Exhibit 10.2
CONSULTANT'S AGREEMENT PRIVATE
AGREEMENT made as of this 15th day of May, 1996 between EXETER RESEARCH
(hereinafter referred to as "you" or "consultant"), and CONVERSE INC.
(hereinafter referred to as "we" or "Company"), a Delaware corporation. You are
hereby retained by us as a consultant on the following terms and conditions:
1. You, as an independent contractor, shall perform research, consulting
and testing of advanced footwear products; concept development, functional
design, prototype development, research and testing of concepts and designs, as
well as other similar and appurtenant duties as may be assigned to you while
performing said services; but you are not authorized hereby to operate equipment
owned or controlled by this Company. You shall be advised of the applicable
policies of this Company and agree to comply with such policies in your
performance of services hereunder.
2. You shall perform the work at any location or locations mutually agreed
upon as a base of operations. Consultant shall perform his duties hereunder at
the direction of Xxxx Xxxxx, or such other person as may be designated in
writing by the Company from time to time.
3. As full and complete compensation for your services for consultation
required by us and for the discharge of all your obligations hereunder we shall
pay you a fee of One Hundred Eighty Thousand Dollars ($180,000.00) for the two
(2) year contract term, payable to you on a quarterly basis in the amount of
Twenty-two Thousand Five Hundred Dollars ($22,500.00) within thirty (30) days
after receipt of your invoice covering services rendered hereunder during the
preceding month. Total expenses as described in paragraph 4, shall not exceed
Five Hundred Dollars ($500.00) per month, unless approved in advance by
Converse.
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4. We shall reimburse you for all out-of-pocket expenses (transportation,
hotel, meals, telephone) necessarily incurred by you in connection with any trip
made at our request and with our prior approval. Reimbursement shall be made by
payment within twenty (20) days after receipt of invoice rendered by you. All
invoices submitted for payment shall be in the name of the Consultant which is
party to this Agreement. Any expenses incurred or disbursements paid to third
parties by the Consultant shall be authorized in advance by this Company and an
itemized xxxx submitted to this Company for payment.
5. In the performance of all services hereunder: (a) you shall be deemed
to be and shall be an independent contractor and as such you shall not be
entitled to any benefits applicable to employees of this Company; (b) you shall
comply with all applicable governmental (U.S. and foreign) laws and regulations;
(c) you shall have sole responsibility for the payment of all applicable
governmental taxes including Federal, State and local income taxes and for all
employment and disability insurance, Social Security and other similar taxes;
and (d) you shall maintain public liability insurance in amounts not less than
$500,000.00 for injuries to persons and $100,000.00 for damage to property and
provide the Company with certificates evidencing the fact that such insurance is
in full force and effect.
6. Subject to the "Exceptions" stated below, during the term of this
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Agreement, in the case of any Competing Business (defined below), Consultant
shall not, unless acting with the prior written consent of Converse, directly or
indirectly, own, manage, operate, finance, join, control or participate in the
ownership, management, operation, financing or control of, or be connected as an
officer, director, employee, partner, principal, agent, representative,
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consultant or otherwise with, or use or permit Consultant's name to be used in
connection with such a Competing Business.
The term "Competing Business" shall mean any business or enterprise,
engaged in the business of designing, manufacturing, distributing, marketing or
selling athletic footwear or athleisure footwear within (i) any state of the
United States or the District of Columbia or (ii) any foreign country in which
Converse or any of its subsidiaries engage in such business.
In the event that the provisions of this paragraph 8 should ever be
adjudicated to exceed the time, geographic, product or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall be
deemed reformed in such jurisdiction to the maximum time, geographic, product or
other limitations permitted by applicable law.
"Exceptions". Notwithstanding the foregoing, the following are all
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excepted from this Non-Competition provision so that Consultant shall be
permitted to do all of the following without violating this Agreement:
(i) Render services as a consultant to Benetton Sports System, SPA;
(ii) Design, manufacture and/or sell sport shoe test equipment and
ultimate frisbee shoes;
(iii) Render services required under pre-existing contractual obligations
to Nike and Adidas, which contracts require Consultant to cooperate
with said two (2) corporations should either or both of them seek
patent protection or to enforce property rights in connection with
discoveries or
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inventions conceived by Consultant, acting alone or jointly with
others, while Consultant rendered prior services for Nike and/or
Adidas;
(iv) Services rendered to Lotto, S.P.A. and Xxxxxx Sporting Goods, Inc.,
which services are to be fully completed by February 29, 1996."
7. We hereby state that we do not desire to acquire from you any secret or
confidential know-how or information which you may have acquired from others.
Accordingly, you represent and warrant that you are free to divulge to this
Company, without any obligation to, or violation of any right of others, any and
all information, practices or techniques which you will describe, demonstrate,
divulge or in any other manner make known to this Company during your
performance of services hereunder. You shall exonerate, indemnify and hold
harmless this Company from and against any and all liability, loss, cost,
expense, damage, claims or demands for actual or alleged violation of the rights
of others in any trade secret, know-how or other confidential information by
reason of this Company's receipt or use of the services or information described
above, or otherwise in connection therewith.
8. You shall promptly and fully disclose and assign to us or our designee
all inventions and discoveries conceived or made by you in any degree resulting
from or arising out of your services hereunder and will assist us in every
proper way (entirely at our expense) to obtain for our own or our designee's
benefit patents on any such resulting inventions in any and all countries; and
such inventions and discoveries to be and remain our property whether or not
disclosed, assigned or patented.
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9. The information and knowledge divulged to you by this Company or which
you acquire in connection with or as a result of your services hereunder shall
be regarded by you as confidential. Without limiting the generality of the
foregoing, you recognize that, unless and until published, all features of the
compounds, compositions, formulations, apparatus, processes and application
methods heretofore or hereafter used or developed by us (or by any of our
predecessors in business) are and shall be our trade secrets. Trade secrets
shall also be deemed to include all information related to the Company's
promotional activities and endorsement agreements. You shall not use, nor shall
you disclose, any such information, knowledge or trade secrets to any person
either during or after the period of this agreement, except to our employees as
may be necessary in the regular course of your duties hereunder, or except as
otherwise authorized by us.
10. You recognize that all records and copies of records relating to our
operations, investigations and business made or received by you during the
period of this Agreement are and shall be our property exclusively, and you
shall keep the same at all times in your custody and subject to your control,
and shall surrender the same at the termination of this Agreement if not before.
11. You shall exonerate, indemnify and hold harmless this Company from and
against any and all liability, loss, cost, expense, damage, claims or demands on
account of injuries (including death) to you or any of your employees or loss or
damage to your property or that of any of your employees, arising out of or
resulting in any manner from or occurring in connection with your performance of
services hereunder.
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12. You shall not assign this Agreement or any part thereof without our
prior written consent, and any such purported assignment shall be void. This
Agreement shall be binding on your heirs, executors, legal representatives,
successors and permitted assigns and shall inure to the benefit or our
successors and assigns.
13. This Agreement shall be effective as of the date first above written
and shall continue for a period of two (2) years, ending May 15, 1998, subject
to the right of either party to terminate at any time upon not less than ninety
(90) days' prior written notice to the other party and subject to our right to
cancel for good cause immediately at any time. Such termination shall not
affect your obligations under the above paragraphs 7 through 11, inclusive.
14. Any notices or communications hereunder shall be in writing, addressed
as follows:
If to us: Converse Inc.
Xxx Xxxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Senior Vice President, General Counsel and
Secretary
If to you: Exeter Research, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
15. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
16. This Agreement contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof, and merges and
supersedes all prior discussions
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and writings with respect thereto. No modification or alteration of this
Agreement shall be effective unless made in writing and signed by both parties
hereto.
17. Consultant agrees that the services described above will not be
performed by Xxxxxx X. Xxxxxxxxx.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WITNESS: CONVERSE INC.
Xxxxxxxxx XxXxxxx By (SIGNATURE APPEARS HERE)
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WITNESS: EXETER RESEARCH
(SIGNATURE APPEARS HERE)
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Tax Identification No. 00-0000000
