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Exhibit 4.10
CONSULTING AGREEMENT
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As of the last date written below, Material Technology, Inc.,
("Matech") and Xxxxxx X. Xxxxxxxxx ("Consultant") agree that Consultant shall
act as a consultant to Matech on the following terms and conditions:
WHEREAS, the willingness of Matech to enter into the Stock Purchase
Agreement among Montpilier Holdings, Inc., SecurFone America, Inc., Matech, and
Xxxxxx X. Xxxxxxxxx was conditioned on the willingness of Consultant to act as
consultant on the terms in this Agreement; and
WHEREAS, Consultant is willing to act as a consultant as described
below and on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. AGREEMENT TO ACT AS CONSULTANT. Effective on the Closing Date of
the Stock Purchase Agreement, Consultant hereby agrees to act as a consultant to
Matech for eighteen months following the Closing (as defined in the Stock
Purchase Agreement). Upon request of Matech's officers or directors, Consultant
shall make himself available for up to fifty (50) hours per calendar quarter to
consult with Matech's officers and directors on matters involving Matech's
business and affairs. Consultant shall be entitled to reasonable notice to
prepare to perform the services requested and to render such services at times
reasonable convenient to Consultant. Moreover, Consultant shall be reimbursed
for all reasonable travel expenses in connection with such services, provided
such expenses are adequately documented.
2. COMPENSATION. On the Closing Date under the Stock Purchase
Agreement, RMB shall be paid $5,000 out of the escrow referred to in such Stock
Purchase Agreement. In addition, for a period of five years from Closing,
Consultant shall be entitled to receive stock options entitling him to purchase
Class A Common Stock of Matech. The number of shares of Matech Class A Common
Stock subject to such options shall be equal to seven per cent (7%) of the sum
of (A) the total number of shares of any class of equity security of Matech
that, during the five years following the Closing, Matech registers with the
Securities Exchange Commission on Form S-8 plus (B) the total number of shares
of any class of equity security of Matech that, during the five years following
Closing, Matech sells under Regulation S of the Securities Act of 1933. The
shares issuable upon exercise of all such options granted to Consultant shall be
registered on Form S-8 within 180 days following the date of grant. In addition,
(i) Consultant's options based on shares registered on Form S-8 shall be granted
to him on the date each such registration statement becomes effective, shall not
be exercisable until one year following the date of grant, and shall be
exercisable for a period of five years following the expiration of such one-year
period and (ii) Consultant's options
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CONSULTING AGREEMENT
based on shares sold under Regulation S shall be granted within twenty (20) days
of any sales under Regulation S and shall grant Consultant the right to purchase
shares on the same terms and conditions as the purchasers under Regulation S,
except that (i) such option shall not be exercisable for a period of one year
following the date of grant; (ii) any restrictions on resale of the Regulation S
shares shall not apply to the shares Consultant receives upon exercising his
options after such one-year period; and (iii) the shares shall be registered on
Form S-8 within 180 days following the date of grant of options to Consultant;
provided that Matech shall not be obligated to file more than two Form S-8
registration statements in any calendar year. Consultant shall pay for shares
purchased upon exercise of such options in full at the time of exercise.
3. NO SET-OFF OR REDUCTION. Matech agrees that the right of Consultant
to receive the compensation set forth in Paragraph 2 above shall not be subject
to reduction or set-off for any reason whatever, including, but not limited to,
any alleged breach of warranties or other obligations under this Agreement or
the Stock Purchase Agreement.
4. REMEDIES OF CONSULTANT. In the event of any breach by Matech of its
obligations to compensate consultant, in addition to any remedies Consultant may
have at law, any and all options previously granted to Consultant shall become
immediately exercisable. In the event that Consultant incurs costs, expenses,
and/or attorneys fees to enforce his rights under this Agreement, Matech shall
reimburse Consultant for any and all such costs, expenses, and/or reasonable
attorneys fees.
5. AUTHORIZATION. This Agreement has been authorized by Matech's
directors prior to Closing and by Matech's replacement directors after the
Closing.
6. CONFIDENTIAL INFORMATION. Consultant will acquire information of a
confidential nature relating to the operation, finances, business relationships,
intellectual property, and trade secrets of Matech. During the term of this
Agreement and for two years following termination of the 18-month term of his
consulting obligation, Consultant will not, without Matech's prior written
consent, use, publish, or disclose or authorize anyone else to use, publish, or
disclose, any confidential information pertaining to Matech or its affiliated
entities, including, without limitation, any information relating to existing or
potential business, customers, trade or industrial practices, plans, costs,
processes, technical or engineering data, or trade secrets; provided, however,
that Consultant shall be prohibited from ever using, publishing, or disclosing
or authorizing anyone else to use, publish, or disclose any confidential
information which constitutes a trade secret under applicable law. The foregoing
notwithstanding, Consultant has no obligation to refrain from using,
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CONSULTING AGREEMENT
publishing, or disclosing any such confidential information which is or
hereafter shall become available to the public otherwise than by Consultant's
use, publication, or disclosure. This prohibition also does not prohibit
Consultant from disclosing confidential information in response to lawful
process compelling disclosure. On the other hand, Consultant shall provide
reasonable notice to Matech of any such process to allow Matech to timely object
to such disclosure.
7. RETURN OF DOCUMENTS. Within five days of termination of the 18-month
consulting period under this Agreement, Consultant shall return to Matech or
destroy all of Matech's papers, documents, and things, including information
stored for use in or with computers and software applicable to Matech's business
and all copies of such papers, documents, and things, which are in Consultant's
possession, custody, or control and Consultant shall certify in writing that he
has complied with this provision.
8. AGREEMENT ON FAIRNESS. Consultant acknowledges that: (i) this
Agreement has been specifically bargained between the parties and reviewed by
Consultant and his counsel and (ii) the covenants made by and the duties imposed
upon Consultant hereby are fair, reasonable, and minimally necessary to protect
the legitimate business interests of Matech, and such covenants and duties will
not place an undue burden upon Consultant's livelihood.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
last date written below.
Date: CONSULTANT
/s/ Xxxxxx X. Xxxxxxxxx 2/18/97
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Xxxxxx X. Xxxxxxxxx
Date: MATERIAL TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx 2/18/97
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Print Name and Title
Xxxxxx X. Xxxxxxxxx, President
