EXHIBIT 10.116
ELECTROSOURCE, INC.
CONSULTING AGREEMENT
95C-078
THIS CONSULTING AGREEMENT (the "Agreement"), made
effective the 1st day of December, 1995, is between
Electrosource, Inc., a Delaware corporation, having principal
offices at 0000-X Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000-0000,
U.S.A. ("Electrosource") and, Xxxxxxx Xxxxxxx, (Consultant)
having principal place of business at 00000 Xxxx Xxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Consultant has knowledge and experience in sales
and marketing of battery technology; and
WHEREAS, Electrosource desires the assistance of Consultant
for sales and marketing.
NOW, THEREFORE, in consideration of the promises and the
mutual agreements hereinafter contained, the parties hereto agree
as follows:
Electrosource and Consultant, intending to be legally bound,
agree as follows:
1. Term. Electrosource hereby engages Consultant as
independent contractor for a term commencing on December 1,
1995, and ending on March 31, 1996.
Electrosource shall have the right to extend this
Agreement by written notification in accordance with one of
the following (as mutually agreed): the same rate of
compensation provided for in Section 3 by written notice not
less than two weeks prior to the last day of the initial
term of this Agreement or Amendment to same; a non-retainer
daily rate; or as a $1.00 per year Consultant.
Electrosource may cancel this Agreement at its sole
discretion with thirty (30) days advance written notice to
Consultant. Electrosource's sole liability will be for
hours worked at the rate specified, and for reasonable
travel or business expenses incurred in accordance with
Section 4.
Notwithstanding any other provision of this Agreement,
if Consultant breaches any of its provisions, Electrosource
may terminate this Agreement immediately upon written notice
to Consultant.
Upon termination of this Agreement in accordance with
any of its provisions, Electrosource shall have no
obligation to make further payments to Consultant for
services performed after notice is received by Consultant.
Notice may be hand carried or sent by certified mail.
Notice is effective upon receipt or within five days of
mailing, whichever is earlier.
2. Duties. Consultant shall use his best efforts to assist
Electrosource with respect to all matters pertaining to
sales and marketing as directed by the President and CEO.
Consultant shall not, during the term of this Agreement,
accept any other engagement as consultant, or enter into any
employment relationship, with respect to which any portion
of his duties would entail assisting any other entity in the
field of battery sales and marketing. Consultant is engaged
and shall be available on a full time basis to perform his
duties hereunder. Such consulting services shall be
provided either at the offices of Electrosource or
Consultant, or at such other locations as Electrosource
shall direct.
3. Compensation. As full compensation for the services
which Consultant renders to Electrosource under this
Agreement, Electrosource shall pay to Consultant Twelve
Thousand and NO/100 Dollars ($12,000.00) per month.
Invoices Consultant submits to Electrosource for services
rendered shall include the heading "a professional
consulting firm (or individual)." In addition, the
Compensation/Stock Option Committee is expected to make a
grant of 30,000 shares to Consultant under the terms and
conditions of the 1993 Non-Employee Consultant Stock Option
Plan.
4. Expenses. Electrosource shall reimburse Consultant for
all proper and reasonable expenses incurred by him pursuant
to Consultant's consulting duties. Such expenses may
include necessary actual expenses of out-of-town travel,
communications, hotel accommodations, meals and the like,
provided that Consultant shall keep and provide
Electrosource an accurate and complete accounting of all
such expenses so incurred, and shall obtain Electrosource's
prior written consent to any such expenses. Reimbursement
of expenses will be issued within ten (10) days of receipt
of complete accounting of same.
5. Confidential and Proprietary Information. The parties
agree that from time to time during performance of this
Agreement confidential or proprietary technical or business
information may be provided either orally or in written form
to Consultant or may be developed by Consultant in the
course of his duties. Consultant shall keep confidential
all such information and safeguard same from disclosure or
use by any unauthorized individuals for any purpose other
than in performance of this Agreement.
In event of termination or cancellation of this
Agreement for any reason whatsoever, Consultant agrees
promptly to deliver to Electrosource all written information
of any sort made available to Consultant or created by it
under the terms of this Agreement.
Work product created by Consultant shall become the
confidential proprietary property of Electrosource.
Consultant agrees to treat such work product in the same
manner as confidential proprietary information of
Electrosource. Consultant agrees that any remedy at law
would be inadequate or a violation of this provision;
consequently, Consultant agrees that Electrosource is
entitled to obtain an injunction against Consultant's
disclosure of any confidential proprietary information.
Neither expiration of this Agreement nor its earlier
termination for any reason shall release Consultant from its
obligations under this Section 5.
6. Classified Information. Except in connection with
authorized visits, classified material shall not be
possessed by the Consultant off the premises of the Company.
The Company shall not furnish classified material to the
Consultant at any other location than the premises of the
Company and performance of the consulting services by the
Consultant shall be accomplished at the premises of the
Company; and classification guidance will be provided by the
Company.
The Consultant and his certifying employees shall not
disclose classified information to unauthorized persons.
Electrosource shall brief the Consultant as to the
security controls and procedures applicable to the
Consultant's performance.
7. Works of Authorship and Inventions. Consultant shall
convey to Electrosource all rights to each work of
authorship, whether or not patentable, which is conceived,
developed, written, or reduced to practice by Consultant in
performing the requirements of this agreement. Consultant
agrees to execute all necessary patent and copyright
applications, assignments and other instruments at
Electrosource's expense and to give all lawful and proper
testimony in aid of Electrosource obtaining and maintaining
in its name full and complete patent protection on any such
invention. Before final payment is made under this
Agreement, Consultant shall furnish Electrosource complete
information with respect to any invention and all work
product subject to this Section.
Consultant hereby irrevocably appoints each officer and
director of Electrosource as his attorney-in-fact for
purposes of filing any applications or assignments necessary
to properly reflect the sole ownership by Electrosource of
any invention or work of authorship subject to this Section.
8. Assignment and Subcontracting. Neither this Agreement
nor its performance, either in whole or in part, shall be
assigned or subcontracted by Consultant to a third party
without, in each case, the prior written consent of
Electrosource.
9. No Conflicts. Consultant represents and warrants that:
(a) He has full authority to enter into this
Agreement and to perform his obligations hereunder; and
(b) Performance by Consultant of his obligations
hereunder will not be in conflict with any other of his
obligations.
Consultant shall advise Electrosource's President and
CEO or Vice President and General Counsel of all clients
under similar agreement to him within five (5) days after
execution of this Agreement. Consultant shall not contract
for additional clients without first having notified
Electrosource in writing.
Notwithstanding any other provision of this Agreement,
Electrosource shall have the right to terminate this
Agreement if, in Electrosource's sole opinion, a conflict of
interest rises or may arise between Consultant's
representation of Electrosource and its representation of
its other clients. Such termination shall become effective
upon five (5) days written notification by Electrosource.
10. Independent Contractor. Consultant's relationship to
Electrosource shall be solely to provide personal services
on an independent contractor basis. In this capacity,
Consultant will not be a regular employee of Electrosource
and will not be entitled to worker's compensation coverage,
unemployment insurance, or any other type or form of
insurance or benefit normally provided by Electrosource for
its employees, and Electrosource will not be responsible for
withholding federal income or social security taxes from the
fees paid to Consultant. The Consultant will be solely
responsible for reporting and paying all federal, state and
local taxes arising from his performance of this agreement.
The consultant is generally free to perform the services
hereunder in any manner desired, subject to satisfactory
completion of the subject task.
11. Notice. A notice communicated to Electrosource shall
be sent to Xxxxx X. Xxxxx, Vice President and General
Counsel, Electrosource, Inc., 0000-X Xxxxxxxx Xxxxx, Xxxxxx,
XX 00000-0000, or to such other place or places as
Electrosource by notice in writing shall specify. Any
notice to be served shall be deemed to be served if the same
be sent by registered or certified mail through the United
States mail, addressed to the party on which service is to
be effected at the address stated in the immediately
preceding sentences and shall be deemed to have been
received on the day indicated on the return receipt relating
thereto.
12. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns
of Electrosource, and to the successors and assigns of
Consultant.
13. Modification. This Agreement supersedes all prior
agreements or understandings between Consultant and
Electrosource relating to the subject matter hereof, and no
change, termination or attempted waiver of any of the
provisions hereof shall be binding unless reduced to writing
and signed by duly authorized officers of Electrosource and
by Consultant.
14. Construction. This Agreement shall be construed in
accordance with the laws of the State of Texas. Consultant
hereby submits to the continuing jurisdiction of the laws
and the courts of the State of Texas in the prosecution of
any interpretation or dispute under or arising out of this
Agreement. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable or void, such judgment
shall not have the effect of invalidating or voiding the
remainder of this Agreement, and the parties hereto agree
that the portion to be held invalid, unenforceable or void
shall, if possible be deemed amended or reduced in scope or
to otherwise be stricken from this Agreement to the extent
required for the purposes of validity and enforcement
thereof.
IN WITNESS WHEREOF, this Agreement is dated and is effective
the date and year first above written.
ELECTROSOURCE, INC.
By: /s/ By: /s/
Xxxxx X. Xxxxx Xxxxxxx Xxxxxxx
Vice President, General Counsel Consultant
Date: January 2, 1996 Date: December 21, 1995
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER:
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