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Exhibit 10.26
CONSULTING AGREEMENT
AGREEMENT made this 1st day of May, 1997, between AMERICAN SUPERCONDUCTOR
CORPORATION, a Delaware corporation (the "Company"), and Frank Borman, (the
"Consultant").
FOR VALUABLE CONSIDERATION, receipt of which is acknowledged, the parties hereto
agree as follows:
1. Consulting Services.
The Consultant shall render consulting services to the Company on such matters
and in such areas as may be requested from time to time by the President of the
Company. The Consultant shall devote his reasonable best efforts in the
performance of his services hereunder. The Consultant agrees to be reasonably
available to the Company and to provide services hereunder at least one day each
month.
2. Compensation.
The Company shall pay the Consultant a retainer fee of $6,000 per year in which
the Consultant provides his services to the Company. All fees shall be payable
to the Consultant in equal installments on a monthly basis.
3. Expenses.
The Company shall reimburse the Consultant for all approved expenses incurred by
the Consultant in the performance of his duties hereunder, provided that such
expenses are approved by the Company. The Consultant shall furnish suitable
invoices and/or receipts to such approved expenses.
4. Termination.
This Agreement shall remain in effect until terminated under the terms of this
Agreement.
a. Termination. This Agreement shall terminate one year from the date
hereof. Either the Company or the Consultant may terminate this
Agreement earlier upon 90 days written notice to the other party.
b. Immediate Termination. This Agreement shall terminate immediately on
the occurrence of any of the following events:
i. The death of the Consultant.
ii. The physical or mental disability of the Consultant or his
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incapacity to perform his duties which disability or
incapacity has continued for either 10 consecutive weeks or
any aggregate of 20 weeks in any one year period.
iii. The Consultant's indictment for a felony.
iv. The Consultant's material dishonesty or recklessness, or gross
negligence in the conduct of or material breach of his duties
hereunder.
5. Restrictions on the Disclosure of Proprietary Information.
a. Proprietary Information. For purposes of this Agreement, the term
"Proprietary Information" shall mean all knowledge and information
which the Consultant has acquired or may acquire as a result of his
relationship with the Company concerning the Company's business,
finances, operations, strategic planning services, cost and pricing
policies, and including, but not limited to, information relating to
notes, data, memoranda, methods, know-how, techniques, and purchasing,
merchandising and selling strategies related to such matters of the
Company as set forth in this sentence. Proprietary Information does not
include (i) information which is or becomes publicly available (except
as may be disclosed by the Consultant in violation of this Agreement),
(ii) information acquired by the Consultant from a source other than
the Company or any of its employees, which source other than the
Company or any of its employees, which source legally acquired such
information directly from the Company, (iii) information of a general
nature and information of a specific nature regarding the technology of
the Company known to the Consultant prior hereto, or (iv) information
disclosed by the Company to any third party other than under conditions
of confidence.
b. Nondisclosure Obligation. The Consultant agrees that he will not at any
time, either during or after the term or termination of this Agreement,
without the prior written consent of the President, Chief Technical
Officer, or Board of Directors of the Company, divulge or disclose to
anyone outside of the Company, or appropriate for his own use or the
use of any third party, any such Proprietary Information, and will not
during his engagement by the Company hereunder, or at any time
thereafter, disclose or use or attempt to use any such Proprietary
Information for his own benefit, or the benefit of any third party, or
in any manner which may injure or cause loss, or may be calculated to
injure or cause loss, to the Company.
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6. Inventions.
a. All inventions, discoveries, computer programs, data, technology,
designs, innovations and improvements (whether or not patentable and
whether or not copyrightable) ("Inventions") related to the business of
the Company which are made, conceived, reduced to practice, created,
written, designed or developed by the Consultant, solely or jointly
with others and whether during normal business hours or otherwise,
during the term of this Agreement or thereafter if resulting or
directly derived from Proprietary Information, shall be the sole
property of the Company. The Consultant hereby assigns to the Company
all Inventions and any and all related patents, copyrights, trademarks,
trade names, and other industrial and intellectual property rights and
applications therefor, in the United States and elsewhere and appoints
any officer of the Company as his duly authorized attorney to execute,
file, prosecute and protect the same before any government agency,
court or authority. All such Inventions shall, to the extent permitted
by law, be regarded as "work for hire". Upon the request of the Company
and at the Company's expense, the Consultant shall execute such further
assignments, documents and other instruments as may be necessary or
desirable to fully and completely assign all Inventions to the Company
and to assist the Company in applying for, obtaining and enforcing
patents or copyrights or other rights in he United States and in any
foreign country with respect to any Invention.
b. The Consultant shall promptly disclose to the Company all Inventions
and will maintain adequate and current written records (in the form of
notes, sketches, drawings and as may be specified by the Company) to
document the conception and/or first actual reduction to practice of
any Invention. Such written records shall be available to and remain
the sole property of the Company at all times.
7. Absence of Conflicting Agreements.
The Company does not desire to acquire from the Consultant any trade secret,
know-how or confidential information that he may have acquired from others.
Accordingly, the Consultant represents and warrants that he is free to divulge
to the Company, without any obligation to, or violation of any right of others,
any and all information, practices and techniques which the Consultant will use,
describe, demonstrate, divulge or in any other manner make known to the Company
under this Agreement. The Consultant represents and warrants that, he is not a
party to any agreement or arrangement, whether oral or written, which would
constitute a conflict of interest with this Agreement or would prevent him from
carrying out his obligations to the Company under this Agreement. The Consultant
agrees to exonerate, indemnify and hold harmless the Company from and against
any and all liability, loss, cost, expense or damage for violation of the rights
of others in and to any trade secret, know-how or other confidential information
by reason of the Company's receipt or use of the services of the Consultant, or
otherwise in connection therewith to the limit of Consultant's compensation
hereunder.
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8. General Provisions.
This Agreement shall be binding upon and inure to the benefit of the Consultant
and the Company and their respective heirs, executors, administrators, legal
representatives, successors and assigns. Any waiver or accommodation by the
Company at any time shall not act as, or be deemed to be, a continuing waiver or
accommodation and shall not require the Company to provide any future or later
waiver or accommodation. It is acknowledged and agreed that the services of the
Consultant to the Company are unique, which gives the Consultant a particular
value to the Company, as to the loss of which the Company cannot be reasonably
or adequately compensated in damages; accordingly, the Consultant acknowledges
and agrees that a breach by the Consultant of the provisions hereof will cause
the Company irreparable injury and damage. It is therefore expressly agreed that
the Company shall be entitled to injunctive and/or other equitable relief in any
court of competent jurisdiction to prevent or otherwise restrain a breach of
this Agreement. The validity, construction, enforcement and interpretation of
this Agreement shall be governed by the laws of The Commonwealth of
Massachusetts. This Agreement may be amended only by a written document executed
by the Consultant and the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
AMERICAN SUPERCONDUCTOR CONSULTANT
CORPORATION
By: _________________________________ ________________________
Its _________________________________ ________________________
_________________________________ ________________________
(print name) (print name)
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