EXHIBIT 10.11
CONSULTING AGREEMENT
This Consulting Agreement is entered into as of January 1, 1995 (this
"Agreement"), by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Consultant") and Visual
Numerics, Inc. (the "Company").
In consideration of the mutual promises contained herein, the parties
agree as follows:
1. Services. Consultant shall render consulting services to the
Company as described on Exhibit A, attached hereto.
2. Term and Termination. This Agreement shall become effective
on the date hereof and either Consultant or the Company may terminate this
Agreement, with or without cause, on ninety (90) days notice to the other party.
If the Company terminates this Agreement with less than ninety (90) days notice,
the Company shall pay Consultant on the date of termination, in lieu of such
notice, the cash compensation which would be payable under Section 3(a) herein
during such notice period.
3. Consideration.
(a) Cash Compensation. Subject to Consultant's compliance with the
provisions hereof, in consideration for Consultant's services and other
obligations under this Agreement, the Company shall pay Consultant a weekly
retainer at the rate of two thousand four hundred dollars ($2,400) per week for
the duration of this Agreement. Consultant shall invoice the Company bi-weekly
for services rendered during the preceding period. The Company shall make
payment on each invoice as soon as the invoice is approved by the Company's
President or Chief Financial Officer.
(b) Bonuses. In addition to the weekly retainer described in Paragraph
3(a) above, Consultant shall be eligible to receive bonuses from the Company
pursuant to the incentive bonus programs currently maintained or hereafter
established by the Company for its executives generally. Consultant's
entitlement to incentive bonuses is discretionary and shall be determined by the
Board, its Compensation Committee or the Chief Executive Officer of the Company
in good faith based upon the extent to which Consultant's individual performance
objectives and the Company's profitability objectives and other financial and
nonfinancial objectives were achieved during the applicable bonus period. The
criteria for Consultant's bonus eligibility for fiscal year 1995 are set forth
in Exhibit B, attached hereto. In the event of Consultant's death or disability
during the term of this Agreement, the Company shall pay to Consultant or
Consultant's estate the bonus Consultant would have earned during the entire
year in which death or disability occurred.
(c) Living Arrangements in Houston. As additional consideration for
Consultant's services hereunder, the Company will provide Consultant with an
apartment and a leased car in Houston, Texas for his use while providing
services hereunder for the Company. Additionally, the Company shall reimburse
Consultant for reasonable living expenses incurred by Consultant in Houston.
Consultant shall invoice the Company bi-weekly for expenses incurred during the
preceding period, describing the incurred expenses and providing appropriate
documentation in accordance with Company policy. The Company shall make payment
on each invoice as soon as the invoice is approved by the Company's President or
Chief Financial Officer.
4. Support. As additional consideration for Consultant's services
hereunder, the Company will provide Consultant with such support facilities and
space as may be required in the Company's judgment to enable Consultant to
properly perform Consultant's services hereunder.
5. Expenses. Consultant shall be reimbursed for reasonable travel and
other out-of-pocket expenses incurred by Consultant in connection with
Consultant's services under this Agreement, provided that Consultant provide
receipts and obtain the approval from the President or the Chief Financial
Officer of the Company for such expenses.
6. Independent Contractor. Consultant's relationship with the Company
shall be that of an independent contractor and not that of an employee.
Consultant will not be eligible for any employee benefits, nor will the Company
make deductions from payments made to Consultant for taxes, which shall be
Consultant's responsibility. Consultant shall have no authority to enter into
contracts which bind the Company or create obligations on the part of the
Company without the prior written authorization of the Company.
7. Reporting. All services to be performed by Consultant will be as
agreed between Consultant and the Chief Financial Officer of the Company.
Consultant shall be required to report to the Chief Financial Officer of the
Company concerning Consultant's services performed under this Agreement. The
nature and frequency of these reports will be left to the discretion of the
Chief Financial Officer.
8. Disclosure and Confidentiality.
(a) Consultant shall keep in confidence and shall not disclose or make
available to third parties or make any use of any information or documents
relating to Consultant's services under this Agreement or to the products,
methods of manufacture, trade secrets, processes, business or affairs or
confidential or proprietary information of the Company (other than information
in the public domain through no fault of Consultant), except with the prior
written consent of the Company or to the extent necessary in performing tasks
assigned to Consultant by the Company. Upon termination of this Agreement,
Consultant will, to the best of his ability and at the Company's expense, return
to the Company all documents and other materials related to the services
provided hereunder or furnished to Consultant by the Company. Consultant's
obligations under this Paragraph 8(a) shall survive termination of this
Agreement for any reason.
(b) Consultant shall promptly disclose and hereby transfers and
assigns to the Company all right, title and interest in and to all techniques,
methods, processes, formulae, improvements, inventions and discoveries made or
conceived or reduced to practice by or on behalf of Consultant, solely or
jointly with others, in the course of providing services hereunder or with the
use of materials or facilities of the Company during the period of this
Agreement or which relate to the Company's business or its actual or
demonstrably anticipated research or development (except as otherwise provided
below), and in and to all of Consultant's intellectual property rights therein,
including without limitation, patents, trademarks, copyrights, trade secrets
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and moral rights. When requested by the Company, Consultant will make available
to the Company all notes, drawings, data and other information relating to the
above. Consultant will promptly sign any documents (including U.S. and foreign
patent assignments) requested by the Company related to the above assignment of
rights and inventions and will cooperate with the Company at the Company's
request and expense in preparation and prosecution of any U.S. or foreign patent
applications related to such rights and inventions. Consultant's obligations
under this Paragraph 8(b) shall survive termination of this Agreement for any
reason. This Agreement does not apply to inventions which were made prior to the
date of this Agreement and which are listed on Exhibit C, attached hereto (if
any).
9. Return of Property. When requested by the Company and in all events at
the termination or expiration of this Agreement, Consultant will return to the
Company any of the Company's property that has come into Consultant's possession
during the term of this Agreement, unless authorization from the Company to keep
such property has been received. Consultant will not remove any of the Company's
property from the Company premises without permission from the Company.
10. Consulting for Competitors. The Company understands that Consultant
does not presently perform or intend to perform, during the term of this
Agreement, consulting or other services for companies whose businesses or
proposed businesses in any way involve products or services which would be
competitive with the services or proposed products or services of the Company
(except for the companies, if any, listed on Exhibit D, attached hereto). If,
however, Consultant decides to do so, Consultant agrees to notify the Company in
writing in advance (specifying the organization with which Consultant proposes
to consult) and provide information sufficient to allow the Company to determine
if such consulting would conflict with areas of interest to the Company or
further services which the Company might request of Consultant pursuant to this
Agreement.
11. Indemnity. VNI and Consultant shall indemnify, and hold harmless each
other and each party's agents, employees, officers and directors from and
against any and all damage, loss, liability, obligations, cost or expense,
caused directly or indirectly, by or as a result of any wrongdoing, negligence,
error or omission under the terms of this Agreement.
12. Remedies. Consultant understands that, in the event Consultant fails to
comply with the terms of this Agreement, the Company may suffer irreparable harm
which may not be adequately compensated by monetary damages. Accordingly,
Consultant agrees that, in the event of breach or threatened breach of the terms
of this Agreement, the Company shall be entitled to injunctive or other
preliminary or equitable relief in addition to such other remedies as may be
available to the Company for such breach or threatened breach, including
damages.
13. Counterparts. This Agreement may be signed in counterparts, each of
which shall be considered an original, but all of which, taken together, shall
constitute one and the same instrument.
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14. Amendment. Any amendment to this Agreement must be in writing signed by
Consultant and the Company.
15. No Assignment. Because of the personal nature of the services to be
rendered by Consultant, this Agreement may not be assigned by Consultant without
the prior written consent of the Company.
16. Notices. All notices, requests and other communications called for by
this Agreement shall be deemed to have been given if made in writing and mailed,
postage prepaid, if to Consultant at the address set forth on the Consultant's
most recent invoice to the Company and if to the Company at its company
headquarters in Houston, Texas, Attention: President, or to such other addresses
as either party shall specify to the other.
17. Governing Law. The validity, performance and construction of this
Agreement shall be governed by the laws of the State of Texas.
18. Sole Agreement. This Agreement, including the Exhibits thereto,
constitutes the sole Agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
19. Waivers, etc. No amendment of this Agreement, and no waiver of any
one or more of the provisions hereof, shall be effective unless set forth in
writing by such person against whom enforcement is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written above.
VISUAL NUMERICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and Chief Executive Officer
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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(Signature)
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EXHIBIT A
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includes such things as providing an efficient and high quality pick, pack
and shipping process; providing and maintaining efficient computer services
and telecommunications; timely response to corporate and sales legal issues,
employee benefits, compensation and recruiting.
ORGANIZATION
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Vice President, Administration & Controller
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Accounting Operations IS Human Resources Legal
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EXHIBIT B
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FISCAL YEAR 1995 BONUS CRITERIA
To be determined by February 1, 1995.
EXHIBIT C
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LIST OF INVENTIONS
None.
EXHIBIT D
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LIST OF COMPANIES COMPETITIVE TO VISUAL NUMERICS, INC.
FOR WHICH CONSULTING SERVICES ARE PRESENTLY
BEING PERFORMED (IF NONE, SO STATE):
