CONSULTING AGREEMENT
EXHIBIT
10.28
This
Consulting Agreement (“Agreement”) is made and entered into effective as of the
1st day of
November, 2004 (“Effective Date”), by and between Fiberstars, Inc., a California
corporation having a place of business at 00000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx
00000 (“Fiberstars”), and Xxxxxxx Architecture, Design & Planning, P.C., a
New York Professional Corporation, having a place of business at Xxx Xxxxxxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (“Consultant”). The parties hereby
agree as follows:
1. Term
of Agreement.
This Agreement shall be effective on the Effective Date and will continue in
effect until December
15, 2007.
2. Services.
(a) Consultant
agrees to perform the services (the “Services”) and in accordance with the
specifications set forth on Exhibit A attached hereto (the “Services”).
Consultant shall perform all Services in a professional and timely manner.
(b) Unless
otherwise specified on Exhibit A, Consultant shall provide the facilities,
tools, equipment and materials necessary to perform the Services, at its own
expense.
(c) Approximately
once each month, a representative of Fiberstars and Consultant will meet in
person or by telephone, as mutually agreed, for a formal progress presentation,
and discussion of possible resolution of any problems which have arisen.
Additionally, Consultant will provide Fiberstars with verbal reports, written
reports, or both, regarding the Services as reasonably requested by
Fiberstars.
(d) Consultant
will, while working on Fiberstars’ premises, observe Fiberstars’ rules and
policies relating to the security of, access to or use of such
premises.
(e) Consultant
represents that all Services provided by Consultant under this Agreement comply,
and in all cases will comply, with all applicable laws, regulations and
rules.
(f) Consultant
represents that it has no outstanding agreement or obligation that is in
conflict with any of the provisions of this Agreement, or that would preclude
Consultant from performing its obligations hereunder, and further represents and
warrants that it will not enter into any such conflicting agreement during the
term of this Agreement.
3. Fees;
Expenses; Taxes.
(a) Fiberstars
will compensate Consultant according to the fee schedule set forth on Exhibit A
for Services performed by Consultant under this Agreement.
(b) The fee
payable under this Agreement shall be construed to include local, state and
federal sales, use, value-added, excise, personal property and all other taxes
or duties, and all such taxes and duties shall be assumed and paid for by
Consultant. Consultant shall be solely responsible for and shall make proper and
timely payment of any taxes.
(c) FIBERSTARS’
MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT, AND ONLY THIS AGREEMENT, SHALL
BE LIMITED TO THE SCHEDULED FEE, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT
OR OTHERWISE, AND IRRESPECTIVE OF WHETHER FIBERSTARS HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT WILL FIBERSTARS BE LIABLE
FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY
KIND.
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4. Independent
Consultant Relationship.
Consultant and Fiberstars agree that no employment relationship is created by
this Agreement. Fiberstars is interested only in the results to be achieved.
Consultant is an independent contractor and no employee of Consultant will be
considered an agent or common law employee of Fiberstars for any purpose by
reason of this Agreement. Employees of Consultant are not entitled or eligible
to receive any benefits that Fiberstars provides to its common law employees,
including but not limited to, health insurance, life insurance, participation in
Fiberstars’ stock option plan, or other similar benefits. Consultant will have
no authority to enter into contracts that bind Fiberstars or create obligations
on the part of Fiberstars without the prior written authorization of Fiberstars.
Consultant represents and warrants that Consultant has obtained and, during the
term of this Agreement, will maintain its own federal tax ID number and EIN.
Within ten (10) days after the Effective Date, Consultant shall provide
Fiberstars with a completed W 9 form. No FICA, FUTA or State unemployment taxes
will be payable by Fiberstars on Consultant’s behalf or on behalf of its
employees. If a business license is required in Consultant’s locality,
Consultant shall secure such a license at Consultant’s expense, and shall
provide Fiberstars with the date of issuance and license number.
5. Consultant’s
Insurance Obligations.
Consultant is solely responsible for securing and maintaining workers’
compensation and/or disability insurance, if legally required, for Consultant’s
employees. Upon Fiberstars’ request, Consultant will provide Fiberstars with
proof of Consultant’s workers’ compensation coverage. During the term of this
Agreement, Consultant will maintain comprehensive general liability, automotive
liability and other appropriate coverage. Such insurance shall have a combined
single limit of not less than USD$2,000,000.
6. Confidential
Information.
(a) “Confidential
Information” shall mean (i) information relating to Fiberstars’ existing and
future services and/or products, including, where appropriate and without
limitation, works of authorship, proprietary technology, techniques, procedures,
algorithms, trade secrets, discoveries, ideas, inventions (whether patentable or
not), concepts, know-how, designs, schematics, specifications, drawings,
diagrams, data, formulae, models, reports, studies, statistics, prototypes,
computer programs, patent disclosures, patent applications, development or
experimental work, formulae, engineering or test data, product specifications,
product development plans, structures, methods and processes disclosed by
Fiberstars to Consultant or obtained or created by Consultant through
observation or examination of information or otherwise in connection with this
Agreement; (ii) marketing information (including without limitation marketing
strategies, customer lists and requirements and product prices); (iii) future
product or service plans; (iv) financial information provided to Consultant by
Fiberstars; (v) personnel information (including without limitation contractor
or employee compensation); and (vi) other confidential business information.
Confidential Information shall also include descriptions of the existence or
progress of the above-described information.
(b) At all
times during this Agreement and at all times thereafter, Consultant will keep in
strict confidence and trust all Confidential Information, and Consultant will
not use, reproduce or disclose any Confidential Information without the written
consent of Fiberstars, except as may be necessary in the ordinary course of
performing Consultant’s duties under this Agreement. The foregoing obligations
of Consultant shall continue until such time as the Confidential Information is
publicly known, without fault on the part of Consultant.
(c) Consultant
recognizes that Fiberstars has received and in the future will receive
information from third parties which is confidential and/or proprietary
information subject to a duty on Fiberstars’ 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 Fiberstars and such third parties a duty to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it, except as necessary in carrying out Consultant’s work for
Fiberstars and then only as consistent with Fiberstars’ agreement with the
applicable third party, and not to use it for the benefit of anyone other than
for Fiberstars or such third party consistent with Fiberstars’ agreement with
such third party.
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(d) Consultant
further acknowledges and agrees that the names, addresses and product
specifications of Fiberstars’ customers constitute Confidential Information and
that the sale or unauthorized use or disclosure of this or any other
Confidential Information that Consultant obtains during the course of its
providing Services for Fiberstars would constitute unfair competition with
Fiberstars. Consultant promises not to engage in any unfair competition with
Fiberstars either during the term of its providing Services for Fiberstars or at
any time thereafter.
(e) If
Consultant is subject to legal, judicial or governmental proceedings requiring
disclosure of Confidential Information, then, prior to any such disclosure,
Consultant will provide Fiberstars with reasonable prior notice and an
opportunity to obtain a protective order or confidential treatment of, or a
confidentiality agreement with respect to, the Confidential
Information.
(f) All
Fiberstars property, including, but not limited to, Confidential Information,
reports, documents, data, records, equipment, video tapes, film and other
tangible property, whether or not pertaining to Confidential Information,
provided to Consultant by Fiberstars or produced by Consultant or others in
connection with Consultant providing Services under this Agreement shall be and
remain the sole property of Fiberstars and shall be returned promptly to
Fiberstars as and when requested by Fiberstars.
(g) Consultant
must not use Fiberstars’ name or logo in any advertising nor as a reference for
any promotional purposes without Fiberstars’ prior written consent.
(h) Consultant
reserves the right to approve all instances where Consultant’s name is suggested
by Fiberstars for use in connection with Fiberstars’ business or products.
Fiberstars will not use Consultant’s name or the names of Consultant’s
directors, officers, employees or agents in advertisements, catalogs or other
materials related to the Services or Fiberstars’ products without first
obtaining Consultant’s written consent prior to publication of the specific
material. In addition, regardless of whether Consultant consents to the use of
its name with respect to a particular Fiberstars product or product line,
Fiberstars will not represent or imply to others that Consultant or its
directors, officers, employees or agents endorse, support or have any
involvement with any of Fiberstars other products or product lines, goods or
services. Consultant shall not to unreasonably withhold or delay its providing
approval and/or consent after receipt of written request for the same from
Fiberstars.
(i) The
parties acknowledge that (i) the restrictions and obligations contained in
this Section 6 are reasonable and necessary to protect the parties’ legitimate
interests; (ii) in the event of the other party’s violation of these
restrictions or breach of these obligations, remedies at law will be inadequate
and violation or breach may cause irreparable damages to the offended party
within a short period of time; and (iii) the offended party will be
entitled to injunctive relief, without posting bond or other security, against
the other party for each and every violation or breach, provided the other party
is given lawful notice of the proceeding and an opportunity to appear. The
offended party shall be entitled to recover from the other party any costs or
expenses incurred in obtaining relief against breach of this Agreement by the
other party, including, but not limited to, legal fees and costs. Nothing in
this Section shall be construed as prohibiting the offended party from pursuing
any other remedies available to it for such breach or threatened breach,
including recovery of damages from the other party. The generality of the
foregoing notwithstanding, Consultant’s unreasonable delay or failure to provide
the consent or approval contemplated pursuant to Section 6(h) above shall
not support injunctive relief but shall be grounds for Fiberstars’ unilateral
termination of this Agreement without limiting other remedies which may be
available to it at law.
7. Representations.
Consultant hereby further represents and agrees as follows:
(a) Consultant
has and will continue to have the full right, power and authority to enter into
this Agreement, to perform the terms and conditions of this Agreement, to grant
the rights herein granted to Fiberstars, to make the representations and
warranties contained herein, to otherwise perform hereunder, and to vest in
Fiberstars all the rights as provided in this Agreement, free and clear of any
and all claims, encumbrances, liens and rights of third parties.
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8. No
Solicitation.
Consultant agrees that during the term of this Agreement and for a period of
twelve months thereafter, Consultant will not either directly or indirectly
solicit, induce, recruit or encourage any of Fiberstars’ employees or
contractors to terminate their relationship with Fiberstars, or attempt to do
any of the foregoing, either for Consultant or for any third party.
9. Cumulative
Remedies.
Any and all rights and remedies of Fiberstars upon Consultant’s breach of or
default under this Agreement are cumulative with and not exclusive of any other
right or remedy conferred by this Agreement or by law or equity on Fiberstars,
and Fiberstars’ exercise of any one remedy will not preclude the exercise of any
other.
10. Assignment;
Successors and Assigns.
The parties agree that this is a contract for Consultant’s personal services and
cannot in any way be assumed or assigned by, or delegated to, any third party
without Fiberstars’ prior express written permission. Any attempted assumption,
assignment or delegation by Consultant without the required consent is void.
With the consent of Consultant, which consent shall not be unreasonably delayed
or withheld, Fiberstars may freely assign its rights, obligations and/or this
Agreement. This Agreement inures to the benefit of permitted successors and
assigns of Fiberstars, and is binding upon Consultant’s successors and
assigns.
11. Notices.
Any notice required or permitted to be given by either party under this
Agreement will be in writing and will be personally delivered or sent by a
reputable overnight mail service (e.g., Federal Express), or by first class mail
(certified or registered), or by facsimile confirmed by first class mail
(registered or certified), to the other party. Notices will be deemed effective
(i) three (3) working days after deposit, postage prepaid, if mailed,
(ii) the next day if sent by overnight mail, or (iii) the same day if
sent by facsimile and confirmed as set forth above. A copy of any notice to
Fiberstars will be sent to the following:
| Fiberstars, Inc. | Xxxxxxx Architecture, Design & Planning PC |
| 00000 Xxxxx Xxxxx | Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 000 |
| Xxxxxxx, XX 00000 | Xxx Xxxx, Xxx Xxxx 00000 |
| Attn: Chief Financial Officer | Attn. Chief Financial Officer |
| Fax: (000) 000-0000 | Fax: (000) 000-0000 |
12. Governing
Law.
This Agreement and any action related thereto will be governed, controlled,
interpreted and defined by and under the laws of the State of California and the
United States, without regard to the conflicts of laws provisions thereof. The
exclusive jurisdiction and venue of any action with respect to the subject
matter of this Agreement will be the state courts of the State of California for
the County of Santa Xxxxx or the United States District Court for the Northern
District of California and each of the parties hereto submits itself to the
exclusive jurisdiction and venue of such courts for the purpose of any such
action. The parties agree that service of process by US mail certified, to the
last known address of a party, as provided or as changed in accordance with the
provisions of this Agreement, shall be valid.
13. Miscellaneous.
This Agreement supersedes and cancels any and all previous agreements of
whatever nature between Fiberstars and Consultant with respect to the matters
covered herein, including, without limitation, agreements reflected by
correspondence between the parties and dated November 25, 2003 and
November 26, 2003; for clarity, however, this Agreement is not intended to
supercede, cancel, modify, alter or amend that written agreement between the
parties dated March 14, 2003 and fashioned Agreement for Product Design
Consulting Services for Task Light and General Office Light, including any
written amendment thereof or addendum thereto. This Agreement constitutes the
full, complete and exclusive agreement between Consultant and Fiberstars with
respect to the subject matters herein. No modification or waiver of this
Agreement, or any portion hereof, shall be valid unless made in writing and
signed by the parties hereto. The failure of any party to require performance by
another party of any provision of this Agreement shall in no way affect the full
right to require such performance at any time thereafter. Should any provisions
of this Agreement be found unenforceable, the remainder shall still be in
effect. This Agreement has been negotiated by the parties and their respective
attorneys, and the language of this Agreement shall not be construed for or
against either party. The headings are not part of this Agreement. Either the
original or copies, including facsimile transmissions, of this Agreement, may be
executed in counterparts, each of which shall be an original as against any
party whose signature appears on such counterpart and all of which together
shall constitute one and the same instrument.
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| Accepted and Agreed: | |||
| CONSULTANT: | FIBERSTARS: | ||
| By: /s/ Xxxxxx Xxxxxxxx | By: /s/ Xxxxx Xxxxxxx | ||
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| Print Name | Print Name | ||
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| As Its: Managing Principal | As Its: President & CEO | ||
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EXHIBIT
A
STATEMENT
OF WORK
1. GENERAL
This is a
Statement of Work under the Consulting Agreement by and between Consultant,
(“Consultant”) and Fiberstars (“Fiberstars”) dated November 1, 2004
(“Agreement”) and is subject to the terms and conditions of the
Agreement.
2. SUMMARY
OF THE SERVICES
Consultant’s
ongoing services:
| · |
Provide
consulting services and assistance to Fiberstars with regard to the
structure, policies and procedures of its marketing group as it relates to
Fiberstars’ marketing to the design, real estate and procurement
communities together with other sectors within the built
environment; |
| · |
Identify
opportunities for Fiberstars to participate in trade shows, conferences
and other forum which Consultant believes would be advantageous to
Fiberstars’ marketing efforts; |
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Consult
and advise on strategies to enhance Fiberstars’ image within the design
and construction community as a preferred technology in support of
sustainable design. |
3. FIBERSTARS
REPRESENTATIVE
Xxxxx
Xxxxxxx, Chief Executive Officer.
4. FEE
Consultant’s
sole fee (“Fee”) for Services shall be:
(i) A
one-time cash payment of $60,750 payable on or before December 15, 2004 for the
Services provided through December 15, 2004; and,
(ii) A
one-time non-statutory option to acquire up to 75,000 shares of Fiberstars
common stock (the “Option Award”), as follows:
(a) Price:
the per
share exercise price for each option share under the Option Award shall be
$6.57.
(b) Vesting:
the right
to exercise options under Option Award shall be subject to equal annual vesting
for so long as Consultant continues to provide Services as of the end of such
one year period over the term of this Agreement with a vesting commencement date
of December 15, 2004, such that 25,000 option shares shall be deemed vested and
exercisable as of December 15, 2005, an additional 25,000 option shares shall be
deemed vested and become exercisable as of December 15, 2006, and the remaining
25,000 shares shall be deemed vested and become exercisable as of December 15,
2007. Vesting shall terminate as of the date Consultant ceases to provide
Services under the Agreement. Vested options shall be exercisable for up to
12 months after Consultant ceases to be a provider of Services under the
Agreement. The foregoing notwithstanding (i) in the event that Consultant
exercises its discretion pursuant to Section 12(a) of the Agreement to
terminate the Agreement prior to its expiration in the absence of a breach by
Fiberstars, Consultant’s right to exercise unexercised vested options shall
immediately terminate effective with Consultant’s delivery to Fiberstars of
notice of its intent to so terminate the Agreement, and (ii) in the event of a
change of control of Fiberstars prior to the expiration or termination of this
Agreement, all unvested option shares shall immediately vest.
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(c) Option
Agreement. The
Parties shall execute an option award agreement consistent with the foregoing
and with each of Fiberstars’ standard form of non-statutory option agreement (as
modified to conform herewith) and Fiberstars’ 2004 Stock Incentive
Plan.
(iii) An
aggregate annual cash payment to be paid in quarterly installments of $12,500 in
arrears for each of the calendar years 2005, 2006 and 2007.
The
parties, through their authorized representatives, hereby agree to the terms of
this Statement of Work.
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CONSULTANT
GENSLER |
FIBERSTARS | ||
| By: /s/ Xxxxxx Xxxxxxxx | By: /s/ Xxxxx Xxxxxxx | ||
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| Name: | Name: | ||
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| Title: Managing Principal | Title: President & CEO | ||
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