EXHIBIT 2
CONSULTING AND PROPRIETARY RIGHTS AGREEMENT
AGREEMENT, made as of the 12th day of May, 1997 by and between
Pro-Tec Containers, Inc., a Florida corporation, with offices located at 0000
Xxxxxxx Xxxxxxx Xxxxx, X.X., Xxxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred
to as the "Corporation"), and Xxxxxx Xxxxxxx, an individual having an address at
000 Xxxx Xxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxx 00000 (hereinafter referred to as
the "Consultant").
W I T N E S S E T H :
WHEREAS, the Corporation and the Consultant are entering into
this Agreement in connection with the Agreement of Merger and Reorganization,
dated as of May 12, 1997, between Xxxxxx Medical Corporation, a Delaware
corporation ("Xxxxxx"), a subsidiary of Xxxxxx, the Corporation and Consultant
(the "Merger Agreement").
NOW THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter contained, the parties hereto agree as follows
(with all capitalized terms used herein and not otherwise defined having the
meanings ascribed to such terms in the Merger Agreement):
1. Retention of Consultant. The Corporation hereby retains Consultant
to perform, and Consultant hereby agrees to perform, advisory, consulting and
sales referral services for the Corporation upon the terms and conditions
hereinafter set forth.
2. Term, Duties and Extent of Services.
(a) The term (the "Term") of this Agreement shall
commence as of the date hereof and shall continue until the second anniversary
of the date hereof. Notwithstanding the foregoing, Sections 4 and 5 hereunder
shall survive the expiration of the Term.
(b) Consultant shall furnish, subject to the terms and
conditions set forth in this Agreement, consulting, advisory and sales referral
services to the Corporation, by telephone or in person, as is convenient to
Consultant, (i) on a full-time basis for the three month period following the
date of this Agreement, and (ii) on a part-time basis of not less than one day
each month for the remainder of the Term, at the request of the Chief Executive
Officer of the Corporation. Consultant shall notify the Corporation (orally or
in writing) of such business opportunities with respect to the sales or
marketing of the Company's products as she shall develop, conceive or become
aware. Unless requested by
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the Corporation, Consultant shall not approach or exploit any such opportunities
on behalf of any person (including, without limitation, on behalf of the
Corporation or the Consultant), and in any event, without the prior written
consent of the Corporation, Consultant shall not make any representations or
warranties on behalf of the Corporation or with respect to the Company's
products. Consultant shall have no authority to incur any travel or other
expenses in connection with her services to the Corporation without the prior
approval of the Chief Executive Officer of the Corporation and no reimbursements
shall be made to the Consultant by the Corporation in respect of any such
unauthorized expenses.
(c) Consultant shall, at all times, be an independent
contractor and the Corporation shall have no liability whatsoever for
withholding, collection or payment of income taxes or for taxes of any other
nature on behalf of Consultant. Under no circumstances shall Consultant have or
claim to have power or authority to bind the Corporation or to assume or to
create any obligation or responsibility, express or implied, on behalf of, or in
the name of, the Corporation, unless specifically authorized in writing.
Furthermore, under no circumstances shall Consultant make any warranty,
guarantee, representation, agreement or promise concerning the performance,
merchantability, usefulness or fitness for any particular purpose of any of the
Company's products, and any such warranty, guarantee, representation, agreement
or promise shall not be valid or binding on the Corporation unless specifically
authorized by the Corporation in writing. Nothing contained herein shall be
construed as constituting a joint venture or partnership between Consultant, on
the one hand, and the Corporation, on the other hand.
3. Remuneration. During the Term, as full compensation under and
pursuant to this Agreement, the Consultant shall receive a consulting fee (the
"Fee"), at the rate of $4,000 per month, payable monthly. Notwithstanding the
foregoing, the Fee shall be at the rate of $6,700 per month until such time as
the Registration Statement is first declared effective by the SEC.
4. Proprietary Rights. (a) Consultant hereby sells, assigns, transfers
and conveys unto the Corporation, and agrees that the Corporation shall be the
exclusive owner of, the following described assets and rights, wherever
situated, owned or controlled, directly or indirectly, by Consultant or to which
Consultant has any right, title or interest on the date hereof (it being
understood that Consultant has sold and assigned the Patents to the Corporation
pursuant to the Merger Agreement):
(i) all right, title and interest which Consultant may
have in and to all Proprietary Rights and all other rights
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necessary or desirable for the conduct of the Business, and/or the production,
manufacturing, packaging or sale of the Company's products, and owned, licensed
or possessed by Consultant (collectively referred to herein as the "Transferred
Rights"); and
(ii) the sole and exclusive right to use, assert, file,
prosecute and maintain patent, trademark, copyright and other statutory or
common law protection for or with respect to Transferred Rights or any part
thereof throughout the world and the right to make, have made, use, lease and
sell the Company's Products.
(b) Consultant will promptly disclose to the Corporation,
or any persons designated by it, all inventions, improvements, processes,
techniques, know-how, data and other developments of or related to the
Transferred Rights, the Company's products and/or the Business made, conceived
or reduced to practice or learned by Consultant, whether or not patentable,
either alone or jointly with others, during the Term hereof which are related to
or useful in the Business (all said inventions, improvements, processes,
techniques, know-how, data and other developments, shall be collectively called
"Inventions"). Consultant agrees that all Inventions shall be the sole property
of the Corporation and its assigns, and the Corporation and its assigns shall be
the sole owner of all patents, copyrights, trademarks and other rights in
connection therewith. Consultant hereby assigns to the Corporation any rights he
may have or acquire in all Inventions. It is understood that the preceding
sentence does not apply to inventions or ideas which do not in any way relate to
or complement the Business or the Company's products.
(c) At the request of the Corporation from time to time,
and without further consideration, Consultant shall execute and deliver or cause
to be executed and delivered to the Corporation such consents, assignments and
other good and sufficient instruments of conveyance, assignment and
confirmation, and shall duly execute, acknowledge, deliver and perform all such
further acts and assurances, as the Corporation may reasonably deem necessary or
desirable in order to more effectively transfer, convey and assign to and vest
in the Corporation, and to confirm the Corporation's title to, the Transferred
Rights or the Inventions, as contemplated hereby and/or by the Merger Agreement,
and to put the Corporation in exclusive possession and control thereof, and to
assist the Corporation in exercising all rights with respect thereto.
(d) At the request of the Corporation, and without
further consideration, Consultant shall cooperate with and assist the
Corporation in preparing and filing patent and other applications and applying
for, prosecuting and maintaining, and
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from time to time enforcing, in its own name, any and all patent, trademark,
copyright and other statutory or common law protection for or with respect to
the Transferred Rights or the Inventions or any aspect thereof, and in providing
testimony, evidence and other assistance for legal proceedings, including
infringement and other proceedings, relating thereto.
(e) Consultant hereby irrevocably constitutes and
appoints the Corporation and its duly authorized officers and agents her
attorney-in-fact to act for and on behalf of Consultant, execute and deliver all
applications and other documents on her behalf as may be contemplated hereby or
by the Merger Agreement, and to cause all assignments and other documents
contemplated or permitted hereunder or under the terms of the Merger Agreement
to be filed or recorded as deemed appropriate by the Corporation, with the same
legal force and effect as if executed by Consultant.
5. Confidentiality. (a) It is understood that Consultant possesses and
will continue to possess information that has been created, discovered or
developed, or has otherwise become known to the Corporation (including, without
limitation, information created, discovered, developed or made know by or to
Consultant during the Term, and/or in which property or other rights have been
assigned or otherwise conveyed to the Corporation), which information has
commercial value in the business in which the Corporation is engaged and none of
which is in the public domain except through the breach by Consultant or anyone
else of a confidentiality duty. All of the aforementioned information is
hereinafter called "Proprietary Information." By way of illustration, but not
limitation, Proprietary Information includes developments, improvements,
discoveries, trade secrets, technologies, processes, research, methods,
formulae, uses of any of the foregoing, computer software and programs, test
and/or experimental data and results, specifications, laboratory notebooks,
drawings and technical information and materials, sterilization and other
techniques, data, know-how, techniques, marketing plans and opportunities, cost
and pricing data, strategies, forecasts and customer lists. Consultant agrees to
keep in confidence and trust all Proprietary Information, and not use or
disclose any Proprietary Information without the written consent of the
Corporation, except as may be necessary in the ordinary course of performing her
duties as a consultant to the Corporation. SINCE IT IS SOMETIMES DIFFICULT TO
SEPARATE PROPRIETARY INFORMATION FROM THAT WHICH IS NOT, CONSULTANT WILL REGARD
ALL INFORMATION GAINED OR DEVELOPED AS A RESULT OF HER ASSOCIATION WITH THE
CORPORATION AS PROPRIETARY INFORMATION.
(b) In the event of the termination of this Agreement for
any reason, or any other time upon the Corporation's request, Consultant will
deliver to the Corporation all materials,
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compounds, samples, data, physical property, memoranda, notes, records,
rolodexes, customer mailing or contact lists and other documents of any nature
made or compiled by Consultant or made available to Consultant pertaining to her
work with or to the business of the Corporation, all of which shall be deemed
the property of the Corporation, and Consultant, upon any such termination,
shall not take with any documents, data or property of any description or any
reproduction of any description containing or pertaining to any Proprietary
Information and/or Inventions.
6. Relationship to Merger Agreement. This Agreement, and any and all
payments or other compensation to be made or granted to Consultant hereunder,
shall be subject to Section 8.3 of the Merger Agreement.
7. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, or by recognized
overnight courier service to the other party hereto, in the case of Consultant
at her address as set forth in the Corporation's records, and in the case of the
Corporation at its principal executive office from time to time. Any such notice
shall be deemed given five (5) days after it shall be so deposited in the mail,
when personally delivered or one (1) day after deposited with such recognized
overnight courier service. Either party may change the address(es) to which
notices, requests, demands and other communications hereunder shall be sent by
giving written notice of such change of address in the manner hereinabove
provided.
8. Assignability and Binding Effect. This Agreement shall
inure to the benefit of and shall be binding upon the heirs, executors,
administrators, successors and legal representatives of Consultant, and shall
inure to the benefit of and be binding upon the Corporation and its successors
and assigns. Consultant may not assign, transfer, pledge, encumber, hypothecate
or otherwise dispose of this Agreement, or any of her rights or obligations
hereunder, and any such attempted delegation or disposition shall be null and
void and without effect. No person not a party hereto shall be a third party
beneficiary of or entitled to benefits under or by reason of this Agreement.
9. Severability. In the event that any of the provisions of this
Agreement would be held to be invalid, prohibited or unenforceable in any
applicable jurisdiction for any reason (including, but not limited to, any
provision which would be held to be unenforceable because of the scope, duration
or area of its applicability), unless narrowed by construction, this Agreement
shall, as to such jurisdiction only, be construed as if such invalid, prohibited
or unenforceable provision had been more
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narrowly drawn so as not to be invalid, prohibited or unenforceable (or if such
language cannot be drawn narrowly enough, the court making any such
determination shall have the power to modify such scope, duration or area or all
of them, but only to the extent necessary to make such provision enforceable in
such jurisdiction, and such provision shall then be applicable in such modified
form in such jurisdiction only). If, notwithstanding the foregoing, any
provision of this Agreement would be held to be invalid, prohibited or
unenforceable in any jurisdiction, such provision, as to such jurisdiction only,
shall be ineffective to the extent of such invalidity, prohibition or
unenforceability, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without regard to
principles of conflict of laws and regardless of where actually executed,
delivered or performed.
11. Complete Understanding; Counterparts. This Agreement, together with
the Merger Agreement, constitutes the complete understanding and supersedes any
and all prior agreements and understandings between the parties with respect to
its subject matter, and no statement, representation, warranty or covenant has
been made by either party with respect thereto except as expressly set forth
herein. This Agreement shall not be altered, modified, amended or terminated
except by written instrument signed by each of the parties hereto. The Section
and paragraph headings contained herein are for convenience only, and are not
part of and are not intended to define or limit the contents of said Sections
and paragraphs. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which, when taken together, shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PRO-TEC CONTAINERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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