Exhibit 10.7
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made as of October 10, 2001
between Beacon Power Corporation ("BPC") and Xxxx Xxxxxxx Xxxxx ("Consultant")
with respect to services to be performed for BPC by Consultant. The parties'
respective addresses are as set forth below their signature lines.
1. Employment. Commencing on or about the date hereof, BPC will engage
Consultant, and they each hereby accept such engagement upon the terms and
conditions in this Agreement.
2. Duties and Services. Consultant will act strictly as an Executive
Management Consultant and advisor to BPC and shall be subject to Internal
Revenue Code 1099 tax reporting. Consultant will report and coordinate his
activities with Xxxxxxx X. Xxxxxxx, President and CEO of BPC.
3. Compensation.
a. Consultant will be paid $2,000 per day for services rendered to BPC
invoiced on a monthly basis, and
b. Consultant will be reimbursed monthly by BPC for all reasonable out-of-
pocket expenses.
4. Independent Contractor. Consultant is an independent contractor, is not an
agent or employee of BPC, and is not authorized to act on behalf of BPC.
Consultant shall have no authority to bind BPC, and will not hold himself
out to third parties as having such authority. Consultant shall be solely
responsible for taxes and other wage deductions incurred as a result of
performing services under this Agreement. Under no circumstances shall
Consultant be considered an employee or agent of BPC.
5. Non-Solicit. Consultant shall not:
a. Induce or attempt to induce any customer, joint venturer, developer,
distributor or supplier of BPC to reduce such person's business with
BPC, or
b. Solicit any of BPC's employees to leave the employ of BPC.
6. No Disclosure of Confidential Information. In addition to any provisions
contained in the Mutual Non-Disclosure Agreement between the parties dated
July 20, 2001 ("MNDA"), Consultant shall not, at any time during the Term
or thereafter, divulge, use, furnish, appropriate, disclose or make
accessible to anyone other than BPC or its authorized agents, any data,
records, files, reports, pricing information, sales manuals, client lists,
business contacts, employee lists, operating procedures, marketing
techniques, manufacturing techniques and processes, business plans or
financial information (collectively, "Confidential Information"), which
Confidential Information is disclosed to Consultant by or known to
Consultant as a consequence of or through its engagement by BPC; provided,
however, that Confidential Information shall not include information or
materials that are (i) generally known to the public or publicly available,
or (ii) constitute recognized standard industry practice, or (iii) already
in the possession of Consultant prior to the date hereof without disclosure
from Consultant. These restrictions shall apply to all Confidential
Information whether written or oral, such Confidential Information being
recognized and acknowledged as the sole and exclusive property of BPC. In
the event that Consultant is required by law, court order or legal process
to disclose any Confidential Information, Consultant agrees that he will
provide BPC prompt notice of such requirement(s) so that BPC may consult
with Consultant as to the manner, timing and scope of such disclosure and
may seek an appropriate protective order.
7. Developments.
(a) The Consultant will make full and prompt disclosure to the
Company of all inventions, improvements, discoveries, methods,
developments, software, and works of authorship, whether patentable or
not, which are created, made, conceived or reduced to practice by
him/her or under his/her direction or jointly with others during
his/her engagement by the Company, whether or not during normal working
hours or on the premises of the Company (all of which are collectively
referred to in this Agreement as "Developments").
(b) The Consultant agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all his/her
right, title and interest in and to all Developments and all related
patents, patent applications, copyrights and copyright applications.
However, this paragraph 7(b) shall not apply to Developments which do
not relate to the present or planned business or research and
development of the Company and which are made and conceived by the
Consultant not during normal working hours, not on the Company's
premises and not using the Company's tools, devices, equipment or
Proprietary Information. The Consultant understands that, to the extent
this Agreement shall be construed in accordance with the laws of any
state which precludes a requirement in an consulting agreement to
assign certain classes of inventions made by a consultant, this
paragraph 7(b) shall be interpreted not to apply to any invention which
a court rules and/or the Company agrees falls within such classes. The
Consultant also hereby waives all claims to moral rights in any
Developments.
(c) The Consultant agrees to cooperate fully with the Company, both
during and after his/her engagement with the Company, with respect to
the procurement, maintenance and enforcement of copyrights, patents and
other intellectual property rights (both in the United States and
foreign countries) relating to Developments. The Consultant shall sign
all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments,
assignments of priority rights, and powers of attorney, which the
Company may deem necessary or desirable in order to protect its rights
and interests in any Development. The Consultant further agrees that if
the Company is unable, after reasonable effort, to secure the signature
of the Consultant on any such papers, any executive officer of the
Company shall be entitled to execute any such papers as the agent and
the attorney-in-fact of the Consultant, and the Consultant hereby
irrevocably designates and appoints each executive officer of the
Company as his/her agent and attorney-in-fact to execute any such
papers on his/her behalf, and to take any and all actions as the
Company may deem necessary or desirable in order to protect its rights
and interests in any Development, under the conditions described in
this sentence.
8. Return of Confidential Information. In addition to any provisions contained
in the MNDA, upon completion of the Term or any other time upon request,
Consultant will promptly deliver to BPC all notes, memoranda, notebooks,
drawings, records, reports, files, lists and other documents (and all
copies or reproductions of such materials no matter in what form such
information is recorded or stored), as well as any computer programs,
discs, tapes or other information storage and retrieval devices in the
possession or under the control of Consultant, whether prepared by
Consultant or others, which contain Confidential Information.
9. Term and Termination. The initial term of this Agreement shall be three (3)
months, yet may be extended by BPC for any length it desires ("Term").
Either party may terminate this Agreement at any time by giving thirty (30)
days' written notice to the other party.
10. Miscellaneous.
10.1 Waiver of Breach. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect
that party's right, at a later time, to enforce the same. No waiver by any
party of the breach of any term or covenant contained herein, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained herein.
10.2 Notices. All notices, requests, demands and any other communications
hereunder shall be made in writing and shall be deemed to have been duly
given if and when delivered (including delivery by confirmed facsimile
transmission), or three days after being sent by recognized overnight
delivery service, addressed to BPC and Consultant at their respective
addresses shown below the signature lines hereof (or such other address as
either may notify to the other from time to time), with a copy being sent
(in the case of notices to BPC) to BPC counsel, Xxxxxx X. Xxxxx, Esq.,
Xxxxxxx & Xxxxxx, LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxxxxxx, Xxxxxx, XX
00000, fax 000-000-0000.
10.3 Assignment; Binding Effect. No interest in this Agreement or in
Consultant's rights or obligations hereunder may be assigned by it, and any
such purported assignment shall be void and of no force or effect. This
Agreement shall be binding upon and inure to the benefit of BPC, its
successors and assigns, and shall be binding upon Consultant, its
successors and assigns.
10.4 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof,
and unless otherwise provided herein, supersedes all prior agreements or
understandings, written or oral, in respect thereof. This Agreement may be
amended, modified, superseded, canceled, renewed or extended, and the terms
or covenants hereof may be waived only by a written instrument, signed by
the parties hereto, or in the case of a waiver, by the party waiving
compliance.
10.5 Governing Law. This Agreement, and all questions arising in connection
therewith, shall be governed by and construed in accordance with the laws
of The Commonwealth of Massachusetts.
10.6 Certain Consultant Representations. Consultant represents and warrants its
engagement by BPC as described herein and shall not conflict with, and will
not be constrained by, any prior engagement or consulting agreement or
relationship.
10.7 Enforcement. The parties recognize and acknowledge that Consultant is
engaged under this Agreement to render services of a unique character,
requiring special expertise and experience by Consultant. Consultant agrees
that a breach by it of Section 6 could not reasonably or adequately be
compensated in damages in an action at law and that BPC shall be entitled
to injunctive relief, which may include, but shall not be limited to,
restraining Consultant from rendering any service that would breach this
Agreement. However, no remedy conferred by any of the specific provisions
of this Agreement (including this Section) is intended to be exclusive of
any other remedy, and each and every remedy shall be cumulative and in
addition to every other remedy given under this Agreement or now or
hereafter existing at law or in equity or by statue or otherwise. The
election of any one or more remedies by BPC shall not constitute a waiver
of the right to pursue other available remedies.
10.8 Indemnification. BPC shall indemnify and bear all costs, expenses and final
judgments/settlements incurred by Consultant ensuing from any legal action
naming Consultant resulting from this Agreement; provided, however, that
BPC shall have no such obligation if the involvement of Consultant in such
legal action is a result of Consultant's fault, negligence, misconduct,
misrepresentation or breach of this Agreement; provided that in connection
with any claim or action described in this Section, Consultant (aa) gives
BPC prompt written notice of the claim, (bb) cooperates with BPC (at its
own expense) in connection with the defense and settlement of the claim,
and (cc) permits BPC to control the defense and settlement of the claim
provided that BPC may not settle the claim without Consultant's prior
written consent (which will not be unreasonably withheld). Further,
Consultant (at its own cost) may participate in the defense and settlement
of the claim. Consultant shall indemnify and bear all costs, expenses and
final judgments/settlements incurred by BPC ensuing from any legal action
naming BPC, resulting from this Agreement, that is caused by Consultant's
fault, negligence, misconduct, misrepresentation or breach of this
Agreement; provided that in connection with any claim or action described
in this Section, BPC (aa) gives Consultant prompt written notice of the
claim, (bb) cooperates with Consultant (at its own expense) in connection
with the defense and settlement of the claim, and (cc) permits Consultant
to control the defense and settlement of the claim provided that Consultant
may not settle the claim without BPC's prior written consent (which will
not be unreasonably withheld). BPC (at its own cost) may participate in the
defense and settlement of the claim.
10.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed signature
page of this Agreement by facsimile transmission shall be effective as an
originally executed counterpart hereof.
IN WITNESS WHEREOF, the PARTIES have executed this Agreement as of the date
first above written.
CONSULTANT, BEACON POWER CORPORATION,
By: By:
Xxxx Xxxxxxx Xxxxx Xxxxxxx X. Xxxxxx
Vice President of Operations
Address: 000 Xxxxxxxxx Xxxx. XX Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Fax: Fax: 000-000-0000
