Exhibit 10.2
CONSULTING AGREEMENT
THIS AGREEMENT, dated as of June 1, 1999, is made and entered into by and
between n-Vision, Inc., a Delaware corporation, (the "Company") and Xxxxxxxxxxx
X. Xxxxx (the "Consultant").
W I T N E S S E T H
WHEREAS, the Company wishes to utilize Consultant's services in connection with
its business; and WHEREAS, Consultant desires to provide such services subject
to the terms and conditions set forth herein. NOW, THEREFORE, FOR GOOD AND
VALUABLE CONSIDERATION, THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS
AGREED AS FOLLOWS:
1. Retention of Independent Consultant. The Company does hereby retain
Consultant as an independent consultant to assist the Company on the terms
and conditions hereinafter stated; and Consultant does hereby accept such
retention.
2. Services to be Provided. The parties agree, that from and after the date
hereof, Consultant shall render consulting services to the Company as and
when reasonably requested by the Company. These consulting services shall
include, without limitation, the following services: advising the Company
with respect to its operations, business, suppliers and staffing;
representing the Company at trade shows and conferences; and assisting the
Company with its business development, planning and the development and
promotion of new products and services.
3. Compensation. Consultant shall receive compensation during the term of
this Agreement for his services rendered pursuant to this Agreement as
follows:
(A) A sum of $35,000 per year to be paid in semi-monthly
installments;
(B) Reimbursement for pre-approved tuition expenses incurred by the
Consultant during the term of this Agreement; and
(C) Use of the Company's asset #0070 Toshiba Laptop (Serial
#29436716) during the term of the Agreement.
4. Independent Contractors. Consultant acknowledges that he is an
independent contractor and not an employee of the Company. Accordingly,
Consultant acknowledges that he will not be entitled to any employee
benefits which may be provided by the Company for its employees; and that
amounts earned by Consultant will not be subject to FICA taxes or state or
federal withholding.
5. Intellectual Property; Non Disclosure Obligations. The parties
acknowledge that Consultant has had and will have access to various trade
secrets and other proprietary and confidential information which are owned
by the Company and which are used in operation of the Company's business.
"Trade secrets and other proprietary and confidential information" consist
of, for example, and not intending to be inclusive: (i) information
concerning any matters relating to the business of the Company, any of its
customers, customer contacts, business prospects, business opportunities,
licenses, contracts, the prices it obtains, has obtained or offers for
supplies, products or services or any other information concerning the
business of the Company and the Company's good will, and (ii) techniques,
methodologies, software, algorithms, systems, formulae, processes,
compilations of information, drawings, proposals, business plans, job
notes, reports, records and specifications. Consultant shall not disclose
or use in any manner, directly or indirectly, any such trade secrets and
other proprietary and confidential information either during the term of
this Agreement or for period of not less than two (2)
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years thereafter, except as required in the course of the Consultant's
performance of services and work for the Company under this Agreement or as
approved in writing by the President of the Company.
6. Intellectual Property Rights. Consultant acknowledges and agrees that
all right, title and interest of any kind and nature, whether known or
unknown, in any trade secrets and other proprietary and confidential
information and any other intellectual property, including, but not limited
to, any inventions, patents, trademarks, service marks, copyrights and
other properties invented, created, written, developed, furnished, produced
or disclosed by Consultant, in the course of rendering services to the
Company under and pursuant to this Agreement (said properties hereinafter
referred to as the "Work Product") shall, as between the Company and
Consultant, (a) be within the scope of Consultant's engagement, and (b) be
and remain always the sole and exclusive property of the Company for any
and all purposes and uses, and Consultant shall have no right, title, or
interest of any kind or nature in or to such property, or in or to any
results and/or proceeds of such property. Consultant agrees to disclose all
discoveries, improvements and inventions conceived, made or developed in
the course of his employment promptly and fully to the Company and to
execute any and all documents deemed necessary by the Company to secure
fully to the Company the Work Product, including, without limitation,
patent and/or copyright assignments and to cooperate with the Company in
any subsequent actions deemed necessary by the Company to perfect its
interest in the Work Product. Consultant agrees that he will not create or
permit any security interest, lien or other encumbrance upon the Work
Product or any materials furnished by the Company to Consultant in the
course of Consultant's employment.
7. Non-Compete; Non-Solicitation. In consideration for the compensation
provided herein, Consultant agrees, while he is providing services to the
Company, and for a period of two (2) years thereafter, not to directly or
indirectly, either alone or in partnership or jointly or in conjunction
with any person or persons, firm, association, company, corporation or
other entity as principal, agent, employee, director, shareholder or in any
other manner whatsoever (i) carry on or be engaged in the business of the
production, manufacture, sale and marketing of video conferencing
technology and related data communication systems and installations, and/or
(ii) solicit business from, or sell to, any of the customers of the
Company. Nothing herein shall prohibit Consultant from owning not more than
five percent (5%) of the outstanding stock of any class of an entity
described herein which is publicly traded, so long as Consultant has no
active participation in the business of such entity. Consultant further
agrees that during the Non-Compete Period, he will not directly or
indirectly offer employment to or hire any person who is currently or was
within the last year employed by the Company, or is or will be employed by
the Company, except with prior written consent of the Company.
8. Specific Performance; Severability. It is specifically understood and
agreed that any breach of the provisions set forth in Sections 5, 6 and 7
by Consultant is likely to result in irreparable injury to the Company,
that the remedy at law alone will be an inadequate remedy for such breach
and that, in addition to any other remedy it may have, the Company shall be
entitled to enforce the specific performance of this Agreement by
Consultant through both temporary and permanent injunctive relief, and
through any other appropriate equitable relief, without the necessity of
showing or proving actual damages. In case any of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, including without limitation geographic
scope, duration or functional coverage, any such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and
enforceable, or if it shall not be possible to so limit or modify such
invalid, illegal or unenforceable provision or part of a provision, this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or part of a provision had never been contained in this
Agreement.
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9. Term of Contract. The initial term of this Agreement shall be from the
date of this Agreement until June 1, 2000. This agreement shall be
automatically renewed for an additional one-year term, unless either
Consultant or the Company gives contrary written notice to the other party
hereto not less than 15 days before the scheduled expiration of the term of
this Agreement. Each term and all such renewed terms are collectively
referred to herein as the term of this Agreement.
10. Governing Law. This Agreement shall be governed by the law of the State
of Delaware, and each party consents to jurisdiction and venue regarding
any dispute arising out of or related to this Agreement being vested in the
Federal and State Courts of Delaware.
11. Binding Effect. This Agreement shall be binding upon the parties hereto
and their respective heirs, person representatives and successors.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first set forth above.
n-VISION, INC. CONSULTANT
/s/Xxxxxx X. Xxxxxx, Xx. /s/ Xxxxxxxxxxx X. Xxxxx
------------------------ -------------------------
By: Xxxxxx X. Xxxxxx, Xx. Xxxxxxxxxxx X. Xxxxx
Title: President
Dated: June 1, 1999 Dated: June 1, 1999
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