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EXHIBIT 10.43
Purchase Requisition #________
CONSULTANCY AGREEMENT
This Agreement is made as of January 1, 1999, by and between Xxxxxxx
Xxxxxx-Xxxx, an individual ("Consultant") and ReSound Corporation, a California
corporation, located at 000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000
("ReSound").
1. Engagement of Consultant; Consulting Tasks. ReSound hereby engages
Consultant, and Consultant hereby agrees, to advise ReSound on the following
("consulting tasks"): advising on strategic opportunities and alternatives
worldwide.
ReSound understands that the manner and means used by Consultant to
accomplish the consulting tasks is in the sole discretion and control of
Consultant. However, Consultant will utilize the highest degree of skill and
expertise in order to professionally accomplish the consulting tasks in a timely
fashion.
2. Term. Consultant shall commence work under this Agreement on January
1, 1999. This Agreement shall remain effective until December 31, 1999, unless
terminated earlier under Section 12.
3. Time Commitment. Except where the nature of the consulting tasks
requires that they be performed at specific times, Consultant is free to choose
the specific times at which work will be performed. However, Consultant shall
devote sufficient time to the consulting tasks to complete them within the time
frames agreed by Consultant and ReSound.
4. Compensation. For all work performed in accordance with Section 3,
ReSound shall pay Consultant a fixed fee of DM10,500 per month in advance,
payable no later than the 10th day of the month.
5. Travel. Upon reasonable request by ReSound, Consultant shall travel
to appropriate locations to perform the consulting tasks (where the nature of
such tasks so requires) or to discuss the consulting tasks. Travel time shall
not count as time spent on the consulting tasks.
6. Expenses. ReSound shall reimburse Consultant for expenses incurred in
performing the consulting tasks (including reasonable costs of travel outside
Consultant's geographic area, but not including any general office or overhead
expenses) provided that Consultant provides ReSound with an itemized expense
report and receipts for all expenses. All air travel, domestic or international,
shall be coach class.
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7. No Conflicts. Consultant represents and warrants that: (a) Consultant
is not bound by, and will not enter into, any oral or written agreement with
another party that unreasonably conflicts with Consultant's obligations under
this Agreement and (b) Consultant's agreements and performance under this
Agreement do not require consent or approval of any person that has not already
been obtained.
During the term of this Agreement, Consultant agrees not to perform any services
for any person or entity that competes with ReSound because such services could
create a conflict with Consultant's services under this Agreement. ReSound
recognizes, however, that Consultant may have other clients during the term of
this Agreement; subject to the limitations of this Section, Consultant is free
to perform services for such other clients of its choosing.
8. Confidentiality of Confidential Information. Consultant acknowledges
and agrees that the terms of the confidentiality agreement already entered into
between Consultant and ReSound, a copy of which is attached hereto as Exhibit A,
shall apply to Consultant's performance of the consulting tasks under this
Agreement.
9. Consultant Not to Disclose Confidential Information of Consultant or
Others. Consultant shall not disclose any information to ReSound which it
believes to be confidential or proprietary to itself or a third party (including
present or former clients or employers).
10. Time, Materials and Facilities. Consultant represents and warrants
that Consultant will: (a) perform his or her obligations hereunder solely on
Consultant's own time and solely with supplies and equipment provided by ReSound
or Consultant (but not by any third party); and (b) perform work only at
ReSound's facilities or at Consultant's facilities (but not at any third party
facilities unless ReSound consents to the use of such facilities). Unless the
nature of the consulting tasks requires that they be performed at a specific
location, Consultant may choose which of the foregoing locations will be used to
perform the work.
11. Research Records. If the consulting tasks involve work that could
lead to the development for ReSound of any products, inventions, technology,
software or other proprietary material, then Consultant shall maintain such
records, research notes, data and other materials as may be necessary and in
sufficient detail to reflect properly all work done and results achieved in
performing this Agreement. All such material becomes ReSound's property when
produced.
12. Termination. This Agreement may be terminated by either party on
thirty (30) days' written notice to the other in the event of breach of this
Agreement and regardless of whether or not the consulting tasks have yet been
completed. On termination, or earlier on ReSound's request, Consultant shall
deliver to ReSound any supplies or equipment provided by ReSound for use in
performing the consulting tasks, all materials produced under Section 11, and
all physical property and documents or other media (including copies) that
contain ReSound confidential and proprietary information.
13. Independent Contractor; No Employee Benefits. Consultant shall at
all times act as an independent contractor and not as an employee of ReSound.
Accordingly, Consultant
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understands that ReSound will not pay or withhold from payments to Consultant
under this Agreement any F.I.C.A. (social security), state unemployment or
disability insurance premiums, state or federal income taxes, or other taxes and
that Consultant is responsible for paying his or her own federal self-employment
tax (in lieu of F.I.C.A.), state and federal income taxes (including estimated
tax payments) and other applicable taxes. Consultant also understands that under
the terms hereof he or she will receive no employee benefits of any kind
including, for example, vacation or health insurance.
14. Injunctive Relief. Consultant recognizes that if Consultant breaches
or threatens to breach any provision of Sections 7 or 8 or the provisions of
Section 12 relating to return of materials to ReSound, then ReSound shall be
entitled to an injunction restraining Consultant from such breach in addition to
pursuing any other remedy available to it.
16. Vesting of Stock Options. Vesting of Employee's options to purchase
shares of Common Stock granted to Employee under the Company's Stock Option Plan
shall continue vesting until the end of the Consulting Period. Any options that
are vested as of December 31, 1999 shall thereafter terminate in accordance with
the stock option grant agreement and stock option plan pursuant to which they
were issued.
17. Miscellaneous. Neither party has any authority to bind the other in
any way. Except as expressly provided herein, this Agreement shall not be
amended except by written agreement between the parties. No oral waiver,
amendment or modification shall be effective under any circumstances. If any
term, covenant or condition of this Agreement shall for any reason be held
unenforceable by a court of competent jurisdiction, the rest of this Agreement
shall remain in full force and shall in no way be affected or impaired. The
representations and warranties herein shall survive termination or expiration of
this Agreement. This Agreement shall be governed and construed under the laws of
Germany.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date set forth above.
RESOUND CORPORATION CONSULTANT
By: /s/ Xxxxxx Xxxxx ** By: /s/ Xxxxxxx Xxxxxx-Xxxx
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(Signature) (Signature)
Xxxxxx Xxxxx
Vice President, Business Development
And General Counsel Xxxxxxx Xxxxxx-Xxxx
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(Print name and title) (Print name and title)
** ReSound President, Vice-President.
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