EXHIBIT 10.31
CONSULTING AGREEMENT
This Agreement is made and entered into as of the 17th day of June, 1997 by
and between XXXX XXXXXXX, 0000 Xxxxxx Xxxxxx X., Xxxxxxxxxxx, XX 00000, (the
"Consultant"), and AGRIBIOTECH, INC., a Nevada corporation, with offices at
Quail Park West, 0000 Xxxxxx Xxxx, Xxxxx X00, Xxx Xxxxx, Xxxxxx 00000 ("ABT").
WITNESSETH
WHEREAS, the Consultant possesses certain knowledge and expertise in the
seed business and management of operations; and
WHEREAS, the Company desires to retain the Consultant as a consultant for
the Company upon the terms and conditions hereinafter set forth and the
Consultant is willing to accept such position; and
WHEREAS, the Company desires that the Consultant not compete with the
Company; and
WHEREAS, the parties desire to conclude a Consulting Agreement which
defines the consulting role and responsibilities of the parties,
NOW, THEREFORE, in consideration of the premises and the covenants herein
contained, the parties hereto agree as follows:
1. RETENTION: TERM
ABT hereby retains the Consultant and the Consultant hereby agrees to
serve ABT as a consultant for the period commencing July 1, 1997 and continuing
through June 30, 1998 unless terminated under the terms of this Agreement.
2. DUTIES
The Consultant shall perform his duties as an independent contractor, and
not as an employee or affiliate of ABT, by use of his best efforts and due
diligence.
a) the Consultant shall provide up to twenty-five (25) days of consulting
services on specific projects, as requested by the CEO/President of
ABT, provided such projects are agreeable to Consultant and are not in
conflict with other seed business obligations of Consultant.
b) The Consultant may offer ideas or concepts to ABT at any time that are
not specifically requested by ABT, however, the Consultant shall first
present a broad and general written outline of the
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proposed Services to ABT for the purpose of minimizing Consultant's efforts
in those instances where the proposed idea or concept may not appear to be
consistent with ABT's objectives; may appear to duplicate Company activities
planned or in progress; or may appear to have been previously considered by
ABT. It is understood that ABT shall have the sole and exclusive right to
accept or reject any Service offered and the sole and exclusive right to
determine the extent, if any, to which a Service idea or concept shall be
further studied or developed.
3. COMPENSATION AND REIMBURSEMENT FOR EXPENSES
In exchange for his services, the Consultant will be compensated according
to the following schedule:
(a) As a retainer, Consultant will be granted 5,000 options to
purchase ABT common stock at a price of $5.50 per share through June
30, 1999.
(b) Consultant shall receive SEVEN HUNDRED FIFTY DOLLARS ($750) per
day of consulting services.
(b) Consultant, in addition to compensation from sources set out in
paragraph (a) and (b) above, shall receive pre-approved travel,
transportation, lodging, and other expenses incurred in performing
consulting services for ABT.
4. CONFIDENTIALITY
(a) ABT and the Consultant each recognize in performance under this
Agreement that they will have contact with information of substantial value to
each other, which is not generally known and which gives each of them an
advantage over their competitors who do not know or use it, including, but not
limited to, techniques, designs, drawings, processes, inventions, developments,
financial information, product, practices or techniques of each party relating
to ABT's Technology, business clients, contacts and terms (collectively referred
to as "Confidential Information"). Each party agrees, at all times, to regard
and preserve as confidential such Confidential Information and to refrain from
publishing or disclosing any part of such Confidential Information and from
using it except on behalf of the work specified herein. However, it is
recognized by each party to this Agreement that it may be beneficial, from time
to time, to disclose such Confidential Information to third parties and, in such
event, permission for such disclosure from the party owning the Confidential
Information shall not be unreasonably withheld. The parties further agree, at
all times, to refrain from any and all acts or omissions that would reduce, or
tend to reduce, the value of such Confidential Information of the respective
party.
(b) Upon termination of this Agreement, each party agrees to promptly
surrender to the owner all documents or items which are the property of the
respective owner or which contain or comprise such Confidential Information.
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(c) In view of the high degree of sensitivity of such Confidential
Information and the special and unique nature of the Services to be rendered by
the Consultant under this Agreement, the Consultant represents that he is nor
presently retained or employed by any entity directly or indirectly competitive
to the Technology under development by ABT or which would or could in any manner
prevent him from giving freely and ABT receiving the benefit of his services.
The Consultant agrees that he will not accept such retention or employment
during the term of this Agreement, unless approved by ABT.
5. PATENTS, TRADEMARKS, COPYRIGHTS, AND OTHER INTELLECTUAL PROPERTY.
(a) The Consultant hereby grants, transfers and assigns to ABT sole and
exclusive title to all data and/or technology provided by the Consultant to ABT
during performance of any or all of the duties described above under Section 2
- "Duties". The Consultant further grants to ABT the sole and exclusive right to
make, use and sell such data, technology, processes or products derived
therefrom.
(b) ABT and the Consultant each acknowledge that each other may be working
on projects for others at the time of or subsequent to the performance of
services under this Agreement. ABT has no interest in any inventions or
copyrightable material made or conceived by the Consultant which do not result
specifically from these consulting services. The Consultant is free, except as
otherwise provided herein, to dispose of his time and to work on such projects
as he sees fit.
6. INDEMNIFICATION
ABT further agrees that it will indemnify and hold harmless the Consultant
and all persons acting on behalf of the Consultant in the fulfillment of this
contract against any liability under any theory or law to any third party for
any matter arising out of the performance of this Agreement or any formula
provided pursuant to this agreement. ABT shall provide that the Consultant and
its officers, agents and employees, are insured against liability for legal
costs and fees necessitated by the defense of any claim brought by a third party
alleging damage caused, in whole or in part, by the Consultant, its officers,
agents, and employees, or any formula pursuant to this Agreement.
7. SURVIVAL OR REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
The representation, warranties, covenants and agreements contained herein or
in any statement or certificate furnished or to be furnished by the Consultant
to ABT are and shall be deemed and construed to be continuing representations,
warranties, covenants and agreements and shall remain in full force and effect.
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8. ENTIRE AGREEMENT AND MODIFICATION
This Agreement constitutes and contains the entire Consulting Agreement
of the parties and supersedes any and all prior negotiation, correspondence,
understandings and agreements between the parties respecting the subject matter
hereof. This Agreement may only be amended by a written instrument signed by
each of the parties to this Agreement.
8. TERMINATION
Either party may terminate this Agreement by written notification with
30 days notice. In the event Consultant terminates this agreement prior to
completion of the "duties", Consultant shall submit a final report which
provides ABT with information, conclusions and recommendations in keeping with
the magnitude of consulting expenses incurred by ABT under this Agreement.
9. NOTICE
Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been given when delivered personally against
receipt therefor or when mailed registered or certified mail, postage prepaid,
return receipt requested, to the parties at their respective addresses given
above, or to such other address as either party shall have given by notice
hereunder to the other.
10. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
insure to and be binding upon ABT and its respective successors and assigns and
upon the Consultant and his legal representatives, heirs and legatees. The
Consultant may not assign his rights or obligations under this Agreement without
prior written consent of ABT.
11. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada.
12. ARBITRATION
If any differences shall arise between the parties as to their rights or
liabilities under this Agreement, the disagreement shall be settled by a
mutually agreeable arbitrator to be selected by the parties. The arbitration
decision shall be final as to the contents and interpretations of the
instrument and as to the proper mode of carrying the provisions into effect or
resolving the disagreement among the parties. In the event that the parties are
unable to agree on an arbitrator, arbitration shall be governed by the rules of
the American Arbitration Association and an arbitrator shall be selected through
the auspices of the American Arbitration Association located in Las Vegas,
Nevada. All reasonable costs for
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arbitration and fees to enforce this Agreement incurred by the prevailing party
shall be reimbursed by the non-prevailing party.
13. HEADINGS
The headings of the paragraphs herein are inserted for convenience and
shall not affect the interpretations of this Agreement.
This Consulting Agreement supersedes and nullifies all previous written or
oral agreements between the parties on this subject.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
AGRIBIOTECH, INC. CONSULTANT
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx 7/17/97
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Xxxxxx X. Xxxxxx Xxxx Xxxxxxx
President/CEO
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