CONSULTING AGREEMENT
This
CONSULTING AGREEMENT ("Agreement")
is
made and
entered into this 18th day of December, 2007 by and between Xxxxxx Xxxxxx (the
"Consultant") and
Robotic Workspace Technologies, Inc. (“RWT”),
a
wholly owned
subsidiary of Innova Robotics and Automation, Inc. (“Innova”),
a
Delaware
corporation (together RWT and Innova are referred to herein as the "Corporation").
R
E C I T A L S:
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A.
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Consultant
has substantial experience in the field of robotics, including as
an
executive with the Corporation.
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B.
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The
Corporation has certain proprietary intellectual property that it
desires
to license and has spent considerable time and effort developing
relationships, concepts, plans and ideas in connection with the further
development, marketing, manufacturing and selling a robotics chair
for use
in the rehabilitation industry which was initially developed by NIST
and
is currently being further developed at Florida Gulf Coast University
in
Fort Xxxxx, Florida. The robotics chair is referred to herein as
the
“HLPR
Chair.”
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C.
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The
Company desires to retain the Consultant to (i) obtain licensing
agreements and settlements with trade secret and patent violators
of its
intellectual property and (ii) to assist in obtaining funding and
business
opportunities for the Corporation with the HLPR Chair and the Consultant
desires to accept the engagement.
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NOW
THEREFORE, in consideration of the promises, mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Company and the Consultant
do
hereby agree as follows:
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1.
Scope
of
Engagement. Corporation shall retain the Consultant to provide the
services and for the compensation set forth below:
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a.
HLPR
Chair. Subject
to the terms of this Consulting Agreement, Consultant
shall have the exclusive right to market the HLPR Chair for the benefit of
the
Corporation and its shareholders on terms acceptable to the Corporation.
Consultant shall not at any time either during the six (6) month period of
the
Consulting Agreement or for eighteen months (18) months thereafter, market
the
HLPR Chair for the benefit of any other party, unless expressly approved in
writing by the Corporation. Consultant acknowledges and agrees that during
the
term of his employment as an Executive with the Corporation, he developed
certain concepts, ideas, plans and other confidential information regarding
the
HLPR Chair. Further, he requested that counsel to the Corporation at the expense
of the Corporation, establish a not for profit organization, known as Robotic
Rehabilitation Resources, Inc. (“RRR”) to enter a consulting agreement with
NIST. Accordingly, Consultant agrees that the development work done with the
HLPR Chair was and is for the benefit of the Corporation and further agrees
as
follows:
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(i)
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On
or prior to termination of this Consulting Agreement, Consultant
will use
his best efforts to cause RRR to enter an agreement in substantially
the
form presented to RRR (attached) and with a competitive royalty to
be paid
to RRR as may be mutually agreed by the Corporation and
RRR.
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(ii)
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If
the Corporation and RRR are unable to enter an agreement, Consultant
agrees that he will not use or disclose to any other party including
RRR
any ideas, concepts, technical information, or other intellectual
property
owned by Innova and its subsidiaries developed while he was employed
by
either Innova or RWT.
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(iii)
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In
addition Consultant agrees that so long as there is no agreement
between
the Corporation and any of its wholly owned subsidiaries, on the
one hand
and RRR, on the other hand, he will not be employed as an employee
or
independent contractor by any entity, including RRR, which is developing
the HLPR Chair. If there is an agreement between Innova and/or one
of its
wholly owned subsidiaries and RRR, then Consultant may be engaged
by RRR
or any other entity bound by the agreement with the Corporation and/or
its
wholly owned subsidiary, but shall not disclose the Corporation’s
confidential information to parties which are not subject to the
terms of
such Agreement between the Corporation and/or one of its subsidiaries
and
RRR.
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If
Consultant obtains financing for the Corporation from the HLPR Chair which
inures to the benefit of Corporation, Consultant shall be paid a fee equal
to
1.0% of the net cash proceeds to the Corporation. If Consultant obtains revenues
or other income for the Corporation from the HLPR Chair which inures to the
benefit of Corporation, Consultant shall be paid a fee equal to 7.5% of the
net
cash proceeds to the Corporation for the period ending the earlier of July
1,
2008, or the last date upon which the Corporation receives cash proceeds.
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(iv)
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The
Corporation shall direct all efforts with respect to a transaction
regarding the HLPR Chair with Hill-Rom, and Hill Rom shall be excluded
from the exclusivity provision of this consulting agreement and Consultant
shall be entitled to a fee as set forth in (iii)
above.
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b.
Licensing
and
Legal Settlements regarding RWT Patents and Trade Secret Violations.
Consultant shall have the nonexclusive right to license the
RWT
intellectual property (patents) and pursue compensation for trade
secret
violations, subject to the Corporation’s approval of any licensing
agreement or trade secret award or settlement. Consultant shall be
paid
7.5% of all net revenues received by the Corporation during the period
commencing on the date of this agreement through the date which is
the
third anniversary of this agreement from such licensing agreements
or
trade secret awards or settlement agreements entered as a direct
result of
Consultant’s efforts. Consultant shall advise the Corporation as to all
third parties he intends to contact one week prior to such contact
and
such contact and information delivered to prospective patent or trade
secret infringer/violator shall be in accordance with the Corporations
established method of securing licensing revenues and trade secret
awards
or settlements. After proof of the delivery of the appropriate
communications, the name of the targeted patent infringer or trade
secret
violator shall be entered onto the official list of qualified companies
for which Consultant will be eligible to receive said compensation
in
accordance with this paragraph 1 (b) of this agreement. As of the
date
hereof, the only qualified company is KUKA.
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(i)
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Consultant
shall be reimbursed for all expenses which are pre-approved in writing
by
the Corporation.
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(ii)
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All
fees earned pursuant to this subsection 1 .b. shall be paid within
thirty
days following the Corporations receipt of net revenues and related
cash.
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(iii)
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During
the term of this Consulting Agreement, and any extensions so
agreed to by the Parties, Consultant shall report directly to the
Chief
Executive Officer (CEO) of the Corporation and shall limit all
communications to and from the CEO, unless otherwise specified
in writing
by the CEO.
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1.
Performance.
The
Consultant accepts the engagement described in Section 1 of this Agreement
and
agrees to devote such of his time as the Corporation and Consultant agree
necessary in order to perform the services described herein.
3.
Reimbursement
of Expenses.
The Corporation shall reimburse Consultant for Consultant’s previously
approved out of pocket expenses, on a monthly basis. Consultant shall provide
the Company with copies of all bills associated with reimbursed
expenses.
4.
Surrender
of Properties.
Upon termination of the Consultant's engagement with the Corporation,
regardless of the cause therefore, the Consultant shall promptly surrender
to
the Corporation all property provided Consultant by the Corporation for use
in
relation to Consultant’s engagement.
5.
Confidentiality
of
Information; Duty of Non-Disclosure.
(a)
The
Consultant acknowledges and agrees that Consultant’s engagement by the
Corporation under this Agreement necessarily involves Consultant’s understanding
of and access to certain trade secrets and confidential information pertaining
to the business of the Corporation. Accordingly, the Consultant agrees that
after the date of this Agreement at all times Consultant will not, directly
or
indirectly, without the express written consent of the Corporation, disclose
to
or use for the benefit of any person, corporation or other entity, or for
Consultant any and all files, trade secrets or other confidential information
concerning the internal affairs of the Corporation, including, but not limited
to, information pertaining to its trade secrets, business plans, clients,
services, products, earnings, finances, operations, methods or other activities,
provided, however, that the foregoing shall not apply to information which
is of
public record or is generally known, disclosed or available to the general
public or the industry generally. Further, the Consultant agrees that Consultant
shall not, directly or indirectly, remove or retain, without the express prior
written consent of the Corporation, and upon termination of this Agreement
for
any reason shall return to the Corporation, any figures, calculations, letters,
papers, records, computer disks, computer print-outs, lists, documents,
instruments, drawings, designs, programs, brochures, sales literature, business
plans or any copies thereof, or any information or instruments derived
therefrom, or any other similar information of any type or description, however
such information might be
obtained or recorded, arising out of or in any way relating to the business
of
the Corporation or obtained as a result of his engagement by the Corporation
except as disseminated to the public at large or industry generally. The
Consultant acknowledges that all of the foregoing are proprietary information,
and are the exclusive property of the Corporation. The covenants contained
in
this Section 10 shall survive the termination of this Agreement.
(b)
The
Consultant agrees and acknowledges that the Corporation does not have any
adequate remedy at law for the breach or threatened breach by the Consultant
of
Consultant’s covenant, and agrees that the Corporation shall be entitled to
injunctive relief to bar the Consultant from such breach or threatened breach
in
addition to any other remedies which may be available to the Corporation at
law
or in equity.
6.
Term and
Termination.
(a)
Term.
This
Agreement
shall automatically terminate on June 19, 2008 (the
“Effective
Date”). Any
extension must be in writing and signed by both parties.
(b)
Termination
for Just Cause.
The Corporation shall have the option to terminate the Engagement Period,
effective immediately upon written notice of such termination to the Consultant,
for Just Cause. For purposes of this Agreement, the term "Just Cause" shall
mean
the occurrence of any one or more of the following events: (a) the death or
permanent total disability of the Consultant or Consultant’s absence from active
engagement by reason of illness or incapacity for a period of sixty (60)
consecutive days; (b) the breach by the Consultant of Consultant’s covenants
under this Agreement; (c) the commission by the Consultant of theft or
embezzlement of Corporation property or other acts of dishonesty; (d) the
commission by the Consultant of a crime resulting in injury to the business,
property or reputation of the Corporation or any affiliate of the Corporation
or
commission of other significant activities harmful to the business or reputation
of the Corporation or any affiliate of the Corporation; (e) the willful refusal
to perform or substantial neglect of the activities to be performed by the
Consultant pursuant to Section 1 hereof; or (f) termination of the business
of
the Corporation for any reason.
Upon
termination of the engagement period for Just Cause, the Consultant shall have
no rights to any future fees for any period beyond the effective date of
termination.
7.
Independent
Contractor. Consultant’s relationship to the Company is one of
independent contractor and nothing contained in this Agreement shall be
construed to imply that Consultant is an agent or employee of the Company for
any purpose, including, without limitation, withholding for purposes of Social
Security or income taxes, or entitlement to any insurance, retirement or other
employee benefits offered by the Company except as set forth in that certain
Termination and Retirement Agreement of even date herewith. Consultant
acknowledges and represents to the Company that he understands and will assume
all state, local, and federal reporting requirements for an independent
contractor. Consultant shall have no right, power or authority to create any
obligation, expressed or implied, or to make any representation on behalf of
the
Company, except as may be expressly authorized in writing from time to time
by
the Company and then only to the extent of such authorization.
8.
General
Provisions.
(c)
Goodwill.
The
Corporation has invested substantial time and money in the development of its
products and services, soliciting clients and creating goodwill. By accepting
this Consulting Agreement with the Corporation, the Consultant acknowledges
that
the customers are the customers
of the Corporation and that any goodwill created by the Consultant belongs
to
and shall inure to the benefit of the Corporation.
(d)
Notices.
Any
notice
required or permitted hereunder shall be made in writing (i) either by actual
delivery of the notice into the hands of the party hereunder entitled, or (ii)
by the mailing of the notice in the United States mail, certified or registered
mail, return receipt requested, all postage prepaid and addressed to the party
to whom the notice is to be given at the party's respective address as set
forth
below:
If
to the
Corporation:
Innova
Robotics and Automation, Inc.
X.X.
Xxx
00000
Xxxx
Xxxxx, Xxxxxxx 00000
Attention:
Xxxxxx Xxxxxxx, Chief Executive Officer
If
to the
Consultant:
Xxxxxx
Xxxxxx
0000
Xxxxxx Xxxxx
Xx.
Xxxxx, Xxxxxxx 00000 Attention: Xxxxxx Xxxxxx
The
notice shall be deemed to be received in case (i) on the date of its actual
receipt by the party entitled thereto and in case (ii) on the date which is
three (3) days after its mailing.
(e)
Amendment
and Waiver.
No amendment or modification of this Agreement shall be valid or binding
upon the Corporation unless made in writing and signed by an officer of the
Corporation duly authorized by the Board of Directors or upon the Consultant
unless made in writing and signed by Consultant. The waiver by the Corporation
of the breach of any provision of this Agreement by the Consultant shall not
operate or be construed as a waiver of any subsequent breach by Consultant.
The
waiver by the Consultant of the breach of any provision of this Agreement by
the
Corporation shall not operate or be construed as a waiver of any subsequent
breach by Corporation.
(f)
Entire
Agreement.
This Agreement constitutes the entire agreement between the parties
with
respect to the Consultant's duties and payment as a Consultant to the
Corporation, and there are no representations, warranties, agreements or
commitments between the parties hereto with respect to Consultant’s engagement
except as set forth herein.
(g) Governing
Law. This
Agreement shall be governed by and construed in accordance with the internal
laws (and not the law of conflicts) of the State of Florida. The Corporation
and
Consultant hereby irrevocably and unconditionally (i) agree that any action
or
proceeding arising out of or in connection with this Agreement shall be brought
only in the State of Florida and not in any other state or federal court in
the
United States of America or any court in any other country, (ii) consent to
submit to the exclusive jurisdiction of the state of Florida for purposes of
any
action or proceeding arising out of or in connection with this
Agreement.
(h) Severability.
If
any
provision of this Agreement shall, for any reason, be held unenforceable, such
provision shall be severed from this Agreement unless, as a result of such
severance, the Agreement fails to reflect the basic intent of the parties.
If
the Agreement continues to reflect the basic
intent of the parties, then the invalidity of such specific provision shall
not
affect the enforceability of any other provision herein, and the remaining
provisions shall remain in full force and effect.
(i)
Assignment. The
Consultant may not under any circumstances delegate any of Consultant’s rights
and obligations hereunder without first obtaining the prior written consent
of
the Corporation. This Agreement and all of the Corporation's rights and
obligations hereunder may be assigned or transferred by it, in whole or in
part,
to be binding upon and inure to the benefit of any subsidiary or successor
of
the Corporation.
(j)
Costs
of Enforcement.
In the event of any suit or proceeding seeking to enforce the terms,
covenants, or conditions of this Agreement, the prevailing party shall, in
addition
to all other remedies and
relief that may be available under this Agreement or applicable law, recover
his
or its reasonable attorneys' fees and costs as shall be determined and awarded
by the court.
IN
WITNESS WHEREOF, this Agreement is
entered into on the day and year first above written.
| CORPORATION: | |||
| Innova Robotics and Automation, Inc. | |||
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By:
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/s/ | |
| Xxxxxx Xxxxxxx | |||
| CEO | |||
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CONSULTANT: | |
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Xxxxxx
Xxxxxx
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