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Exhibit 10.28
This CONSULTING AGREEMENT (the "Agreement"), made this first day of July, 1996,
is entered into by American Superconductor Corporation of Westborough,
Massachusetts (hereinafter together with its successors and assigns "ASC"), and
The Xxxxxxxx Group, (the "Consultant), located at 000 Xxxx Xxxxxx, Xx. Xxxxxxxx,
XX.
INTRODUCTION
ASC desires to retain the services of the Consultant and the Consultant desires
to perform certain services of ASC. In consideration of the mutual covenants and
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto, the
parties agree as follows:
1. Services. The consultant agrees to perform such consulting, advisory
and related services to and for ASC as may be reasonably requested from time to
time by ASC. During the Consultation Period (as defined below), the Consultant
shall not engage in any activity that has a conflict of interest with ASC,
including any competitive employment, business or other activity, and he shall
not assist any other person or organization that competes, or intends to
compete, with ASC.
2. Term.
2.1 This Agreement shall commence on the date hereof and shall continue
for a 12-month period ending on June 30, 1997 (such period, as it may be
extended, being referred to as the "Consultation Period"), unless sooner
terminated in accordance with the provisions of Section 4.
2.2 This agreement does not constitute an offer of permanent employment
to the Consultant by ASC and does not obligate ASC to employ the Consultant for
a period of time other than that specified in section 2.1.
3. Compensation
3.1 Consulting Fees. ASC shall pay to the Consultant a retainer of
$10,000.00, in quarterly increments of $2,500.00, payable on the 15th day of the
first month of each quarter.
3.2 Reimbursement of Expenses. ASC shall reimburse the Consultant for
all reasonable and necessary expenses incurred or paid by the Consultant in
connection with, or related to, the performance of his services under this
Agreement. The Consultant shall submit to ASC itemized monthly statements with
appropriate receipts, in a form satisfactory to ASC, of such expenses incurred
in the previous month. ASC shall pay the Consultant amounts shown on each such
statement within 30 days after receipt thereof. Notwithstanding the foregoing,
the Consultant shall not incur total expenses in excess of $2,000.00 without
prior written approval of ASC.
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3.3 Benefits. The Consultant shall not be entitled to any benefits,
coverages or privileges, including, without limitation, social security,
unemployment, medical or pension payments, made available to employees of ASC.
4. Termination. ASC may, without prejudice to any right or remedy it may have
due to any failure of the Consultant to perform his obligations under this
Agreement, terminate the Consultation Period upon 30 days' prior written notice
to the Consultant. In the event of such termination, the Consultant shall be
entitled to payment of services performed and expenses paid or incurred prior to
the effective date of termination, subject to the limitation on reimbursement of
expenses set forth in Section 3.2. Such payments shall constitute full
settlement of any and all claims of the Consultant of every description against
ASC. Notwithstanding the foregoing, ASC may terminate the Consultation Period,
effective immediately upon receipt of written notice, if the Consultant breaches
or threatens to breach any provision of Section 6.
5. Cooperation. The Consultant shall use his best efforts in the performance of
his obligation under this Agreement. ASC shall provide such access to its
information and property as may be reasonably required in order to permit the
Consultant to perform his obligations hereunder. The Consultant shall cooperate
with ASC's personnel, shall not interfere with the conduct of ASC's business and
shall observe all rules, regulations and security requirements of ASC concerning
the safety of persons and property.
6. Inventions and Proprietary Information.
6.1 Inventions.
(a) All inventions, discoveries, computer programs, data,
technology, designs, innovations an and improvements (whether or not patentable
and whether or not copyrightable) ("Inventions") related to the business of ASC
which are made, conceived, reduced to practice, created, written, designed or
developed by the Consultant, solely or jointly with others and whether during
normal business hours or otherwise, during the Consultation Period or thereafter
if resulting or directly derived from Proprietary Information (as defined
below), shall be the sole property of ASC. The Consultant hereby assigns ASC all
Inventions and any and all related patents, copyrights, trademarks, trade names,
and other industrial and intellectual property rights and applications
therefore, in the United States and elsewhere and appoints any officer of ASC as
his duly authorized attorney to execute, file, prosecute and protect the same
before any government agency, court or authority. All such Inventions shall, to
the extent permitted by law, be regarded as "work for hire". Upon the request of
ASC and at ASC's expense, the Consultant shall execute such further assignments,
documents and other instruments as may be necessary or desirable to fully and
completely assign all Inventions to ASC and to assist ASC in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Invention.
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(b) The Consultant shall promptly disclose to ASC all
Inventions and will maintain adequate and current written records (in the form
of notes, sketches, drawings and as may be specified by ASC) to document the
conception and/or first actual reduction to practice of any Invention. Such
written records shall be available to and remain the sole property of ASC at all
times.
6.2 Proprietary Information
(a) The Consultant acknowledges that his relationship with ASC
is one of high trust and confidence and that in the course of his service to ASC
he will have access to and contact with Proprietary Information. The Consultant
agrees that he will not, during the Consultation Period or at any time
thereafter, disclose to others, or use for his benefit or the benefit of others,
any Proprietary Information or Invention.
(b) For purposes of this Agreement, Proprietary Information
shall mean, by way of illustration and not limitation, all information (whether
or not patentable and whether or not copyrightable) owned, possessed or used by
ASC, including, without limitation, any Invention, formula, vendor information,
customer information, apparatus, equipment, trade secret, process, research,
report, technical data, know-how, computer program software, software
documentation, hardware design, technology, marketing or business plan,
forecast, unpublished financial statement, budget, license, price, cost and
employee list that is communicated to, learned of, developed or otherwise
acquired by the Consultant in the course of his service as a consultant to ASC.
(c) The Consultant's obligations under this Section 6.2 shall
not apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Consultant or others of the terms
of this Section 6.2, (ii) is generally disclosed to third parties by ASC without
restrictions on such third parties, or (iii) is approved for release by written
authorization of the Board of Directors of ASC.
(d) Upon termination of this Agreement or at any other time
upon request by ASC, the Consultant shall promptly deliver to ASC all records,
files, memoranda, notes, designs, data, reports, price lists, customer lists,
drawings, plans, computer programs, software, software documentation, sketches,
laboratory and research notebooks and other documents (and all copies or
reproductions of such materials) relating to the business of ASC.
(e) The Consultant represents that his retention as a
consultant with ASC and his performance under this Agreement does not, and shall
not, breach any agreement that obligates him to keep in confidence any trade
secrets of confidential or proprietary information of his or of any other
confidential or proprietary information of his or of any other party or to
refrain from competing, directly or
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indirectly, with the business of any other party. The Consultant shall not
disclose to ASC any trade secrets or confidential or proprietary information of
any other party.
(f) The Consultant acknowledges that ASC from time to time may
have agreements with other persons or with the United States Government, or
agencies thereof, that impose obligations or restrictions on ASC regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. The Consultant agrees to be bound by all such
obligations and restrictions that are known to him and to take all action
necessary to discharge the obligations of ASC under such agreements.
6.3 Remedies. The Consultant acknowledges that any breach of the
provisions of this Section 6 shall result in serious and irreparable injury to
ASC for which ASC cannot be adequately compensated by monetary damages alone.
The Consultant agrees, therefore, that, in addition to any other remedy it may
have, ASC shall be entitled to enforce the specific performance of this
Agreement by the Consultant and to seek both temporary and permanent injunctive
relief (to the extent permitted by law) without the necessity of proving actual
damages.
7. Export Regulations. All technical data or commodities of United States origin
made available directly or indirectly hereunder for use outside the United
States shall be used subject to and in accordance with any applicable laws and
regulations of the departments and agencies of the United States Government. The
Consultant agrees not to reexport, directly or indirectly, any technical data of
United States origin acquired from the AMERICAN SUPERCONDUCTOR or any
commodities using such data to any destination requiring United States
Government approval for such reexport until a request for approval has been
submitted to and granted by the United States Government.
8. Independent Contractor Status. The Consultant shall perform all services
under this Agreement as an "independent contractor" and not as an employee or
agent of ASC. The Consultant is not authorized to assume or create any
obligation or responsibility, express or implied, on behalf of, or in the name
of, ASC or to bind ASC in any manner.
9. Notices. All notices required or permitted under this Agreement shall be in
writing and shall be deemed effective upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party at the address shown above, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 8.
10. Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
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11. Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes all prior agreements and understandings, whether
written or oral, relating to the subject matter of this Agreement.
12. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both ASC and the Consultant.
13. Governing Law. This Agreement shall be construed, interpreted and enforced
in accordance with the laws of the Commonwealth of Massachusetts.
14. Successors and Assigns. This Agreement shall be binding upon, and inure to
the benefit of, both parties and their respective successors and assigns,
including any corporation with which, or into which, ASC may be merged or which
may succeed to its assets or business, provided, however, that the obligations
of the Consultant are personal and shall not be assigned by him.
15. Miscellaneous.
15.1 No delay or omission by ASC in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by ASC on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
15.2 The captions of the sections of this Agreement are for convenience
of reference only and in no way define, limit or affect the scope or substance
of any section of this Agreement.
15.3 In the event that any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year set forth above.
AMERICAN SUPERCONDUCTOR
CORPORATION CONSULTANT
By: /s/ X. X. Xxxxx By: /s/ X. X. Xxxxxxxx, Xx.
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Its: President Its: President
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X. X. Xxxxx X.X. Xxxxxxxx, Xx.
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(print name) (print name)
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