EXHIBIT 10.66
STANDBY CONSULTING AGREEMENT
This Standby Consulting Agreement (this "Agreement") is entered into as
of September 1, 1998 (the "Effective Date") by and between Xxxxxxx Navigation
Limited, a California corporation (the "Company"), and Xx. Xxxxxx X. Xxxxxx
("Consultant").
WHEREAS, simultaneously with the execution hereof, the Company and
Consultant are entering an Employment Agreement (the "Employment Agreement");
WHEREAS, the Company, immediately following the termination of
Consultant's status as an employee under the Employment Agreement, the Company
desires to retain the ability to use Consultant as an independent contractor to
perform consulting services for the Company as the need for such services may
arise from time to time and Consultant is willing to perform such services, on
terms set forth more fully below;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. Services and Compensation
(a) Services. Consultant will perform consulting services (the
"Services") on as needed basis as determined by the Chief Executive Officer of
the Company in consideration for $1.00 per year.
(b) Compensation. The Company will pay Consultant on an hourly
basis at a rate mutually determined by Consultant and the Chief Executive
Officer of the Company at the time the Services are performed.
(c) Expenses. The Company will reimburse Consultant for all
reasonable travel expenses incurred by Consultant in performing Services
pursuant to this Agreement.
2. Confidentiality
(a) Definition. "Confidential Information" means any Company
proprietary information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services, customers,
customer lists, markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business information disclosed by the
Company either directly or indirectly in writing, orally or by drawings or
inspection of parts or equipment.
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(b) Non-Use and Non-Disclosure. Consultant will not, during or
subsequent to the term of this Agreement, use the Company's Confidential
Information for any purpose whatsoever other than the performance of the
Services on behalf of the Company or disclose the Company's Confidential
Information to any third party. It is understood that such Confidential
Information will remain the sole property of the Company. Consultant further
agrees to take all reasonable precautions to prevent any unauthorized disclosure
of such Confidential Information including, but not limited to, having each
employee of Consultant, if any, with access to any Confidential Information,
execute a nondisclosure agreement containing provisions in the Company's favor
identical to Sections 2, 3 and 4 of this Agreement. Confidential Information
does not include information which (i) is known to Consultant at the time of
disclosure to Consultant by the Company as evidenced by written records of
Consultant, (ii) has become publicly known and made generally available through
no wrongful act of Consultant, or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such disclosure. Without
the Company's prior written approval, Consultant will not directly or indirectly
disclose to anyone the existence of this Agreement or the fact that Consultant
has this arrangement with the Company.
(c) Former Employer's Confidential Information. Consultant
agrees that Consultant will not improperly use or disclose any proprietary
information or trade secrets of any former or current employer or other person
or entity with which Consultant has an agreement or duty to keep in confidence
information acquired by Consultant, if any, and that Consultant will not bring
onto the premises of the Company any unpublished document or proprietary
information belonging to such employer, person or entity unless consented to in
writing by such employer, person or entity. Consultant will indemnify the
Company and hold it harmless from and against all claims, liabilities, damages
and expenses, including reasonable attorneys fees and costs of suit, arising out
of or in connection with any violation or claimed violation of a third party's
rights resulting in whole or in part from the Company's use of the work product
of Consultant under this Agreement.
(d) Third Party Confidential Information. Consultant
recognizes that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject to a duty on
the Company's part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant agrees that Consultant owes
the Company and such third parties, during the term of this Agreement and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Services for
the Company consistent with the Company's agreement with such third party.
(e) Return of Materials. Upon the termination of this
Agreement, or upon Company's earlier request, Consultant will deliver to the
Company all of the Company's property or Confidential Information that
Consultant may have in Consultant's possession or control.
3. Ownership
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(a) Assignment. Consultant agrees that all copyrightable
material, notes, records, drawings, designs, inventions, improvements,
developments, discoveries and trade secrets (collectively, "Inventions")
conceived, made or discovered by Consultant, solely or in collaboration with
others, during the period of this Agreement which relate in any manner to the
business of the Company that Consultant may be directed to undertake,
investigate or experiment with, or which Consultant may become associated with
in work, investigation or experimentation in the line of business of Company in
performing the Services hereunder, are the sole property of the Company.
Consultant further agrees to assign (or cause to be assigned) and does hereby
assign fully to the Company all Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto.
(b) Further Assurances. Consultant agrees to assist Company,
or its designee, at the Company's expense, in every proper way to secure the
Company's rights in the Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company will deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns and nominees the sole and exclusive right,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to be executed,
when it is in Consultant's power to do so, any such instrument or papers will
continue after the termination of this Agreement.
(c) Pre-Existing Materials. Consultant agrees that if in the
course of performing the Services, Consultant incorporates into any Invention
developed hereunder any invention, improvement, development, concept, discovery
or other proprietary information owned by Consultant or in which Consultant has
an interest, (i) Consultant will inform Company, in writing before incorporating
such invention, improvement, development, concept, discovery or other
proprietary information into any Invention and (ii) the Company is hereby
granted and will have a nonexclusive, royalty-free, perpetual, irrevocable,
worldwide license to make, have made, modify, use and sell such item as part of
or in connection with such Invention. Consultant will not incorporate any
invention, improvement, development, concept, discovery or other proprietary
information owned by any third party into any Invention without Company's prior
written permission.
(d) Attorney in Fact. Consultant agrees that if the Company is
unable because of Consultant's unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant's signature to apply
for or to pursue any application for any United States or foreign patents or
mask work or copyright registrations covering the Inventions assigned to the
Company above, then Consultant hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as Consultant's agent and
attorney in fact, to act for and in Consultant's behalf and stead to execute and
file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed by
Consultant.
4. Conflicting Obligations. Consultant certifies that Consultant has no
outstanding agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would preclude Consultant from complying
with the provisions hereof, and further certifies that Consultant will not enter
into any such conflicting agreement during the term of this Agreement.
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5. Non-Solicit. The Consultant covenants and agrees with the Company
that during his consultancy with the Company and for a period expiring one year
after the date of termination of such consultancy, he will not solicit any of
the Company's then-current employees to terminate their employment with the
Company or to become employed by any other firm, company or other business
enterprise with which the Consultant may then be connected.
6. Term and Termination
(a) Term. This Agreement will commence immediately following
the termination of Consultant's status as an employee under the Employment
Agreement or as a consultant under the Consulting Agreement (as defined in the
Consulting Agreement) and will continue for a period of five years from the date
of this Agreement.
(b) Termination. The Company may not terminate this Agreement
unless Consultant is in breach of any material provision of this Agreement.
(c) Survival. Upon such termination all rights and duties of
the parties toward each other will cease except:
(i) that the Company will be obliged to pay,
within 30 days of the effective date of termination, all amounts owing to
Consultant for Services completed and accepted by the Company prior to the
termination date and related expenses, if any, in accordance with the
provisions of Section 1 (Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality),
3 (Ownership), 5 (Non-Solicit) and 8 (Independent Contractor) will survive
termination of this Agreement.
7. Assignment. Neither this Agreement nor any right hereunder or
interest herein may be assigned or transferred by Consultant without the express
written consent of the Company.
8. Independent Contractor. It is the express intention of the parties
that Consultant is an independent contractor. Nothing in this Agreement will in
any way be construed to constitute Consultant as an agent, employee or
representative of the Company, but Consultant will perform the Services
hereunder as an independent contractor. Consultant acknowledges and agrees that
Consultant is obligated to report as income all compensation received by
Consultant pursuant to this Agreement, and Consultant agrees to and acknowledges
the obligation to pay all self-employment and other taxes thereon. Consultant
further agrees to indemnify and hold harmless the Company and its directors,
officers, and employees from and against all taxes, losses, damages,
liabilities, costs and expenses, including attorney's fees and other legal
expenses, arising directly or indirectly from (i) any negligent, reckless or
intentionally wrongful act of Consultant or Consultant's assistants, employees
or agents, (ii) a determination by a court or agency that the Consultant is not
an independent contractor, or (iii) any breach by the Consultant or Consultant's
assistants, employees or agents of any of the covenants contained in this
Agreement.
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9. Benefits. Consultant acknowledges and agrees and it is the intent of
the parties hereto that Consultant receive no Company-sponsored benefits from
the Company either as a Consultant or employee. Such benefits include, but are
not limited to, paid vacation, sick leave, medical insurance, and 401(k)
participation. If Consultant is reclassified by a state or federal agency or
court as an employee, Consultant will become a reclassified employee and will
receive no benefits except those mandated by state or federal law, even if by
the terms of the Company's benefit plans in effect at the time of such
reclassification Consultant would otherwise be eligible for such benefits.
10. Arbitration and Equitable Relief
(a) Disputes. Except as provided in Section 10(c) below, the
Company and the Consultant agree that, to the extent permitted by applicable
law, any dispute or controversy arising under or in connection with this
Agreement will be settled exclusively by arbitration in San Jose, California, in
accordance with the rules of the American Arbitration Association then in effect
by an arbitrator selected by both parties within ten days after either party has
notified the other in writing that it desires a dispute between them to be
settled by arbitration. In the event the parties cannot agree on such arbitrator
within such ten-day period, each party will select an arbitrator and inform the
other party in writing of such arbitrator's name and address within five days
after the end of such ten-day period and the two arbitrators so selected will
select a third arbitrator within 15 days thereafter; provided, however, that in
the event of a failure by either party to select an arbitrator and notify the
other party of such selection within the time period provided above, the
arbitrator selected by the other party will be the sole arbitrator of the
dispute. The decision of the arbitrator or a majority of the panel of
arbitrators will be binding upon the parties and judgment in accordance with
that decision may be entered in any court having jurisdiction thereover.
Punitive damages will not be awarded.
(b) Consent to Personal Jurisdiction. The arbitrator(s) will
apply California law to the merits of any dispute or claim, without reference to
conflicts of law rules. Consultant hereby consents to the personal jurisdiction
of the state and federal courts located in California for any action or
proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.
(c) Equitable Relief. The parties may apply to any court of
competent jurisdiction for a temporary restraining order, preliminary
injunction, or other interim or conservatory relief, as necessary, without
breach of this arbitration agreement and without abridgment of the powers of the
arbitrator.
(d) Acknowledgment. CONSULTANT HAS READ AND UNDERSTANDS THIS
AGREEMENT, WHICH DISCUSSES ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING
THIS AGREEMENT, CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING
TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING
ARBITRATION, EXCEPT AS PROVIDED IN SECTION 10(c), AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF CONSULTANT'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP
BETWEEN THE PARTIES.
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11. Governing Law. This Agreement will be governed by the internal
substantive laws, but not the choice of law rules, of the State of California.
12. Entire Agreement. This Agreement and the Employment Agreement
represent the entire agreement and understanding between the parties as to the
subject matter hereof and supersede all prior agreements whether written or
oral. No waiver, alteration, or modification of any of the provisions of this
Agreement will be binding unless in writing and signed by the party against whom
enforcement of the change or modification is sought.
13. Attorney's Fees. In any court action at law or equity which is
brought by one of the parties to enforce or interpret the provisions of this
Agreement, the prevailing party will be entitled to reasonable attorney's fees,
in addition to any other relief to which that party may be entitled.
14. Severability. The invalidity or unenforceability of any provision
of this Agreement, or any terms thereof, will not affect the validity of this
Agreement as a whole, which will at all times remain in full force and effect.
15. Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed an original, and which together will be a single
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CONSULTANT: XXXXXXX NAVIGATION LIMITED
By: /s/ Xxxxxx X. Xxxxxx By: Xxxxxxxx X. Xxxxxxxxx
Xx. Xxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: President
Address: 000 X. Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
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