ELECTROSOURCE, INC.
CONSULTING AGREEMENT
96-C-093
THIS CONSULTING AGREEMENT (the "Agreement"), made effective
the 1st day of September, 1996, is between ELECTROSOURCE, INC.
("Electrosource"), a Delaware corporation, having its principal
offices at 2809 HI 00 Xxxxx, Xxx Xxxxxx, Xxxxx, 00000, X.X.X. and
Xxxxxxx X. Xxxxxxx (Consultant) having his place of business at
Xxxxx 0, Xxx 000XX, Xxxxxxxxxx, Xxxxx 00000.
W I T N E S S E T H:
WHEREAS, Consultant possesses knowledge and experience in
battery technology, and related fields; and
WHEREAS, Electrosource desires the assistance of Consultant,
NOW, THEREFORE, in consideration of the promises and the
mutual agreements hereinafter contained, the parties hereto agree
as follows:
1. Term
1.1 Electrosource hereby engages Consultant as
independent contractor for a term commencing on
September 1, 1996 and ending on December 31, 1997.
1.2 Electrosource shall have the right to extend this
Agreement by written modification at the same rate of
compensation provided for in Section 3 by written
notice not less than two (2) weeks prior to the last
day of the initial term of this Agreement or Amendment
to same.
1.3 Either party may cancel this Agreement at its sole
discretion with ten (10) days written notice to the
other. Electrosource's sole liability will be for
hours worked at the rate specified, and for reasonable
travel or business expenses incurred in accordance with
Section 4.
1.4 Notwithstanding any other provision of this
Agreement, if Consultant breaches any of its
provisions, Electrosource may terminate this Agreement
immediately upon written notice to Consultant.
1.5 Upon termination of this Agreement in accordance
with any of its provisions, Electrosource shall have no
obligation to make further payments to Consultant for
services performed after notice is received by
Consultant. Notice may be hand carried or sent by
certified mail. Notice is effective upon receipt or
within five (5) days of mailing, whichever is earlier.
2. Duties
Consultant shall use its best efforts on behalf of
Electrosource to assist Electrosource with respect to all
matters pertaining to battery development, and related
matters. Consultant shall not, during the term of this
Agreement, accept any other engagement as consultant, or
enter into any employment relationship, with respect to
which any portion of his duties would entail assisting any
other entity in the field of battery development or battery
technology. The Consultant agrees not to perform work for a
competitor of Electrosource, during the term of this
Consulting Agreement. Consultant shall provide two days of
time per week to perform such advising and consulting duties
as may be assigned from time to time by Electrosource by
Xxxxxxx X. Xxxxxxx, the Executive Vice President/Marketing
or such other person as is designated from time to time by
Electrosource. Such consulting services shall be provided
at the offices of Electrosource. Invoices shall be paid
within 15 days of receipt.
3. Compensation
As full compensation for the services which Consultant
renders to Electrosource under and in accordance with the
terms of this Agreement, Electrosource will pay to
Consultant $450.00 per day for two (2) days per week.
Invoices Consultant submits to Electrosource for services
rendered shall include the heading "a professional
consulting firm or individual."
4. Expenses
Electrosource shall reimburse Consultant for all proper and
reasonable expenses incurred by him pursuant to Consultant's
duties hereunder to the extent such expenses are approved in
writing in advance by Electrosource. Such expenses may
include necessary actual expenses of out-of-town travel
costs (e.i. outside of Austin or San Marcos),
communications, hotel accommodations, meals and the like
provided that Consultant shall keep receipts and provide
Electrosource an accurate and complete accounting of all
such expenses so incurred, and shall obtain Electrosource's
prior written consent to any such expenses. Reimbursement
of expenses will be issued within ten (10) days of receipt
of complete accounting, with receipts, of same.
5. Confidential and Proprietary Information
5.1 The parties agree that from time to time during
performance of this Agreement confidential or
proprietary technical or business information may be
provided either orally or in written form to
Consultant. Such information will be specifically
designated by Electrosource as "confidential" and/or
"proprietary." Consultant shall keep confidential all
such designated information furnished by Electrosource
and safeguard same from disclosure or use by any
unauthorized individuals for any purpose other than in
performance of this Agreement.
5.2 Consultant shall restrict the disclosure of
Electrosource's confidential and/or proprietary
technical and business information to those of his
employees who need to know the same for purposes of
carrying out this contract. Consultant shall advise
all such employees of Consultant's obligations of
confidentiality under this Agreement.
5.3 In event of termination or cancellation of this
Agreement for any reason whatsoever, Consultant agrees
promptly to deliver to Electrosource all written
information of any sort made available to Consultant or
created by it under the terms of this Agreement.
5.4 Work product created by Consultant shall under
this agreement become the confidential proprietary
property of Electrosource. Consultant agrees to treat
such work product in the same manner as confidential
proprietary information of Electrosource. Consultant
agrees that any remedy at law would be inadequate or a
violation of this provision; consequently, Consultant
agrees that Electrosource is entitled to obtain an
injunction against Consultant's disclosure of any
confidential proprietary information.
5.5 Neither expiration of this Agreement nor its
earlier termination for any reason shall release
Consultant from its obligations under this Section 5.
6. Classified Information
6.1 Except in connection with authorized visits,
classified materials shall not be possessed by the
Consultant off the premises of the Company. The
Company shall not furnish classified material to the
Consultant at any other location than the premises of
the Company and performance of the consulting services
by the Consultant shall be accomplished at the premises
of the Company; and classification guidance will be
provided by the Company.
6.2 The Consultant and his certifying employees shall
not disclose classified information to unauthorized
persons.
6.3 Electrosource shall brief the Consultant as to the
security controls and procedures applicable to the
Consultant's performance.
7. Works of Authorship and Inventions
7.1 Consultant shall convey to Electrosource all
rights to each work of authorship, whether or not
patentable, which is conceived, developed, written, or
reduced to practice by Consultant in performing the
requirements of this Agreement. Consultant agrees to
execute all necessary patent and copyright
applications, assignments and other instruments at
Electrosource's expense and to give all lawful and
proper testimony in aid of Electrosource obtaining and
maintaining in its name full and complete patent
protection on any such invention. Before final payment
is made under this Agreement, Consultant shall furnish
Electrosource complete information with respect to any
invention and all work product subject to this Section.
7.2 Consultant hereby irrevocably appoints each
officer and director of Electrosource as his attorney-
in-fact for purposes of filing any applications or
assignments necessary to properly reflect the sole
ownership by Electrosource of any invention or work of
authorship subject to this Section.
8. Assignment and Subcontracting
Neither this Agreement nor its performance, either in whole
or in part, shall be assigned or subcontracted by Consultant
to a third party or performed by anyone except Xxxxxxx X.
Xxxxxxx without, in each case, the prior written consent of
Electrosource.
9. No Conflicts
9.1 Consultant represents and warrants that:
(a) He has full authority to enter into this
Agreement and to perform his obligations
hereunder; and
(b) Performance by Consultant of his
obligations hereunder will not be in conflict with
any other of his obligations.
9.2 Consultant shall advise Electrosource's General
Counsel of all clients under similar agreement to him
within five (5) days after execution of this Agreement.
Consultant shall notify Electrosource within five days
of any subsequent contract for additional clients.
9.3 Notwithstanding any other provision of this
Agreement, Electrosource shall have the right to
terminate this Agreement if, in Electrosource's sole
opinion, a conflict of interest rises or may arise
between Consultant's representation of Electrosource
and its representation of its other clients. Such
termination shall become effective upon five (5) days
written notification by Electrosource.
10. Independent Contractor
Consultant's relationship to Electrosource shall be solely
to provide personal services on an independent contractor
basis. In this capacity, Consultant will not be a regular
employee of Electrosource and will not be entitled to
worker's compensation coverage, unemployment insurance, or
any other type or form of insurance or benefit normally
provided by Electrosource for its employees, and
Electrosource will not be responsible for withholding
federal income or social security taxes from the fees paid
to Consultant. The Consultant will be solely responsible
for reporting and paying all Federal, State and Local taxes
arising from his performance of this Agreement. The
consultant is generally free to perform the services
hereunder in any manner desired, subject to satisfactory
completion of the subject task.
11. Notice
A notice communicated to Electrosource shall be sent to
Xxxxx X. Xxxxx, Vice President, General Counsel,
Electrosource, Inc., 2809 IN 00 Xxxxx, Xxx Xxxxxx, Xxxxx
00000, or to such other place or places as Electrosource by
notice in writing shall specify. Any notice to be served
shall be sent to Xxxxxxx Xxxxxxx at Xx. 0, Xxx 000XX,
Xxxxxxxxxx, Xxxxx 00000. Any notice to be served shall be
deemed to be served if the same be sent by registered or
certified mail through the United States mail, addressed to
the party on which service is to be effected at the address
stated in the immediately preceding sentences and shall be
deemed to have been received on the day indicated on the
return receipt relating thereto.
12. Binding Agreement
This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of Electrosource and
to the successors and assigns of Consultant.
13. Modification
This Agreement supersedes all prior agreements or
understandings between Consultant and Electrosource relating
to the subject matter hereof, and no change, termination or
attempted waiver of any of the provisions hereof shall be
binding unless reduced to writing and signed by duly
authorized officers of Electrosource and by Consultant.
14. Construction
This Agreement shall be construed in accordance with the
laws of the State of Texas. Consultant hereby submits to
the continuing jurisdiction of the laws and the courts of
the State of Texas in the prosecution of any interpretation
or dispute under or arising out of this Agreement. Should
any portion of this Agreement be adjudged or held to be
invalid, unenforceable or void, such judgment shall not have
the effect of invalidating or voiding the remainder of this
Agreement, and the parties hereto agree that the portion to
be held invalid, unenforceable or void shall, if possible be
deemed amended or reduced in scope or to otherwise be
stricken from this Agreement to the extent required for the
purposes of validity and enforcement thereof.
IN WITNESS WHEREOF, this Agreement is dated and is effective
the date and year first above written.
ELECTROSOURCE, INC. CONSULTANT
By: /s/ By: /s/
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
Vice President, General Counsel
Date: 10-3-1996 Date: 01 Oct 96
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER:
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