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EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), made this 19th day of
July, 2000, is entered into by SatCon Technology Corporation, a Delaware
corporation with its principal place of business at 161 First Street, Cambridge,
Massachusetts 02142 (the "Company"), and Marshall J. Armstrong, residing at 300
Meredith Neck Road, Meredith, New Hampshire 03253 (the "Consultant").
INTRODUCTION
The Company desires to retain the services of the Consultant and the
Consultant desires to perform certain services for the Company. In consideration
of the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties agree as follows:
1. SERVICES. The Consultant agrees to perform such consulting, advisory and
related services to and for the Company as may be mutually agreed upon from time
to time by the Company and the Consultant. During the Consultation Period (as
defined below), the Consultant shall not engage in any activity that has a
conflict of interest with the Company, including any competitive employment,
business, or other activity, and he shall not assist any other person or
organization that competes, or intends to compete, with the Company.
2. TERM. This Agreement shall commence on the date hereof and shall
continue until July 19, 2001 (such period, as it may be extended by mutual
agreement of the Company and the Consultant, being referred to as the
"Consultation Period"), unless sooner terminated in accordance with the
provisions of Section 4.
3. COMPENSATION.
3.1 CONSULTING FEES. The Consultant shall submit to the Company monthly
statements, in a form satisfactory to the Company, of services performed for the
Company in the previous month. The Company shall pay to the Consultant
consulting fees of $2,000 per day (which amount shall be proportionately less
for partial days) for services performed. The Company shall pay the Consultant
for services rendered within 30 days after receipt of a monthly statement.
3.2 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Consultant for all reasonable and necessary expenses incurred or paid by the
Consultant in connection with, or related to, the performance of his services
under this Agreement. The Consultant shall submit to the Company itemized
monthly statements, in a form satisfactory to the Company, of such expenses
incurred in the previous month. The Company shall pay to the Consultant amounts
shown on each such statement within 30 days after receipt thereof.
Notwithstanding the foregoing, the Consultant shall not incur total expenses in
excess of $500 per month without the prior written approval of the Company.
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3.3 BENEFITS. The Consultant shall not be entitled to any benefits,
coverages or privileges, including, without limitation, social security,
unemployment, medical or pension payments, made available to employees of the
Company.
4. TERMINATION. The Company and/or the Consultant may, without prejudice to
any right or remedy they may have due to any failure of the other party to
perform their obligations under this Agreement, terminate the Consultation
Period upon 30 days' prior written notice to the other party. In the event of
such termination, the Consultant shall be entitled to payment for services
performed and expenses paid or incurred prior to the effective date of
termination, subject to the limitation on reimbursement of expenses set forth in
Section 3.2. Such payments shall constitute full settlement of any and all
claims of the Consultant of every description against the Company.
Notwithstanding the foregoing, the Company may terminate the Consultation
Period, effective immediately upon receipt of written notice, if the Consultant
breaches or threatens to breach any provision of Section 6.
5. COOPERATION. The Consultant shall use his best efforts in the
performance of his obligations under this Agreement. The Company shall provide
such access to its information and property as may be reasonably required in
order to permit the Consultant to perform his obligations hereunder. The
Consultant shall cooperate with the Company's personnel, shall not interfere
with the conduct of the Company's business and shall observe all rules,
regulations and security requirements of the Company concerning the safety of
persons and property.
6. INVENTIONS AND PROPRIETARY INFORMATION.
6.1 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, or jointly with others in connection
with work being performed by the Consultant under this Agreement, during the
Consultation Period or thereafter if resulting or directly derived from
Proprietary Information (as defined below), 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. 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 the United
States and in any foreign country with respect to any Invention. The Consultant
also hereby waives all claims to moral rights in any Inventions.
(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
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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.
6.2 PROPRIETARY INFORMATION.
(a) The Consultant acknowledges that his relationship with the
Company is one of high trust and confidence and that in the course of his
service to the Company he will have access to and contact with Proprietary
Information. The Consultant agrees that he will not, during the Consultation
Period or at any time thereafter, disclose to others, or use for his benefit or
the benefit of others, any Proprietary Information or Invention.
(b) For purposes of this Agreement, Proprietary Information shall
mean, by way of illustration and not limitation, all information (whether or not
patentable and whether or not copyrightable) owned, possessed or used by the
Company, including, without limitation, any Invention, formula, vendor
information, customer information, apparatus, equipment, trade secret, process,
research, report, technical data, know-how, computer program, software, software
documentation, hardware design, technology, marketing or business plan,
forecast, unpublished financial statement, budget, license, price, cost and
employee list that is communicated to, learned of, developed or otherwise
acquired by the Consultant in the course of his service as a consultant to the
Company.
(c) The Consultant's obligations under this Section 6.2 shall not
apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Consultant or others of the terms
of this Section 6.2, (ii) is generally disclosed to third parties by the Company
without restriction on such third parties, or (iii) is approved for release by
written authorization of the Board of Directors of the Company.
(d) Upon termination of this Agreement or at any other time upon
request by the Company, the Consultant shall promptly deliver to the Company all
records, files, memoranda, notes, designs, data, reports, price lists, customer
lists, drawings, plans, computer programs, software, software documentation,
sketches, laboratory and research notebooks and other documents (and all copies
or reproductions of such materials) relating to the business of the Company.
(e) The Consultant represents that his retention as a consultant
with the Company and his performance under this Agreement does not, and shall
not, breach any agreement that obligates him to keep in confidence any trade
secrets or confidential or proprietary information of his or of any other party
or to refrain from competing, directly or indirectly, with the business of any
other party. The Consultant shall not disclose to the Company any trade secrets
or confidential or proprietary information of any other party.
(f) The Consultant acknowledges that the Company from time to time
may have agreements with other persons or with the United States Government, or
agencies thereof, that impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Consultant agrees to be
bound by all such obligations and restrictions that are known to him and to take
all action necessary to discharge the obligations of the Company under such
agreements.
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6.3 REMEDIES. The Consultant acknowledges that any breach of the
provisions of this Section 6 shall result in serious and irreparable injury to
the Company for which the Company cannot be adequately compensated by monetary
damages alone. The Consultant agrees, therefore, that, in addition to any other
remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Consultant and to seek both temporary and
permanent injunctive relief (to the extent permitted by law) without the
necessity of proving actual damages.
7. INDEPENDENT CONTRACTOR STATUS. The Consultant shall perform all services
under this Agreement as an "independent contractor" and not as an employee or
agent of the Company. The Consultant is not authorized to assume or create any
obligation or responsibility, express or implied, on behalf of, or in the name
of, the Company or to bind the Company in any manner.
8. NOTICES. All notices required or permitted under this Agreement shall be
in writing and shall be deemed effective upon personal delivery or upon deposit
in the United States Post Office, by registered or certified mail, postage
prepaid, addressed to the other party at the address shown above, or at such
other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9. PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
11. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Consultant.
12. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and inure
to the benefit of, both parties and their respective successors and assigns,
including any corporation with which, or into which, the Company may be merged
or which may succeed to its assets or business, provided, however, that the
obligations of the Consultant are personal and shall not be assigned by him.
14. MISCELLANEOUS.
14.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
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14.2 The captions of the sections of this Agreement are for convenience
of reference only and in no way define, limit or affect the scope or substance
of any section of this Agreement.
14.3 In the event that any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
SATCON TECHNOLOGY CORPORATION
By: /s/ David B. Eisenhaure
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Name: David B. Eisenhaure
Title: President, CEO, and Chairman of
the Board
CONSULTANT
/s/ Marshall J. Armstrong
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Marshall J. Armstrong
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