CONSULTING AGREEMENT (Incoming Services)
Exhibit
10.1
(Incoming
Services)
This
Consulting Agreement (“Agreement”) is made and entered into this _3rd__
day of
__February_______
(“Effective Date”), by and between Fiberstars, Inc., a _California
__
corporation having a place of business at 00000 Xxxxxx Xx., Xxxxx, XX 00000
(“Company”), and Xxxxx X. Xxxxxxx, having a place of business at 00
Xxxxxxxx Xxx, Xxxxxxxx, XX 00000
("Consultant"). The parties hereby agree as follows:
| 1. |
Term
of Agreement.
This Agreement will become effective on January
1, 2006
and will continue in effect for 15 (fifteen) months or until terminated
as
provided in Section 13.
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| 2. |
Services
To Be Performed by Consultant.
Consultant agrees to perform the services as set forth in the Statement
of
Work (“SOW”), which is attached to this Agreement (the "Project").
Consultant and Company agree that additional services may be performed
under this Agreement and that any such additional services will be
set
forth on additional SOWs and attached as Exhibit X-0, Xxxxxxx X-0,
etc. to
this Agreement as mutually agreed upon by the parties. Consultant
shall
perform all services in a professional and timely
manner.
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| 3. |
Fees;
Expenses.
Company will compensate Consultant according to the fee schedule
set forth
the applicable SOW, attached hereto in accordance with Section 2
above,
for services satisfactorily performed by Consultant under this Agreement.
Consultant will be solely responsible for any expenses it incurs
in
connection with the Project including without limitation travel and
telephone charges. Unless otherwise agreed in writing, Company will
not
reimburse Consultant for any expenses. The fee(s) payable under this
Agreement shall not be construed to include local, state or federal
sales,
use, excise, personal property or other similar taxes or duties,
and any
such taxes shall be assumed and paid for by
Consultant.
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| 4. |
Consultant's
Tax Obligations.
To the extent required by law, Consultant shall be solely responsible
for
and shall make proper and timely payment of any withholding or other
taxes, such as the Consultant's estimated state and federal income
taxes,
and Consultant hereby agrees to indemnify Company against any claims,
liabilities or expenses Company incurs as a result of Consultant's
breach
of its obligations under this Section
4.
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| 5. |
Independent
Consultant Relationship.
Consultant and Company agree that no employment relationship is created
by
this Agreement. Company is interested only in the results to be achieved.
Consultant is an independent contractor and no employee of Consultant
will
be considered an agent or common law employee of Company for any
purpose.
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| 6. |
Consultant’s
Insurance Obligations.
Consultant is solely responsible for securing and maintaining workers’
compensation insurance, if legally required, for Consultant and
Consultant’s employees. Upon Company’s request, Consultant will provide
Company with proof of Consultant’s workers’ compensation coverage. During
the term of this Agreement, Consultant will maintain comprehensive
general
liability, automotive liability and property damage insurance coverage
and
other appropriate coverage, insuring against all liability of Consultant
and Consultant’s employees, agents or subcontractors arising out of, or in
connection with, Consultant’s performance of services under this
Agreement. Consultant hereby agrees to indemnify Company against
any
claims, liabilities or expenses Company incurs as a result of Consultant’s
breach of its obligations under this Section
6.
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|
7.
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Confidentiality
of Proprietary Information.
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(a) “Proprietary
Information" shall mean (i) technical information relating to Company's existing
and future products, including, where appropriate and without limitation,
proprietary technology, techniques and procedures, algorithms, trade secrets,
discoveries, ideas, inventions (whether patentable or not), concepts, know-how,
techniques, designs, schematics, specifications, drawings, diagrams, data,
computer programs, patent disclosures, patent applications, development or
experimental work, formulae, engineering or test data, product specifications,
product development plans, structures, models, reports, studies, statistics,
demonstrations and processes relating to the same disclosed by Company to
Consultant or obtained or created by Consultant through observation or
examination of information or developments in connection with this Agreement;
(ii) confidential marketing information (including without limitation marketing
strategies, customer lists and requirements and product prices);
(iii) confidential future product plans; (iv) confidential financial
information provided to Consultant by Company; (v) personnel information
(including without limitation Consultant or employee compensation); and
(vi) other confidential business information. Confidential Information
shall also include descriptions of the existence or progress of the
above-described information.
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(b) At
all
times during this Agreement and at all times after termination of this
Agreement, Consultant will keep in strict confidence and trust all Proprietary
Information, and Consultant will not use or disclose any Proprietary Information
or anything relating to it without the written consent of Company, except as
may
be necessary in the ordinary course of performing Consultant's duties under
this
Agreement.
(c) All
Company property, including, but not limited to, Proprietary Information,
reports, documents, data, records, equipment and other physical property,
whether or not pertaining to Proprietary Information, provided to Consultant
by
Company or produced by Consultant or others in connection with Consultant
providing services under this Agreement shall be and remain the sole property
of
Company and shall be returned promptly to Company as and when requested by
Company. Should Company not so request, Consultant shall return and deliver
all
such property upon termination of this Agreement, and Consultant will not take
any such property or any reproduction of such property upon such
termination.
(d) Consultant
recognizes that Company has received and in the future will receive information
from third parties which is the third party's private or proprietary information
subject to a duty on Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. Consultant agrees
that during the term of this Agreement and thereafter Consultant owes Company
and such third parties a duty to hold all such private or proprietary
information received from such third parties in the strictest confidence and
not
to disclose it, except as necessary in carrying out Consultant's work for
Company consistent with Company's agreement with such third party and not to
use
it for the benefit of anyone other than for Company or such third party
consistent with Company's agreement with such third party.
(e) The
obligations of Consultant shall continue until such time as the Proprietary
Information is publicly known, without fault on the part of Consultant.
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8.
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Developed
Information.
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(a) Consultant
agrees to promptly disclose to Company, or any persons designated by it, all
improvements, inventions, formulae, processes, techniques, discoveries,
developments, improvements, trade secrets, know-how and data, whether or not
patentable, and all designs, trademarks and copyrightable works that Consultant
may solely or jointly make or conceive or reduce to practice or learn during
the
period of this Agreement which are within the scope of the services to be
provided by Consultant under this Agreement, as set forth in the SOWs attached
hereto in accordance with Section 2 of this Agreement, or result from tasks
assigned Consultant by Company (hereinafter "Developed Information"). Such
disclosure shall continue for one year after termination of this Agreement
with
respect to anything that would be Developed Information if made, conceived,
reduced to practice or learned during the term thereof.
(b) Consultant
agrees that all Developed Information shall be the sole property of Company
and
its assigns, and Company and its assigns shall be the sole owner of all patents,
trademarks and copyrights in connection therewith. Consultant hereby assigns
to
Company any rights Consultant may have or acquire in all Developed Information.
Consultant further agrees as to all Developed Information to assist Company
in
every proper way (but at Company's expense) to obtain and from time to time
enforce patents, trademarks and copyrights on the Developed Information in
any
and all countries, and to that end Consultant will execute all documents for
use
in applying for and obtaining such patents and copyrights thereon and enforcing
same, as Company may desire, together with any assignments thereof to Company
or
persons designated by it. Consultant's obligation to assist Company in obtaining
and enforcing patents and copyrights for the Developed Information in any and
all countries shall continue beyond the termination of this Agreement, but
Company shall compensate Consultant at a reasonable rate commensurate with
rates
paid by others for comparable services after such termination for time actually
spent by Consultant at Company's request on such assistance. In the event that
Company is unable for any reason whatsoever to secure Consultant's signature
to
any lawful and necessary document required to apply for or execute any patent
or
copyright application with respect to Developed Information (including renewals,
extensions, continuations, divisions or continuations in part thereof),
Consultant hereby irrevocably designates and appoints Company and its duly
authorized officers and agents, as Consultant's agents and attorneys-in-fact
to
act for and in Consultant's behalf and instead of Consultant, to execute and
file any such application and to do all other lawfully permitted acts to further
the prosecution and issuance of patents or copyrights thereon with the same
legal force and effect as if executed by Consultant.
| 9. |
Property
of Others.
Consultant warrants and represents that it has all necessary rights
in and
to the deliverables, work product or any other information or data
provided to Company under this Agreement and that such deliverables,
work
product or other information or data do not and will not infringe
the
rights of any third party. Consultant warrants and represents that
Consultant's performance under this Agreement does not and will not
breach
any agreement to keep in confidence confidential information or trade
secret, if any, acquired by Consultant in confidence or in trust
prior to
this Agreement. There are no agreements, written or oral, conveying
rights
in any research conducted by Consultant under this Agreement to anyone
other than Company. Consultant has not entered into, and Consultant
agrees
Consultant will not enter into, any agreement either written or oral
in
conflict herewith. Consultant understands, as part of the consideration
for entering into this Agreement, Consultant has not brought and
will not
bring to Company or use in the performance of Consultant's
responsibilities at Company any equipment, supplies, facility or
proprietary or trade secret information of any third party, including
without limitation, current or former clients to which Consultant
provided
services which are not generally available to the public, unless
Consultant has obtained written authorization for their possession
and
use. Consultant hereby agrees to indemnify Company against any claims,
liabilities or expenses Company incurs arising out of or related
to
Consultant’s breach of its obligations under this Section
9.
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2
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10.
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Representations
and Warranties.
Consultant hereby further warrants, represents, covenants and agrees
as
follows:
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(a) Consultant
has and will continue to have the full right, power and authority to enter
into
this agreement, to perform the terms and conditions of this Agreement, to grant
the rights herein granted to Company, to make the representations and warranties
contained herein, to otherwise perform hereunder, and to vest in Company all
the
rights as provided in this agreement, free and clear of any and all claims,
rights and obligations not set forth herein.
(b) Consultant
warrants and represents that it has all necessary rights in and to the
deliverables, work product or any other information or data provided to Company
under this Agreement, including without limitation, any Developed Information,
(collectively “Work Product”).
(c) The
Work
Product, including, without limitation, all copyrights throughout the Universe
pertaining thereto and all extensions and renewals of said copyrights, are
and
shall be the sole and exclusive property of Company throughout the universe.
Company has the exclusive right forever and throughout the Universe to change,
adapt, modify, use, transfer and otherwise exploit the Work
Product.
(d) The
Work
Product and Company’s rights therein, including the copyrights therein, do not
and will not violate, invade, infringe upon, interfere with, conflict with,
or
unfairly compete with, the rights (including without limitation all common
law
or statutory rights or the copyrights) of any other person or entity, and there
does not now and will not exist any claim by a third party in or to the Work
Product, and no third party has or will have any rights in and to the Work
Product.
(e) All
costs
and expenses in connection with Consultant’s provision of the services under
this Agreement, including any expenses incurred by Consultant in connection
with
the execution of this Agreement, have been paid by Consultant. Other than the
amounts to be paid to Consultant under this Agreement, Company shall not be
required to make any payments of any nature for, or in connection with, the
acquisition, exercise or exploitation of the rights granted to Company
hereunder.
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11.
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Indemnity.
Consultant will indemnify and hold Company and any licensee of Company
harmless from and against any and all claims, damages, liabilities,
costs
and expenses, including legal expenses and reasonable counsel fees,
arising out of any breach or threatened breach by Consultant of,
or any
third party claim which is inconsistent with, any warranty,
representation, or agreement made by Consultant in this
Agreement.
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12.
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No
Solicitation.
Consultant agrees that during the term of this Agreement and for
a period
of twelve months thereafter, Consultant will not either directly
or
indirectly solicit, induce, recruit or encourage any of the Company’s
employees or consultants to terminate their relationship with Company,
or
attempt to do any of the foregoing, either for Consultant or for
any third
party.
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13.
Termination.
| (a) |
This
Agreement shall terminate automatically on the occurrence of any
of the
following events: (i) sale of Consultant's business or (ii) assignment
of
this Agreement by Consultant without Company's
consent.
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| (b) |
Company
may terminate this Agreement for any reason on thirty (30) days'
written
notice to Consultant.
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3
| (c) |
Should
Consultant default in the performance of this Agreement or materially
breach any of its terms, Company, at its option, may terminate this
Agreement immediately upon giving written notice to Consultant. For
the
purpose of this section, material breach of this Agreement shall
include
but not be limited to failure to complete the Project in a timely
fashion,
habitual neglect, gross negligence or willful wrongdoing in the
performance of the Consultant's duties, or Consultant's breach of
Sections
6, 7, 8, 9, 10 or 11 of this
Agreement.
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| (d) |
Sections
4. 6-12, 13(d), and 14-18 shall survive termination of this Agreement
for
any reason.
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14.
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Assignment;
Successors and Assigns.
Consultant’s rights and obligations under Agreement may not be assigned or
delegated by Consultant in whole or in part without the express written
consent of Company. This Agreement inures to the benefit of successors
and
assigns of Company, and is binding upon Consultant's heirs,
executors, administrators or other legal
representatives.
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15.
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Governing
Law.
This Agreement shall be governed by and construed in accordance with
the
laws of the State of California, exclusive of its choice of law
provisions. The California state courts of Santa Xxxxx County (or,
if
there is exclusive federal jurisdiction, the United States District
Court
for the Northern District of California) shall have exclusive jurisdiction
and venue over any dispute arising out of or relating to this Agreement,
and each party hereby consents to the jurisdiction and venue of such
courts. The parties agree that service of process by US mail certified,
to
the last known address of a party, as provided or as changed in accordance
with the provisions of this Agreement, shall be
valid.
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16.
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Equitable
Relief.
Consultant acknowledges that any breach or threatened breach by Consultant
of the provisions of Sections 6 through 12 of this Agreement will
result
in immediate and irreparable harm to Company, for which there will
be no
adequate remedy at law, and that Company will be entitled to equitable
relief to restrain Consultant from violating the terms of these sections,
and/or to compel Consultant to cease and desist all unauthorized
use and
disclosure of the Proprietary Information. Company shall be entitled
to
recover from Consultant any costs or expenses incurred in obtaining
relief
against breach of this Agreement by Consultant, including, but not
limited
to, legal fees and costs. Nothing in this section shall be construed
as
prohibiting Company from pursuing any other remedies available to
it for
such breach or threatened breach, including recovery of damages from
Consultant.
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17.
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Exhibits.
The following exhibits are attached to this Agreement and are incorporated
by reference: Exhibit A, Statement of Work
Form.
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18.
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Miscellaneous.
This Agreement supersedes and cancels any and all previous agreements
of
whatever nature between Company and Consultant with respect to the
matters
covered herein. This Agreement constitutes the full, complete and
exclusive agreement between Consultant and Company with respect to
the
subject matters herein. No modification or waiver of this Agreement,
or
any portion hereof, shall be valid unless made in writing and signed
by
the parties hereto. All notices under this Agreement shall be deemed
to
have been duly given upon the mailing of the notice, postpaid, to
the
party entitled to such notice at the respective addresses set forth
herein. The failure of any party to require performance by another
party
of any provision of this Agreement shall in no way affect the full
right
to require such performance at any time thereafter. Should any provisions
of this Agreement be found unenforceable, the remainder shall still
be in
effect. This Agreement has been negotiated by the parties and their
respective attorneys, and the language of this Agreement shall not
be
construed for or against either party. The headings are not part
of this
Agreement. Either the original or copies, including facsimile
transmissions, of this Agreement, may be executed in counterparts,
each of
which shall be an original as against any party whose signature appears
on
such counterpart and all of which together shall constitute one and
the
same instrument.
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Accepted
and Agreed:
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CONSULTANT:
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COMPANY:
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By:
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/s/Xxxxx
X. Xxxxxxx
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By:
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/s/Xxxx
X. Xxxxxxxxx
|
|
|
Print
Name:
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Xxxxx
X. Xxxxxxx
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Print
Name:
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Xxxx
X. Xxxxxxxxx
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As
Its:
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As
Its:
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Chief
Executive Officer
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4
EXHIBIT
A
STATEMENT
OF WORK FORM
| 1. |
Principal
Contact(s):
Xxxx
X. Xxxxxxxxx and Xxxxxx X.
Xxxxxxx
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| 2. |
Services
to be Provided; Term.
|
Consultant
shall render such services as Company may from time to time request in writing
in connection with the following project:
Marketing
EFOÔ
Consultant
shall upon Company's request, but in any event no less frequently than once
each
month, report to Company on the status of the project performed by Consultant
hereunder. Upon notice to Consultant, Company has the right to receive copies
of
all or any portion thereof.
| 3. |
Fee
Schedule.
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| a) |
Cash
Compensation
|
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$10,000
per month for 9 months
|
Company
will pay $10,000 before the 10th
of the
month following the month in which services have been performed. The total
amount authorized to be paid to Consultant under this Statement of Work is
$90,000
for 9 months.
This
amount shall not be exceeded without Company’s written approval.
| b) |
Stock
Compensation
|
| i. |
25,000
options granted effective December 9,
2005
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| ii. |
32,000
options granted on the date of the Fiberstars 2006 Annual Meeting,
subject
to the approval by shareholders of additional options in the option
pool.
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| 4. |
Acceptance
of Work Product.
|
Within
ten (10) working days after receipt of Consultant's completed report ("Work
Product"), Company will accept or reject the Work Product. In the event Company
rejects the Work Product, Company may at its option require Consultant, at
Consultant's own expense, to revise the Work Product to render it acceptable
to
Company. Consultant will have ten (10) working days to submit the revised
Work
Product to Company. If Company fails to notify Consultant within the specified
time, Company will be deemed to have accepted the Work Product.
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CONSULTANT:
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COMPANY
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By:
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/s/Xxxxx
X. Xxxxxxx
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By:
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/s/Xxxx
X. Xxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx
X. Xxxxxxx
|
Print
Name:
|
Xxxx
X. Xxxxxxxxx
|
|
|
As
Its:
|
As
Its:
|
Chief
Executive Officer
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5
