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Invision Technologies - Board of Directors - Retainer Agreement
BOARD OF DIRECTORS - RETAINER AGREEMENT
This agreement made as of August 1, 2001 between InVision Technologies, Inc., with its principal place of business at 7151 Gateway Boulevard, Newark, CA 94560 ("InVision") and Strategic Initiatives, Inc., with an
address of 7415 S.E. 31 st Avenue, Portland, OR 97202. Strategic Initiatives hereby appoints Louis A. Turpen as its representative to provide the services required of the Director, subject to Mr. Turpen92s (i) acceptance of the
appointment; (ii) his representation that the warranties made in this Agreement are also true as to him and (iii) his execution of InVision92s Proprietary Information and Inventions Agreement. The Director agrees to provide services according to the
following:
ntbl I.
ntbl Services Provided
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InVision agrees to engage Strategic Initiatives Inc. who will provide Louis A. Turpen to serve as a member of the Board of Directors (the "Director") and to provide those services required of a director under
InVision92s Articles of Incorporation and Bylaws ("Articles and Bylaws"), as both may be amended from time, to time and under the General Corporation Law of Delaware, the federal securities laws and other state and federal laws and regulations,
as applicable.
ntbl II.
ntbl Nature of Relationship
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The Director is an independent contractor and will not be deemed an employee of InVision for purposes of employee benefits, income tax withholding, F.I.C.A. taxes, unemployment benefits or otherwise. The Director
shall not enter into any agreement or incur any obligations on InVision92s behalf.
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InVision will supply, at no cost to the Director: periodic briefings on the business, director packages for each board and committee meeting, copies of minutes of meetings and any other materials that are required
under InVision92s Articles and Bylaws or the charter of any committee of the board on which the director serves and any other materials which may, by mutual agreement, be necessary for performing the services requested under this contract.
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ntbl III.
ntbl Director92s Warranties
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The Director warrants that no other party has exclusive rights to his services in the specific areas described and that the Director is in no way compromising any rights or trust between any other party and the Director
or creating a conflict of interest. The Director also warrants that no other agreement will be entered into that will create a conflict of interest with this agreement. The Director further warrants that he will comply with all applicable state and
federal laws and regulations, as applicable, including Sections 10 and 16 of the Securities and Exchange Act of 1934.
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Throughout the term of this agreement and for a period of six months thereafter, the Director agrees he will not, without obtaining InVision92s prior written consent, directly or indirectly engage or prepare to engage
in any activity in competition with any InVision business or product, including products in the development stage, accept employment or provide services to (including service as a member of a board of directors), or establish a business in competition
with InVision.
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ntbl IV.
ntbl Compensation
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A. Retainer
InVision shall pay the Director a nonrefundable retainer of $25,000 per year during the term of this agreement (prorate for the first year $10,416.67) to provide the services described in Section I which shall compensate him
for all time spent preparing for, travelling to (if applicable) and attending board of director meetings during the year; provided, however, that if more than three board meetings require out-of-town travel time, such additional travel time may be billed
at the rate set forth in subparagraph C. below. The retainer shall be provided for portions of the term less than a full calendar year. This retainer may be revised by action of InVision92s Board of Directors from time to time. Such revision shall
be effective as of the date specified in the resolution for payments not yet made and need not be documented by an amendment to this agreement.
-360 B. Stock Options
Subject to approval by the Board of Directors, an annual grant of an option to purchase InVision common stock, par value $.001 per share, shall be made to the Director. The grant shall consist of an option to
purchase a specified number of shares under the term of InVision92s 2000 Equity Incentive Plan. The specified number of shares for a new appointment to the Board shall be 20,000 shares in 2001, which grant has already been made, and an annual grant
at the discretion of the Board. Currently this grant is of 10,000 shares. Twenty-five percent of the option shall vest on each quarterly anniversary of the date of grant. The amount and terms of the annual option grant may be revised by action of
InVision92s Board of Directors from time to time. Such revision shall be effective as of the date specified in the resolution for any grants not yet made and need not be documented by an amendment to this agreement.
-360 C. Additional Payments
To the extent services described in Section I require more than three out-of-town trips, such additional travel time may be charged at the rate of $2,000 per day or part thereof. This rate may be revised by action of
InVision92s Board of Directors from time to time for payments not yet made. Such revision shall be effective as of the date specified in the resolution and need not be documented by an amendment to this agreement.
D. Payment
Retainer payments shall be made quarterly in cash in advance on the first day of each accounting quarter. Additional payments shall be made in arrears. No invoices need be submitted by the Director for payment of the
retainer. Invoices for additional payments under C, above, shall be submitted. Such invoices must be approved by InVision92s Chief Executive Officer as to form and completeness.
D. Expenses
InVision will reimburse the Director for reasonable expenses approved in advance, such approval not to be unreasonably withheld. Invoices for expenses, with receipts attached, shall be submitted. Such invoices must
be approved by InVision92s Chief Executive Officer as to form and completeness.
ntbl V.
ntbl Indemnification and Insurance
InVision will execute an indemnification agreement in favor of the Director substantially in the form of the agreement attached hereto as Exhibit B. In addition, InVision will provide directors and officers liability
insurance.
ntbl VI.
ntbl Term of Agreement
ntbl
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This agreement shall be in effect from August 1, 2001 through the last date of the Director92s current term as a member of InVision92s Board of Directors. This agreement shall be automatically renewed on the date
of the Director92s reelection as a member of InVision92s Board of Director92s for the period of such new term unless the Board of Directors determines not to renew this agreement. Any amendment to this agreement
must be approved by a written action of InVision92s Board of Directors. Amendments to Section IV Compensation hereof do not require the Director92s consent to be effective.
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ntbl VII.
ntbl Termination
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This agreement shall automatically terminate upon the death of the Director or upon his resignation or removal from, or failure to win election or reelection to, InVision Board of Directors.
In the event of any termination of this agreement, the Director agrees to return any materials transferred to the Director under this agreement except as may be necessary to fulfill any outstanding obligations hereunder. The Director
agrees that InVision has the right of injunctive relief to enforce this provision.
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InVision92s obligation in the event of such termination shall be to pay the Director the retainer and other payments due through the date of termination.
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Termination shall not relieve either party of its continuing obligation under this agreement with respect to confidentiality of proprietary information.
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ntbl VIII.
ntbl Limitation of Liability
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Under no circumstances shall InVision be liable to the Director for any consequential damages claimed by any other party as a result of representations made by the Director with respect to InVision which are different
from any to those made in writing by InVision.
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Furthermore, except for the maintenance of confidentiality, neither party shall be liable to the other for delay in any performance, or for failure to render any performance under this agreement when such delay or failure
is caused by Government regulations (whether or not valid), fire, strike, differences with workmen, illness of employees, flood, accident, or any other cause or causes beyond reasonable control of such delinquent party.
ntbl IX.
ntbl Confidentiality
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The Director agrees to sign and abide by InVision92s Director Proprietary Information and Inventions Agreement, a copy of which is attached hereto as Exhibit A.
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ntbl X.
ntbl Resolution of Dispute
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Any dispute regarding the agreement (including without limitation its validity, interpretation, performance, enforcement, termination and damages) shall be determined in accordance with the laws of the State of California,
the United States of America. Any action under this paragraph shall not preclude any party hereto from seeking injunctive or other legal relief to which each party may be entitled.
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ntbl XI.
ntbl Sole Agreement
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This agreement (including agreements executed in substantially in the form of the exhibits attached hereto) supersedes all prior or contemporaneous written or oral understandings or agreements, and may not be added
to, modified, or waived, in whole or in part, except by a writing signed by the party against whom such addition, modification or waiver is sought to be asserted.
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ntbl XII.
ntbl Assignment
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This agreement and all of the provisions hereof shall be binding upon and insure to the benefit of the parties hereto and their respective successors and permitted assigns and, except as otherwise expressly provided
herein, neither this agreement, nor any of the rights, interests or obligations hereunder shall be assigned by either of the parties hereto without the prior written consent of the other party.
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ntbl XIII.
ntbl Notices
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Any and all notices, requests and other communications required or permitted hereunder shall be in writing, registered mail or by facsimile, to each of the parties at the addresses set forth above or the numbers set
forth below:
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ntbl-200 The Director:
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ntbl Attention:
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ntbl Strategic Initiatives Inc.
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ntbl-200
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ntbl Telephone:
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ntbl 416-487-3834
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ntbl-200
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ntbl Facsimile:
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ntbl 416-487-3834
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ntbl-200
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ntbl-200 InVision:
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ntbl Attention:
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ntbl Dr. Sergio Magistri
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ntbl-200
ntbl
ntbl Telephone:
ntbl
ntbl 510-739-2401
ntbl
ntbl
ntbl-200
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ntbl Facsimile:
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ntbl 510-608-0770
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Any such notice shall be deemed given when received and notice given by registered mail shall be considered to have been given on the tenth (10th) day after having been sent in the manner provided for above.
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ntbl XIV.
ntbl Survival of Obligations
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Notwithstanding the expiration of termination of this agreement, neither party hereto shall be released hereunder from any liability or obligation to the other which has already accrued as of the time of such expiration
or termination (including, without limitation, InVision92s obligation to make any fees and expense payments required pursuant to Article IV hereof) or which thereafter might accrue in respect of any act or omission of such party prior to such expiration
or termination.
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ntbl XV.
ntbl Severability
ntbl
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Any provision of this agreement which is determined to be invalid or unenforceable shall not affect the remainder of this agreement, which shall remain in effect as though the invalid or unenforceable provision had
not been included herein, unless the removal of the invalid or unenforceable provision would substantially defeat the intent, purpose or spirit of this agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their duly authorized officers, as of the date first written above.
ntbl Strategic Initiatives, Inc.
ntbl
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ntbl Signature:
ntbl /s/ Louis A. Turpen
ntbl
ntbl Date:
ntbl 9/05/01
ntbl
ntbl
ntbl
ntbl
ntbl
ntbl
ntbl
ntbl By:
ntbl Louis A. Turpen
ntbl
ntbl
ntbl
ntbl
ntbl Title:
ntbl President
ntbl
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ntbl
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ntbl InVision Technologies, Inc.
ntbl
ntbl
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ntbl
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ntbl
ntbl
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ntbl Signature:
ntbl /s/ Sergio Magistri
ntbl
ntbl Date:
ntbl 9/06/01
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ntbl
ntbl
ntbl
ntbl
ntbl
ntbl
ntbl By:
ntbl Sergio Magistri
ntbl
ntbl
ntbl
ntbl
ntbl Title:
ntbl President and Chief Executive Officer
ntbl
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ACCEPTANCE :
I, Louis A. Turpen, hereby accept the appointment as stated in the above Agreement and represent that the warranties made in this Agreement are also true as to me.
ntbl Signature:
ntbl /s/ Louis A. Turpen
ntbl
ntbl Date:
ntbl 9/05/01
ntbl
ntbl
ntbl Louis A. Turpen
ntbl
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EXHIBIT A
BOARD OF DIRECTORS PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
WHEREAS, the parties desire to assure the confidential status of the information which may be disclosed by InVision to the Director; NOW THEREFORE, in reliance upon and in consideration
of the following undertaking, the parties agree as follows:
1. Subject to the limitations set forth in Paragraph 2, all information disclosed by InVision to the Director shall be deemed to be "Proprietary Information". In particular,
Proprietary Information shall be deemed to include any information, process, technique, algorithm, program, design, drawing, formula or test data relating to any research project, work in process, future development, engineering, manufacturing, marketing,
servicing, financing or personnel matter relating to InVision, its present or future products, sales, suppliers, customers, employees, investors, or business, whether oral or written, graphic or electronic form.
2. The term "Proprietary Information" shall not be deemed to include information which the Director can demonstrate by competent written proof. (i) is now, or hereafter becomes,
through no act or failure to act on the part of the Director, generally known or available; (ii) is known by the Director at the time of receiving such information as evidenced by its records: (iii) is hereafter furnished to the Director by a third party,
as a matter of right and without restriction on disclosure; or (iv) is the subject of a written permission to disclose provided by InVision.
3. The Director shall maintain in trust and confidence and not disclose to any third party or use for any unauthorized purpose any Proprietary Information received from InVision.
The Director may use such Proprietary Information only to the extent required to accomplish the purposes of this Agreement. The Director shall not use Proprietary Information for any purpose or in any manner which would constitute a violation of any
laws or regulations, including without limitation the export control laws of the United States. No other rights of licenses to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement.
4. Proprietary Information supplied shall not be reproduced in any form except as required to accomplish the intent of this Agreement.
5. The Director represents and warrants that he shall protect the Proprietary Information received with at least the same degree of care used to protect its own Proprietary Information
from unauthorized use or disclosure. The Director shall advise its employees or agents who might have access to such Proprietary Information of the confidential nature thereof and shall obtain from each of such employers and agents an agreement to abide
by the terms of this Agreement. The Director shall not disclose any Proprietary Information to any officer, employee or agent who does not have a need for such information.
6. All Proprietary Information (including all copies thereof) shall remain in the property of InVision, and shall be returned to InVision after Director's need for it has expired,
or upon request of InVision, and in any event, upon completion or termination of this Agreement.
7. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information shall not be precluded if such disclosure:
-360 (a) is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the responding party shall first have given
notice to the other party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purpose for which the order was issued;
(b) is otherwise required by law; or
(c) is otherwise necessary to establish rights or enforced obligations under this Agreement, but only to the extent that any such disclosure is necessary.
8. This...
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