ADVISORY BOARD AGREEMENT
Eclipse Identity Recognition Corporation
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Xxxxx X. Xxxxxxx
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ECLIPSE IDENTITY RECOGNITION CORPORATION
THIS ADVISORY BOARD AGREEMENT (the “Agreement”) is made effective as of September 4,
2012 (the "Effective Date") by and between Eclipse Identity Recognition Corporation (the
"Company"), organized under the laws of the State of Delaware, United States of America, and Xxxxx
X. Xxxxxxx (the "Advisor", “You”, “Your”).
RECITALS
A. Company desires to obtain the services of Advisor to serve on the Company’s Board of Advisors (the
“CBA”), and the Advisor desires to serve on the CBA, upon the following terms and conditions.
B. Company has spent significant time, effort, and money to develop certain Business Strategies and
Plan, including but not limited to Proprietary Information (as defined below), which Company considers
vital to its business and goodwill.
C. The Business Strategies and Plan, including but not limited to Proprietary Information may
necessarily be communicated to or received by Advisor in the course of serving on the CBA for the
Company, and Company desires to obtain the Services of Advisor, only if, in doing so, it can protect its
Proprietary Information and goodwill.
D. Company does not, however, desire to receive from Advisor, or for Advisor to either induce
the use of or use in connection with the performance of the Services, any information which is
confidential to or ownership of which resides in a third party, whether acquired either prior to or
subsequent to Advisor's retention hereunder.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Advisory Board Member and Term and Termination. Company hereby appoints Advisor to
serve on Company’s Advisory Board and shall perform the Services per this Agreement. This
Agreement will become effective as of the Effective Date and will continue until terminated. Either
party may terminate this Agreement, for any reason, upon ten (10) days written notice to the other
party. Notwithstanding the foregoing, Company may terminate this Agreement immediately upon
providing written notice to Advisor if Advisor materially breaches this Agreement. Upon any
termination of the Services as provided in the preceding section, this Agreement shall terminate except
that the provisions set forth in Sections 4, 5, 6, 7, 8, 9b, and 9c of this Agreement shall survive such
termination.
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Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
Eclipse Identity Recognition Corporation
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2. Position, Duties, Responsibilities.
a. Duties. Advisor shall perform those services (“Services”) as reasonably requested by the Company
from time to time, including but not limited to the Services described on Exhibit A attached hereto.
Advisor shall devote Advisor's commercially reasonable efforts and attention to the performance of the
Services for the Company on a timely basis. Advisor shall also make himself available to answer
questions, provide advice, counsel, and Services to the Company upon reasonable request and notice
from the Company. As an Advisor, Advisor does not have authority to vote on corporate matters.
Advisor does not have management authority in the Company nor policy making powers. Advisor’s role
is solely advisory, subject to the review and approval of the Company’s Board of Directors and/or senior
management. Advisory is deemed an independent contractor per section six (6) of this Agreement.
3. Compensation and Expenses.
a. Compensation. As full and complete consideration of the Services to be rendered hereunder, the
Company shall pay Advisor the Compensation described on Exhibit A attached hereto.
b. Out of Pocket Expenses/Reimbursement of Expenses. Advisor shall be responsible for all expenses
and incidental costs towards the performance of this Agreement. Should Advisor be requested by Company
to perform certain services beyond the performance of this Agreement, Advisor shall be reimbursed for
those outside reasonable expenses incurred if agreed upon in advance by Company that Company will pay
Agent’s outside reasonable expenses identified. If approved in advance by Company, Agent must submit
receipts of those outside expense incurred to Company.
c. The terms and compensation of this Advisory Board Agreement are deemed confidential.
4. Confidentiality; Proprietary Information; Work Product; Non-Disclosure.
a. Confidential Information. As used in this Agreement, “Confidential Information” means all
nonpublic information disclosed by or relating to the Company that is designated as confidential or that,
given the nature of the information or the circumstances surrounding its disclosure, reasonably should be
considered as confidential. Confidential Information includes any information Company has conceived,
developed and owns, and continues to conceive and develop, certain property rights and information,
including but not limited to its business plans, strategies, objectives, and ideas, client and customer
information, financial projections, marketing plans, marketing materials, logos, and designs, sales
information, business development strategies, product plans and designs and deployment, technical data,
inventions, future inventions, processes, methods, data, know-how, algorithms, formulae, franchises,
databases, computer programs, computer software, user interfaces, source codes, object codes,
architectures and structures, display screens, layouts, development tools and instructions, templates, and
other trade secrets, trade names, trademarks, copyrights, patents, other intellectual property, intangible
assets and industrial or proprietary property rights which may or may not be related directly or indirectly
to Company's software business and all documentation, media or other tangible embodiment of or
relating to any of the foregoing and all proprietary rights therein of Company (all of which are
____________________________________________________________________________________________________
Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
Eclipse Identity Recognition Corporation
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hereinafter referred to as the "Proprietary Information"). Although certain information may be generally
known in the relevant industry, the fact that Company uses it may not be so known. In such instance, the
knowledge that Company uses the information would comprise Proprietary Information. Furthermore,
the fact that various fragments of information or data may be generally known in the relevant industry
does not mean that the manner in which Company combines them, and the results obtained thereby, are
known. In such instance, that would also comprise Proprietary Information.
b. General Restrictions on Use on Confidential and Proprietary Information. Advisor agrees to
hold all Confidential and Proprietary Information in confidence and not to, directly or indirectly,
disclose, use, copy, publish, summarize, or remove from Company's premises any Confidential or
Proprietary Information (or remove from the premises any other property of Company), except (i)
during the consulting relationship to the extent authorized and necessary to carry out Advisor's
responsibilities under this Agreement, and (ii) after termination of the consulting relationship, only as
specifically authorized in writing by Company. Notwithstanding the foregoing, such restrictions shall
not apply to: (x) information which Advisor can show was rightfully in Advisor's possession at the time
of disclosure by Company; (y) information which Advisor can show was received from a third party
who lawfully developed the information independently of Company or obtained such information from
Company under conditions which did not require that it be held in confidence; or (z) information which,
at the time of disclosure, is generally available to the public.
c. Ownership of Work Product. All Work Product shall be considered work(s) made by Advisor for
hire for Company and shall belong exclusively to Company and its designees. If by operation of law,
any of the Work Product, including all related intellectual property rights, is not owned in its entirety by
Company automatically upon creation thereof, then Advisor agrees to assign, and hereby assigns, to
Company and its designees the ownership of such Work Product, including all related intellectual
property rights. "Work Product" shall mean any writings (including excel, power point, word, PDF,
emails, etc.), programming, documentation, data compilations, reports, plans, designs, drawings, and
any other media, materials, or other objects produced as a result of Advisor's work or delivered by
Advisor in the course of performing that work.
d. Incidents and Further Assurances. Company may obtain and hold in its own name copyrights,
registrations, and other protection that may be available in the Advisor. Advisor agrees to provide any
assistance required to perfect such protection. Advisor agrees to also take all reasonable measures to
avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a
minimum, those measures it takes to protect his own confidential information of a similar nature.
Advisor agrees to take sure further actions and execute and deliver such further agreements and other
instruments as Company may reasonably request to give effect to this Section 4. Advisor will segregate
Confidential Information from the confidential materials of third parties to prevent commingling.
Advisor may use Confidential Information only in pursuance of his relationship with the Company.
Except as expressly provided in this Agreement, Advisor will not disclose Confidential Information to
anyone without Company’s prior written consent.
____________________________________________________________________________________________________
Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
Eclipse Identity Recognition Corporation
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e. Return of Proprietary Information. Upon termination of this Agreement, Advisor shall upon
request by the Company promptly deliver to Company at Company’s sole cost and expense, all
drawings, designs, blueprints, manuals, specification documents, documentation, source or object codes,
tape discs and any other storage media, letters, notes, notebooks, reports, flowcharts, plans, and all other
materials in its possession or under its control relating to the Proprietary Information and/or Services, as
well as all other property belonging to Company which is then in Advisor's possession or under its
control. Notwithstanding the foregoing, Advisor shall retain ownership of all works owned by Advisor
prior to commencing work for Company hereunder, subject to Company's nonexclusive, perpetual, paid
up right and license to use such works in connection with its use of the Services and any Work Product.
f. Remedies/Additional Confidentiality Agreements. Nothing in this Section 4 is intended to limit any
remedy of Company under applicable state or federal law. At the request of Company, Advisor shall
also execute Company's standard "Confidentiality Agreement" or similarly named agreement as
such agreement is currently applied to and entered into by Company's most recent employees.
5. Non-Compete. During the Term, Advisor shall provide the Company with prior written notice if
Advisor intends to provide any services, as an employee, consultant or otherwise, to any person,
company or entity that competes directly with the Company, which written notice shall include the name
of the competitor. During the period of twelve (12) months post termination date of this Agreement,
Advisor shall provide the Company with written notice any time that Advisor provides any services, as
an employee, consultant or otherwise, to any person, company or entity that competes directly with the
Company. Notwithstanding anything to the contrary contained herein, Company hereby consents to
Consultant providing services, as an employee, consultant or otherwise, to the following companies.
6. Independent Contractor; No Conflict. It is understood and agreed, and it is the intention of the
parties hereto, that Advisor is an independent contractor, and not the employee, agent, joint venturer, or
partner of Company for any purposes whatsoever. This Agreement shall not be interpreted as creating an
association, joint venture, or partnership relationship between the parties or as imposing any
employment, or partnership obligation, or liability on any party. Advisor shall not be entitled to, and
shall not attempt to, create or assume any obligation or authority, express or implied, to bind Company
by contract or otherwise. Advisor is skilled in providing the Services. To the extent necessary, Advisor
shall be solely responsible for any and all taxes related to the receipt of any compensation under
this Agreement. Advisor hereby represents, warrants and covenants that Advisor has the right and power
to enter into this Agreement and that neither the execution nor delivery of this Agreement, nor the
performance of the Services by Advisor will conflict with or result in a breach of the terms, conditions
or provisions of, or constitute a default under, any contract, covenant or instrument under which Advisor
is now or hereinafter becomes obligated.
7. Compliance with Laws. Advisor will use his/her best efforts not to violate any statute, ordinance,
rules or regulations of the US and other countries, including all relevant export laws and regulations of
the US and other governments.
____________________________________________________________________________________________________
Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
Eclipse Identity Recognition Corporation
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8. Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIALDAMAGES OF ANY KIND IN
CONNECTION WITH THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
9. Miscellaneous.
a. Notices. All notices required under this Agreement shall be deemed to have been given or made for
all purposes upon receipt of such written notice or communication. Notices to each party shall be sent to
the address set forth below the party's signature on the signature page of this Agreement. Either party
hereto may change the address to which such communications are to be directed by giving written notice
to the other party hereto of such change in the manner provided above.
b. No Assignment. The Company may assign any of its rights and obligations under this
Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law,
any of its rights and obligations under this Agreement, except with the prior written consent of the
Company. Except as otherwise provided in this Agreement, this Agreement, and the rights and
obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective
successors, assigns, heirs, executors, administrators and legal representatives.
c. No Duty to Employ or Continue Services. Advisor understands that this Agreement does not
constitute a contract of employment or obligate the Company to utilize Advisor’s services for any stated
period of time. Advisor understands that Advisor’s relationship with the Company can be terminated for
any reason or for no reason at any time by either the Company or Advisor with ten (10) days’ written
notice, or immediately by Company for Advisor’s material breach of this Agreement. Advisor
acknowledges that any statements or representations to the contrary are ineffective, unless put into a
writing signed by the Company
d. Entire Agreement. This Agreement and any documents attached hereto as Exhibits or Appendices
constitute the entire agreement and understanding between the parties with respect to the subject matter
herein and therein, and supersede and replace any and all prior agreements and understandings, whether
oral or written with respect to such matters. The provisions of this Agreement may be waived, altered,
amended or replaced in whole or in part only upon the written consent of both parties to this Agreement.
e. Severability, Enforcement. If, for any reason, any provision of this Agreement shall be determined
to be invalid or inoperative, the validity and effect of the other provisions herein shall not be affected
thereby, provided that no such severability shall be effective if it causes a material detriment to any
party.
f. Governing Law. The validity, interpretation, enforceability, and performance of this Agreement shall
be governed by and construed in accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions of the State of Delaware, or of any other state.
____________________________________________________________________________________________________
Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
Eclipse Identity Recognition Corporation
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g. Injunctive Relief. The parties agree that in the event of any breach or threatened breach of any of the
covenants in Section 4, the damage or imminent damage to the value and the goodwill of Company's
business will be irreparable and extremely difficult to estimate, making any remedy at law or in damages
inadequate. Accordingly, the parties agree that Company shall be entitled to injunctive relief against
Advisor in the event of any breach or threatened breach of any such provisions by Advisor, in addition
to any other relief (including damages) available to Company under this Agreement or under applicable
state or federal law.
h. Publicity. The Company shall, with prior written approval by Advisor, have the right to use the name,
biography and picture of Advisor on the Company’s website, marketing and advertising materials.
[This Section was left blank intentionally]
____________________________________________________________________________________________________
Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
Eclipse Identity Recognition Corporation
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Exhibit A to Advisory Board Agreement
Duties and Responsibilities
As a member of the Advisory Board, your duties and responsibilities shall be to:
❖ Participate at least one (1) full day a month on conference calls or meetings or strategy review
sessions.
❖ Participate and attend possible conference, trade shows, business meetings, or other engagements as
deemed necessary by CEO of Company.
❖ Be accessible to Company to provide guidance and render advice on business strategy issues, not
limited to business development, corporate, financial, marketing, sales, product, and technology issues
on an as-needed basis.
❖Unlimited reasonable access via phone/email for questions, advice, mentoring.
❖Advocates to angel or VC investors and/or financing.
Compensation
In consideration for the services to be rendered by you as an Advisory Board member, you shall be
compensated as follows:
❖Subject to approval of the Company’s Board of Directors, Advisor shall be granted twenty five
thousand_( 25,000) shares (“ Shares”) of the Company's Common Stock to vest equally over three (3)
years starting from the Appointment Date with full accelerated vesting when Company is acquired/sold
within three (3) years.
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Eclipse Identity Recognition Corporation * 15732 Los Gatos Blvd, XXX 000, Xxx Xxxxx, XX. 00000 Xxxxxx Xxxxxx *
* Tel: 000-000-0000 * Fax: 000-000-0000 * xxx.xxxxxxxxx.xxx *
* Fax, mail or email sign document to: xxxxx@xxxxxxxxx.xxx
