Exhibit 10.19
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
BOARD OF DIRECTORS
CONSULTING AND CONFIDENTIALITY AGREEMENT
THIS CONSULTING AND CONFIDENTIALITY AGREEMENT (the "Agreement") is made as of
this 24th day of January 2000 (the "Effective Date") by and between
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation (the "Company") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (the "Consultant").
WHEREAS, Consultant will become a member of the Board of Directors of the
Company on February 2, 2000 pending Board approval and has extensive
professional experience in the areas of investment management and the funeral
industry.
WHEREAS, in addition to obtaining the Consultant's services as a member of the
Board of Directors of the Company, the Company wishes to avail itself of the
services of the Consultant to perform certain tasks for the benefit of the
Company, and the Consultant is willing to perform such services on the terms and
conditions set forth below.
NOW, THEREFORE, the Company and Consultant, in consideration of the mutual
promises contained herein, hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings as
set forth below:
"Consultancy" means the current, anticipated or subsequent retention of
Consultant by the Company as a consultant hereunder, or any other period
during which Consultant receives compensation from the Company in any
capacity.
"Effective Common Stock Price" means the closing bid price (adjusted,
where appropriate, for any change of shares) of the common stock on the
last business day prior to the date of the grant of the option by the
Compensation Committee of the Board, which in the case of 4.2 options will
be the dates set forth on Schedule 1.
"Intellectual Property" means any Invention (as herein after defined),
writing, trade name, trademark, service ▇▇▇▇ or any other material
registered or otherwise protected or protectible under state, federal, or
foreign patent, trademark, copyright, or similar laws.
"Inventions" includes ideas, methods, discoveries, inventions,
developments, improvements, and other results of Consultant's
participation in this consulting relationship, his involvement with
employees and/or advisors of the Company and/or ideas and information
supplied to him as part of his consulting duties and interactions, whether
or not reduced to practice, whether or not patentable or otherwise within
the definition of Intellectual Property and whether or not made or
conceived on the premises of the Company.
"Proprietary Materials" includes any technical, trade or business secrets
of the Company and any technical, trade or business materials that are
treated by the Company as confidential or proprietary, including, but not
limited to, the inventions and confidential information obtained by or
given to the Company about or belonging to its suppliers, licensors,
licensees, partners, affiliates, customers, potential customers or others.
The definition of "Proprietary Materials" herein shall not include
Proprietary Materials which (i) were known by Consultant prior to its
disclosure by the Company; (ii) are publicly known through publication or
otherwise through no wrongful act of Consultant; (iii) are received from a
third party who rightfully discloses it to Consultant without restriction
on its subsequent disclosure; or (iv) are disclosed pursuant to the lawful
requirement of a governmental agency or by order of court of competent
jurisdiction, provided that such disclosure is subject to all applicable
governmental or judicial protection available for like material.
2. SERVICES.
2.1 Director Services. Consultant's services as a member of the Board of
Directors hereunder shall include:
(a) Membership on the Company's Board of Directors, including
attending six (6) Board Meetings per year;
(b) Advice on business matters related to the Company;
(c) Consultation with the Company's Board of Directors, officers,
employees and agents, as may be reasonably requested by the
Company, with respect to the above-mentioned activities;
(d) Refining ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.'s business model;
(e) Interviewing key candidates for executive positions, and
(f) Such other services as shall be reasonably requested by the
Company.
2.2 Consulting Services. Consultant's special services, which are
optional, involve helping the Company increase its revenues through
proactive efforts to help the Company sign on funeral homes,
cemeteries, and monument dealers, as well as other efforts to
enhance the revenue model and accelerate the revenue growth of the
Company.
2.3 Status. The Company and Consultant agree that Consultant will be an
independent contractor for all purposes including, but not limited
to, payroll and tax purposes, and that Consultant shall not in any
way represent himself to be an employee or officer of the Company.
2.4 Consent. In order to protect the Company's patent rights, any actual
work done by Consultant under this Agreement, if any, shall be done
at the Company's place of business or at some other location
approved in advance by the Company and no work under this Agreement,
if any, shall be done by Consultant at his employer's place of
business unless the Company has an agreement with such employer to
conduct such work.
3. TERM.
3.1 Term. This agreement will be for an initial term of one (1) year
beginning as of the Effective Date and ending January 23, 2001, and
may be extended for additional periods of one (1) year by mutual
written agreement by Consultant and the Company prior to the end of
the term set forth above.
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3.2 Termination by Company. Company may terminate this Agreement at any
time by giving 30 days prior written notice.
3.3 Termination by Consultant. Consultant may terminate this Agreement
at any time by giving 30 days prior written notice.
4. COMPENSATION AND EXPENSES.
4.1 Board of Directors' Compensation. As full compensation for
Consultant's serving as a member of the Board of Directors pursuant
to Section 2.1 above, the Company shall:
(a) Pay consultant annually Ten Thousand Dollars ($10,000) in
cash, payable in accordance with Schedule 1;
(b) Issue to the Consultant an option to purchase 100,000 shares
of Procept Common Stock (the "Standard Option") approved by
the Board of Directors on January 24, 2000 at $4.19 per share,
which was the Effective Common Stock Price on the date you
joined the Board of Directors. The Standard Option (100,000
shares) vests as follows: 33,334 as of January 31, 2000;
33,333 on January 31, 2001, and 33,333 on January 31, 2002 and
would have a ten (10) year term; and shall not be subject to
early termination provisions of the Standard Option. The
option shall be fully transferable by the Consultant, with the
consent of the Compensation Committee (which shall not be
unnecessarily withheld).
(c) At its discretion, the Board of Directors may grant to the
Director an additional option to purchase shares on each
anniversary of the Director's Effective Date.
4.2 Consulting Compensation. As full compensation for Consultant's
services pursuant to Section 2.2 above, the Company shall:
(a) Pay Consultant One Thousand Five Hundred Dollars ($1,500) per
day in cash or options to purchase shares of Common Stock
under the Company's 1998 Stock Plan having an aggregate
exercise price of Three Thousand Dollars ($3,000) per day (see
formula below) at the choice of the Consultant each quarter,
payable in accordance with Schedule 1. The number of shares
that could be purchased with the option would be determined by
the following formula: the number of days worked in the
quarter multiplied by Three Thousand Dollars ($3,000) divided
by the Effective Common Stock Price. The option would be
immediately exercisable in full at an exercise price equal to
the Effective Common Stock Price. The options would have a
ten-(10) year term and not subject to early termination
provisions of the Standard Option.
4.3 Expenses. Consultant shall be entitled to reimbursement for
reasonable travel and other out-of-pocket expenses incurred in the
performance of his duties hereunder, provided such expenses are
agreed upon in advance, following submission of written statements
and bills.
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5. REPRESENTATION OF CONSULTANT; USE OF NAME.
Consultant hereby represents that his current principal place of
employment has received disclosure of this Agreement and of the duties
required of Consultant hereunder, and that such employer consents fully to
Consultant's execution of this Agreement and the position that he will
hold. Consultant further represents that there are no binding agreements,
written or oral, to which he is a party or by which he is bound,
forbidding or restricting his activities herein. In addition, Consultant
and his current employer consent to the use of their names in various
reports, brochures or other documents produced by or on behalf of the
Company, including any and all documents filed with the Securities and
Exchange Commission, but not to the use of their names in any advertising
or promotion without the prior written consent of Consultant and his
employer.
6. OWNERSHIP.
6.1 Proprietary Materials. The Company retains all rights of ownership
to all Proprietary Materials furnished to or developed by the
Consultant hereunder.
6.2 Inventions and Intellectual Property. All Inventions and
Intellectual Property created, developed or otherwise invented by
Consultant hereunder, including all materials, products, models,
data, information, documentation, and other results of Consultant's
services hereunder, are and shall be the exclusive property of the
Company, and the Company may use or pursue them without restriction
or additional compensation. Consultant shall maintain and furnish to
the Company complete and current records of all such Inventions and
Intellectual Property and disclose to the Company in writing all
such Inventions and Intellectual Property. Consultant: (i) hereby
assigns, sets over and transfers to the Company all of his right,
title, and interest in and to such Inventions and Intellectual
Property; (ii) agrees that Consultant and his agents shall, during
and after the period Consultant is retained by the Company, upon
reasonable request of the Company, cooperate fully in obtaining
patent, trademark, service ▇▇▇▇, copyright or other proprietary
protection for such Inventions and Intellectual Property, all in the
name of the Company (but only at Company expense), and, without
limitation, shall execute all requested applications, assignments
and other documents, and take such other measures as the Company
shall reasonably request in order to perfect and enforce the
Company's rights in such Inventions and Intellectual Property, and
hereby appoints the Company his attorney to execute and deliver any
such applications, assignments or other documents on his behalf in
the event the Consultant fails or refuses to execute and deliver any
such applications, assignments or other documents requested by the
Company; and (iii) shall, upon termination of his Consultancy,
provide to the Company in writing a full, signed statement of all
Inventions and Intellectual Property in which Consultant
participated prior to termination of his Consultancy to the Company.
6.3 Third Party Claims. Unless covered by an appropriate agreement
between any third party and the Company, Consultant shall not engage
in any activities or use any facilities, whereby claims of ownership
to any results hereunder may be made by such third party.
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7. CONFIDENTIALITY.
7.1 Consultant Acknowledgment. The Company has developed and will
develop its Proprietary Materials and Intellectual Property over a
substantial period of time at a substantial expense, and its
Proprietary Materials and Intellectual Property are integral to the
goodwill of the Company. During the course of Consultancy to the
Company, Consultant may develop or become aware of Proprietary
Materials and/or Intellectual Property. Protection of the
Proprietary Materials and Intellectual Property is necessary to
conduct the Company's business, and the Company is and shall at all
times remain the sole owner of the Company's Proprietary Materials
and Intellectual Property.
7.2 Confidentiality. Consultant shall at all times, both during and for
five (5) years after any termination of Consultant's Consultancy to
the Company by either the Company or the Consultant, maintain in
confidence and not utilize the Proprietary Materials or the
Intellectual Property of the Company, except in performing services
for the Company under this Agreement. Maintaining such Proprietary
Materials and Intellectual Property in confidence shall include
refraining from disclosing such Proprietary Materials or
Intellectual Property to any third party (except when duly and
specifically authorized in writing to do so for the purpose of
furthering the business of the Company), and refraining from using
such Proprietary Materials or Intellectual Property for the account
of Consultant or for any other person or business entity. Consultant
agrees not to make any copies of the Proprietary Materials or
Intellectual Property of the Company (except when appropriate for
the furtherance of the business of the Company or duly and
specifically authorized to do so) and agrees promptly upon request,
whether during or after the period of Consultancy to the Company, to
return to the Company any and all samples, documentary,
machine-readable or other elements or evidence of such Proprietary
Materials, Intellectual Property, any copies of either that may be
in Consultant's possession or under Consultant's control.
7.3 Non-Solicitation.
During the term of this Agreement and for five (5) years thereafter,
Consultant shall not, directly or indirectly, without the prior
written consent of the Company:
(a) Solicit or induce any employee, Consultant of the Company, or
any affiliate to leave the employ or consultation of the
Company or any affiliate; or hire for any purpose any employee
of the Company or any affiliate, or any former employee who
has left the employment of the Company or any affiliate within
six months of the termination of said employee's employment
with the Company or affiliate;
(b) Solicit or accept employment or be retained by any party who,
at any time during the term of this Agreement, was a customer
or supplier of the Company or any affiliate where his position
will be related to the business of the Company; or
(c) Solicit or accept the business of any customer or supplier of
the Company or any affiliate with respect to products similar
to the business of the Company.
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7.4 Continued Obligations. Consultant's obligations under this Section 7
shall not be affected: (i) by any termination of Consultant's
Consultancy, including termination upon the Company's initiative;
nor (ii) by any change in Consultant's position, title or function
with the Company; nor (iii) by any interruption in Consultancy
during which Consultant leaves and then rejoins the Company for any
period within a period of one year and for any reason.
8. NOTICES.
For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been
duly given when delivered personally or by overnight courier with a
receipt obtained therefor or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Consultant, to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ telephone
If to the Company, to: ▇▇. ▇▇▇▇ ▇. ▇▇▇
President and CEO
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ telephone
(▇▇▇) ▇▇▇-▇▇▇▇ fax
or to such other address as either party may furnish to the other in
writing in accordance with this Section, except that notices or changes of
address shall be effective upon receipt.
9. OTHER PROVISIONS.
9.1 Remedies. In the event of any breach by Consultant of any of the
provisions of this Agreement, the Company shall be entitled, in
addition to monetary damages and to any other remedies available to
the Company under this Agreement and at law, to equitable relief,
including injunctive relief, and to payment by Consultant of all
costs incurred by the Company in enforcement against Consultant of
the provisions of this Agreement, including reasonable attorneys'
fees.
9.2 No Waiver. Waiver of any provision of this Agreement, in whole or in
part, in any one instance shall not constitute a waiver of any other
provision in the same instance, nor any waiver of the same provision
in another instance, but each provision shall continue in full force
and effect with respect to any other then-existing or subsequent
breach.
9.3 Headings. The paragraph headings have been inserted for purposes of
conveniences only and shall not be used for interpretive purposes.
9.4 Assignment. This Agreement, and the rights and obligations
hereunder, may not be assigned or transferred by either party
without the prior written consent of the other party, except the
Company may assign this Agreement in connection with the merger,
consolidation, or sale of all or substantially all assets of the
Company.
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Subject to the foregoing, this Agreement shall be binding upon
Consultant and his heirs, executors, administrators, successors,
representatives and assigns and shall inure to the benefit of the
Company and any successor or assign of the Company.
9.5 Entire Agreement. This Agreement, including Schedule 1 attached
hereto and incorporated herein by reference, constitutes the entire
agreement of the parties with regard to the subject matter hereof,
and supersedes all previous written or oral representations,
agreements and understandings between the Company and Consultant,
whether expressed or implied. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original, but all of which together will constitute one and the same
agreement.
9.6 Amendment. Any amendment or modification of this Agreement or waiver
of any right, in whole or in part, will be effective only if it is
in writing and signed by the parties hereto.
9.7 Applicable Law and Severability. This Agreement shall be governed by
the law of The Commonwealth of Massachusetts. If a court of
competent jurisdiction determines that any provision of this
Agreement is invalid or unenforceable, then the validity or
unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect. If any of
the provisions of this Agreement is held to be excessively broad, it
shall be reformed and construed by limiting and reducing it so as to
be enforceable to the maximum extent permitted by law.
Consultant and the Company have executed and delivered this Agreement as a
document under seal as of the Effective Date.
COMPANY: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: __________________________________
▇▇▇▇ ▇. ▇▇▇, President and CEO
CONSULTANT:
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
For payment purposes, please furnish the following information:
Home Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Soc. Sec. #: ###-##-####
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SCHEDULE 1
Consulting Services Cash Payments to be
Provided During the Made During the
Month of Month of Grant Dates for Stock Options
------------------- ------------------- -----------------------------
January
February
March April - current year April 15 - current year
April
May
June July - current year July 15 - current year
July
August
September October -current year October 15 - current year
October
November
December January - following year January 15 -following year
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