EXHIBIT 10.52
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CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (this "Agreement") is made effective as of the
10th day of October, 2001 (the "Effective Date") by and between TSET, Inc., a
Nevada corporation (the "Company") and Xxxxxxx X. Xxxxxx (the "Consultant").
RECITALS:
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WHEREAS, the Company desires to engage the Consultant, and the Consultant
desires to be engaged, to provide certain consulting services to the Company,
pursuant to the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises, representations,
warranties and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound, hereby agree as follows:
AGREEMENT:
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1. RECITALS. The above recitals are true and correct and are incorporated
2. CONSULTING SERVICES. Consultant hereby agrees to provide to the Company
the consulting services described in this Section 2 on a non-exclusive basis.
The Consultant shall use his best efforts to assist the Company during the term
of this Agreement in connection with the following: (i) assisting the Company
with the transition of services from the Consultant's role as Chief Executive
Officer of the Company; (ii) assisting the Company in its legal proceedings with
W. Xxxxx Xxxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx XX and Xxxxxx Xxxx
(including, without limitation, preparations and testimony given in deposition,
arbitration or other proceedings); (iii) providing general legal and managerial
services; and (iv) providing other consulting services as mutually agreed by the
Consultant and the Company.
3. HOURLY FEE. The Company shall pay the Consultant an hourly fee equal to
One Hundred Fifty Dollars (US $150.00) per hour for each hour worked by the
Consultant in connection with the consulting services described in Section 2
(the "Hourly Fee"). The Company shall make available to the Consultant
thirty-five (35) hours per calendar month during the term of this Agreement. The
Consultant shall perform thirty-five (35) hours of consulting services per month
and the Company shall pay the Consultant for the thirty-five (35) hours on a
bi-monthly basis.
4. OPTIONS. The Company shall grant to the Consultant on the earlier to
occur of (i) the termination of this Agreement, or (ii) one (1) year from the
date hereof, an option (the "Option") to purchase from the Company a number of
shares of the Company's common stock, par value $0.001 per share, equal to (i)
the cumulative number of hours worked by the Consultant during the term of this
Agreement, multiplied by (ii) one hundred (100). The Option shall be granted to
the Consultant upon the following terms and conditions:
4.4.1. EFFECTIVE DATE OF GRANT OF OPTION. The effective date of the
grant of the Option pursuant to this Section 4.4 shall be the earlier to occur
of (i) the termination of this Agreement, or (ii) one (1) year from the date
hereof.
4.4.2. TERM OF OPTION. The term of the Option shall be three (3)
years.
4.4.3. PURCHASE PRICE. The exercise price per share of the Option
shall be the closing price of the Company's common stock as of the date of grant
of the Option.
4.4.4. VESTING OF OPTION. The Option shall become fully vested and
exercisable upon the date of grant of the Option.
5. INCENTIVE OPTION GRANT. The Company may, in its sole discretion, grant
to the Consultant an option to purchase one hundred thousand (100,000) shares of
the Company's common stock (the "Incentive Option") upon the successful
conclusion of the Company's legal proceedings against W. Xxxx Xxxxxxxx, Xxxxxx
X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx XX and Xxxxxx Xxxx. The term of the Incentive
Option shall be three (3) years and fully vest and become exercisable
immediately upon the grant hereof. The exercise price of the Incentive Option
shall be the closing price of the Company's common stock on the date of the
grant thereof.
6. EXPENSES; REIMBURSEMENT. Within fifteen (15) days of the submission by
the Consultant of adequate documentation as determined by the Company, the
Company shall reimburse the Consultant for all reasonable expenses paid,
incurred or advanced by him in the performance of the services contemplated
hereunder in accordance with the Company's reimbursement policies as determined
from time to time in the sole discretion of the Board of Directors (the "Board")
or the Chief Executive Officer. Any disputes as to the eligibility of an expense
for reimbursement shall be resolved in the sole discretion of the Board or the
Chief Executive Officer. All expenses over two hundred fifty dollars ($250.00)
must be approved in advance by the Company's Chief Executive Officer.
7. TERM. The term of this Agreement shall be for one (1) year from the
date hereof and may be extended by mutual written consent of the Company and the
Consultant.
8. TERMINATION. The Consultant may terminate this Agreement upon thirty
(30) days' prior written notice. The Company may terminate this Agreement upon
the occurrence of Cause (as defined below). "Cause" as used herein shall mean:
(i) the Consultant's willful misconduct; (ii) the Consultant's conviction of a
felony crime; (iii) a fraudulent action by the Consultant against the Company or
in connection with the performance of his services hereunder, as determined by
the Company; or (iv) the Consultant's failure or refusal to comply with the
provisions of this Agreement or his failure to perform his services and
obligations under this Agreement. In the event the Consultant is terminated for
Cause, the Company shall be released from all obligations hereunder, except for
the obligation to pay any compensation and expense reimbursements described in
Sections 3, 4 and 7 hereof that have accrued as of the effective date of any
such termination.
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9. COMPANY PROPERTY. If this Agreement is terminated for any reason, the
Consultant shall promptly return to the Company, any and all documents and any
other materials of any type or nature whatsoever supplied to the Consultant by
the Company, and any reproductions thereof and any additions made thereto. Title
to any material furnished to the Consultant by the Company, and any additions
made thereto, shall remain property of the Company and the Consultant shall have
no ownership interest in any of the materials. In addition, all documents,
training materials, presentation materials, names of potential investors and
other information and documents produced or used by the Consultant on behalf of
the Company, is and shall be the property of, and shall remain in the possession
of, the Company and the Consultant shall have no ownership interest in any of
said materials.
10. CONFIDENTIAL INFORMATION. The Consultant acknowledges that during the
term of this Agreement, the Consultant may be given access to or may become
acquainted with Confidential Information (as hereinafter defined) and/or trade
secrets of the Company. Subject to the exceptions set forth below and permitted
uses of Confidential Information in connection with the provision of services
pursuant to this Agreement, the Consultant acknowledges that the Confidential
Information and/or trade secrets of the Company as such may exist from time to
time, are valuable, confidential, special and unique assets of the Company,
expensive to produce and maintain and essential for the operation of its
business. The Consultant hereby agrees that he shall not communicate, disclose
or divulge to any Person, as defined below, or use for its benefit or the
benefit of any Person, in any manner any Confidential Information or trade
secrets of the Company acquired before or during the term of this Agreement, or
any other confidential information concerning the conduct and details of the
businesses of the Company, except as may be required for the Consultant to
perform the services hereunder and otherwise to comply with the terms and
conditions and intent of this Agreement and by law, or to enforce the
Consultant's rights hereunder. As used in this Section, "Confidential
Information" of the Company means any and all information (verbal and written)
relating to the Company or any of its subsidiaries or any of its affiliates, or
any of their respective activities, including, but not limited to, information
relating to trade secrets, personnel lists, financial information, research
projects, services used, pricing, software, software code, technical memoranda,
designs and specifications, new products and services, comparative analyses of
competitive products, technology, know-how, customers, customer lists and
prospects, product sourcing, marketing and selling and servicing. Confidential
Information shall not include information that, at the time of disclosure, (a)
is known or available to the general public by publication (including, without
limitation, the public disclosure of information pursuant to the Company's
reporting obligations under applicable federal and state securities laws) or
otherwise through no act or failure to act on the part of the Consultant in
violation of this Section 11, (b) became known or was derived by the Consultant
by some demonstrable means other than as a result of the Consultant's access
thereto, (c) was rightfully received from a third party without similar
restrictions and without breach of this Agreement or any other agreement, or (d)
was independently developed by the Consultant without any utilization of the
Confidential Information. The Consultant shall not be liable for any disclosure
of Confidential Information made pursuant to a valid and enforceable judicial or
governmental order (a "Mandated Disclosure") not sought by the Consultant for
the purpose of circumventing his obligations hereunder; provided, however, that
the Consultant's obligations under this Section 11 shall be deemed satisfied if,
promptly upon the Consultant's receipt of a subpoena or other written notice
seeking disclosure of Confidential Information, the Consultant shall provide
written notice to the Company of any attempt to obtain the Mandated Disclosure
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and in any event prior to any disclosure of Confidential Information pursuant
thereto, and reasonably cooperates with the Company in the event that the
Company elects to legally contest and avoid the Mandated Disclosure. As used in
this Section, "Person" means any individual, sole proprietorship, joint venture,
partnership, corporation, association, cooperation, trust or estate.
11. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that, in
the performance of the services under this Agreement, the Consultant shall, at
all times, act as an independent contractor with respect to the Company. Nothing
in this Agreement is intended nor shall be construed to create, for any
contractual, tax, statutory, regulatory or other purpose whatsoever, an
employer/employee relationship, a partnership relationship, a joint venture
relationship or any other type of relationship other than as set forth herein.
The relationship is and shall remain that of independent parties to a
contractual relationship. The Consultant shall have no right to bind the Company
with respect to any agreement, proposal or any other matter.
12. INDEMNIFICATION BY CONSULTANT. The Consultant shall indemnify, defend
and hold the Company and its officers, directors, employees, affiliates and
agents harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal fees
and expenses) (collectively, an "Indemnified Liability"), relating to or arising
from the untruth, inaccuracy or breach of any of the representations,
warranties, covenants or agreements of the Consultant contained in this
Agreement; provided, however, that such indemnification shall not apply to
indemnify the Company for any Indemnified Liability (i) resulting from the
Company's own negligent or illegal act, or (ii) arising out of any information
provided to the Consultant in connection with the performance of services
hereunder or used in the preparation of any reports (including, without
limitation, any reports prepared for filing with any governmental or
quasi-governmental agency or authority in connection with the Company's
obligations under applicable laws, rules, or regulations, or otherwise),
agreements, documents (including, without limitation, any disclosure documents
prepared for use by any stockholder, prospective investor or lender, or other
third party), or other information provided verbally or in writing to the
Consultant by the Company that contains false, misleading, or misrepresentative
statements or omits material facts necessary to make the statements made, in
light of the circumstances under which they were made, not misleading.
13.INDEMNIFICATION BY COMPANY. The Company shall indemnify, defend and
hold the Consultant harmless against an Indemnified Liability relating to or
arising from (i) the untruth, inaccuracy or breach of any of the
representations, warranties, covenants or agreements of the Company contained in
this Agreement or (ii) arising out of any information provided to the Consultant
in connection with the performance of services hereunder or used in the
preparation of any reports (including, without limitation, any reports prepared
for filing with any governmental or quasi-governmental agency or authority in
connection with the Company's obligations under applicable laws, rules, or
regulations, or otherwise), agreements, documents (including, without
limitation, any disclosure documents prepared for use by any stockholder,
prospective investor or lender, or other third party), or other information
provided verbally or in writing to the Consultant by the Company that contains
false, misleading, or misrepresentative statements or omits material facts
necessary to make the statements made, in light of the circumstances under which
they were made, not misleading; provided, however, the foregoing provision shall
not apply to indemnify the Consultant for any liability, loss or damage,
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including all costs and expenses related thereto, as a result of the
Consultant's own negligent or illegal action.
14. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes any prior agreement or understanding, and neither this Agreement nor
any provision hereof may be waived, modified, amended or, except to the extent,
if any, otherwise provided in this Agreement, terminated, except by a written
agreement signed by the parties hereto.
(b) NO ASSIGNMENT. Neither party to this Agreement may assign this
Agreement absent the prior written consent of the other party.
(c) NEVADA LAW; JURISDICTION; VENUE. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Nevada,
determined without regard to provisions of conflicts of laws. Each of the
parties hereto irrevocably consents to the exclusive jurisdiction of the state
and federal courts located in Clackamas County in the State of Oregon in any and
all actions between or among any of the parties hereto, whether arising
hereunder or otherwise, without regard to its conflict of laws principles to the
extent that such principles would require the application of laws other than the
State of Oregon. Venue for any action arising hereunder shall lie exclusively in
Clackamas County, Oregon.
(d) ENFORCEMENT COSTS. If any legal action or other proceedings is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, court costs and all expenses incurred in that action or
proceeding, in addition to any other relief to which such party or parties may
be entitled.
(e) WAIVERS; CUMULATIVE RIGHTS AND REMEDIES. No waiver of any breach,
default or provision hereunder shall be considered valid unless in a writing
signed by the party to be charged therewith, and no such waiver shall be deemed
a waiver of any subsequent breach or default hereunder. The Consultant's rights
and remedies hereunder are cumulative and not exclusive of any other rights or
remedies provided at law or equity.
(f) SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein. In any such case,
the provision deemed unenforceable shall be remade or interpreted by the parties
in a manner that such provision shall be enforceable to preserve, to the maximum
extent possible, the original intention and meaning thereof and such provision,
as so modified, shall remain in full force and effect thereafter.
(g) NOTICES. All notices, requests, demands, instructions, consents or
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if and (a) when
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delivered personally, (b) when transmitted by facsimile (with written evidence
of confirmation or answerback), (c) when delivered by electronic mail and the
delivering party receives system confirmation that the electronic mail was
delivered; (d) five (5) days after they are mailed by first class certified
mail, return receipt requested, postage prepaid, or (e) two days after they are
sent by a nationally recognized express courier service, postage or delivery
charges prepaid, to the parties at the following addresses or to such other
addresses as the parties may give notice in accordance herewith:
If to the Company: TSET, Inc.
000 Xxxxx Xxxxx Xxxxxx, XXX 000
Xxxx Xxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: _____________________
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, 20th Floor
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Consultant: Xxxxxxx X. Xxxxxx
0000-X Xxxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(h) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Confirmation of execution
by a facsimile signature page shall be binding upon that party so confirming.
(i) AUTHORIZATION. Each party hereto represents and warrants that it
has taken all action necessary for the authorization, execution, delivery and
performance of this Agreement, and that when executed and delivered, this
Agreement shall constitute a legal, valid and binding obligation of the party
enforceable in accordance with its terms.
(j) HEADINGS. Headings and captions used in this Agreement are
intended for convenience or reference only and shall not affect the
interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date written above.
TSET, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Its: Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
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