EXHIBIT 10.18
CONSULTING
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made effective as of February 19, 2002, and between
TVIA, Inc., a Delaware corporation (the "Company") and R. Xxxxx Xxxxxxxxx (the
"Consultant").
RECITALS
A. The Company desires to obtain the continued services of Consultant,
on its own behalf and on behalf of all existing and future Affiliated Companies
(defined as any corporation or other business entity or entities that directly
or indirectly controls, is controlled by, or is under common control with the
Company), and Consultant desires to continue in the hire of the Company, whose
experience, knowledge and abilities are valuable to the Company, upon the
following terms and conditions.
B. The Company has spent significant time, effort, and money to develop
certain Proprietary Information (as defined below), which the Company considers
vital to its business and goodwill.
C. The Proprietary Information may necessarily be communicated to or
acquired by Consultant in the course of his training by and hiring with the
Company, and the Company desires to obtain the continued services of Consultant,
only if, in doing so, it can protect its Proprietary Information and goodwill.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. PERIOD OF CONSULTING. The Company hereby retains Consultant to render
services to the Company as requested by the Chief Executive Officer of the
Company from time to time in the position and with the duties and
responsibilities described in Exhibit A attached hereto and incorporated by this
reference herein, commencing on the date of this Agreement and ending on date as
noted in Exhibit A or upon delivery of notice from the Chief Executive Officer
of the Company.
2. POSITION, DUTIES, RESPONSIBILITIES.
a. DUTIES. Consultant hereby agrees to work for the Company in
the business planning and development areas. Consultant shall devote his best
efforts and attention to the performance of the services customarily incident to
such position and to such other services as may be reasonably requested by the
Chief Executive Officer of the Company.
b. INDEPENDENT CONSULTANT. It is understood and agreed, and it
is the intention of the parties hereto, that Consultant is an independent
contractor, and not an employee of the Company for any purposes whatsoever. The
Company shall have no right to and shall not control the manner or prescribe the
method by which the services are performed by Consultant hereunder. Consultant
shall be entirely and solely responsible for its acts and the acts of its
agents, employees, and subcontractors while engaged in the performance of
services hereunder. Consultant shall indemnify, defend, and hold the Company
harmless from any loss or liability arising from the performance of Consultant's
services hereunder. Consultant agrees to pay self-employment tax on his own
earnings and to either withhold as employer for any employees he has that assist
Consultant in the performance of his duties hereunder or require that persons
assisting Consultant who are independent contractors pay their own
self-employment taxes.
3. COMPENSATION, BENEFITS, EXPENSES.
a. COMPENSATION. In consideration of the services to be rendered
hereunder, including, without limitation, services to any Affiliated Company,
Consultant shall be paid the amount as set forth on Exhibit A.
b. REIMBURSEMENT OF EXPENSES. The Company shall promptly
reimburse Consultant for any reasonable costs and expenses incurred by
Consultant in connection with any services specifically requested by the Company
and actually performed by Consultant pursuant to the terms of this Agreement.
Each such expenditure or cost shall be reimbursed only if: (i) Consultant had
received prior approval for such expenditure or cost, and (ii) Consultant
furnishes to the Company adequate records and other documents evidencing such
expenditure or cost.
4. PROPRIETARY INFORMATION.
a. DEFINED. "Proprietary Information" is all information and any
idea in whatever form, tangible or intangible, pertaining in any manner to the
business of the Company or any Affiliated Company unless: (i) the information is
or becomes publicly known through lawful means; (ii) the information was
rightfully in Consultant's possession or part of his general knowledge prior to
his hiring by the Company or any Affiliated Company; or (iii) the information is
disclosed to Consultant without confidential or proprietary restriction by a
third party who rightfully possesses the information (without confidential or
proprietary restriction) and did not learn of it, directly or indirectly, from
the Company.
b. GENERAL RESTRICTIONS ON USE/OWNERSHIP. Consultant agrees to
hold all Proprietary Information in confidence and not to, directly or
indirectly, disclose, use, copy, publish, summarize, or remove from Company's
premises any Proprietary Information (or remove from the premises any other
property of the Company), except (i) during the consulting relationship to the
extent necessary to carry out Consultant's responsibilities under this
Agreement, and (ii) after termination of the consulting relationship as
specifically authorized in writing by the Company. Consultant hereby sells,
transfers and assigns to the Company without any additional consideration,
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except for the compensation set forth in Section 3.a (above), any and all
copyrights, patent rights or other property rights or Proprietary Information he
may otherwise be deemed to own as a result of Consultant's services performed
hereunder. Consultant further agrees to take all reasonable steps and execute
all documents as the Company may reasonably request to transfer or record the
Company's ownership in such Proprietary Information.
c. INTERFERENCE WITH BUSINESS: COMPETITIVE ACTIVITIES.
Consultant acknowledges that the pursuit of the activities forbidden by this
Section 4(c) would necessarily involve the use or disclosure of Proprietary
Information in breach of Section 4(b), but that proof of such breach would be
extremely difficult. To forestall such disclosure, use, and breach, and in
consideration of the hiring under this Agreement, Consultant agrees that for a
period of two (2) years after termination of the consulting relationship, he
shall not, for himself or any third party, directly or indirectly (i) divert or
attempt to divert from the Company (or any Affiliated Company) any business of
any kind in which it is engaged, including, without limitation, the solicitation
of or interference with any of its suppliers or customers, (ii) employ or
solicit for employment any person employed by the Company, or by any Affiliated
Company, during the period of such person's hiring and for a period of one (1)
year thereafter.
d. REMEDIES. Nothing in this Section 4 is intended to limit any
remedy of the Company under the California Uniform Trade Secrets Act (California
Civil Code, Section 3426), or otherwise available under law.
5. NOTICES. All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand, one day courier or mailed, postage prepaid, by certified
or registered mail, return receipt requested, and addressed to the Company at:
Tvia, Inc.
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
or to the Consultant at:
RDD Associates LLC
0000 Xxxxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
Notice of change of address shall be effective only when done in accordance with
this Section.
6. ENTIRE AGREEMENT. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the hiring
of Consultant by the Company and
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may not be contradicted by evidence of any prior or contemporaneous agreement.
The parties further intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial, administrative, or other legal proceeding
involving this Agreement.
7. AMENDMENTS, WAIVERS. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by the Consultant and by a
duly authorized officer of the Company other than Consultant. By an instrument
in writing similarly executed, either party may waive compliance by the other
party with any provision of this Agreement that such other party was or is
obligated to comply with or perform, provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right, remedy, or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy or power hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, or power
provided herein or by law or in equity.
8. SEVERABILITY, ENFORCEMENT. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance shall be held by a
court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement and such provisions as applied to other persons,
places, and circumstances shall remain in full force and effect.
9. GOVERNING LAW. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of California as if it was entered into by California
residents to be performed entirely within California. Venue shall be in Santa
Xxxxx County, California.
10. REMEDIES.
a. INJUNCTIVE RELIEF. The parties agree that in the event of any
breach or threatened breach of any of the covenants in Section 4, the damage or
imminent damage to the value and the goodwill of the Company's business will be
irreparable and extremely difficult to estimate, making any remedy at law or in
damages inadequate. Accordingly, the parties agree that the Company shall be
entitled to injunctive relief against Consultant in the event of any breach or
threatened breach of any such provisions by Consultant, in addition to any other
relief (including damages) available to the Company under this Agreement or
under law.
b. EXCLUSIVE. Both parties agree that this Agreement shall
provide the exclusive remedies for any breach by the Company of its terms.
c. ATTORNEYS' FEES. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default, or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
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incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
RDD ASSOCIATES LLC, CONSULTANT TVIA, INC.
by /s/ R. XXXXX XXXXXXXXX by /s/ XXX XXXXX
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(Signature) (Signature)
R. XXXXX XXXXXXXXX XXX XXXXX
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R. Xxxxx Xxxxxxxxx Xxx Xxxxx, President and CEO
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EXHIBIT A
PERIOD OF CONSULTING:
Terms of this consulting agreement are for a period of six (6) months. This may
be extended for an additional six months upon agreement by both parties with
written extension.
DUTIES AND RESPONSIBILITIES:
"Consultant" will provide the following services: Business development
COMPENSATION:
$1,500.00 (One thousand, five hundred dollars) per day, averaging one day per
week, with a total maximum period of two days per week.
COMPLETION DATE:
August 18, 2002
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