Executive Employment Agreement - BioQuest Inc. and Warren C. Lau
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of the 1st day of December, 1999, by and
between Warren C. Lau (the "Executive"), an individual residing 16702 Tennison
Court, Spring, Texas, 77379 and BioQuest, Inc. (the "Company") with a place of
business at 333 N. Sam Houston Parkway, Suite 1035, Houston Texas 77060
W I T N E S S E T H:
WHEREAS, the Executive is currently employed by the Company as its
President and Chief Operating Officer, and the Company desires that the
Executive shall continue to be employed by it and render services to it, and the
Executive is willing to continue to be so employed and to render services, all
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 The Company hereby employs Executive, and the Executive
hereby accepts employment, for the term ("Term) set forth in Section 2 hereof,
to render services to Company as its President and Chief Operating Officer. The
Executive represents and warrants to the Company that he has full power and
authority to enter into this Agreement and that he is not under any obligation
of a contractual or other nature to any person, firm or corporation which is
inconsistent or in conflict with this Agreement, or which would prevent, limit
or impair in any way the performance by Executive of his obligations hereunder.
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1.2 The Executive will serve as President and Chief Operating
Officer of the Company and as a member of its Board of Directors when elected as
such, will have general supervision over the operations of the Company and will
have such other duties and responsibilities, consistent with his position as
President and Chief Operating Officer, as may reasonably be assigned to him by
the Board of Directors of the Company. The Executive will report to the Board of
Directors of the Company.
1.3 The Executive shall devote his full business time to the
business and affairs of the Company, and shall use his best efforts, skills, and
abilities to promote the interests of the Company, except for reasonable
vacations and during periods of illness or incapacity, but nothing contained in
this Agreement shall prevent the Executive from engaging in charitable or
community activities provided they do not interfere with the regular performance
of the Executive's duties and responsibilities under this Agreement.
1.4 Unless the Executive and the Company shall otherwise
agree, the Executive's principal place of employment shall be in and around
Houston, Texas, but the duties of the Executive shall include such visits to the
Company's research sites, vendors,, customers, and investors and lenders at the
expense of the Company, as may be reasonably required in the performance of the
Executive's responsibilities.
2. TERM. 2.1 The Term of this Agreement will commence as of December 1,
1999 and will terminate at the close of business on November 30, 2002, unless
sooner terminated in accordance with the provisions of this Agreement. The
employment of the Executive shall continue hereunder for successive one-year
periods (each such one-year period being hereinafter referred to as a "Renewal
Term") following the Term (the first such Renewal
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Term to commence on December 1, 2002) unless the Company or Executive shall give
notice to the other at least sixty (60) days prior to the end of the Term or any
Renewal Term of the election of the Company or the Executive to terminate the
employment of the Executive at the end of the Term or the then current Renewal
Term, as the case may be. The twelve month period from December 1 in any year to
the following November 30 shall be an "Employment Year".
3. BASE SALARY.
3.1 For all services performed by the Executive under this
Agreement, the Executive shall be paid a base salary ("Base Salary") at the
following annual rates:
EMPLOYMENT YEAR BASE SALARY
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2000 $ 114,000
2001 114,000
2002 114,000
Notwithstanding the foregoing specified amounts of Base Salary, (i) if the
Consumer Price Index applicable to the Standard Metropolitan Statistical Area in
which the Company's executive offices are located shall increase in any year
during the Term, the Base Salary shall be increased at the end of each
Employment Year to reflect such percentage change in the Consumer Price Index,
and (ii) the Board of Directors may award increases in Base Salary greater than
those provided above after a review taking into account corporate and individual
performance, the Company's prospects and general business conditions.
3.2 Base Salary shall be paid in equal monthly or semi-monthly
installments in keeping with the Company's standard payroll policies applicable
to its senior executives.
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4. ANNUAL BONUS.
4.1 The Executive shall be entitled to an annual bonus (the
"Annual Bonus") determined from time to time by the Board of Directors of the
Company (without the active participation of the Executive). In determining the
amount of any Annual Bonus, the Board of Directors may take into consideration
such factors as they deem appropriate, including, but not limited to, the
success of the Company in achieving profitable operations, in attracting
investors, and in accomplishing other goals related to the business of the
Company. Bonuses in addition to the Annual Bonus may be awarded by the Board of
Directors (without the active participation of the Executive) from time to time
for reaching other goals established by the Board of Directors.
5. REIMBURSEMENT FOR EXPENSES.
5.1 Company shall reimburse Executive for all reasonable
out-of-pocket expenses paid or incurred by him in the course of his employment,
upon presentation by Executive of valid receipts or invoices therefor, utilizing
procedures and forms for that purpose as established by Company from time to
time.
6. VACATIONS.
6.1 Executive shall be entitled to reasonable vacations (which
shall aggregate no less than three (3) weeks vacation with pay) during each
consecutive 12 month period commencing on the date hereof. Executive may not
accumulate any vacation days which remain unused at the end of any year during
the term hereof without the prior consent of Company.
7. EMPLOYEE BENEFIT PROGRAMS, ETC.
7.1 Without limiting the generality of Section 5, above, the
Company shall reimburse the Executive by means of a cash allowance for expenses
incurred by the Executive in
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the use if his automobile in the performance of Executive's duties, along with
the cost of garage, insurance, fuel, fluids and maintenance, upon such terms and
conditions as are approved by Company. The Company shall pay or reimburse the
Executive for the costs of a cellular telephone.
7.2 Subject to the approval of the Board of Directors of the
Company, the Executive shall be provided with disability insurance providing for
disability payments to the Executive following a termination of Executive's
employment hereunder as a result of Disability (as defined in Section 8.2
below). In the event such policy is not obtained, Executive shall be entitled to
participate in such disability plan(s) as are available to Company executives
generally.
7.3 Subject to the Executive's meeting the eligibility
requirements of each respective plan, Executive shall be offered the opportunity
participate in and be covered by each pension, life insurance, accident
insurance, health insurance, hospitalization and any other employee benefit plan
adopted by the Company, as the case may be, made available generally from and
after the date hereof to its respective executives, on the same basis as shall
be available to such other executives without restriction or limitation by
reason of this Agreement; PROVIDED, HOWEVER, that Executive shall not
participate in two or more plans providing duplicative benefits or coverage. The
Company shall use its reasonable efforts to waive any qualifying period for
participation in any such plan by the Executive.
7.4 Nothing herein contained shall prevent the Company from at
any time increasing the compensation herein provided to be paid to Executive,
either permanently or for a limited period, or from paying bonuses and other
additional compensation to Executive, whether or not based upon the earnings of
the business of Company, or from increasing or expanding any
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employee benefit program applicable to the Executive, in the event the Company,
in its sole discretion, shall deem it advisable so to do in order to recognize
and compensate Executive fairly for the value of his services.
8. DEATH OR DISABILITY.
8.1 If Executive shall die during the term hereof, this
Agreement shall immediately terminate, except that Executive's legal
representatives or designated beneficiaries shall be entitled to receive (i) the
Base Salary due to Executive hereunder to the last day of the third month
following the month in which his death occurs, payable in accordance with the
Company's regular payroll practices, (ii) a portion of the Annual Bonus payable
under Section 4 (determined as provided under Section 8.4), based on the
Company's Adjusted Net Income through the month of the bonus year preceding the
month in which death occurs; and (iii) all other payments and entitlements
available upon death under any employee benefit program covering the Executive
as of the date of death. Except for the payments required pursuant to this
Section 8.1, no payments shall be made for any period after Executive's death.
8.2 In the event of the Disability (as hereinafter defined) of
the Executive, the Executive shall be entitled to continue to receive from the
Company and its several benefit plans an amount equal to his Base Salary
(prorated as may be necessary) in accordance with the terms of Section 3 hereof
through the last day of the third month following the month in which Executive's
employment hereunder is terminated as a result of such Disability. At any time
after the date of the Notice (as hereinafter defined) and during the continuance
of the Executive's Disability, the Company may at any time thereafter terminate
Executive's employment hereunder by written notice to the Executive. The term
"Disability" shall mean physical or mental illness or
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injury which prevents the Executive from performing his customary duties for the
Company for a period of twenty-five (25) consecutive business days or an
aggregate period of ninety (90) days out of any consecutive twelve (12) months.
The date of commencement of Disability shall be the date set forth in the notice
of a determination of Disability (the "Notice") given by Company to the
Executive at any time following a determination of Disability, which date shall
not be earlier than the date the Notice is given by Company. A determination of
Disability by Company shall be solely for the purposes of this Section 8.2 and
shall in no way affect the Executive's status under any benefit plan applicable
to the Executive.
8.3 Upon the occurrence of a Disability, and unless the
Executive's employment shall have been terminated as provided in Section 8.2,
the Executive shall continue to perform such services for Company, consistent
with his duties under Section 1 hereof, as he is reasonably capable of
performing in light of the condition giving rise to a Disability. All payments
due under Section 8.2 shall be payable in accordance with Company's regular
payroll practices. Those payments, together with the aggregate amount of all
periodic payments which the Executive is entitled to receive under all workers
compensation plans, disability plans and accident, health or other insurance
plans or programs maintained for the Executive by Company (or by any company
controlling, controlled by or under common control with the Company), shall be
not less than Executive's Base Salary for the month or period in question.
8.4 If the Executive's employment is terminated due to
Disability, the Executive shall be entitled, in addition to the payments
described in Section 8.2, to a pro-rated portion of the Annual Bonus otherwise
payable for the fiscal year in which such Disability occurs, determined by
multiplying the Annual Bonus that would otherwise be payable by a
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fraction, the numerator of which is the number of days the Executive was
employed during such fiscal year and the denominator of which is 360.
9. TERMINATION FOR CAUSE.
9.1 The employment of the Executive may be terminated by the
Company for Cause. For this purpose, "Cause" shall mean:
(i) conviction of the commission of a felony;
(ii) fraudulent or dishonest acts against the
Company;
(iii) illegal drug use on the premises of the
Company at any time or elsewhere during the
working day;
(iv) willful gross misconduct which in the good
faith opinion of a majority of the Board of
Directors of the Company is likely to cause
either significant financial loss to the
Company or significant damage to its
business reputation;
(v) willful and repeated misconduct constituting
bad faith in performing the Executive's
obligations; or
(vi) repeated gross neglect of the Executive's
duties.
The Executive's employment shall not be terminated for Cause under clauses (ii),
(iv), (v) or (vi) unless (a) the Executive has received at least 15 days notice
of a meeting of the Board of Directors to consider the existence of Cause with
an opportunity to be heard before the Board, and the Board has determined, based
upon credible evidence, that grounds for Cause exist, AND (b) the misconduct or
breaches on which an assertion of Cause is based are not cured within 30 days
thereafter if such misconduct or breaches are capable of being cured.
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9.2 In the event of a termination for Cause, the Executive
shall (a) be entitled to any unpaid Base Salary pro rated up to the date of
termination, and (b) have no further rights under this Agreement or under any
Incentive Option issued hereunder.
10. TERMINATION UPON CHANGE OF CONTROL OR BY COMPANY WITHOUT
CAUSE.
10.1 A "Change in Control" shall occur: (A) if any Person, or
combination of Persons, (as hereinafter defined), or any affiliate of any
Person, is or becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934) directly or indirectly,
of securities of the Company representing twenty- five percent (25%) or more of
the total number of outstanding shares of common stock of the Company; or (B) if
individuals who, at the date of this Agreement, constitute the Board (the
"Incumbent Directors") cease, for any reason, to constitute at least a majority
thereof, provided that any new director whose election was approved by the
favorable vote of at least 75% of the Incumbent Directors shall be treated as an
Incumbent Director. For purposes hereof, "Person" shall mean any individual,
partnership, joint venture, association, trust, or other entity, including a
"group" as referred to in section 13(d)(3) of the Securities Exchange Act of
1934.
10.2 If a Change in Control occurs, and if there subsequently
occurs a material adverse change, without the Executive's written consent, in
the Executive's working conditions or status, including but not limited to a
significant change in the nature or scope of the Executive's authority, powers,
duties or responsibilities, or a reduction in the level of support services or
staff, then, whether or not such change would otherwise constitute a breach of
this Agreement by the Company, this Agreement may be terminated by notice given
by the Executive, specifying the Change of Control and significant adverse
change or changes.
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10.3 Upon the termination of this Agreement in accordance with Section
10.2 above, the Executive will be entitled, without any duty to mitigate
damages, to:
(a) All unpaid Base Salary pro-rated up to the date of
termination; and
(b) The greatest of (i) the full Annual Bonus for the entire
year in which the termination referred to in Section 10.2 takes place,
or (ii) the portion of the Annual Bonus earned from the first day of
the fiscal year in which such termination occurred until the date of
the Change of Control, or (iii) the portion of the Annual Bonus earned
from the first day of the fiscal year in which such termination
occurred until the effective date of such termination; and
(c) A severance payment equal to the sum of (i) the Base
Salary in effect for the prior fiscal year and (ii) the Annual Bonus
paid (or payable) on account of such prior fiscal year; and
(d) All benefits available under the Company's employee
benefit programs, to the extent applicable to senior executives
voluntarily and amicably retiring from employment with the Company.
10.4 In the event that the Company shall actually or
constructively terminate this Agreement without cause (and with or without a
Change of Control), the Executive shall be entitled to the same payments,
compensation and rights as provided in the case of a termination by the
Executive under Section 10.3.
10.5 The payments, and other compensation and benefits to
which the Executive is entitled under this Section 10 shall be made available to
the Executive no later than ten (10) days after the date of any termination
referred to in Section 10.2, 10.3 or 10.4.
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10.6 In the event that Executive receives the payments, and
other compensation and benefits referred to in this Section 10, he will be bound
by the restrictive provisions of Section 12 for the period therein provided.
11. TERMINATION BY EXECUTIVE.
11.1 If the Executive shall terminate his employment under
this Agreement prior to the third anniversary of the date hereof without either
(i) a Change of Control or (ii) the express written consent of the Company,
then, for purposes of establishing the rights of the Executive upon such
termination, such termination shall be deemed the equivalent of a termination
for Cause under Section 9.1, and the Executive shall have only those rights with
regard to compensation as are set forth in Section 9.2, and the restrictive
provisions of Section 12 below shall fully apply.
11.2 If the Executive shall terminate his employment under
this Agreement after the third anniversary of the date hereof without either (i)
a Change of Control or (ii) the express written consent of the Company, then,
for purposes of establishing the rights of the Executive upon such termination,
the Executive shall be entitled to receive all unpaid Base Salary pro-rated up
to the date of termination.
11.3 In the case of a termination pursuant to Section 11.2,
the restrictions set forth in Section 12 shall apply to Executive for the period
therein stated, and the Executive shall receive the compensation set forth
therein.
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12. RESTRICTIVE COVENANTS.
12.1 During such time as this Agreement shall be in effect
and, except as otherwise explicitly stated herein, for a period of twelve (12)
months following the termination of Executive's employment, and without the
Company's prior written consent (which may be withheld for any reason or for no
reason in Company's sole discretion), Executive shall not do anything in any way
inconsistent with his duties to or adverse to the interests of Company, and
shall not, directly or indirectly, himself or by or through a family member or
otherwise, alone or as a member of a partnership or joint venture, or as a
principal, officer, director, consultant, employee or stockholder of any other
entity, compete with Company or be engaged in or connected with any other
business competitive with that of Company, except that Executive may own as a
passive investment not more than five percent (5%) of the securities of any
publicly held corporation that may engage in a business competitive with that of
Company.
12.2 In view of the fact that Executive will be brought into
close contact with many confidential affairs of Company not readily available to
the public, Executive agrees during the Term of this Agreement and thereafter:
(a) to keep secret and retain in the strictest confidence all
information about (i) research and development plans and operations,
new technology, pending or proposed license agreements, products,
financial condition and other financial affairs (such as costs,
pricing, plans for future development, joint ventures, methods of
operation and marketing goals) of the Company; (ii) its employment
policies and plans; and (iii) any other proprietary information
relating to the Company, its operations, businesses, financial
condition and financial affairs (collectively, the "Confidential
Information") and,
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for such time as Company is operating, not to disclose the Confidential
Information to anyone not then an officer, director or authorized
employee of Company, either during or after the term of this agreement,
except in the course of performing his duties hereunder or with
Company's express written consent or except to the extent that such
confidential information can be shown to have been in the public domain
through no fault of Executive; and
(b) to deliver to Company within ten days after termination of
his services, or at any time Company may so request, all memoranda,
notes, records, reports and other documents relating to Company,
businesses, financial affairs or operations and all property associated
therewith, which he may then possess or have under his control.
12.3 Executive shall not at any time during the twelve month
period following the termination of his employment for any reason whatsoever,
including termination resulting from the natural expiration of the term of this
Agreement, (i) employ any individual who was employed by Company at any time
during the such period or during the twelve calendar months immediately
preceding such termination, or (ii) in any way cause, influence or participate
in the employment of any such individual by anyone else in any business that is
competitive with any of the businesses engaged in by Company.
12.4 Executive shall not at any time during the twelve (12)
month period following the termination of his employment, for any reason
whatsoever, including termination resulting from the natural expiration of the
term of this Agreement, directly or indirectly (i) persuade or attempt to
persuade any customer or client or research and development venture partner of
Company to cease doing business with Company or any Affiliate or to reduce the
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amount of business it does with Company or (ii) solicit for himself or any
person other than Company, the business of any individual or business which was
a customer or client of Company at any time during the twelve month period
immediately preceding such termination.
12.5 Executive acknowledges that the execution and delivery by
him of the covenants set forth in this Section 12 is an essential inducement to
Company to retain Executive and to enter into this agreement, and that Company
would not have retained Executive and entered into this Agreement but for such
covenants. Executive further acknowledges that his services are unique and that
any breach or threatened breach by Executive of any of the foregoing provisions
of this Section 12 cannot be remedied solely by damages. In the event of a
breach or a threatened breach by Executive of any of the provisions of this
Section 12, Company shall be entitled to injunctive relief restraining Executive
and any business, firm, partnership, individual, corporation or other entity
participating in such breach or attempted breach. Nothing herein, however, shall
be construed as prohibiting Company from pursuing any other remedies available
at law or in equity for such breach or threatened breach, including the recovery
of damages and the immediate termination of the employment of Executive
hereunder.
12.6 If any of the provisions of, or covenants contained in,
this Section 12 are hereafter construed to be invalid or unenforceable in any
jurisdiction, the same shall not affect the remainder of the provisions or the
enforceability thereof in any other jurisdiction, which shall be given full
effect, without regard to the invalid portions or the unenforceability in such
other jurisdiction. If any of the provisions of or covenants contained in this
Section 12 are held to be unenforceable in any jurisdiction because of the
duration or scope thereof, the parties hereto agree that the court making such
determination shall have the power to reduce the duration
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and/or scope of such provision or covenant and, in its reduced form, said
provision or covenant shall be enforceable; PROVIDED, however, that the
determination of such court shall not affect the enforceability, duration or
scope of this Section 12 in any other jurisdiction.
13. RELATIONSHIP OF PARTIES.
Nothing herein contained shall be deemed to constitute a
partnership between or a joint venture by the parties, nor shall anything herein
contained be deemed to constitute either the Executive or the Company the agent
of the other except as is expressly provided herein. Neither Executive nor
Company shall be or become liable or bound by any representation, act or
omission whatsoever of the other party made contrary to the provisions of this
Agreement.
14. KEY MAN INSURANCE.
The Company, in its discretion, may apply for and procure in
its own name and benefit, life insurance on a the life of the Executive and
disability insurance in any amount or amounts considered advisable by the
Company, and the Executive shall submit to any medical or other examination and
execute and deliver any application or other instrument in writing, reasonably
necessary to effectuate such insurance.
15. NOTICES.
All notices and communications hereunder shall be in writing
and delivered by hand or sent by registered or certified mail, postage and
registration or certification fees prepaid, return receipt requested, or by
overnight delivery such as Federal Express, and shall be deemed given when hand
delivered or upon three (3) business days after the date when mailed, or upon
one (1) business day after delivery to an agent for overnight delivery, if sent
in such manner, as follows:
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If to Company: BioQuest, Inc.
333 N. Sam Houston Parkway,
Suite 1035,
Houston Texas 77060
Attn: Board of Directors
With a copy to: Bresler Goodman & Unterman, LLP
521 Fifth Avenue
28th Floor
New York, NY 10175
Attn: Seymour H. Bucholz
If to Executive: Warren C. Lau
16702 Tennison Court,
Spring, Texas, 77379
The foregoing addresses may be changed by notice given in the manner set forth
in this Section 15.
16. DISPUTES.
Any dispute or controversy arising under or in connection with
this Agreement shall be resolved in the manner set forth in Schedule A.
Notwithstanding the foregoing, Company shall have the right to apply to any
court having jurisdiction over Executive to seek injunctive or other emergency
relief in the event Executive breaches, or threatens to breach, any of his
covenants set forth in Section 12.
17. MISCELLANEOUS.
17.1 This Agreement contains the entire understanding of the
parties hereto with respect to the employment of Executive by Company during the
term hereof, and the provisions hereof may not be altered, amended, waived,
terminated or discharged in any way whatsoever except by subsequent written
agreement executed by the party charged therewith. This Agreement supersedes all
prior employment agreements, understandings and arrangements between Executive
and Company pertaining to the terms of the employment of Executive. A waiver by
either of the parties of any of the terms or conditions of this Agreement, or of
any breach hereof, shall not be deemed a waiver of such terms or conditions for
the future or of any other term or condition hereof, or of any subsequent breach
hereof.
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17.2 The provisions of this Agreement are severable, and if
any provision of this Agreement is invalid, void, inoperative or unenforceable,
the balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any circumstance, it shall nevertheless remain applicable to all
other circumstances.
17.3 Company shall have the right to deduct and withhold from
Executive's compensation the amounts required to be deducted and withheld
pursuant to any present or future law concerning the withholding of income
taxes. In the event that Company makes any payments or incurs any charges for
Executive's account or Executive incurs any personal charges with Company,
Company shall have the right and Executive hereby authorizes Company to recoup
such payments or charges by deducting and withholding the aggregate amount
thereof from any compensation otherwise payable to Executive hereunder.
17.4 Executive represents that he is under no disability,
restriction or prohibition from entering this Agreement or performing the
services required hereunder; and also that he has been represented and advised
by independent legal counsel in connection with the negotiation, preparation and
execution of this Agreement.
17.5 This Agreement shall be construed and interpreted under
the laws of the State of Delaware applicable to contracts executed and to be
performed entirely therein.
17.6 The captions and section headings in this Agreement are
not part of the provisions hereof, are merely for the purpose of reference and
shall have no force or effect for any purpose whatsoever, including the
construction of the provisions of this Agreement.
17.7 To the extent any provision of this Agreement
contemplates action after termination hereof or creates a cause of action or
claim on which action may be brought by either party, such provision, cause of
action or claim shall survive termination of Executive's employment or
termination of this Agreement.
17.8 Executive may not assign his rights nor delegate his
duties under this Agreement; provided, however, that notwithstanding the
foregoing this Agreement shall inure to
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the benefit of Executive's legal representatives, executors administrators or
successors and to the successors or assigns of Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BIOQUEST, INC.
By:
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Chairman of the Board of Directors
/S/ WARREN C. LAU
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Warren C. Lau
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SCHEDULE A
RESOLUTION OF DISPUTES OR CONTROVERSIES
(a) If the parties are deadlocked on any issue arising under the terms of
this Agreement, a tiebreaker shall be chosen by lot from among a panel
of three persons designated by the Dean of the College of Business
Administration at the University of Houston. Each party may present its
proposal to the designated tiebreaker in written form and may, on a
date established by the tiebreaker within ten calendar days of the day
the tiebreaker is chosen, make an oral presentation not to exceed two
hours in length, accompanied by exhibits and written arguments not to
exceed 20 pages in length. The designated tiebreaker shall then select
one of the submitted proposals, without any change or adjustment, and
shall announce to the parties his or her selection within five calendar
days of the day of submission.
(b) The general administrative costs of designating the tiebreaker panel
shall be paid by the Company. The cost of each specific tiebreaker
decision shall be borne by the party whose proposal was NOT accepted by
the tiebreaker. Included in the cost of a tiebreaker decision are costs
for expert advisors, preparation of special data or other submissions
to the tiebreaker, and legal fees if a proponent has sought the
assistance of counsel in presenting a matter to the tiebreaker.
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