Exhibit 10.34
AMPHORA DISCOVERY CORP.
XXXXX CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of
the 8th day of October, 2001 by and between Amphora Discovery Corp., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxx ("Consultant"). The Company
desires to retain Consultant as an independent contractor to perform consulting
services for the Company and Consultant is willing to perform such services, on
terms set forth more fully below. In consideration of the mutual promises
contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services
described in Exhibit A ("Services").
(b) The Company agrees to pay Consultant the compensation set forth
in Exhibit A for the performance of the Services.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed by the Company
either directly or indirectly in writing, orally or by drawings or inspection of
parts or equipment.
(b) Consultant will not, during or subsequent to the term of this
Agreement, use the Company's Confidential Information for any purpose whatsoever
other than the performance of the Services on behalf of the Company or disclose
the Company's Confidential Information to any third party, and it is understood
that said Confidential Information shall remain the sole property of the
Company. Consultant further agrees to take all reasonable precautions to prevent
any unauthorized disclosure of such Confidential Information. Confidential
Information does not include information which: (i) is known to Consultant at
the time of disclosure to Consultant by the Company as evidenced by written
records of Consultant; (ii) has become publicly known and made generally
available through no wrongful act of Consultant; or (iii) has been rightfully
received by Consultant from a third party who is authorized to make such
disclosure. Without the Company's prior written approval, Consultant will not
directly or indirectly disclose to anyone the terms of this Agreement.
(c) Consultant agrees that Consultant will not, during the term of
this Agreement, improperly use or disclose any proprietary information or trade
secrets of any former or current
employer or other person or entity with which Consultant has an agreement or
duty to keep in confidence information acquired by Consultant in confidence, if
any, and that Consultant will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to such employer,
person or entity unless consented to in writing by such employer, person or
entity. Consultant will indemnify the Company and hold it harmless from and
against all claims, liabilities, damages and expenses, including reasonable
attorneys fees and costs of suit, arising out of or in connection with any
violation or claimed violation of a third party's rights resulting in whole or
in part from the Company's use of the work product of Consultant under this
Agreement.
(d) Consultant recognizes that the Company has received and in the
future will receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees that Consultant owes the Company and such third
parties, during the term of this Agreement and thereafter, a duty to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the Services for the Company consistent with the
Company's agreement with such third party.
(e) Upon the termination of this Agreement, or upon Company's earlier
request, Consultant will deliver to the Company all of the Company's property or
Confidential Information in tangible form that Consultant may have in
Consultant's possession or control.
3. OWNERSHIP
(a) Consultant agrees that all copyrightable material, notes,
records, drawings, designs, inventions, improvements, developments, discoveries
and trade secrets (collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others, during the period of this
Agreement that Consultant may undertake, investigate or experiment with, or
which Consultant may become associated with in work, investigation or
experimentation, in performing the Services hereunder, are the sole property of
the Company. In addition, any Inventions which constitute copyrightable subject
matter shall be considered "works made for hire" as that term is defined in the
United States Copyright Act. Consultant further agrees to assign (or cause to be
assigned) and does hereby assign fully to the Company all such Inventions and
any copyrights, patents, mask work rights or other intellectual property rights
relating thereto.
(b) Consultant agrees to assist Company, or its designee, at the
Company's expense, in every proper way to secure the Company's rights in the
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries, including the
disclosure to the Company of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths, assignments
and all other instruments which the Company shall deem necessary in order to
apply for and obtain such rights and in order to assign and convey to the
Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to
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be executed, when it is in Consultant's power to do so, any such instrument or
papers shall continue after the termination of this Agreement.
(c) Consultant agrees that if in the course of performing the
Services, Consultant incorporates into any Invention developed hereunder any
invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
perpetual, irrevocable, worldwide license to make, have made, modify, use and
sell such item as part of or in connection with such Invention.
(d) Consultant agrees that if the Company is unable because of
Consultant's unavailability, dissolution, mental or physical incapacity, or for
any other reason, to secure Consultant's signature to apply for or to pursue any
application for any United States or foreign patents or mask work or copyright
registrations covering the Inventions assigned to the Company above, then
Consultant hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Consultant's agent and attorney in fact, to
act for and in Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work registrations
thereon with the same legal force and effect as if executed by Consultant.
4. REPORTS
Consultant agrees that it will from time to time during the term of this
Agreement or any extension thereof keep the Company advised as to Consultant's
progress in performing the Services hereunder and that Consultant will, as
requested by the Company, prepare written reports with respect thereto. It is
understood that the time required in the preparation of such written reports
shall be considered time devoted to the performance of Consultant's Services.
5. CONFLICTING OBLIGATIONS
(a) Consultant certifies that Consultant has no outstanding agreement
or obligation that is in conflict with any of the provisions of this Agreement,
or that would preclude Consultant from complying with the provisions hereof, and
further certifies that Consultant will not enter into any such conflicting
Agreement during the term of this Agreement. Consultant further certifies that
Consultant's act of entering into this Agreement, purchasing stock of the
Company, and serving as a consultant to the Company do not violate any
outstanding agreement, obligation, or employment arrangement of Consultant's.
Consultant further agrees that he will not perform any services for the Company
which would conflict with any agreement or obligation of Consultant or which
would cause or result in any other person or entity having any ownership
interest in any intellectual property of the Company's.
(b) In view of Consultant's access to the Company's trade secrets and
proprietary know-how, Consultant further agrees that Consultant will not,
without Company's prior written consent, design identical or substantially
similar designs as those developed under this Agreement for any
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third party during the term of this Agreement and for a period of twelve (12)
months after the termination of this Agreement.
6. TERM AND TERMINATION
(a) This Agreement will commence on the date first written above and
will continue until final completion of the Services or termination as provided
below.
(b) Either party may terminate this Agreement upon giving thirty (30)
days prior written notice thereof to the other party. Any such notice shall be
addressed to the address shown below or such other address as either party may
notify the other of and shall be deemed given upon delivery if personally
delivered, or forty-eight (48) hours after deposited in the United States mail,
postage prepaid, registered or certified mail, return receipt requested. The
Company may terminate this Agreement immediately and without prior notice if
Consultant refuses to or is unable to perform the Services or is in breach of
any material provision of this Agreement.
(c) Upon such termination all rights and duties of the parties toward
each other shall cease except:
(i) that the Company shall be obliged to pay, within thirty
(30) days of the effective date of termination, all amounts owing to Consultant
for unpaid Services and related expenses, if any, in accordance with the
provisions of Section 1 (Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and 8
(Independent Contractors) shall survive termination of this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder may be assigned by any
party hereto, except that the Company may assign this Agreement in connection
with (1) a merger or consolidation of the Company, (2) a sale or assignment of
substantially all its assets, or (3) any other transaction which results in
another entity or person owning substantially all of the assets of the Company;
provided that the entity or person receiving or succeeding to the assets of the
Company assumes the Company's obligations.
8. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed to constitute
Consultant as an agent, employee or representative of the Company, but
Consultant shall perform the Services hereunder as an independent contractor.
Consultant agrees to furnish (or reimburse the Company for) all tools and
materials necessary to accomplish this contract, and shall incur all expenses
associated with performance, except as expressly provided on Exhibit A of this
Agreement. Consultant acknowledges and agrees that Consultant is obligated to
report as income all compensation received by Consultant pursuant to this
Agreement, and Consultant agrees to and acknowledges the obligation to pay all
self-employment and other taxes thereon. Consultant further agrees to indemnify
the
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Company and hold it harmless to the extent of any obligation imposed on Company
(i) to pay any withholding taxes or similar items; or (ii) resulting from
Consultant's being determined not to be an independent contractor.
9. ARBITRATION AND EQUITABLE RELIEF
(a) Except as provided in Section 9(b) below, the Company and
Consultant agree that any dispute or controversy arising out of or relating to
any interpretation, construction, performance or breach of this Agreement, shall
be settled by arbitration to be held in Santa Xxxxx County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court of competent jurisdiction. The
Company and Consultant shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its respective counsel fees and
expenses.
(b) Consultant agrees that it would be impossible or inadequate to
measure and calculate the Company's damages from any breach of the covenants set
forth in Sections 2 or 3 herein. Accordingly, Consultant agrees that if
Consultant breaches Sections 2 or 3, the Company will have available, in
addition to any other right or remedy available, the right to obtain from any
court of competent jurisdiction an injunction restraining such breach or
threatened breach and specific performance of any such provision. Consultant
further agrees that no bond or other security shall be required in obtaining
such equitable relief and Consultant hereby consents to the issuances of such
injunction and to the ordering of such specific performance.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
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11. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes any
prior agreements between them with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CONSULTANT: AMPHORA DISCOVERY CORP.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxxx X. Xxxxx
Title: President & CEO
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Address: 000 Xxxxxxxx Xxx Address:
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Xxxxxxx Xxxxx, XX 00000
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EXHIBIT A
SERVICES AND COMPENSATION
1. Contact. Consultant's principal Company contact:
Name: ______________________________________
Title: _____________________________________
2. Services. Consultant will provide advisory services to the
Company from time to time as reasonably requested by the Company's Chief
Executive Officer or Board of Directors.
3. Compensation.
(a) Consultant shall not be entitled to any cash compensation
for services rendered hereunder. The Company shall reimburse Consultant for all
reasonable travel and living expenses incurred by Consultant in performing
Services pursuant to this Agreement, provided Consultant receives prior written
consent from an authorized agent of the Company prior to incurring such
expenses.
(b) Consultant shall submit all statements for expenses in a
form prescribed by the Company and such statement shall be approved by the
contact person listed above or by his or her supervisor.
(c) Subject to the approval of the Board of Directors, the
Company shall issue to Consultant, pursuant to the Restricted Stock Purchase
Agreement attached hereto as Annex A (the "RSPA") 900,000 shares of the
Company's Common Stock at a price per share of $0.10. The RSPA shall be in full
satisfaction of any previous obligations of the Company to issue options, stock
appreciation rights, membership units, equity, stock, or other securities or to
pay royalties, bonuses, or other compensation to Consultant.
