Exhibit 10.28
IDENTIX INCORPORATED
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into as of June 7,
2000 by and between Identix Incorporated, a Delaware corporation ("Identix"),
Xxxx X. Major, an individual with a principal address at 00000 Xxx Xxxxxxx,
Xxxxxx Xxxxx Xx, XX 00000 (the "Consultant").
In consideration of the collective promises and covenants set forth herein,
the parties hereto agree as follows:
1. Definitions. As used in this Agreement:
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(a) "Confidential Information" means information disclosed to
Consultant as a consequence of or through performance of services for Identix or
its affiliates, whether or not related to Consultant's specific work under this
Agreement. Confidential Information includes, but is not limited to, all
information related to any aspect of the business, technology, prospects or
affairs of Identix which is either information not known by actual or potential
competitors of Identix or is proprietary information of Identix, whether of a
business, financial, technical nature or otherwise. Confidential Information
includes ideas, designs, circuits, schematics, formulas, algorithms, source
code, object code, trade secrets, works of authorship, mask works, developmental
or experimental work, processes, techniques, Inventions, know-how, data,
financial information and forecasts, product plans, marketing plans and
strategies, and customer lists. Information shall be considered, for purposes of
this Agreement, to be Confidential Information if not known by the trade
generally, even though such information has been disclosed to one or more third
parties pursuant to distribution agreements, joint research agreements or other
agreements entered into by Identix or any of their affiliates. For the purposes
of this Agreement, information shall not be considered confidential to the
extent that such information is or becomes, through no fault of Consultant, part
of the public domain, or such information is lawfully furnished to Consultant by
a third party without restriction or disclosure.
(b) "Party" or "Parties" means each of Consultant or Identix, or both
of them together.
(c) "Person" means any individual, corporation partnership, business
trust, joint venture, association, joint stock company, trust, unincorporated
organization, or government or agency or political subdivision thereof.
(d) "Term" means the term of this Agreement, as defined in Section 9
below.
2. Services/Compensation.
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(a) Services. Consultant shall perform for Identix the services
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described in Exhibit A.
(b) Compensation. Identix agrees to pay Consultant fees as set forth
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in Exhibit B. Consultant shall be entitled to no other compensation from Identix
for the performance of services hereunder.
(c) Management of Relationship. In responding to and performing the
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requirements and instructions of Identix hereunder, and accordingly, in managing
its resources, development activities and timetables hereunder, Consultant shall
take and follow overall strategic, business and technical directions from Xxxxx
X. Xxxxxxxx, Interim CEO and President of Identix, or his desginee.
3. Representation and Warranty. Consultant represents and warrants to
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Identix that Consultant is not a party to any existing agreement that would
prevent it from entering into this Agreement or restrict its obligations or
activities under this Agreement, or restrict or affect the rights or benefits of
Identix under this Agreement.
4. Covenants. Consultant acknowledges and agrees that during the Term,
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Consultant shall segregate all work done under this Agreement from all work done
at, or for, any other Person. In any dealings with third parties, Consultant
shall protect and guard any and all Confidential Information in accordance with
the terms of this Agreement.
5. Confidentiality. Consultant shall hold all Confidential Information in
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strict confidence and shall not disclose Confidential Information to any
unauthorized Person. Except as required under this Agreement, Consultant
will never directly or indirectly use, disseminate, disclose, lecture upon, or
publish articles concerning, Confidential Information. Consultant shall keep
separate and segregated from other work, all documents, records, notebooks and
correspondence which directly relate to services under this Agreement. All
notes, contracts, memoranda, reports, drawings, manuals, materials, files,
samples, products, data, and any papers or records of every kind (and any copy
of any of the foregoing) which are or shall come into Consultant's possession
(or into the possession of any of its employees or consultants) at any time
during the Term related to the business of Identix shall be the sole and
exclusive property of Identix, whether or not such items are Confidential
Information. This property shall be surrendered to Identix immediately upon
termination of the Term or upon request of Identix at any time either during or
after the termination of the Agreement, and no copies, notes, or excerpts
thereof shall be retained. This Agreement shall not be construed as granting to
Consultant any license or other rights relating to any Confidential Information
or other business carried on by Identix. Consultant agrees not to commercialize
or exploit in any way whatsoever, any Confidential Information.
6. Cooperation. Consultant shall, whenever requested by Identix, provide
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evidence for legal proceedings and testify in any legal proceedings which
relates to any matters on which Consultant has provided services to Identix
hereunder.
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7. Indemnification. Consultant hereby agrees to indemnify and hold
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harmless Identix from and against any and all losses, damages, liabilities,
claims, judgments, settlements, costs and expenses (including reasonable
attorneys' fees) incurred by Identix arising from or relating to the breach by
Consultant of any representations, warranties, covenants or agreements in this
Agreement.
8. Further Assurances; Access to Documents. From time to time after the
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date of this Agreement, Consultant shall execute such documents and take such
other actions requested by Identix as may reasonably be necessary in order to
complete the objectives contemplated in this Agreement. Accordingly, Consultant
shall cooperate fully with Identix for the purpose of making available
appropriate documentation, at reasonable times upon reasonable notice. Identix
shall be responsible for any reasonable out-of-pocket expenses incurred by
Consultant with respect thereto.
9. Term and Termination.
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(a) Term. This Agreement shall commence on the date first above
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written and shall expire that date which is one year after the date first-above
written, or such other date as may otherwise be agreed to in writing by the
Parties or by operation of this Agreement.
(a) Termination with or Without Cause. Identix shall be able to
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terminate this Agreement without cause on no less than 30 days prior written
notice to Consultant. If either Party breaches any material provision of this
Agreement, then the non-breaching Party shall have the right to terminate this
Agreement immediately upon notice to the other Party.
(b) Dissolution, etc. Either Party may terminate this Agreement upon
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the dissolution or termination of existence of the other, the insolvency of the
other, an assignment for the benefit of creditors by the other, the appointment
of a trustee or receiver for any part of the other's property or the filing by
or against the other of any petition in bankruptcy or under any bankruptcy
statute which filing remains undischarged for 30 days.
(d) Survival. The provisions of Sections 4 (until such time as
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Consultant's obligations under Section 5 to surrender to Identix all
Confidential Information have been satisfied in full), 0, 0, 0, 0, xxx 00(x),
(x), (x), (x) and (i) shall survive the termination of this Agreement for any
reason.
10. Miscellaneous.
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(a) Specific Performance. Consultant acknowledges and agrees that
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great loss and irreparable damage may be suffered by Identix should Consultant
breach or violate any of the terms or provisions of this Agreement. Consultant
further acknowledges and agrees that the extent of damages to Identix in the
event of a breach of Sections 5, 6 or 8 (with respect to access to records)
would be difficult or impossible to ascertain and that there is and will be
available to Identix no adequate remedy at law in the event of any such breach.
Accordingly, Consultant agrees that in the event of such breach, Identix shall
be entitled to enforce such Sections by injunctive or other equitable relief in
addition to any other relief to which Identix may be entitled (without the
necessity of posting a bond).
(b) Notices. All notices, requests, demands, and other communications
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made in connection with this Agreement shall be in writing and shall be deemed
to have been duly given on the date of delivery if delivered by hand delivery or
12 hours after facsimile transmission to the persons identified below or five
days after mailing if mailed by certified or registered mail postage prepaid
return receipt requested addressed as follows:
If to Identix:
Identix Incorporated
000 X. Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President & General Counsel
Facsimile: 000-000-0000
If to Consultant:
Xx. Xxxx X. Major
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
Either party may change its address for notices by notice duly given pursuant to
this Section 9(b).
(c) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within the State of California by
California residents.
(d) Successor and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the executors, administrators, heirs, successors and
assigns of the parties. Consultant shall not assign all or any portion of this
Agreement without the prior written consent of Identix.
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(e) Counterparts. This Agreement may be signed in counterparts with
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the same effect as if the signatures of each party were upon a single
instrument. All counterparts shall be deemed an original of this Agreement.
(f) Severability. If any provision of this Agreement is held to be
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unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
(g) Entire Agreement; Modifications. This Agreement represents the
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entire understanding between the parties with respect to the subject matter
hereof, and this Agreement supersedes any and all prior understandings,
agreements, plans and negotiations, written or oral, with respect to the subject
matter hereof. All modifications to the Agreement must be in writing and signed
by the party against whom enforcement of such modification is sought.
(h) Independent Contractor. Consultant shall be an independent
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contractor with respect to Identix and shall not be an employee or agent of
Identix. Consultant shall be entitled to no benefits or compensation except as
set forth in this Agreement and shall in no event be entitled to any fringe
benefits payable to employees of Identix.
(i) Non-waiver. The failure by any Party to insist upon or enforce
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strict performance by the other party of any of the terms of this Agreement or
to exercise any rights hereunder shall not be construed as a waiver or
relinquishment to any extent of its right to assert or rely upon such terms or
rights on any future occasion.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the
day and year first above written.
Identix Incorporated
By /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President
By /s/ Xxxx Xxxxx
Name: Xxxx X. Major
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EXHIBIT A -- DESCRIPTION OF SERVICES
Consultant shall use his best efforts to dedicate one day per week to the
Company, providing the Company's senior management with strategic advice and
contributing to the Company's efforts to develop and formalize strategic
alliances with established and emerging companies in the wireless marketplace.
EXHIBIT B -- COMPENSATION
Cash Compensation:
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$1,000 per week during the Term of the Agreement
Option Grant:
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. Shares: Option to purchase 30,000 shares of Company common stock
. Plan: Identix Incorporated Equity Incentive Plan
. Grant Date: June 7, 2000
. Exercise Price: The closing sales price of the Company's common stock on the
American Stock on June 7, 2000.
. Vesting period: 1/12 per month
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