Exhibit 10.14
CONSULTING AGREEMENT
This Agreement is entered into as of the 25 day of June, 1996, by
Xxxxxxx Laboratories, Inc., a Delaware corporation, having its principal place
of business at 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, XX 00000 (hereinafter referred to
as "Xxxxxxx"), and Xx. Xxxx X. Xxxx, located at Linea del Cielo, Rancho Santa
Fe, CA (hereinafter referred to as "Xxxx" or "Consultant"). This Agreement
will take effect on 1 August 1996.
WITNESSETH
WHEREAS, Xxxxxxx and Consultant desire to enter into an agreement for
the performance by Consultant for professional and technical services in
connection with existing programs, and for advanced business and technology
development to further exploit Xxxxxxx'x core technologies;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises hereafter contained, the parties hereto agree as follows:
1. SERVICES TO BE RENDERED. Until 30 days after the giving of the
notice referred to in paragraph 4a below:
x. Xxxxxxx hereby engages Consultant to render, as an
independent contractor, consulting services to Xxxxxxx for
the further development of Xxxxxxx'x proprietary
technologies, e.g. 1) power products; 2) high power systems;
3) Pure Pulse technologies, etc., as well as the development
of new business that derive from these technologies.
x. Xxxxxxx also engages and encourages Consultant to further
develop or invent new technologies in the broad field of
power products and systems. When these occur, Consultant
will present technology and advanced business development
plans for consideration by Xxxxxxx'x President/CEO along
with the relevant Xxxxxxx Division President or General
Manager.
x. Xxxxxxx also engages Consultant to market Xxxxxxx'x existing
and developing products and technologies, and to develop
alternative business arrangements, that will allow the
timely and profitable introduction of Xxxxxxx products into
the marketplace, both in the United States and Worldwide.
x. Xxxxxxx shall make available facilities and support services
necessary and reasonable for use by Consultant (as
determined by Xxxxxxx'x President/CEO) in order to allow
Consultant to efficiently and effectively perform the
services contemplated by this Consulting Agreement.
e. The Consultant shall work under the general supervision of
Xxxxxxx'x President/CEO and directly with Xxxxxxx'x
Divisions, i.e., its President, program managers and
professional staff.
f. Consultant hereby accepts the engagement to provide
consulting services to Xxxxxxx on the terms and conditions
set forth herein.
2. THIRD PARTIES. Consultant represents that he has a good right to
enter into this Agreement, and that he has no contractual
obligations with third parties in conflict herewith.
3. TERM. The term of this Agreement is from August 1, 1996 to July
31, 1999 (the "Consulting Period").
4. COMPENSATION. In consideration of the services to be performed
by Consultant, Xxxxxxx agrees to pay Consultant fees as well as a
possible incentive bonus and other expenses as follows:
a. Consultant Fees. Consultant shall be paid the following
consulting fees: (1) $2,000 per month for each month during
the Consulting Period (regardless of the giving of the
notice referred to below), and (2) $8,000 per month for the
first six months of the Consulting Period and for each
remaining month of the Consulting Period until the
President/CEO, upon 30 days' prior notice, notifies
Consultant that he is no longer required to provide the
services outlined in Paragraph 1 above, in each case to be
paid on the last business day of each month during the
Consulting Period.
b. Performance Bonus. Consultant may be paid a bonus of up to
sixty thousand dollars ($60,000) for any six month period of
the Consulting Period; the bonus will be in the range from
$0 to $60,000. If the notice referred to in Paragraph 4a
above is given, the bonus maximum for the period will be
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prorated (EG. $40,000 maximum for a four month period). The
exact amount will be determined by Xxxxxxx'x President/CEO
in his discretion following an evaluation of the
contributions made by consultant under the first paragraph
of this Agreement. Any performance bonus will be paid
within ten (10) days following the applicable period.
c. Business and Travel Expenses. Upon submission of itemized
expense statements, Consultant will be reimbursed for
reasonable business travel expenses as are necessary in the
performance of Consultant's services under this Agreement as
approved by Xxxxxxx'x President/CEO.
5. AUDIT. Consultant shall keep accurate records and books of
account showing all charges, disbursements or expenses made or
incurred by Consultant in the performance of the services herein.
Xxxxxxx shall have the right, upon reasonable notice, to audit or
have audited at any time up to one (1) year after payment of a
final invoice, Consultant's records documenting Consultant's
professional and technical services and related expenses.
6. PRODUCTS AND DOCUMENTS. The results of work performed pursuant
to this Agreement or developed during the Consulting Period
(unless the President/CEO has otherwise agreed in writing) by
Consultant are the property of Xxxxxxx. Upon request, Consultant
shall promptly supply Xxxxxxx with all notes, writings, lists,
files, reports, correspondence, tapes, cards, maps, machines,
technical data, or any other tangible product or document which
Consultant produced or received in the performance of work under
this Agreement or developed during the Consulting Period.
7. PERSONAL PROPERTY. From time to time Xxxxxxx may provide
Consultant with tangible personal property (such as data, tapes,
maps, computers, etc.) in order for Consultant to perform this
work. All such property remains the property of Xxxxxxx, unless
there is a written agreement signed by the President/CEO to the
contrary.
8. PUBLIC RELEASE OF INFORMATION. No information relating to this
Agreement or work performed under this Agreement shall be
released other than to Consultant's employees requiring this
information in performance of their duties, without advance
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written approval of Xxxxxxx. In no event shall the interest of
Xxxxxxx in any work performed by Consultant under this Agreement
be indicated in any advertising without advance written approval
of Xxxxxxx. Requests for such authorization shall be forwarded
to Xxxxxxx at least three weeks in advance of the date of
presentation or publication.
9. INVENTIONS AND PATENT RIGHTS. The provisions governing
inventions and patent rights shall be as follows:
a. All inventions, discoveries, improvements, devices, designs,
apparatus practices, processes, methods, or products
(hereinafter individually or collectively called
"inventions"), whether patentable or not, and all
copyrightable material made, developed, perfected, devised,
conceived or first reduced to practice by Consultant either
solely or jointly with others during the Consulting Period
(unless the President/CEO has otherwise agreed in writing)
or otherwise in the course of Consultant's work for Xxxxxxx
shall be the sole and exclusive property of Xxxxxxx.
Consultant shall hold each and every such invention in a
fiduciary capacity for Xxxxxxx'x benefit and promptly
disclose to Xxxxxxx in writing complete information relative
to any such invention.
b. At the request of Xxxxxxx during and after the Consulting
Period and without further compensation, Consultant shall
(1) assist Xxxxxxx, its attorneys, nominees, or assignees in
preparing and prosecuting in the United States and all
foreign countries applications for patents covering all such
inventions; (2) execute, acknowledge, and deliver any and
all instruments, deemed by Xxxxxxx, its attorneys, nominees,
or assignees to be necessary to make, file, or prosecute all
such applications or in connection with continuations,
renewals, or re-issues thereof or in the conduct of all
proceedings or litigations thereto; and (3) execute any and
all instruments deemed by Xxxxxxx, its attorneys, nominees,
or assignees to be necessary to transfer title in and to
such applications or title in and to all patents covering
inventions to Xxxxxxx or its nominees. Any reasonable
expense incurred by Consultant in discharging his
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obligations pursuant to this subparagraph (b) shall be paid
or reimbursed by Xxxxxxx or its nominees, or assignees.
c. Consultant shall keep accurate and authentic accounts,
notes, data and records of his work hereunder and all such
accounts, notes, data, drawings, designs, sketches,
specifications, records and memoranda of every description
relating to the services hereunder or otherwise covered
hereby or any part thereof as Consultant shall produce and
all copies of the foregoing shall be the property of and
subject to inspection by Xxxxxxx at all reasonable times and
shall be delivered to Xxxxxxx or otherwise disposed of by
Consultant as Xxxxxxx may direct from time to time. Upon
request by Xxxxxxx, Consultant shall promptly surrender the
same to Xxxxxxx, or if not so requested, Consultant shall
deliver same upon completion or termination of this
Agreement, and Xxxxxxx shall have full right to use same in
any way.
d. Consultant represents that he has no agreement with other
parties that would preclude his compliance with his
obligations hereinabove set forth in this paragraph.
10. PROPRIETARY INFORMATION. In connection with Consultant's
activities on behalf of Xxxxxxx, Consultant may be given access
to certain proprietary information and trade secrets of Xxxxxxx.
Consultant agrees to preserve in strict confidence all such
information during the term of this Agreement and for a period of
five (5) years beyond the expiration date of this Agreement as
finally amended. Consultant agrees that he will not reveal,
disclose, publish, or in any other way utilize this information
except in performance of work authorized by the President/CEO as
approved in writing by duly authorized representatives of
Xxxxxxx. The obligations of Consultant herein shall survive the
termination of this Agreement.
11. NATURE OF RELATIONSHIP.
a. The relationship of Consultant to Xxxxxxx is that of an
independent contractor and nothing herein shall be construed
as creating any other relationship. As such, Consultant
shall comply with all laws and assume all risks incident to
its status as an independent contractor. This includes, but
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is not limited to, responsibility for all applicable federal
and state income taxes, associated payroll and business
taxes, licenses and fees, and such insurance as is necessary
for Consultant's protection in connection with work
performed under this Agreement. Consultant shall be
licensed, if required, in accordance with the laws of the
State of California, and Consultant, if not so licensed, is
subject to the penalties imposed by such laws.
b. It is understood that Consultant shall not represent, act,
purport to act, or be deemed to be an agent, representative,
employee or servant of Xxxxxxx. The Consultant will not
enter into agreements or incur obligations on behalf of
Xxxxxxx or commit Xxxxxxx in any manner without Xxxxxxx'x
prior written consent.
c. Consultant shall provide all labor, equipment and materials
required to complete the services and shall have full
control over the mode and manner of performing the services.
Consultant has and hereby retains the right to exercise full
control and supervision of the services and full control
over the employment, direction, compensation and discharge
of all persons assisting Consultant in the services.
Consultant agrees that he will be solely responsible for all
matters relating to payment of Consultant's employees,
including, but not limited to compliance with all applicable
provisions of worker's compensation laws, unemployment
compensation laws, Social Security, withholding and all
other federal, state and local laws and regulations
governing such matters. Consultant agrees to be responsible
for Consultant's own acts and those of Consultant's
subordinates, employees and subcontractors during the
performance of the work under this Agreement.
12. SECURITY. Consultant shall abide by all applicable security laws
and regulations of the United States of America and shall refrain
from taking any action which may compromise existing security
laws, procedures or regulations.
13. WORK PERFORMED AT XXXXXXX FACILITIES. The performance of work
under this Agreement requires Consultant to enter the premises of
Xxxxxxx.
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Consultant shall indemnify, defend and hold harmless Xxxxxxx from
and against all claims for bodily injuries, including death, or
damage to property caused by the condition of any premises,
equipment, or other property being used or operated by Consultant
or any of Consultant's employees, provided Consultant's aforesaid
indemnity and hold harmless agreement shall not be applicable to
any liability where bodily injuries, including death, or damage
to property result from the sole negligence or willful misconduct
of Xxxxxxx.
14. NON-SOLICITATION. Consultant further agrees that he will not
solicit or participate or assist in any way in the solicitation
of any person in management, professional or technical positions
at Xxxxxxx for employment by any other company during the
Consulting Period. Consultant will not be in violation of this
provision if he pursues a position with a future employer if it
occurs without any encouragement or involvement by Consultant
directly or indirectly.
15. NON-COMPETE AND COOPERATION AGREEMENT. Consultant agrees that
during the Consulting Period he shall abide by the terms hereof.
As an independent contractor, subject to the terms of this
Agreement, Consultant is free to form his own company or to
consult for other companies or the U.S. Government. Should these
activities occur, Consultant will abide by all of the terms of
this Agreement. Further, during the Consulting Period,
Consultant will not work for any person or entity that is now in
competition with the Xxxxxxx or on any project or proposal for
any other person or entity which would be in competition with the
Xxxxxxx.
Consultant further agrees that during the Consulting Period, or
thereafter, he may be asked to and that he will, in fact,
cooperate with Xxxxxxx, its attorneys or experts retained by
Xxxxxxx or its attorneys in connection with any litigation
matters involving Xxxxxxx that are pending or that may arise
hereafter.
16. EXIT INTERVIEW. At Xxxxxxx'x request, upon expiration or
termination of this Agreement, Consultant agrees to participate
in an exit interview. The purpose of this interview is
anticipated to be (but is not limited to): accounting for all
notes, writings, files, reports, correspondence, tapes, cards,
maps,
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machines, technical data, or any other tangible product or
document which Consultant produced or received in connection with
this Agreement; accounting for any classified documents provided
to Consultant under this Agreement; debriefing Consultant on any
appropriate security matters; discussions of any appropriate
trade secret or confidential information restrictions; and
appropriate technical debriefings.
Consultant shall not be entitled to additional compensation for
the exit interview.
17. GOVERNING LAW. The Agreement shall be governed by the laws of
the State of California.
18. DISPUTES. Any dispute or difference arising out of this
Agreement or involving a question of fact which is not settled by
mutual agreement and settlement of which is not otherwise
provided for herein, shall be decided by Xxxxxxx. Such decision
shall be reduced to writing and furnished to Consultant within
thirty (30) days after receipt of such decision. Consultant may
notify Xxxxxxx, within thirty (30) days, in writing of his
disagreement with such decision, and in the absence of such
notice, Xxxxxxx'x decision shall be final. In the event
Consultant gives such notice of disagreement the dispute shall be
settled and finally determined by arbitration in the City of San
Diego, in the following manner:
a. Both parties to this Agreement shall appoint an arbitrator.
The two arbitrators so appointed shall thereupon select a
third arbitrator. The arbitrators shall meet and give
opportunity to each party to this Agreement to present its
case and witnesses (if any) in the presence of the other,
and shall then make their award. Decision in writing of the
three arbitrators, or any two of them, shall be final and
binding upon the parties thereto, and judgment may be
entered therein in any court having jurisdiction. Such
decision shall include the fixing of the expenses of the
arbitration and the assessment of the same against either or
both parties. If either party shall fail to appoint its
arbitrator within thirty days after receipt of notice in
writing requiring it to do so, the arbitrator appointed by
the other party shall act for both, and his decision in
writing shall be final and binding on both parties, as if he
had been
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appointed by consent. Pending final decision of a dispute
hereunder and, if performance has not been completed,
Consultant shall proceed diligently in accordance with
Xxxxxxx'x instructions from the President/CEO.
b. If, in an appropriate case, the arbitrators appointed by the
parties shall fail to select a third arbitrator within two
weeks of their appointment, a third arbitrator shall be
selected in accordance with the then current rules and
regulations of the American Arbitration Association.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Xxxxxxx and Consultant regarding the provision
of consulting services by Consultant to Xxxxxxx. It supersedes
all prior or contemporaneous communications, representations or
agreements whether oral or written with respect such subject
matter and has been induced by no representations, statements, or
agreements other than those herein expressed. No agreement
hereafter made between the parties shall be binding on either
party unless reduced to writing and signed by an authorized
representative of the party sought to be bound thereby.
20. SEVERABILITY. The provisions of this Agreement are severable,
and if any part of it is found to be unenforceable, the other
paragraphs shall remain fully valid and enforceable.
21. WAIVER. No waiver or a breach of any provision to this Agreement
shall constitute a waiver of any other breach or of such
provision. Failure by either party to enforce at any time, or
from time to time, any provision of this Agreement shall not be
construed as a waiver thereof. The remedies herein shall be
cumulative and additional to any other remedies in law or equity.
22. COUNTERPARTS. This Agreement may be executed in counterparts and
each counterpart shall be deemed a duplicate original.
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This Consulting Agreement consists of paragraphs 1 through 22.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
Xxxxxxx Laboratories, Inc. Consultant
President/CEO Xxxx X. Xxxx
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxx X. Xxxx
----------------------------------- -----------------------------------
Signature Signature
Date: June 25, 1996 Date: June 21, 1996
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