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Exhibit 6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made this 3rd day of
December, 1999, by and between C-MA International, Ltd. ("Consultant") and Oz
Technologies, Inc. ("Company").
In consideration of the mutual promises set forth herein, the
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties hereby agree as follows:
1. CONSULTING SERVICES. Consultant hereby agrees to provide and perform
for the benefit of Company certain financial and administrative consulting
services (the "Services"), or those requested by Company and approved by the
Consultant and Company hires and engages Consultant to provide Services.
2. CONSIDERATION FOR SERVICES. As consideration for each Services,
Company shall pay Consultant an amount equal to $100 per hour multiplied by the
number of hours worked by Consultant in the performance of such Services
provided, however, that Consultant will be guaranteed at least 120 hours per
month during the term of this Agreement. Company will be under no obligation to
pay or reimburse Consultant for any additional services or for any costs or
expenses incurred in connection with the Services, except upon Company's prior
written approval.
3. COMPLETION OF TASKS; TERM OF AGREEMENT. The term of this Agreement
shall commence on December 6, 1999, and shall end on March 6, 2001. However,
Company has the right to terminate this Agreement for "Cause." For purposes of
this Agreement, Cause shall mean Consultant is discharged resulting from a
determination by Company that Consultant: (i) is convicted of a felony involving
dishonesty, fraud, theft, or
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embezzlement; (ii) repeatedly fails or refuses to follow reasonable policies or
directives established by Company after written notice from Company, and a
reasonable opportunity by Consultant to cure the failures or refusals; (iii)
willfully and persistently fails to attend to the material duties or obligations
imposed upon Consultant under this Agreement after written notice from Company
and a reasonable opportunity by Consultant to cure the failure; (iv) performs an
act or fails to act, which, if Consultant were prosecuted and convicted, would
constitute a felony involving $1,000 or more of money or property of Company; or
(v) intentionally misrepresents or conceals a material fact for purposes of
securing services with Company or this Agreement.
4. BILLING FOR SERVICES. Consultant will submit invoices to Company
each month for the actual number of hours worked during the previous month, and
for any costs or expenses previously authorized by Company. The invoice should
include a breakdown of each of the Services provided to Company, the per hour
dollar rate charged for each of such Services, the number of hours worked during
such time period for each of such Services, an itemization of all such costs and
expenses, and any other information that Company may request provided, however,
that Consultant will be guaranteed at last 100 hours per month during the term
of this Agreement. Company shall make payment for all such charges incurred in
accordance with the terms of this Agreement and properly reflected in such
invoice to the Consultant within ten (10) business days after the receipt of
each invoice.
5. CHANGE OF CONTROL PAYMENT. In the event of a "Change of Control,"
Consultant shall receive a payment from Company equal to the number of months
remaining on the Agreement multiplied by $12,000. Consultant shall also receive
a pro rata payment for any partial month. The Company shall pay such payment in
a lump sum to
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Consultant within ten (10) days of the date of the Change of Control event. For
purposes of this Agreement, Change of Control shall mean and include the
following transactions or situations:
(a) A sale, transfer, or other disposition by Cerprobe
Corporation ("Cerprobe") through a single transaction or a series of
transactions of securities of Cerprobe representing 30% or more of the combined
voting power of Cerprobe's then outstanding securities to any "Unrelated Person"
or "Unrelated Persons" acting in concert with one another. For purposes of this
Section, the term "Person" shall mean and include any individual, partnership,
joint venture, association, trust, corporation, or other entity (including a
"group" as referred to in Section 13(d)(3) of the Securities Exchange Act of
1934 (the "Act")). For purposes of this Section, the term "Unrelated Person"
shall mean and include any Person other than the Company, or an Consultant
benefit Plan of the Company.
(b) A sale, transfer, or other disposition through a single
transaction or a series of transactions of all or substantially all of the
assets of Cerprobe to an Unrelated Person or Unrelated Persons acting in concert
with one another.
(c) A change in the ownership of Cerprobe through a single
transaction or a series of transactions such that any Unrelated Person or
Unrelated Persons acting in concert with one another become the "Beneficial
Owner," directly or indirectly, of securities of Cerprobe representing at least
30% of the combined voting power of Cerprobe's then outstanding securities. For
purposes of this Section, the term "Beneficial Owner" shall have the same
meaning as given to that term in Rule 13d-3 promulgated under the Act, provided
that any pledgee of voting securities shall not be deemed to be the Beneficial
Owner thereof prior to its acquisition of voting rights with respect to such
securities.
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(d) Any consolidation or merger of Cerprobe with or into an
Unrelated Person, unless immediately after the consolidation or merger the
holders of the common stock of Cerprobe immediately prior to the consolidation
or merger are the Beneficial Owners of securities of the surviving corporation
representing at least 50% of the combined voting power of the surviving
corporation's then outstanding securities.
(e) During any period of two (2) years, individuals who, at
the beginning of such period, constituted the Board of Directors of Cerprobe
cease, for any reason, to constitute at least a majority thereof, unless the
election or nomination for election of each new director was approved by the
vote of at least two-thirds (2/3) of the directors then still in office who were
directors at the beginning of such period.
(f) A change in control of Cerprobe of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Act, or any successor regulation of similar import,
regardless of whether Cerprobe is subject to such reporting requirement.
Notwithstanding any provision herein to the contrary, the filing of a
proceeding for the reorganization of Cerprobe under Chapter 11 of the Federal
Bankruptcy Code or any successor or other statute of similar import shall not be
deemed to be a Change of Control for purpose of this Agreement.
6. INDEPENDENT CONTRACTOR STATUS. The relationship of Consultant to
Company is that of an independent contractor, and nothing herein shall be
construed or deemed as creating any other relationship. Without limiting the
foregoing, the relationship between the parties hereto shall not be deemed to be
that of an employer-employee,
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joint venture, or partnership. As an independent contractor, Consultant shall
have the sole responsibility for paying taxes, workers compensation, employee
benefits (if any), and all similar obligations, and shall be charged with
performing the Services and completing the Tasks in the way that Consultant
deems the most feasible or desirable in order to accomplish the Tasks in the
most efficient manner possible.
7. CONFIDENTIAL INFORMATION AND WORK FOR HIRE. Consultant and Company
hereby acknowledge and agree that in connection with the performance of the
Services set forth herein, Consultant shall be provided with or shall otherwise
be exposed to or receive certain confidential and/or proprietary information of
Company or of third parties and may develop certain products, services, methods,
know-how, procedures, formulae, processes, specifications, and information of a
similar nature that relate to the Services rendered hereunder. Consultant
therefore agrees not to disclose such information at any time unless authorized
by Company or required by law.
8. AUDIT AND RECORDS. Consultant shall keep accurate records and books
of account showing all charges, disbursements, and expenses made or incurred by
Consultant in the performance of the Services. Company shall have the right,
upon reasonable notice, to audit at any time up to one year after payment of its
final invoice, the direct costs, expenses, and disbursements made with respect
to the performance of the Services.
9. TITLE TO MATERIALS AND EQUIPMENT. All materials and equipment
furnished by Company and all materials and equipment the cost of which shall be
reimbursed to Consultant by Company hereunder are to be and remain the sole
property of Company and are to be returned to Company within thirty (30) days of
the expiration or earlier
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termination of this Agreement, or within ten (10) days after written demand by
Company, whichever first occurs.
10. NOTIFICATION AND DISCLOSURE. Consultant will promptly and fully
disclose to Company in writing, whether or not requested by Company, any and all
ideas, improvements, discoveries, inventions, trademarks, proprietary
information, know-how, processes, or other developments or improvements
(collectively, the "Inventions"), whether or not Consultant believes them to be
patentable, that relate to the business of Company now or hereafter engaged in,
that Consultant conceives or first actually reduces to a plan, practice, or
device, either individually or jointly with others, during the term of
Consultant's employment with Company, or within the period ending six moths
after the termination thereof, and that relate to the business of Company now or
hereafter engaged in, resulting from or arising out of Consultant's use of
Company's equipment, supplies, facilities, or trade secret information that
result from any work performed by Consultant in his or her capacity as service
provider for Company, whether conceived or developed during Company's business
hours or otherwise. Consultant will keep current, accurate, and complete records
of all Inventions, which records will belong to Company and at all times be kept
and stored on Company's premises.
11. OWNERSHIP AND PATENTING OF INVENTIONS. The Inventions will be the
sole and exclusive property of Company. During the term that Consultant is
providing services to Company and at any time thereafter, Consultant, at any
time upon the requests of Company, will execute and deliver an assignment or
assignments of any and all applications, plans, devices, and other uses relating
to the Inventions that Company deems necessary or convenient to apply for,
obtain, or maintain patents of the United States, and any other foreign
countries, for the Inventions and to assign and convey to Company or its nominee
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the sole and exclusive right, title, and interest in and to the Inventions.
Consultant will provide any and all aid and assistance deemed necessary by
Company to protect Company's interest in the Inventions with respect to any
disputes arising out of any unauthorized use or infringement of the Inventions
or any patents issued in relation thereto.
12. ASSIGNABILITY. This Agreement shall be binding upon and inure to
the benefit of the parties, their legal representatives, successors, and
assigns. This Agreement may not be assigned, transferred, conveyed, or
encumbered, whether voluntarily or by operation of law, by Consultant without
the prior written consent of Company (which may be granted or withheld in
Company's sole and absolute judgment).
13. AMENDMENTS, ETC. No modification, amendment, or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by each of the parties hereto. Any waiver of any provision of
this Agreement shall be effective only in the specific instance and for the
specific purpose for which given.
14. NO WAIVER; REMEDIES. No failure on the part of Company to exercise,
and no delay in exercising, any right, power, or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
15. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the state of California.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
"OZ TECHNOLOGIES, INC."
By: _______________________
Its: _______________________
"C-MA INTERNATIONAL"
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