FIRST AMENDED AND RESTATED CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT ("Agreement") made and entered into as of the
17th day of November, 2003 as First Restated and Amended this 31st day of
January 2004 by and between NanoSignal Corp. (formerly MicroSignal Corp.), a
Nevada corporation, with offices located in Las Vegas, NV and Cannonsburg, PA
(the "Company"), and Xxxx X. Xxxxxxx of Las Vegas, NV ("Consultant"). The
Company desires to retain Consultant as an independent contractor to perform
consulting services for the Company and Consultant is willing to perform such
services, on terms set forth more fully below. In consideration of the mutual
promises contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services as
described in Exhibit A incorporated herein by reference and such other services
as may be requested by the Company from time to time (the "Services"). The
parties may delete, add or substitute Services, extend the term of this
Agreement or alter the terms of compensation by amending Exhibit A provided that
such amendment shall be signed by an authorized representative of both parties
and shall indicate whether it is to replace or alter the then existing Exhibit
A.
(b) The Company agrees to pay Consultant the compensation set forth in
Exhibit A for the performance of the Services. Such compensation shall be
payable on the schedule set forth in Exhibit A.
(c) The obligations of the Company related to performance of the
Services are also set forth in Exhibit A.
(d) Consultant is authorized to perform the Services under this
Agreement only upon the request or at the direction of the President of the
Company.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed by the Company
either directly or indirectly in writing, orally or by drawings or inspection of
parts or equipment.
(b) Consultant shall not, during or subsequent to the term of this
Agreement, use the Company's Confidential Information for any purpose whatsoever
other than the performance on behalf of the Company of the Services or disclose
the Company's Confidential Information to any third party, and it is understood
that such Confidential Information shall remain the sole property
of the Company. Consultant further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential Information including,
but not limited to, having each employee of Consultant, if any, with access to
any Confidential Information, execute a nondisclosure agreement containing
provisions in the Company's favor substantially similar to Sections 2, 3 and 5
of this Agreement. Confidential Information does not include information which
(i) is known to Consultant at the time of disclosure to Consultant by the
Company as evidenced by written records of Consultant, (ii) has become publicly
known and made generally available through no wrongful act of Consultant, or
(iii) has been rightfully received by Consultant from a third party who is
authorized to make such disclosure.
(c) Consultant agrees that Consultant will not, during the term of this
Agreement, improperly use or disclose any proprietary information or trade
secrets of any former or current employer or other person or entity with which
Consultant has an agreement or duty to keep in confidence information acquired
by Consultant in confidence, if any, and that Consultant shall not bring onto
the premises of the Company any unpublished document or proprietary information
belonging to such employer, person or entity unless consented to in writing by
such employer, person or entity. Consultant shall indemnify the Company and hold
it harmless from and against all claims, liabilities, damages and expenses,
including reasonable attorney's fees and costs of suit, arising out of or in
connection with any violation or claimed violation of a third party's rights
resulting in whole or in part from the Company's use of the work product of
Consultant or any third party under this Agreement.
(d) Consultant recognizes that the Company has received and in the
future will receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees that Consultant owes the Company and such third
parties, during the term of this Agreement and thereafter, a duty to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the Services for the Company consistent with the
Company's agreement with such third party.
(e) Upon the termination of this Agreement, or upon Company's earlier
request, Consultant shall deliver to the Company all of the Company's property
and Confidential Information in tangible form that Consultant may have in
Consultant's possession or control.
3. OWNERSHIP
(a) Consultant agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments, discoveries and trade
secrets, as well as all derivatives and modifications thereof and thereto
(collectively, "Inventions"), conceived, made or discovered by Consultant,
solely or in collaboration with others, which relate in any manner to the
business of the Company that Consultant may be directed to undertake,
investigate or experiment with, in performing the Services hereunder, as well as
all intellectual property rights therein and thereto, are the sole property of
the Company. Consultant further agrees to assign (or
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cause to be assigned) and does hereby assign fully to the Company all
such Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto.
(b) Consultant agrees to assist the Company, or its designee, at the
Company's expense, in every proper way to secure the Company's rights in the
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries, including the
disclosure to the Company of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths, assignments
and all other instruments which the Company shall deem necessary in order to
apply for and obtain such rights and in order to assign and convey to the
Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to be executed,
when it is in Consultant's power to do so, any such instrument or papers shall
continue after the termination of this Agreement.
(c) Consultant agrees that if in the course of performing the Services,
Consultant incorporates into any Invention developed hereunder any invention,
improvement, development, concept, discovery or other proprietary information
owned by Consultant or in which Consultant has an interest, the Company is
hereby granted and shall have a nonexclusive, royalty free, perpetual,
irrevocable, worldwide license to make, have made, modify, use and sell such
item as part of or in connection with such Invention.
(d) Consultant agrees that if the Company is unable because of
Consultant's unavailability, dissolution, incapacity, or for any other reason,
to secure a signature by or on behalf of Consultant to apply for or to pursue
any application for any United States or foreign patents or mask work or
copyright registrations covering the Inventions assigned to the Company above,
then Consultant hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Consultant's agent and attorney in fact,
to act for and on Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work registrations
thereon with the same legal force and effect as if executed by Consultant.
4. ORIGINALITY AND NONINFRINGEMENT
Consultant represents and warrants that all materials and Services
provided hereunder will be original with Consultant and that the use thereof by
the Company or its customers, representatives, distributors or dealers will not
infringe any patent, copyright, trade secret or other intellectual property
right of any third party. Consultant agrees to indemnify and hold the Company
harmless against any liability, loss, cost, damage, claims, demands or expenses
(including reasonable attorney's fees) of the Company or its customers,
representatives, distributors or dealers arising out of any infringement or
claim of infringement with respect to any materials or Services provided by
Consultant.
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5. RECORDS AND REPORTS
Consultant agrees that it will from time to time during the term of
this Agreement or any extension thereof keep the Company advised as to
Consultant's progress in performing the Services hereunder and that Consultant
will, as requested by the Company, prepare written reports with respect thereto
in a form reasonably requested by the Company. It is understood that the time
required in the preparation of such written reports shall be considered time
devoted to the performance of Consultant's Services hereunder.
6. CONFLICTING OBLIGATIONS
Consultant certifies that Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this Agreement, or
that would adversely affect Consultant's performance hereunder, and Consultant
agrees that Consultant shall not enter into any such conflicting Agreement
during the term of this Agreement.
7. TERM AND TERMINATION
(a) This Agreement shall commence on the date first written above and
shall continue until the completion, or termination as provided below.
(b) The Company may terminate this Agreement upon giving thirty (30)
days prior written notice thereof to Consultant. Any such notice of termination
shall be addressed to Consultant at the address shown above and pursuant to the
terms set forth in Section 13 of this Agreement. The Company may terminate this
Agreement immediately and without prior notice if Consultant refuses to or is
unable to perform the Services or is in breach of any material provision of this
Agreement.
(c) Upon such termination all rights and duties of the parties toward
each other shall cease except:
(i) that the Company shall be obliged to pay, within thirty
(30) days of the effective date of termination, all amounts owing to
Consultant for unpaid Services and related expenses, if any, in
accordance with the provisions of Section 1 (Services and Compensation)
hereof;
(ii) Sections 2, 3, 4, 6, 7(c) and 8 through 14 shall survive
termination of this Agreement.
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8. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may
be assigned or transferred by Consultant or Company without the express written
consent of the other party. Any such attempted assignment shall be void.
9. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed to constitute
Consultant as an agent, employee or representative of the Company, but
Consultant shall perform the Services hereunder as an independent contractor.
Consultant acknowledges and agrees that Consultant is obligated to report as
income all compensation received by Consultant pursuant to this Agreement, and
Consultant agrees to indemnify the Company and hold it harmless to the extent of
any obligation imposed on Company (i) to pay in withholding taxes or similar
items or (ii) resulting from Consultant's being determined not to be an
independent contractor.
10. ARBITRATION AND EQUITABLE RELIEF
(a) Except as provided in Section 10(b) below, the Company and
Consultant agree that any dispute or controversy arising out of or relating to
any interpretation, construction, performance or breach of this Agreement shall
be settled by arbitration to be held in Las Vegas, NV, in accordance with the
commercial arbitration rules then in effect of the American Arbitration
Association. The decision of the arbitrators shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrators' decision in any court of competent jurisdiction.
(b) Consultant agrees that it would be impossible or inadequate to
measure and calculate the Company's damages from any breach of the covenants set
forth in Sections 2 or 3 herein. Accordingly, Consultant agrees that if
Consultant breaches Sections 2 or 3, the Company will have available, in
addition to any other right or remedy available, the right to obtain from any
court of competent jurisdiction an injunction restraining such breach or
threatened breach and specific performance of any such provision.
11. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Nevada,
without reference to conflict of law principles.
12. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes
any prior agreements between them with respect to the Services. No modification
of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by the party to be
charged.
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13. NOTICES
Any notices required or permitted by this Agreement shall be in writing
and shall be addressed to the other party at the address shown at the beginning
of this Agreement or such other address of which such party may notify the other
and shall be deemed given upon delivery if delivered personally or by facsimile,
or forty-eight (48) hours after deposit in the United States mail, postage
prepaid, registered or certified mail, return receipt requested.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"Company" "Consultant"
MICROSIGNAL CORP XXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
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Authorized Corporate Signatory
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EXHIBIT A
SERVICES, COMPENSATION AND RELATED OBLIGATIONS
1. Services.
Emergency travel to Pittsburgh, PA as company liaison in litigation.
Assisting in the preparation of intellectual property audit; defense strategies
regarding lawsuit filed by Xxxxxx Xxxxx et al including basis and strategy of
counterclaims, injunction and declaratory relief in MicroSignal v. MicroSignal
et al. pending in Pittsburgh, PA.
Issues relevant to determination of the rightful ownership of SLICES(TM)
technology; review and comment regarding the lawfulness of merger between Pro
Glass Technologies, Inc. and MicroSignal Corp. the private Pennsylvania
corporation.
Collection and dissemination of information necessary for litigation, pre-trial
discovery and witness preparation.
Mediation Settlement team member in Pittsburgh, PA regarding Xxxxxx Xxxxx and
Xxxxxxx XxXxxxxxx.
Planning and implementing MicroSignal PA shareholder payment, identification of
debenture/promissory note holders, and other creditors. Determination of pay-out
formula and discussions with ad hoc committee of MicroSignal PA regarding merger
issues.
Assistance with respect to employment/compensation agreements with directors,
officers and engineering team; value added reseller's agreements; licensing;
beta testing; and other corporate matters.
2. Compensation.
Four (4) Million free-trade shares for Xx. Xxxx X. Xxxxxxx
