EXHIBIT 10.119
CONSULTING AGREEMENT
94-C-049A
THIS CONSULTING AGREEMENT (the "Agreement"), made
effective the 15th day of November 1994, is between
Electrosource, Inc., a Delaware corporation, having principal
offices at 0000-X Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx, 00000-0000,
X.X.X. ("Electrosource") and, XXXXXXX X. XXXXX DBA XXXXXX
MANAGEMENT SERVICES having his place of business at 000 Xxxxx
Xxxxxx, Xxxx Xxxx Xxx, XX 00000 ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant possesses the knowledge and experience
in battery testing technology, production technology and/or
related fields of marketing or engineering activity financial
matters; and
WHEREAS, Consultant has the knowledge and ability and is
duly licensed or authorized to assist Electrosource in the
development, testing or commercialization of its technology
financial planning and fund raising; 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:
Electrosource and Consultant, intending to be legally bound,
agree as follows:
1. Term. Electrosource hereby engages Consultant as
independent contractor for a term commencing on November 15,
1994, and to continue for a period of one year.
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.
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 days of
mailing, whichever is earlier.
2. Duties. Consultant shall use his best efforts on
behalf of Electrosource to assist Electrosource with respect
to all matters pertaining to financial advising and fund
raising. 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 research
and/or production. Consultant shall be reasonably available on an
on-call, as-needed basis at least four (4) days per month to perform
such advising and consulting duties as may be assigned from time to
time by Electrosource. Such consulting services shall be provided
either at the offices of Electrosource or Consultant, or at such other
locations as the parties may agree.
Specific duties shall include, but not be limited to,
serving the particular needs of the President/CEO and others designated
by him in areas of (i) Global strategic planning; (ii) Financial
structuring and fund raising; and (iii) Global business operations and
construction.
3. Compensation. As full compensation for the services
which Consultant may render to Electrosource under this
Agreement, Electrosource shall pay to Consultant a retainer
of $6,000 per month to be utilized at $1,500 per day and one
and one-half percent (1-1/2 %) of funds raised under this
Agreement. Additional time over four days per month, as
directed by Electrosource, shall be billed at $1,000 per
day.
4. Expenses. Electrosource shall reimburse Consultant for
all proper and reasonable expenses incurred by him pursuant
to Consultant's consulting duties. Such expenses may
include necessary expenses of out-of-town travel costs, communications,
hotel accommodations, meals and the like provided that Consultant shall
keep 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 of same.
5. Confidential and Proprietary Information. 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 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.
Neither expiration of this Agreement nor its earlier
termination for any reason shall release Consultant from its
obligations under Section 5.
Consultant shall restrict the disclosure of
Electrosource's confidential 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.
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.
Work product created by Consultant shall 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.
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. Except in connection with
authorized visits, classified material 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.
The Consultant and his certifying employees shall not
disclose classified information to unauthorized persons.
Electrosource shall brief the Consultant as to the
security controls and procedures applicable to the
Consultant's performance.
7. Works of Authorship and Inventions. 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.
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
without, in each case, the prior written consent of
Electrosource.
9. No Conflicts. 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.
Consultant shall advise Electrosource's Vice President,
Finance, Law and Administration of all clients under similar
agreement to him within five (5) days after execution of this
Agreement. Consultant shall not contract for additional clients
without first having notified Electrosource in writing.
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, Electrosource,
Inc., 0000-X Xxxxxxxx Xxxxx, Xxxxxx, XX 00000-0000, or to
such other place or places as Electrosource by notice in
writing shall specify. 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. XXXXXXX X. XXXXX dba
TALBOT MANAGEMENT SERVICES
By: /S/ By: /S/
Xxxxx X. Xxxxx, Vice President Xxxxxxx X. Xxxxx
Date: October 27, 1994 Date: October 27, 1994
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER:
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