ELECTROSOURCE, INC.
CONSULTING AGREEMENT
Xxxxxxx X. Xxxxxxx
THIS CONSULTING AGREEMENT (the "Agreement"), made effective
the 15th day of July 1999, is between ELECTROSOURCE, INC.
("Electrosource"), a Delaware corporation, having its principal
offices at 2809 Interstate 00 Xxxxx, Xxx Xxxxxx, Xxxxx 00000,
X.X.X. and Xxxxxxx X. Xxxxxxx, having his place of business at
0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant possesses knowledge, experience and
administrative expertise in storage battery technology and/or
related fields of engineering activity; and
WHEREAS, Consultant has the knowledge and ability and is
duly licensed or authorized to assist Electrosource in the
development 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
intending to be legally bound, agree as follows:
1. Term
1.1 Electrosource hereby engages Consultant as
independent contractor for a term commencing on July
15, 1999, and ending on July 14, 2000.
1.2 Electrosource shall have the right to extend this
Agreement by written notification at the same rate of
compensation provided for in Section 3 by written
notice not less than two (2) weeks prior to the last
day of the initial term of this Agreement or Amendment
to same.
1.3 Electrosource may cancel this Agreement at its
sole discretion with thirty (30) days advance written
notice to Consultant. 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.
1.4 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.
1.5 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
2.1 Consultant shall use his best efforts to assist
Electrosource with respect to matters pertaining to its
manufacturing, engineering and battery design
activities. Consultant shall not during the term of
this Agreement accept any other engagement as
consultant, or enter into any employment relationship,
with respect to which any portion of his duties would
entail assisting any other entity in the field of
energy storage or batteries. Consultant shall be
reasonably available on an on-call, as-needed basis for
a minimum of one day per month, and additional time to
be scheduled on a mutually agreeable basis, to perform
such engineering and consulting duties as may be
assigned from time to time by Electrosource. Such
services shall be provided either at the offices of
Electrosource or Consultant, or at such other locations
as the parties may agree.
2.2 Specific duties shall include, but not be limited
to, serving the particular needs of the General Manager
and others designated by him.
3. Compensation
As full compensation for the services which Consultant
renders to Electrosource under this Agreement, Electrosource
shall pay to Consultant $40.00 per hour. Invoices Consultant
submits to Electrosource for services rendered shall include
the heading "a professional consulting firm (or
individual)."
4. Expenses
Electrosource shall reimburse Consultant for all proper and
reasonable 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 expenses. Reimbursement of expenses will
be issued within fourteen (14) days of receipt of complete
accounting, with receipts, of same.
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. Consultant shall keep confidential all such
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 Consultant shall restrict the disclosure of
Electrosource's confidential and/or proprietary
technical and business information to those of his
employees who need to know the same for purposes of
carrying out this contract, and Consultant shall have
non-disclosure agreements with all such persons.
Consultant shall advise all such employees of
Consultant's obligations of confidentiality under this
Agreement.
5.3 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.
5.4 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.
5.5 Neither expiration of this Agreement nor its
earlier termination for any reason shall release
Consultant from its obligations under this Section 5.
6. Classified Information
6.1 Except in connection with authorized visits,
classified material shall not be possessed by the
Consultant off the premises of the Company. The Company
shall not furnish classified material to the Consultant
at any other location than the premises of the Company
and performance of the consulting services by the
Consultant shall be accomplished at the premises of the
Company; and classification guidance will be provided
by the Company.
6.2 The Consultant and his certifying employees shall
not disclose classified information to unauthorized
persons.
6.3 Electrosource shall brief the Consultant as to the
security controls and procedures applicable to the
Consultant's performance.
7. Works of Authorship and Inventions
7.1 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.
7.2 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.
8. 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.
9. No Conflicts
9.1 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.
9.2 Consultant shall advise Electrosource's Executive
Vice President of all clients under similar agreement
to him within five (5) days after execution of this
Agreement. Consultant shall not contract for additional
clients without first having notified Electrosource in
writing.
9.3 Notwithstanding any other provision of this
Agreement, Electrosource shall have the right to
terminate this Agreement if, in Electrosource's sole
opinion, a conflict of interest rises or may arise
between Consultant's representation of Electrosource
and its representation of its other clients. Such
termination shall become effective upon five (5) days
written notification by Electrosource.
10. 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, and
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.
11. Notice
A notice communicated to Electrosource shall be sent to
Xxxxx X. Xxx, Executive Vice President, Electrosource, Inc.,
0000 Xxxxxxxxxx 00 Xxxxx, Xxx Xxxxxx, Xxxxx 00000, 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.
12. 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.
13. 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.
14. 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/ Xxxxx X. Xxx By: /s/Xxxxxxx X. Xxxxxxx
Printed Name: Xxxxx X. Xxx Printed Name: Xxxxxxx X. Xxxxxxx
Date: 8/5/1999 Date: 8/5/1999
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER:
###-##-####
WITNESS:
By: /s/Xxx Xxxxxxxxx
Printed Name: Don Pierrello
Date: 8/5/1999
