Exhibit 10.15
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is effective as of the 30th
day of November, 2004 (the "Effective Date"), as entered into by and between
PLANET TECHNOLOGIES, INC., a California corporation (the "Company"), and DR.
ROBERT PETCAVICH ("Consultant") with respect to the following facts:
RECITALS
A. Consultant has extensive experience and know-how related to the
intellectual property developed by the Company (the "Intellectual Property").
B. Customers of the Company to whom the Company has sold and licensed
intellectual property (the "Customers") require ongoing support and consulting
services (the "Services").
C. The Company will enter into consulting agreements with the Customers
to provide such Services.
D. The Company desires to retain Consultant to provide the Services to
the Customers related to the Intellectual Property.
E. Consultant is willing and desires to provide the Services to the
Customers, and, from time to time, to the Company with prior authorization from
the Company's Board of Directors (the "Board"), upon the terms, covenants and
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties agree as follows:
1. Term and Amount of Service. The Company hereby retains Consultant
for a period of one (1) year beginning as of the Effective Date and such
Agreement until shall be automatically renewed on an annual basis unless
terminated in writing on thirty (30) days written notice by either the Company
or the Consultant (the "Term"). Upon request by the Customers, and at times
mutually agreed upon by the Customers and Consultant, Consultant shall devote
such time as is agreed to between the Customers and Consultant. Consultation may
be sought by each Customer over the telephone, in person at the Consultant's
office, at the Customer's offices or another reasonable location or through
written correspondence.
2. Services to Be Provided.
a. To the Customers. Consultant agrees to provide the Services to
the Customers related to the Intellectual Property as the Customers may request.
All services provided by Consultant for the Customers are to be performed solely
pursuant to the terms and conditions of this Agreement and Consultant agrees not
to contract directly with Customers to provide services during the term of this
Agreement without the approval of Company's Board of Directors. Consultant's
provision of Services to the Customers will be limited to the specific work to
which each Customer and the Company may agree.
b. To the Company. Consultant may from time to time be requested
to provide the Services to the Company but only as the Company may request with
prior written authorization from the Board.
a. Consulting Fees. Upon execution of the Agreement, the Company
agrees to grant Consultant a one time non-qualified stock option under the
Company's 2000 Stock Option Plan to purchase 500 post-reverse split shares.
Additionally, the Company agrees it shall pay Consultant consulting fees at an
hourly rate mutually
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agreeable by the Company and Consultant depending on the scope of the project
requiring Consultant's services.
b. Expense Reimbursement. Consultant shall be entitled to request
reimbursement from the Company for expenses authorized in writing by the Chief
Executive Officer and reasonably incurred in the course of carrying out the
Services.
c. Payment of Fees. Consulting fees and reimbursements will be
paid within five (5) business days of receipt of payment from each Customer.
4. Independent Contractor; Withholding. Consultant will at all times be
an independent contractor, and as such will not have authority to bind the
Company or the Customers. Consultant will not act as an agent nor shall he be
deemed to be an employee of the Company or the Customers for the purposes of any
employee benefit program, unemployment benefits, or otherwise. Consultant
recognizes that no amount will be withheld from any compensation for payment of
any federal, state, or local taxes and that Consultant has sole responsibility
to pay such taxes, if any, and file such returns as shall be required by
applicable laws and regulations. Consultant shall not enter into any agreements
or incur any obligations on behalf of the Company.
5. Indemnification. In the event any person or entity who is not a
party to this Agreement makes any claim or demand, or brings any legal action,
arbitration, or other proceedings against Consultant relating solely to
Consultant's provision of the Services during the Term, the Company hereby
agrees to indemnify and hold Consultant harmless from all such third party
claims, or claims by the Company for indemnity regarding such third party
claims, and all damages, expenses, losses, liability, or attorneys' fees which
Consultant may incur therefrom (hereinafter collectively referred to as
"liability"), except liability arising out of or in connection with any illegal
acts committed by Consultant, and/or liability which results from Consultant's
negligence or Consultant's intentional torts.
6. Civil Code Waiver. Each party expressly waives and relinquishes all
rights and benefits afforded by Section 1542 of the Civil Code of the State of
California, and does so understanding and acknowledging the significance of this
specific waiver of Section 1542. Section 1542 of the Civil Code of the State of
California states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding the provisions of Section 1542 and except as
expressly provided in this Agreement, and for the purpose of implementing a full
and complete release and discharge of the Released Parties, each party expressly
acknowledges that this Agreement is intended to include in its effect, without
limitation, all claims that any party does not know or suspect to exist in the
other party's favor at the time of execution of this Agreement, and this
Agreement contemplates the extinguishment of any of these claims.
7. Confidential Information. Consultant acknowledges that during
Consultant's employment and the Term of this Agreement, Consultant had and will
have access to and became acquainted with the Company's confidential and
proprietary information, including but not limited to the Company's products and
services, confidential information regarding its customers and other
compilations of information and records. In consideration of the covenants made
by the Company herein, Consultant agrees that he shall not directly or
indirectly disclose or otherwise use the confidential and proprietary
information of the Company.
8. Relationship of the Parties. Nothing contained herein shall be
construed to place the parties in the relationship of employer/employee,
partners, or joint venturers. Except as otherwise provided in this Agreement,
the Company shall have no power to obligate or bind Consultant in any manner
whatsoever. Consultant shall have no power
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to obligate or bind Company in any manner whatsoever, other than as provided by
this Agreement.
9. Benefit and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors. The
rights of the Company and Consultant hereunder may not be assigned without the
prior written consent of the other party.
10. Severability. Should any provision of this Agreement or application
thereof be declared invalid, void or unenforceable for any reason, the validity
and binding effect of the remaining portions shall not be affected and the
remaining portions of this Agreement shall remain in full force and effect as if
this Agreement had been executed with the invalid, void or unenforceable
provision eliminated. To this end, the provisions of this Agreement are
severable.
11. Governing Law. Except to the extent governed by the laws of the
United States, this Agreement is to be governed and construed under the internal
laws of the State of California and that venue shall be proper for all purposes
in San Diego County, California.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be the same document. Such counterparts may be executed and delivered in
person or via facsimile.
13. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or be liable for any alleged
representation, promise, inducement, or statement not set forth herein.
14. Modification. This Agreement may not be modified, amended,
superseded, or cancelled, and none of the terms, covenants, representations,
warranties or conditions hereof may be waived, without a written instrument
executed by the party or parties to be bound by any such modification,
amendment, supersession, cancellation, or waiver.
15. Arbitration. Except as otherwise provided by law, any controversy or
claim arising out of or relating to this Agreement, the relationship created
hereby, the breach or termination thereof, or otherwise, shall be settled by
arbitration in San Diego County, California, in accordance with the Labor
Arbitration Rules of the American Arbitration Association, wherein "collective
bargaining agreement" or "submission" shall be deemed to be this Agreement, and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. BY AGREEING TO ARBITRATION UNDER THIS
PARAGRAPH, BOTH CONSULTANT AND THE COMPANY UNDERSTAND THAT THEY ARE AGREEING TO
HAVE ANY DISPUTE RELATING TO THIS AGREEMENT DECIDED BY A NEUTRAL ARBITRATOR, AND
AS TO THOSE DISPUTES DECIDED BY THE NEUTRAL ARBITRATOR, CONSULTANT AND THE
COMPANY ARE GIVING UP THEIR RIGHT TO A JURY OR COURT TRIAL AND, IN ADDITION,
CONSULTANT AND THE COMPANY WAIVE ANY RIGHT TO SEEK PUNITIVE DAMAGES.
Consultant _______ Company _______
16. Attorneys' Fees and Costs. In any arbitration or other action, the
prevailing party shall be entitled to recover from the losing party its
reasonable costs and actual attorneys' fees. The "prevailing party" means the
party determined by the arbitrator to have most nearly prevailed, even if such
party did not prevail in all matters, and not necessarily the one in whose favor
a judgment is rendered.
17. Waivers; Cumulative Remedies. The failure of any party to exercise
any of its rights hereunder or to enforce any of the terms or conditions of this
Agreement on any occasion shall not constitute or be deemed a waiver of that
party's rights thereafter to exercise any rights hereunder or to enforce any and
every term and condition of this Agreement. Any remedies provided for herein are
cumulative, and not in substitution for any other remedy any party may have at
law or in equity. No delay on the part of any party in exercising any right,
power or privilege granted hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege
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preclude any other or further exercise thereof.
18. Representation. The parties hereto acknowledge each has read this
Agreement, that each fully understands its rights, privileges and duties under
this Agreement, and that each enters into this Agreement freely and voluntarily.
Consultant further acknowledges he has had the opportunity to consult with an
attorney of his choice who is completely independent of and in no way connected
with the Company, to explain the terms of this Agreement and the consequences of
signing it.
19. Headings. All paragraph headings herein are inserted for convenience
only and shall not modify or affect the construction or interpretation of any
provision of this Agreement.
20. Further Assurances. The parties agree that, from time to time
hereafter, and upon request, each of them will execute, acknowledge and deliver
such documents and other instruments and shall perform such acts and deeds as
may be reasonably required or desirable to effectuate the transactions
contemplated by this Agreement or to otherwise carry out the terms and
conditions of this Agreement.
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SIGNATURE PAGE
TO
CONSULTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be effective as of the date first set forth above.
CONSULTANT:
_______________________________
Dr. Robert Petcavich
THE COMPANY:
PLANET TECHNOLOGIES, INC.
By: ____________________________
Scott L. Glenn,
President and Chief Executive Officer
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