AMERIGON
CLIENT CONTRACT
As of April 1, 1996, Technology Strategies & Alliances, a California
corporation ("TS&A"), hereby agrees with Amerigon, a California corporation
("Amerigon") as follows:
1. ENGAGEMENT
1.1 SERVICES Amerigon engages TS&A as an independent consultant to
establish corporate partnerships to exploit technology underlying Amerigon's
Interactive Voice System (IVS-TM-) in new vertical markets. The tasks and
timeframe over which this project will be completed is outlined in Schedule B.
1.2 EXCLUSIVITY Amerigon will use TS&A on an exclusive basis to establish
the subject corporate partnerships during the term of this contract.
1.3 STAFFING The services under this contract will be performed by TS&A
working as a team with Xxxxxxxx. The TS&A team members will consist of
Xxxxxxxx X. Xxxxxxx, as Project Manager, assisted by colleagues Xxxxxx X.
Xxxxx, X. Xxxx Xxxxx and Xxxxx X. Xxxx. TS&A will be assisted by independent
consultant, Xxxxxx X. xxxxxx. TS&A partner Xxx X. Xxxxx, who currently
resides in Taiwan, may provide assistance on a targeted basis.
2. FEES AND EXPENSES Amerigon shall pay TS&A a retainer fee and a
transaction fee as follows. The retainer is owed independent of the
successful completion of a transaction. The transaction fee is owed only to
the extent that a successful transaction is consummated with the BONE FIDE
assistance of TS&A for the IVS technology between Amerigon and a corporate
partner that is identified in the mutually agreed to list set forth in
Schedule A. Amerigon and TS&A shall use good faith to distinguish between
divisions, subsidiaries, etc. of large companies where TS&A has made a BONE
FIDE contact from other divisions, etc. that are part of these same large
companies but were not involved in TS&A's efforts.
2.1 RETAINER FEE Amerigon shall pay TS&A a cash fee of twelve thousand
dollars ($12,000) per month for five months.
2.2 TRANSACTION FEES
Amerigon shall pay TS&A a transaction fee for each type of relationship
as follows:
2.2.1 CONSTRUCTED ALLIANCE PERCENTAGE TRANSACTION FEES
For consummating constructed alliance agreements for each candidate, Amerigon
constructed alliance agreement as indicated:
a. Ten percent (10%) of net licensing fees and royalties paid to Amerigon
or accrued over a four year period from the date of inception of a
strategic alliance.
b. Five percent (5%) of development revenues received, accrued or
contracted over a two year period.
c. Three percent (3%) of sales made directly to an alliance partner or
distribution commission paid to Amerigon from an alliance partner over
two years, where such fees accrue on product sales defined at inception
of the alliance or from products that are a direct technological
derivative therefrom.
The payments may be staged to TS&A as the financial benefit is received by
Amerigon. The parties may elect, at any time, to negotiate in good faith a
single payment per partner.
2.2.2 EQUITY INVESTMENT TRANSACTION FEES
Although an equity investment is not sought within the scope of this
engagement, should such an investment occur as part of the corporate
partnering activities, Amerigon shall pay TS&A a transaction fee equal to
five percent (5%) of the first $5 million in total value of the equity
transaction plus a transaction fee equal to two percent (2%) of the total
value of the equity transaction that exceeds $5 million. The total value of
the transaction shall include: the amount of cash, the fair market value of
any securities, indebtedness assumed or other consideration paid at the
closing of the transaction, plus the net present value of any future
payments, as mutually agreed in good faith by Xxxxxxxx and TS&A.
Alternatively, payment to TS&A for future payment values may be made
concurrently as value is received by Amerigon.
2.3 EXPENSES
Travel, meals, lodging, legal and other specific out-of-pocket expenses
incurred by TS&A in support of this Contract, approved in advance by
Amerigon, will be reimbursed by Amerigon and will be billed to Amerigon on a
regular basis. Such expenses are expected to average less than $3,000 per
month.
3. TERMS AND CONDITIONS
All expenses are payable within thirty (30) days of billing. Retainer fees
are due on the first day of each month in advance, and transaction fees are
due on the closing of the transaction.
3.1 TERMINATION
The initial term of this Contract will be one (1) year from the date of
execution. Thereafter, the term shall be extended automatically on a
month-to-month basis, unless earlier terminated. Notwithstanding the
foregoing, after four (4) months either party may terminate this Contract at
any time upon thirty (30) days prior written notice. In any event, the
provisions of Section 3.3 shall survive pursuant to the details of Section
3.3. The provisions of Section 2.2 shall survive any termination of this
Contract by Amerigon for a period of one (1) year from the date of
termination for those potential partners mutually agreed to in Schedule A
where TS&A has initiated bone fide contacts.
3.2 INDEMNIFICATION
Amerigon hereby agrees to indemnify and hold harmless TS&A and its officers,
directors, employees and agents against any losses, claims, damages or
liabilities (including legal fees and expenses) arising from this Contract or
TS&A's relationship with Amerigon, unless and to the extent such losses,
claims, damages or liabilities are proven to be the result of the gross
negligence or willful misconduct of TS&A or its officers, directors,
employees or agents.
3.3 CONFIDENTIAL INFORMATION
All confidential or proprietary information furnished or disclosed under this
engagement shall be governed by the Confidentiality Agreement, executed
separately as part of Schedule C.
3.4 RELATIONSHIP BETWEEN PARTIES
In performing its services under this Contract. TS&A shall operate as an
independent contractor and shall not act as or be an agent or employee of
Amerigon. TS&A shall in no way have authority to bind or obligate Amerigon in
any respect.
3.5 COMPLIANCE WITH LAWS
TS&A and Amerigon agree to conduct their business in accordance with the laws
of the State of California and the United States.
3.6 ENTIRE AGREEMENT
This Contract constitutes the entire agreement between Amerigon and TS&A
relating to the subject matter set forth herein. It supersedes all prior
agreements between the parties, whether oral or written, and may only be
amended in writing, signed by both parties.
3.7 GOVERNING LAW
This Contract shall be governed in all respects by the laws of the State of
California, without regard to conflict of laws principles.
Accepted and effective this First day of April, 1996.
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TECHNOLOGY STRATEGIES AMERIGON
& ALLIANCES
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Title: President Title: Vice President
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SCHEDULE A
CORPORATE PARTNERS SOLICITED
SCHEDULE B
IVS PROJECT SCOPE AND PROCESS OUTLINE
TS&A proposes to act as an investment banker in the project, taking primary
responsibility for making contacts, follow-up and pursuit of agreements. We
also will be actively engaged in negotiations on a team basis with Xxxxxxxx.
Our objective is to achieve one or more partnerships with substantial and
lasting benefit to Amerigon.
While all TS&A principals will be involved, Xxxxx Xxxxxxx will be the project
leader, with active assistance from Xxxxxx Xxxxxx. Messrs. Xxxxxxx, Xxxxx and
Xxxxx already have spent time together in preliminary brainstorming.
We expect that Xxxxxx Xxxxxx will be the primary interface at Amerigon, and
that Xxx Xxxx will be available at key selling and negotiating points. We do
not envisage that Xxxx's time commitment would exceed one day per week. We
anticipate calling on Amerigon for some support in preparing presentations.
You asked for a view of process and timelines:
- We believe there is a fair amount of front-end effort required to
establish a matrix of products and markets, identify potential partners on
a more formalized basis than what you and I created during our meeting,
understand competitive advantages and review competing technologies, and
establish a semi-custom presentation that reflects the foregoing and the
strategic opportunity we wish to present to candidate partners. These
activities should consume a month, at which time we will be well positioned
to initiate contacts with a prioritized list of firms.
- Commencing - mid-May, we would initiate company contacts on a concentrated
basis using all the participants. Our practice is to attempt to target the
most relevant executive rather than a generic CFO, COO or the like. Our
preference is to have direct contact via the phone if possible, followed
by a letter or fax.
- By early June we should be in initial meetings with targets, a process
that probably stretches over the summer. Goal of the meetings will be to
get them sufficiently interested to undertake an internal review of the
opportunity and to review the technology in detail.
- By Labor Day, we expect to be in negotiations with several firms, leading
to a mou by early October, definitive agreements by early to mid-November
and a close before year end.
SCHEDULE C
SECRECY AGREEMENT
AGREEMENT made and entered into as of 01 April 1996 by and between
Technology Strategies & Alliances, a California corporation, acting for and on
behalf of itself and all of its subsidiaries and having offices at 0000 Xxxx
Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxx Xxxx, XX 00000 ("TS&A"), and AMERIGON
INCORPORATED, a California corporation with offices at 000 X. Xxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("AMERIGON").
WHEREAS, XXXXXXXX wishes to disclose to TS&A details of its Interactive
Voice System (IVS-TM) technology and general business plans, in order that
TS&A may be able to develop a strategic partner for AMERIGON's IVS
technology; and
WHEREAS, TS&A wishes to disclose to XXXXXXXX the details of TS&A's
potential strategic partners for Amerigon's IVS technology, in order that
AMERIGON may be able to work with TS&A in developing a strategic partner for
XXXXXXXX's IVS technology; and
WHEREAS, XXXXXXXX considers the details of its Interactive Voice System
technology and general business plans to be trade secrets of and proprietary
to AMERIGON; and
WHEREAS, TS&A considers the details of its potential strategic partners
for Amerigon's IVS technology to be trade secrets of and proprietary to TS&A;
NOW THEREFORE, in view of the foregoing premises and in consideration of
the mutual promises and covenants contained in this Agreement, XXXXXXXX and
TS&A agree as follows:
1. PROPRIETARY INFORMATION. "Proprietary Information" means:
(a) all samples, models, and prototypes of AMERIGON's Interactive
Voice System technology and general business plans delivered to TS&A by
XXXXXXXX; and all samples, models, and prototypes of TS&A's potential
strategic partners for Amerigon's IVS technology delivered to AMERIGON by
TS&A; and
(b) any other information disclosed to TS&A by XXXXXXXX relating to
AMERIGON's Interactive Voice System technology and general business plans
or to AMERIGON by TS&A relating to TS&A's potential strategic partners
for Amerigon's IVS technology, provided such other information is
disclosed either (i) in writing or other tangible form, bearing a label
or stamp identifying the information as secret, confidential, or
proprietary or (ii) orally with a designation of such information as
secret, confidential, or proprietary prior to or during oral disclosure
and with a subsequent reduction of such information to writing, the
writing being labeled as set out in Section 1(b)(i) above and sent to
recipient within thirty (30) days after the oral disclosure.
2. USE AND OBLIGATION OF CONFIDENCE. In consideration of receiving any
Proprietary Information from discloser and for a period of 5 years after
recipient
receives each item of Proprietary Information from discloser, recipient
(including all of its subsidiaries) shall:
(a) use such item of Proprietary Information only to make technical
and economic evaluations pertinent to the purposes above stated and for
no other purpose; that is, recipient will not use the Proprietary
Information to design, make or sell any product;
(b) hold the Proprietary Information in confidence and disclose it
only to recipient's employees (including employees of recipient's
subsidiaries) who will use the Proprietary Information only in accordance
with Section 2(a) above, unless otherwise agreed in writing by
discloser; and
(c) not remove any item of Proprietary Information from the United
States of America.
Recipient's obligations under this Section 2 will survive the termination of
this agreement.
3. EXCEPTIONS. Notwithstanding Sections 1 and 2, this Agreement shall
impose no obligation upon recipient with respect to any Proprietary
Information which (a) is now or subsequently becomes publicly known or
available by publication, commercial use or otherwise without breach of this
Agreement by recipient; (b) is known to recipient at the time of receipt; (c)
is subsequently rightfully furnished to recipient by a third person without a
restriction on disclosure; (d) is independently developed by employees of
recipient who have not had access to Proprietary Information; or (e) is
delivered to recipient after the expiration of this Agreement.
4. NO LICENSE. Neither the execution of this Agreement nor the
furnishing of any Proprietary Information hereunder shall be construed as
granting, either expressly or by implication, estoppel; or otherwise, any
license under or title to any invention or patent now or hereafter owned or
controlled by either party.
5. NO COMMITMENT TO FURTHER AGREEMENTS; NO CLAIMS. This Agreement is
not, and shall not be construed to be, an obligation to enter into any other
agreement or contract or to result in any claim whatsoever by either party
against the other party for reimbursement of cost for any effort expended.
6. NO OWNERSHIP OR COPYING. All samples, models, prototypes,
photographs, drawings, information, and data submitted to recipient under
this Agreement will remain the property of discloser, shall not be copied or
reproduced by recipient without discloser's written consent, and may be
recalled by discloser at any time. Upon receipt of a written request from
discloser for return of such samples, models, prototypes, photographs,
drawings, information, and data, recipient will immediately deliver to
discloser all such samples, models, prototypes, photographs, drawings,
information, and data, including all copies, reproductions and facsimiles.
7. WORKING WITH OTHERS. This Agreement will not preclude either party
from working with others in any connection, so long as the obligations of
Section 2 are respected.
8. TERM. This agreement shall be effective on the date written in the
first paragraph (unnumbered) of this Agreement, upon execution by both
parties. Except for the rights and obligations of Section 2 above with
respect to Proprietary Information disclosed prior to expiration, this
Agreement shall expire 1 year after the date written above, unless earlier
terminated upon written notice by one party to the other. Early termination
upon written notice shall be effective 30 days after mailing said notice.
Each party's rights and obligations under Section 2 above shall terminate as
to particular items of Proprietary Information in accordance with the time
limitation of Section 2 or one or more of the exceptions of Section 3.
9. NO ASSIGNMENT. Neither party shall assign or transfer any of its
rights or obligations under this Agreement without the prior written consent
of the other party, except to a successor in ownership of substantially all
of party's assets, which successor in ownership shall expressly assume in
writing the performance of the terms and conditions of this Agreement.
10. RELATIONSHIP OF THE PARTIES. The relationship of the parties shall
be that of independent contractors, and nothing contained herein shall be
deemed to create any relationship of agency, joint venture, or partnership.
Neither party hereto shall have any power to commit, contract for or
otherwise obligate the other party to any third person.
11. ENTIRE AGREEMENT; CHOICE OF LAW. This Agreement is the entire
Agreement between the parties and supersedes all other agreements and
understandings relating to the subject matter hereof. This Agreement (a) may
be amended only by a written amendment duly executed by the parties and (b)
will be governed by and construed in accordance with the law of the State of
California. Each of the parties submits to the exclusive jurisdiction of the
courts located in the State of California in connection with any action
brought under this Agreement. Further, the terms of the Agreement are in lieu
of and override any contrary terms or conditions, preprinted or otherwise,
that may appear on any form used by either party to purchase or offer to
purchase samples, models, or prototypes from the other party or (b) by either
party to acknowledge such a purchase or accept such an offer.
IN WITNESS WHEREOF, the parties have caused this Secrecy Agreement to be
executed by their duly authorized representatives.
AMERIGON INCORPORATED Technology Strategies & Alliances
By /s/ XXXXXX XXXXXX By /s/ XXXXXXXX X. XXXXXXX
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Xxxxxx Xxxxxx
Vice President
