Entity, as well as any other parties which have a
business relationship with the Company or a Related
Entity, to terminate, discontinue, or reduce the
extent of their relationship with the Company or a
Related Entity;
(ii) directly or indirectly solicit business of the same
or similar type as a Covered Business, from any
person or entity known by the Consultant or Xxxxxxx
to be a customer or client of the Company, whether or
not the Consultant had contact with such person or
entity during the Consultant's engagement by the
Company;
(iii) disparage the Company, any Related Entities, and/or
any shareholder, director, officer, employee, or
agent of the Company or any Related Entity; and/or
(iv) engage in any practice the purpose of which is to
evade the provisions of this Section 6 or commit any
act which adversely affects the Company, any Related
Entity, or their respective businesses.
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The Consultant and Xxxxxxx acknowledge and agrees that, in light of the unique
nature of the Company's business, the Company will market its products on a
worldwide basis and will compete with various companies and businesses across
and world. Accordingly, the Consultant and Xxxxxxx agree that the geographic
scope of the above covenants is a reasonable means of protecting the Company's
(and the Related Entities') legitimate business interests.
(c) Disclosure of Confidential Information. The Consultant and
Xxxxxxx acknowledge that the inventions, innovations, software, trade secrets,
business plans, financial strategies, finances, and all other confidential or
proprietary information with respect to the business and operations of the
Company and Related Entities are valuable, special, and unique assets of the
Company. Accordingly, the Consultant and Xxxxxxx agree not to, at any time
whatsoever either during or after the Consulting Term, disclose, directly or
indirectly, to any person or entity, or use or authorize any person or entity to
use, any confidential or proprietary information with respect to the Company or
Related Entities without the prior written consent of the Company, including,
without limitation, information as to the financial condition, results of
operations, identities of clients or prospective clients, products under
development, acquisition strategies or acquisitions under consideration, pricing
or cost information, marketing strategies or any other information relating to
the Company or any of the Related Entities which could be reasonably regarded as
confidential (collectively referred to as "Confidential Information"). However,
the term "Confidential Information" does not include any information which is or
shall become generally available to the public other than as a result of
disclosure by the Consultant, Xxxxxxx, or by any person or entity which the
Consultant or Xxxxxxx knows (or which they reasonably should know) has a duty of
confidentiality to the Company or a Related Entity with respect to such
information. In addition to the foregoing, Company will be fully entitled to all
of the protections and benefits afforded by the California Uniform Trade Secrets
Act and other applicable law.
(d) Prevention of Premature Disclosure of Information. The
Consultant and Xxxxxxx agree and acknowledge that, because the success of the
Company is heavily dependent upon maintaining the secrecy of the Company's
Confidential Information and preventing the premature public disclosure of the
Company's proprietary information and technology, they agree to use their best
efforts and highest degree of care, diligence, and prudence to ensure that no
Confidential Information prematurely leaks or otherwise prematurely makes its
way into the public domain or any public forum, including, without limitation,
into any trade publications, internet chat rooms, or other similar forums. In
the event that the Consultant or Xxxxxxx becomes aware of any premature leak of
Confidential Information or becomes aware of any circumstances creating a risk
of such a leak, the Consultant or Xxxxxxx shall immediately inform the Company
of such leak or of such circumstances.
(e) Removal and Return of Proprietary Items. The Consultant
and Xxxxxxx will not remove from the Company's premises (except to the extent
such removal is for purposes of the performance of the Consulting Services at
home or while traveling, or except as otherwise specifically authorized by the
Company) any document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Consultant and Xxxxxxx recognize
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that, as between the Company and the Consultant, all of the Proprietary Items,
whether or not developed by the Consultant, are the exclusive property of the
Company. Upon expiration or termination of the Consulting Term, or upon the
request of the Company during the Consulting Term, the Consultant will return to
the Company all of the Proprietary Items in the Consultant's possession or
subject to the Consultant's control, and the Consultant shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(f) Enforcement and Remedies. In the event of any breach of
any of the covenants set forth in this Section 6, the Consultant and Xxxxxxx
recognize that the remedies at law will be inadequate and that in addition to
any relief at law which may be available to the Company for such violation or
breach and regardless of any other provision contained in this Agreement, the
Company shall be entitled to equitable remedies (including an injunction) and
such other relief as a court may grant after considering the intent of this
Section 6. Additionally, the period of time applicable to any covenant set forth
in this Section 6 will be extended by the duration of any violation by the
Consultant or Xxxxxxx of such covenant. In the event a court of competent
jurisdiction determines that any of the covenants set forth in this Section 6
are excessively broad as to duration, geographic scope, prohibited activities or
otherwise, the parties agree that this covenant shall be reduced or curtailed to
the extent, but only to the extent, necessary to render it enforceable.
7. WORK PRODUCT.
(a) Definition. For purposes of this Agreement, "Work Product"
means any idea, invention, technique, modification, process, or improvement
(whether patentable or not), any industrial design (whether registerable or
not), any mask work, however fixed or encoded, that is suitable to be fixed,
embedded or programmed in a semiconductor product (whether recordable or not),
and any work of authorship (whether or not copyright protection may be obtained
for it) created, conceived, or developed by the Consultant or Xxxxxxx, either
solely or in conjunction with others, during the Consulting Term or during the
six (6) month period following the Consulting Term, that relates in any way to
amorphous alloys (or composites containing amorphous alloys), including the
composition, processing, application, or marketing of amorphous alloys (or
composites containing amorphous alloys).
(b) Ownership of Work Product. Consultant and Xxxxxxx agree
and acknowledge that all Work Product will belong exclusively to the Company and
that all items of Work Product are works made for hire and the property of the
Company, including any copyrights, patents, semiconductor mask protection, or
other intellectual property rights pertaining thereto. If it is determined that
any such works are not works made for hire, the Consultant and Xxxxxxx hereby
assign to the Company all of their right, title, and interest, including all
rights of copyright, patent, semiconductor mask protection, and other
intellectual property rights, to or in such Work Product. The Consultant and
Xxxxxxx covenant that they will promptly:
(i) disclose to the Company in writing any Work Product;
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(ii) assign to the Company or to a party designated by the
Company, at the Company's request and without
additional compensation, all of the Consultant's and
Xxxxxxx' right to the Work Product for the United
States and all foreign jurisdictions;
(iii) execute and deliver to the Company such applications,
assignments, and other documents as the Company may
request in order to apply for and obtain patents or
other registrations with respect to any Work Product
in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Company's rights to any Work Product.
8. ESSENTIAL AND INDEPENDENT COVENANTS. The Consultant's and Xxxxxxx'
covenants in Sections 6 and 7 of this Agreement are independent covenants, and
the existence of any claim by the Consultant against the Company under this
Agreement or otherwise will not excuse the Consultant's breach of any covenant
in Section 6 or 7.
9. REPRESENTATIONS AND WARRANTIES BY THE CONSULTANT. The Consultant and
Xxxxxxx represent and warrant to the Company that the execution and delivery by
the Consultant of this Agreement do not, and the performance by the Consultant
of the Consultant's obligations hereunder will not, with or without the giving
of notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to the Consultant, or (b) conflict with, result in the breach of any provisions
of or the termination of, or constitute a default under, any agreement to which
the Consultant or Xxxxxxx is a party or by which the Consultant or Xxxxxxx is or
may be bound, including, without limitation, any noncompetition agreement or
similar agreement.
10. NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by facsimile transmission (as
long as receipt is acknowledged), or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed to the
address or facsimile number for each party set forth on the signature page
hereto, or to such other address or facsimile number as any party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon receipt.
11. MISCELLANEOUS. No provision of this Agreement may be modified or
waived unless such waiver or modification is agreed to in writing signed by any
of the parties hereto. No waiver by any party hereto of any breach by any other
party hereto shall be deemed a waiver of any similar or dissimilar term or
condition at the same or at any prior or subsequent time. This Agreement is the
entire agreement between the parties hereto with respect to the Consultant's
engagement by the Company, and there are no agreements or representations, oral
or otherwise, expressed or implied, with respect to or related to the engagement
of the
7
Consultant which are not set forth in this Agreement. This Agreement shall be
binding upon, and inure to the benefit of, the Company and Consultant, and their
respective successors and assigns, and the Xxxxxxx and Xxxxxxx' heirs,
executors, administrators and legal representatives. The duties and covenants of
the Consultant and Xxxxxxx under this Agreement, being personal, may not be
delegated or assigned by the Consultant or Xxxxxxx without the prior written
consent of the Company, and any attempted delegation or assignment without such
prior written consent shall be null and void and without legal effect. The
parties agree that if any provision of this Agreement shall under any
circumstances be deemed invalid or inoperative, the Agreement shall be construed
with the invalid or inoperative provision deleted and the rights and obligations
of the parties shall be construed and enforced accordingly.
12. GOVERNING LAW; RESOLUTION OF DISPUTES. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Florida without regard to principles of
choice of law or conflicts of law thereunder. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Florida, County of Hillsborough, or, if it has or can acquire jurisdiction,
in the United States District Court located in Hillsborough County, Florida, and
each of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred to
in the preceding sentence may be served on any party anywhere in the world. THE
PARTIES HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION ARISING UNDER OR RELATING TO
THIS AGREEMENT.
13. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Agreement
may be effective upon the execution and delivery by any party hereto of
facsimile copies of signature pages hereto duly executed by such party;
provided, however, that any party delivering a facsimile signature page
covenants and agrees to deliver promptly after the date hereof two (2) original
copies to the other party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
LIQUIDMETAL TECHNOLOGIES
By: /s/ Xxxx Xxxx
Xxxx Xxxx, President and Chief
Executive Officer
Liquidmetal Technologies
000 Xxxxx Xxxxx Xx., Xxxxx 0000
0
Xxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
XXXXXXX CONSULTING, INC.
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, President
XXXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, individually
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