Exhibit 10.4
CONSULTANT AGREEMENT - Xxxxxx X. Xxxxxxxxx
This Consultant Agreement ("Agreement") is made by AssureTec Systems, Inc. ("ATS
") having a place of business at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, X.X. 00000, its
successors and subsidiaries worldwide, and Xxxxxx X. Xxxxxxxxx ("Consultant")
with his mailing address X.X. Xxx 0, Xxxxxxxxx, XX 00000, and effective this 1st
day of July, 2003 for the purpose of setting forth the exclusive terms and
conditions by which ATS acquires Consultant's services.
In consideration of the mutual obligations specified in this Agreement, and
any compensation paid to Consultant for their services, the parties agree to the
following:
1. Work to Be Performed By Consultant
(a) Consultant is hereby engaged by ATS to serve as a Director of ATS.
(b) Initially this Agreement shall expire on 1 July 2004, but may be
extended annually on written agreement of the parties.
2. Reports and Rate of Pay
(a) Consultant will be compensated for the first year at the rate 150,000
options to acquire common stock in ATS for a period of ten years at a strike
price of $.37 per share. These options shall vest ratably over a twelve month
period.
(b) In addition to Consultant's services as a Director, AssureTec Systems,
Inc. ("the Company") agrees to retain Consultant as a non-exclusive business
consultant to act on our behalf to introduce the Company to potential investors,
purchasers, or joint venture partners ("Third Parties"). In order to control the
Company's approach to Third Parties and their access to the Company, its
employees, representatives and its proprietary products and to coordinate
similar activities by others, Consultant agrees to notify the Company in writing
of any Third Parties to be contacted on our behalf. Any proposal submitted shall
include Consultant's proposed compensation. The Company shall be free to reject
any such proposal for any reason. If any such proposal is rejected for any
reason other than that the Company and Third Party are already engaged in active
investment discussions or that the Third Party is generally and publicly
identified by the Company to be an active target in the strategic partnering
field identified by the Company, subsequent contact made within one year with
said Third Party by the Company, regardless of who initiates the contact, will
be deemed to be a result of the original contact by Consultant as long as the
contact can be traced directly to the source identified by the Consultant. The
burden of such causation shall be upon the Consultant. Any such introductions
made by the Consultant on the Company's behalf must be approved in writing by
the Company prior to Consultant contacting said Third Party. Such written
approval will include the compensation arrangement agreed to between the Company
and the Consultant. If an investment in the Company, acquisition, or a joint
venture relationship with it or other transaction specified in the Company's
written approval is consummated with the specified Third Party within one year
of said written authorization, the agreed to compensation will be paid by the
Company to Consultant at the time and in a manner specified in the Company's
written approval.
3. Non-Disclosure And Trade Secrets
(a) During the term of this Agreement and in the course of Consultant's
performance hereunder, Consultant will receive and otherwise be exposed to
highly confidential information belonging to ATS, its customers, suppliers and
others. Such confidential information includes, but is not limited to, ATS's
marketing and customer support strategies, financial information including
sales, costs, profits, and pricing methods, ATS's internal organization,
employee lists and customer lists, ATS's access nodes and/or codes, ATS's
technology including discoveries ATS's, inventions, research and development
efforts, manufacturing processes, hardware/software design and maintenance
tools, and hardware/software product know-how and show-how, and all derivatives,
improvements, and enhancements to any of the above which are created or
developed by Consultant under this Agreement (collectively referred to as
"Information").
(b) Such Information may or may not contain legends or other written notice
that is of a confidential nature. Such Information shall not be considered
confidential if it: (a) was in the public domain or becomes part of the public
domain, by publication or otherwise, except by an unauthorized act of Consultant
or someone else.
(c) Consultant acknowledges the highly confidential character of the
Information, and agrees that the Information is the sole, exclusive and
extremely valuable property of ATS or third parties, and wrongful disclosure to
others will cause irreparable harm to ATS or the third party owners. Consultant
agrees not to reproduce any of the Information except as is necessary in the
performance of work contemplated under this Agreement, and not to divulge all or
any part of the Information in any form to any third party, either during or
after expiration or termination of this Agreement.
(d) ATS shall exercise reasonable care either to prominently and legibly
xxxx all corporeal forms of Information supplied to Consultant with the legend
"Confidential" or equivalent, or, if the Information is originally provided to
Consultant without a "Confidential" legend, it shall be considered Confidential
under this Agreement if such information is identified to Consultant as being
Confidential within ten (10) business days of its original disclosure.
(e) Upon expiration or termination of this Agreement for any reason,
Consultant agrees to cease using and to return to ATS all whole and partial
copies and derivatives of ATS's Information, whether in Consultant's possession
or under Consultant's direct or indirect control, including any computer access
nodes and/or codes.
(f) Consultant shall not disclose or otherwise make available to ATS in any
manner any confidential and proprietary information received by Consultant from
third parties.
(g) This Section 3 shall survive the termination of this Agreement for any
reason.
4. Ownership of Work Product
(a) Consultant agrees that any and all work product, ideas, improvements,
inventions, copyrights, trademarks and trade secrets ("work product") conceived,
created or first reduced to practice in the performance of work under this
Agreement for ATS are a "work for hire" and ATS shall be vested with all rights,
title, and interests including patents, copyrights, trade secrets and trademark
rights in Consultant's work product. Consultant agrees that they shall execute
all papers including, but not limited to, patent and copyright applications,
patent and copyright assignments, and shall otherwise assist ATS, at ATS's
expense, and as reasonably necessary to perfect all ATS's rights, title and
other interests in Consultant's work product.
(b) This section 4 shall survive the expiration or termination of this
Agreement for any reason.
5. Indemnification / Release
(a) Consultant agrees to take all reasonable precautions to prevent injury
to any persons (including employees of ATS) or damage to ATS's property while at
ATS's work site. Consultant shall indemnify and hold ATS and its officers,
agents, directors, and employees harmless against all claims, losses, expenses
(including reasonable attorney's fees), and injuries to person or property
(including death) resulting in any way, from any negligence on the part of
Consultant in the performance or failure to perform the Scope of Work under this
Agreement, excepting only those losses which are due solely and directly to
ATS's negligence.
(b) Consultant warrants that he/she has good and marketable title to all
work products made, created, conceived, written, invented, or provided by
Consultant to ATS while fulfilling the requirements of the Work Statement of
this Agreement. Consultant further warrants that work product created for ATS
shall be free and clear of all liens, claims, encumbrances, or demands of third
parties, including any claims by any such third parties of any right, title, or
interest in or to the work product arising out of any trade secret, copyright,
or patent. Consultant shall indemnify, defend, and hold harmless ATS and its
customers from any all liability, loss, costs, damage, judgment, or expense
(including reasonable attorney's fees) resulting from or arising in any way out
of any such claims by any third parties, and/or which are based upon, or are the
result of any breach of the warranties contained in this section (b). In the
event of a breach of warranty, Consultant shall, at no additional cost to ATS,
replace or modify the work product with a functionally equivalent and conforming
work product, obtain for ATS the right to continue using the work product and in
all other respects use its best efforts to remedy the breach. Consultant shall
have no liability under this section for any work product created in accordance
with detailed and specific design instructions created by ATS.
(c) Should ATS permit Consultant to use any of ATS's equipment, tools, or
facilities during the term of this Agreement, such permission will be
gratuitous.
6. Termination
(a) Either ATS or Consultant may terminate this Agreement for any reason
upon giving the other party five (5) business days of written notice of
termination or resignation. Option shares not vested on the date of such
termination or resignation shall terminate on such effective date.
7. Independent Contractor
(a) Consultant is an Independent Contractor, is not an agent or employee of
ATS, and is not authorized to act on behalf of ATS.
(b) If Consultant is to autonomously perform work under this Agreement, ATS
is entitled to provide Consultant with general guidance to assist Consultant in
completing the scope of work to ATS's satisfaction.
8. General
(a) Except for a reduction in Work Statement as defined in Section I, this
Agreement may not be changed unless mutually agreed upon in writing by both
parties. In the event any provision of this Agreement is found to be legally
unenforceable, such provision will be changed to make it legally enforceable and
such unenforceability shall not prevent enforcement of any other provision of
the Agreement.
(b) Notwithstanding any other provisions of this Agreement, Consultant
agrees not to export, directly or indirectly, any United States source technical
data acquired from ATS or any products utilizing
such data to any countries outside the United States which export may be in
violation of the United States Export Laws or Regulations. Nothing in this
section releases Consultant from any obligation stated elsewhere in this
Agreement not to disclose such data.
(c) If Contractor breaches any of its covenants expressed in this
Agreement, he/she agrees that such a breach may cause irreparable harm to ATS,
and ATS shall have the right to seek equitable relief to enjoin further breach.
(d) This Agreement shall be governed by the Laws of the State of New
Hampshire, without resort to its rules regarding conflict of laws. In the event
that any dispute arises respecting this Agreement, the parties stipulate in
advance that the courts in New Hampshire shall be the proper venue for the
resolution of such dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
AssureTec Systems, Inc. Consultant
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Signed, Duly Authorized Signed
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Printed Name Printed Name
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Position/Title Date
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Date SSN No.
