CONTRACT FOR SERVICES
TELEGEN CORPORATION, a California corporation, located at 353 Vintage
Park Drive, Suite H, Foster City, California, hereinafter referred to as
Contractor, and WARREN M. DILLARD, hereinafter referred to as the Consultant, in
consideration of the mutual promises made herein, agree as of November 1, 1993,
as follows:
ARTICLE 1. ENGAGEMENT
SECTION 1.01. Contractor hereby engages Consultant and Consultant
hereby accepts engagement with Contractor until terminated as provided herein
beginning on
SECTION 1.02. This agreement may be terminated earlier as hereinafter
provided [notwithstanding the provisions of SECTION 1.01, above].
ARTICLE 2. DUTIES OF CONSULTANT
SECTION 2.01. The Contractor desires to retain the Consultant to
undertake a variety of clerical or administrative duties as may be determined by
Contractor from time to time.
SECTION 2.02. It is hereby agreed that the Contractor does retain the
said Consultant subject to the following terms, conditions, and stipulations:
a. the Consultant agrees that to the best of his ability and experience
will at all times loyally and conscientiously perform all of the duties and
obligations either expressly or implicitly required of him/her by the terms and
conditions of this agreement;
b. the Consultant's performance of the duties hereunder shall, at all
times, be rendered to Contractors reasonable satisfaction. The Consultant
expressly agrees that Contractor shall be the sole judge as to whether the
services of Consultant are satisfactory.
ARTICLE 3. COMPENSATION
SECTION 3.01. Contractor shall pay Consultant such compensation for
services as may be rendered under this contract, as may be determined in the
sole discretion of the President of the corporation, or the Consultant's direct
supervisor.
ARTICLE 4. NONCOMPETITION
SECTION 4.01. During the term of this contract Consultant shall not,
directly or indirectly, either as an Consultant, contractor, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is in competition in any manner whatsoever with the business of Contractor.
SECTION 4.02. Consultant acknowledges and agrees that the sale or
unauthorized use or disclosure of any of Contractor's trade secrets obtained by
Consultant during employment with Contractor, including information concerning
Contractors current products and any future or proposed products or services,
the facts that those products or services are planned, under consideration, or
in production, as well as any descriptions of the features of those products or
services constitute unfair competition. Consultant promises and agrees not to
engage in any unfair competition with Contractor either during the term of this
agreement or within five (5) years thereafter.
SECTION 4.03. In the event that Consultant breaches the foregoing
obligation not to compete, the Consultant shall be enjoined from engaging in any
further competitive activity and shall be liable to Contractor for any
reasonable damages for any such breach occurring prior to the issuance of an
injunction.
ARTICLE 5. OWNERSHIP OF WORK PRODUCT
SECTION 5.01. Notwithstanding any statutory, regulatory, and/or public
policy considerations to the contrary, Consultant agrees that any and all
intellectual properties, including but not limited to all ideas, concepts,
themes, inventions, designs, improvements and discoveries conceived, developed
or written by Consultant, either individually or jointly in collaboration with
others, during the term of his/her employment with Contractor shall be the sole
and separate property of Contractor.
SECTION 5.02. Consultant further agrees that the understanding set
forth in subparagraph 5.01 above constitutes a complete and express waiver by
him/her of any and all rights to the intellectual property described therein.
SECTION 5.03. Consultant will, upon reasonable request, execute such
documents as are requested to effectuate the terms of this Contract.
ARTICLE 6. INDEMNIFICATION
SECTION 6.01. Consultant shall indemnify and save Contractor harmless
from all liability from loss, damage, or injury to persons or property resulting
from the negligence or misconduct of the Consultant.
ARTICLE 7. TERMINATION
SECTION 7.01. If Consultant willfully breaches or habitually neglects
the duties that Consultant is required to perform under the terms of this
agreement, or demonstrates continued incapacity to perform those duties,
Contractor may at its option terminate this agreement by giving written notice
of termination to Consultant without prejudice to any other remedy to which
Contractor may be entitled either at law, in equity, or under this agreement.
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SECTION 7.02. This agreement shall terminate immediately on the
occurrence of any one of the following events:
(1) The occurrence of circumstances that make it impossible or
impracticable for the business of Contractor to be continued.
(2) The death of the Consultant.
(3) The loss by the Consultant of legal capacity.
(4) The loss by Contractor of legal capacity to contract.
(5) The death or dissolution of Contractor.
SECTION 7.03. The engagement of Consultant shall continue only as long
as the services rendered by Consultant are satisfactory to Contractor,
regardless of any other provision contained in this agreement. Contractor shall
be the sole judge as to whether the services of Consultant are satisfactory
provided, however, that Contractors determination with respect to Consultant's
services are exercised reasonably and in good faith.
SECTION 7.04. In the event that this agreement is terminated prior to
the completion of the term of employment specified herein, Consultant shall
automatically and completely forfeit any rights that he may have for the fiscal
year during which termination of this agreement occurs.
ARTICLE 8. ARBITRATION
SECTION 8.01. Any controversy or claim arising out of or relating to
this agreement, or the breach thereof shall be settled by arbitration in
accordance with the rules of the American Arbitration Association, and judgment
on the award rendered may be entered in any court having jurisdiction.
SECTION 8.02. Arbitration shall comply with and be governed by the
provisions of the California Arbitration Act, Sections 1280 through 1294.2 of
the California Code of Civil Procedure, which is incorporated herein by
reference.
SECTION 8.03. Contractor and Consultant shall each appoint one person
to hear and determine the dispute and, if the two persons so selected are unable
to agree, those two persons shall select a third impartial arbitrator whose
decision shall be final and conclusive upon both parties.
SECTION 8.04. The cost of arbitration shall be borne by the losing
party or in such proportions as the arbitrator decides.
SECTION 8.05. The result of arbitration hereunder shall be binding
upon the parties.
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ARTICLE 9. CORPORATE POLICIES
SECTION 9.01. From time to time Contractor shall institute
company-wide policies affecting all of its Consultants. Consultant shall abide
by and conform to those policies.
SECTION 9.02. Consultant may be enrolled in the Contractors medical
plan with the costs thereof for Consultant paid by Contractor, and the cost
thereof for any dependents of Consultant enrolled in the plan paid by the
Consultant.
ARTICLE 10. RULES GOVERNING AGREEMENT
SECTION 10.01. Except as expressly provided for herein, nothing in this
agreement shall constitute or be deemed construed to be a waiver or release by
the parties of any rights, claims, causes of action, defenses or offsets against
any other person or entity not a party of this agreement.
SECTION 10.02. The parties agree not to communicate the terms of this
agreement to any person or entity not a party to this agreement, except as
provided in this paragraph. The parties may disclose the terms of this agreement
to their spouses, attorneys, accountants (to the extent required to comply with
any law or regulation), auditors, law enforcement agencies, governmental bodies
or regulators or tax authorities.
SECTION 10.03. This agreement shall be interpreted and governed by the
laws of the State of California. Venue and jurisdiction for any dispute arising
out of this agreement shall be in the Superior Court of the State of California
for the County of San Mateo.
SECTION 10.04. In the execution of this agreement and the negotiations
leading thereto, each party was offered the opportunity to be represented by
counsel of its own selection during such negotiations. Prior to the execution of
this agreement by each party, the party's attorney, if any retained, reviewed
this agreement and made all desirable changes, and advised the party with
respect to the advisability of executing this agreement. Accordingly, the normal
rule of construction providing that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation or construction
of this agreement.
SECTION 10.05. This agreement, and the language herein, shall be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
SECTION 10.06. This agreement may be executed in counterparts which,
taken together, shall constitute one and the same agreement and shall be
effective as of the date first written above.
SECTION 10.07. This agreement is the sole, only, entire, and complete
Agreement of the parties relating in any way to the subject matter hereof. No
statements, promises, or representations have been made by any party to another
or are relied upon, and no consideration has been or is offered, promised,
expected, or held out other than that constituted by this agreement. The
conditions precedent to the effectiveness of this agreement exist other than as
may be expressly
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provided herein. All prior discussions and negotiations have been and are merged
and integrated into and are superseded by this agreement. This agreement may not
be altered, amended or modified except by a writing which expressly refers to
this agreement and is signed subsequent to the execution of this agreement by
the party or parties to any such authorization, amendment or modification.
SECTION 10.08. This agreement, and each and every portion thereof,
shall be binding on the successors and assigns of the parties hereto, but the
same shall not be assigned by the Consultant without written consent of the
Contractor.
The parties hereto having first read and understood the foregoing terms
and conditions of this Contract for Services, executed the same at Foster City,
California.
DATED:
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WARREN M. DILLARD, CONSULTANT
DATED:
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JESSICA L. STEVENS
Chief Executive Officer
TELEGEN CORPORATION
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