EXHIBIT 10.118
ELECTROSOURCE, INC.
CONSULTING AGREEMENT
96-C-079
THIS CONSULTING AGREEMENT (the "Agreement"), made effective
the 1st day of January, 1996, is between ELECTROSOURCE, INC.
("Electrosource"), a Delaware corporation, having its principal
offices at 0000-X Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx, 00000-0000, XXX
and XXXX X. XXX (Consultant) having his place of business at 000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Consultant possesses knowledge and experience in
battery technology, research and development, marketing,
fundraising and business alliances; and
WHEREAS, Consultant has the knowledge and ability to assist
Electrosource in matters related to the development, testing and
commercialization of its technology; 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
1.1 Electrosource hereby engages Consultant as
independent contractor for a term commencing on January
1, 1996 and ending on December 31, 1996.
1.2 Electrosource may cancel this Agreement with
thirty (30) days prior written notice to Consultant but
only in the event of severe budgetary constraints such
that it has to curtail its activities significantly.
Electrosource's sole liability will be for hours worked
at the rate specified, and for reasonable travel or
business expenses incurred in accordance with Section 4.
1.3 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.
1.4 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 (5) days of mailing, whichever is earlier.
2. Duties
Consultant shall use his best, businesslike, timely efforts
on behalf of Electrosource to assist Electrosource with
respect to strategic relationships, partnering, marketing,
fundraising, research and development agreements and
business alliances pertaining to battery technology, battery
research and development and related matters. Consultant
shall report to and be directed by the Chairman and CEO
and/or Vice President for Marketing of Electrosource.
Consultant shall be reasonably available on an on-call, as-
needed basis to perform such advising and consulting duties
as may be assigned from time to time by Electrosource to the
extent specified in Section 3 below. Such consulting
services shall be provided either at the offices of
Electrosource or Consultant, or at such other locations as
the parties may agree.
3. Compensation
As full compensation for the services which Consultant
renders to Electrosource under this Agreement, Electrosource
will pay to Consultant $6,000 per month, beginning January
1996, for approximately one week or 20% of Consultant's time
each month. If Electrosource requests more than one week of
time in a particular month, such additional time will be
paid for at the rate of $4,000 per week. Any such
additional time shall be approved in writing, in advance by
the Chairman and CEO of Electrosource. Upon execution of
this Agreement, Electrosource shall also pay to Consultant
$2,500 for past expenses and as an advance for future
expenses (to be supported by an itemized accounting with
receipts from Consultant) and a $6,000 signing bonus.
Consultant shall submit invoices monthly to Electrosource
for services rendered, invoices shall include the heading "a
professional consulting firm (or individual)."
4. Expenses
Electrosource shall reimburse Consultant for travel expenses
incurred by him pursuant to Consultant's consulting duties.
Such expenses may include necessary actual expenses of out-
of-town travel costs, communications, hotel accommodations,
meals and the like provided that Consultant shall keep
receipts 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
travel. Reimbursement of expenses in excess of the $2,500
payment to be made under Section 3 above will be issued
within twenty (20) days of receipt of the complete
accounting, with receipts.
5. Confidential and Proprietary Information
5.1 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" and/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.
5.2 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.
5.3 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.
5.4 Neither expiration of this Agreement nor its
earlier termination for any reason shall release
Consultant from its obligations under this Section 5.
6. Works of Authorship and Inventions
6.1 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.
6.2 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.
7. 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.
8. No Conflicts
8.1 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.
8.2 Notwithstanding any other provision of this
Agreement, Electrosource shall have the right to
suspend this Agreement subject to arbitration in
accordance with the rules of the American Arbitration
Association if, in Electrosource's sole opinion, a
conflict of interest arises or may arise between
Consultant's representation of Electrosource and its
representation of its other clients.
9. 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. 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.
10. Notice
A notice communicated to Electrosource shall be sent to the
Chairman and CEO, Electrosource, Inc., 0000-X Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxx 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.
11. 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.
12. 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.
13. 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. CONSULTANT
By: /S/ By: /S/
Xxxxx X. Xxxxx Xxxx X. Xxx
Vice President, General Counsel
Date: January 9, 1996 Date: January 9, 1996
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER:
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