EXHIBIT B
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of June 4, 1996 by and between
LifeRate Systems, Inc., a Minnesota corporation (the "Company") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, an individual presently residing in the State of Maryland ("Consultant").
A. The Company and Consultant desire to establish a consulting
arrangement.
B. The Company and Consultant are entering into this Consulting
Agreement in conjunction with the simultaneous execution of the Agreement, dated
of even date herewith, between the Company and Consultant regarding the
settlement of certain claims (the "Settlement Agreement").
In consideration of the foregoing and of the respective covenants and
agreements of the parties herein contained, the receipt and sufficiency of which
consideration are hereby acknowledged, the parties hereto agree as follows:
1. Consultancy. The Company agrees to retain Consultant as a consultant, and
Consultant agrees to serve the Company, on the terms and conditions set forth
herein. The retention of Consultant by the Company as a consultant shall be for
the period commencing on June 1, 1996 and expiring December 1, 1996 (the
"Expiration Date"), unless such consultancy shall have been sooner terminated as
hereinafter set forth in Section 4.
2. Responsibilities. Consultant shall report directly to the Chief Executive
Officer of the Company and shall perform such duties as the Chief Executive
Officer shall reasonably assign from time to time to Consultant. While the daily
commitment required by Consultant to fulfill his duties hereunder will vary, it
is understood that such duties assigned hereunder shall constitute, in the
aggregate, approximately 50% of Consultant's normal full-time workload over the
duration of the Consulting Agreement.
3. Compensation and Support
(a) During the term of his consultancy hereunder, Consultant shall
receive a consulting fee of $10,000, per month, payable bi-weekly. In addition,
the Company agrees to pay Consultant $20,000 upon execution of this Agreement
(the "Advance"), as an advance payment of the bonus payable under Section 3(b).
In the event either (i) this Consulting Agreement is rescinded as provided in
Section 10(h) or terminated prior to December 1, 1996 by Consultant for any
reason or by the Company for any reason which does not constitute a breach
hereunder, or (ii) the bonus referred to in Section 3(b) does not become payable
by its terms because the terms thereof are not satisfied, then in either case
Consultant agrees to repay the Advance to the Company promptly upon demand. If
Consultant is requested to travel to render services hereunder, the Company
shall reimburse Consultant for all necessary and reasonable expenses incurred by
Consultant in accordance with and as permitted by the expense reimbursement
policies adopted by the Company.
(b) In addition to the fees payable under Section 3(a), Consultant
shall receive a bonus of $100,000, payable within 30 days after December 1,
1996, subject to compliance with the following terms and conditions:
(i) Consultant shall have fully and faithfully performed and
discharged his duties under this Consulting Agreement from the date hereof
through December 1, 1996 and Consultant shall not be in material breach of any
terms, duties or obligations hereunder as of December 1, 1996.
(ii) Consultant shall have fully and faithfully performed and
discharged his obligations and duties under the Settlement Agreement from the
date hereof through December 1, 1996 and Consultant shall not be in material
breach of any terms, duties or obligations under the Settlement Agreement.
(c) The Company agrees to provide the Former Executive with necessary
administrative support such as office space, a desk, a telephone and secretarial
assistance to the extent reasonably necessary to conduct the requested
consultant services.
4. Termination
(a) Death. Consultant's consultancy hereunder shall terminate upon his
death.
(b) Cause. The Company may terminate Consultant's consultancy hereunder
for Cause. For the purposes of this Consulting Agreement, the Company shall have
"Cause" to terminate Consultant's consultancy hereunder upon Consultant's (i)
willful, continuing, material and bad faith failure to perform and discharge his
duties and responsibilities hereunder, or (ii) gross misconduct that is
materially and demonstratively injurious to the Company, or (iii) conviction of
a felony (unless such conviction is reversed in any final appeal thereof);
provided that, in the case of termination under clauses (i) or (ii)of this
Section 4(b), Consultant shall have first received written notice of proposed
termination at least 30 days prior thereto, specifying the grounds for such
termination and Consultant shall have failed to cure such matters.
(c) Date of Termination. "Date of Termination" shall mean the earlier
of (i) the Expiration Date or (ii) if Consultant's employment is terminated by
his death, then the date of his death, or if pursuant to Section 4(b), then the
date specified in the notice of termination.
5. Competitive Activities
Consultant agrees that during his consultancy hereunder, for a period
of 12 months after his consultancy with the Company ends:
(a) He will not alone, or in any capacity with another entity:
(i) directly or indirectly engage in any commercial activity
that competes with the Company's business, as the Company has conducted it
during the 12-month period before the Consultant's consultancy with the Company
ends, within any state in the United States in which the Company directly or
indirectly markets or services products or provides services;
(ii) in any way interfere or attempt to interfere with the
Company's relationships with any of its current or potential customers; or
(iii) employ or attempt to employ any of the Company's then
employees on behalf of any other entity competing with the Company.
(b) He will, prior to accepting employment with any new employer,
inform that employer of this Agreement and provide that employer with a copy of
this Agreement.
(c) Consultant may seek the advice of the Company from time to time on
whether prospective employment he proposes would, in the Company's opinion,
violate the provisions of this Section 5, by submitting in writing to the
Company appropriate information.
6. Confidential Information
(a) Confidential Information. For purposes of this Agreement, the term
"Confidential Information" means information that is not generally known and
that is proprietary to the Company, including (i) trade secret information about
the Company and its products and services; and (ii) information relating to the
business of the Company as conducted at any time or anticipated to be conducted
by the Company, and to any of its past, current or anticipated products and
services, including without limitation, information about the Company's
research, development, design, manufacturing, purchasing, accounting,
engineering, marketing, selling, leasing or servicing. All information that
Consultant has a reasonable basis to consider Confidential Information or which
is treated by the Company as being Confidential Information shall be presumed to
be Confidential Information, whether originated by Consultant or by others, and
without regard to the manner in which Consultant obtains access to such
information. Notwithstanding the foregoing, information shall cease to be
Confidential Information for purposes of this Section 6 when (i) it is required
by law or legal process to be disclosed in the public domain or (ii) it has
become public information as a direct or indirect result of disclosure by any
person other than Consultant. In the event Consultant receives any notice of any
action to require disclosure of any Confidential Information, as required by law
or legal process, Consultant immediately shall notify the Company of the notice
and any action to require disclosure of Confidential Information to permit the
Company to challenge the required disclosure and seek a protective order.
(b) Restricted Use and Nondisclosure. Consultant shall not, either
during the term of this Agreement or for a period of five years following
expiration or termination of this Agreement, (i) use any Confidential
Information for any purpose other than the performance of his duties and
responsibilities under this Agreement for the benefit of the Company or (ii)
disclose any Confidential Information to any person not employed by the Company,
without the prior written authorization of the Company. Consultant shall
exercise prudence and the highest degree of care to safeguard and protect, and
to prevent the unauthorized disclosure of, all such Confidential Information.
(c) Return of Information at Termination. Upon termination of the
consultancy, Consultant shall deliver to the Company all materials, including
but not limited to product formulations, customer lists, business plans,
business strategies, instruction sheets, drawings, manuals, letters, notes,
notebooks, books, reports and copies thereof, computer records, audiotapes and
videotapes or other media that include Confidential Information. Consultant
shall not retain any copies or reproductions of any materials, product
formulations, customer lists, business plans, business strategies, instruction
sheets, drawings, manuals, letters, notes, notebooks, books, reports and copies
thereof, computer records, audiotapes, videotapes or other materials of the
Company that came into Consultant's possession at any time during the term of
this Agreement.
7. Inventions.
(a) Inventions. For purposes of this Agreement, the term "Inventions"
means any business plan, strategy, technology, discovery, improvement,
innovation, idea, formula, shop right, trademark or work of authorship or
expression (whether or not patentable or copyrightable, and whether or not put
into writing or reduced to practice) made, generated, or conceived by Consultant
(whether alone or with others) while employed by the Company or to which
Consultant has agreed to assign the rights, interest and ownership under this
Agreement or under any other document or instrument.
NOTICE: Pursuant to Minnesota Statutes Section 181.78, Consultant is
hereby notified that this Agreement does not apply to an invention for which no
equipment, supplies, facility, Confidential Information or trade secret
information of the Company was used and which was developed entirely on
Consultant's own time and does not relate (1) directly to the business of the
Company or (2) to the Company's actual or demonstrably anticipated research or
development, or does not result from any work performed by Consultant for the
Company.
(b) Property of the Company. All Inventions made, authored or conceived
by Consultant, either solely or jointly with others, during Consultant's
consultancy with the Company or within one (1) year after the termination of
this Agreement, are works made for hire and the entire title and ownership
interest in such items in any form shall be the sole and exclusive property of
the Company. Consultant shall execute instruments of assignment confirming the
foregoing as requested by the Company.
(c) Disclosure. Consultant shall promptly and without request by the
Company fully disclose to the Company in writing any Inventions. Consultant
shall report on a monthly basis to the Company, or more frequently as requested
by the Company, regarding any and all research and development activities during
that period.
(d) Cooperation. Upon the request of the Company, Consultant shall
apply for such United States or foreign trademarks, patents or copyrights as the
Company may deem desirable, and Consultant shall do any and all acts necessary
in connection with such applications for trademarks, patents or copyrights, or
assignments, in order to establish in the Company the entire right, title and
interest in and to such trademarks, patents or copyrights. All costs and
expenses incurred in connection with any such application for such trademarks,
patents or copyrights shall be paid by the Company, and Consultant shall be
reimbursed by the Company to the extent any such costs and expenses were
incurred personally by Consultant.
8. Injunctive Relief
Consultant and the Company acknowledge that a breach by the other of
any of the terms of Sections 5, 6 or 7 of this Agreement will render irreparable
harm to the other and that the Company or Consultant (as the case may be) shall
therefore be entitled to any and all equitable relief, including but not limited
to injunctive relief, and to any other remedy that may be available under any
applicable law or agreement between the parties.
9. Representations of Consultant.
Consultant represents and warrants that his execution and delivery of
this Agreement and performance by Consultant of his obligations under this
Agreement shall in no way violate the terms and conditions of any other
agreement, written or oral, or any other instrument or arrangement to which
Consultant is a party or by which Consultant is bound.
10. Miscellaneous.
(a) Waiver. No waiver of any term, condition or covenant of this
Agreement shall be deemed to be a waiver of subsequent breaches of the same or
other terms, covenants or conditions hereof.
(b) Amendment. This Agreement may not be amended, altered or modified
except by a written agreement between the parties hereto.
(c) Assignability.
(i) Consultant Assignability. Consultant shall not assign this
Agreement to any third party for whatever purpose without the express,
prior written consent of the Company.
(ii) Company Assignability. The Company shall have the right
to assign this contract to its successors or permitted assigns, (but
not to other persons,) and all covenants or agreements hereunder shall
inure to the benefit of and be enforceable by or against its successors
or assigns.
(iii) Definitions. The terms "successor" and "permitted
assigns" shall include any person, individual or entity that buys all
or substantially all the Company's assets, or a controlling portion of
its stock, or with which it merges or consolidates.
(d) Invalidity and Severability. In the event part or any portion of
this Agreement is determined to be invalid or unenforceable by any court of
competent jurisdiction, the parties agree that this Agreement as so construed
shall remain in force and effect between them and shall be applied as if the
offending part or portion did not comprise an element hereof.
(e) Notices. Any notice required to be given hereunder shall be duly
and properly given if hand delivered, transmitted by facsimile or mailed postage
prepaid to either party at the addresses set forth below, effective as of the
date of mailing:
If to Consultant: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Company: LifeRate Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its address by giving ten days' prior written
notice to the other party of the new address.
(f) Definitions. For purposes of this Agreement, the following words
shall have the meanings indicated:
(i) Technology. The term "technology" means all know-how,
trade secrets, processes, inventions, specifications, equipment,
computer software, trademarks, trade names, service marks, patents,
patent applications, proprietary information, copyrights and other
related intellectual property.
(ii) Trade Secret. The term "trade secret" means any
information or compilation of information possessed by the Company that
derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means
by other persons who can obtain economic value from its disclosure or
use. For purposes of this Agreement, the term "trade secret" includes
both information disclosed to Consultant by the Company and information
developed by Consultant in the course of his employment.
(g) Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Minnesota.
(h) Rescission of Agreement. Notwithstanding any provision in this
Consulting Agreement to the contrary, in the event Consultant delivers a Notice
of Rescission (as defined in the Settlement Agreement) to the Company, then this
Consulting Agreement shall, upon receipt of the Notice of Rescission by the
Company, also be deemed to be simultaneously rescinded and rendered null and
void in all respects.
IN WITNESS WHEREOF, the parties have duly executed, or caused to be
executed by a duly authorized representative, this Agreement as of the date
first set forth above.
LIFERATE SYSTEMS, INC.
By_________________________
CONSULTANT
___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇