Exhibit 10.1
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of March 28, 2001
between Beacon Power Corporation ("BPC") and Xxxxxxx X. Xxxx, an agent of
International Investment Management Inc. with respect to services to be
performed for BPC by International Investment Management Inc. The parties'
respective addresses are as set forth below their signature lines.
1. Employment. Commencing on or about the date hereof, BPC will engage
International Investment Management Inc., and they each hereby accept such
engagement, upon the terms and conditions in this Agreement.
2. Duties and Services. International Investment Management Inc. will act
strictly as a Marketing Representative and advisor to BPC and shall be subject
to Internal Revenue Code 1099 tax reporting. Services provided by International
Investment Management Inc. will include, but are not limited to, sales and
corporate development functions specifically relating to business expansion
through the introduction of BPC to certain potential companies that both BPC and
International Investment Management Inc. agree would serve well as strategic
corporate allies in developing, enhancing, marketing and promoting BPC's
business. BPC understands that International Investment Management Inc. expects
to be and may be additionally compensated by other concerns simultaneously
during the term of this Agreement. International Investment Management Inc. will
report and coordinate his activities with the V.P. of Finance of BPC.
3. Compensation.
(a) International Investment Management Inc. will be paid $1,000 per
day for services rendered to BPC invoiced on a weekly basis, and
(b) International Investment Management Inc. will be provided with a
BPC corporate credit card and will be reimbursed, monthly, by BPC for all
reasonable out-of-pocket expenses, and
(c) During the Term, and for a period of one (1) year after,
International Investment Management Inc. will be further compensated by a
success fee for each sale of BPC equipment that International Investment
Management Inc. directly and solely brings to the attention of BPC and
directly negotiates as follows:
(i) The success fee shall equal a four (4%) percent commission on the
[gross] proceeds of the sale of equipment pursuant to contracts
with Federal or State Government agencies, or sales that are
accompanied with valid letters of credit from banks qualified by
BPC, two (2%) percent of which shall be paid at contract approval
by BPC and the remaining two (2%) percent will be paid upon
acceptance and full payment for the products sold.
4. Independent Contractor. International Investment Management Inc. is an
independent contractor, is not an agent or employee of BPC, and is not
authorized to act on behalf of BPC. International Investment Management Inc.
shall have no authority to bind BPC, and will not hold himself out to third
parties as having such authority. International Investment Management Inc. shall
be solely responsible for taxes and other wage deductions incurred as a result
of performing services under this Agreement. Under no circumstances shall
International Investment Management Inc. be considered to be an employee or
agent of BPC.
5. Non-Competition. International Investment Management Inc. shall not:
(a) induce or attempt to induce any customer, joint venturer, developer,
distributor or supplier of BPC to reduce such person's business with
BPC; or
(b) solicit any of BPC's employees to leave the employ of BPC.
6. No Disclosure of Confidential Information. In addition to any provisions
contained in the [Confidential Disclosure Agreement] between the parties dated
April 11, 2001 (the "CDA"), International Investment Management Inc. shall
not at any time during the Term or thereafter divulge, use, furnish,
appropriate, disclose or make accessible to anyone other than BPC or its
authorized agents any data, records, files, reports, pricing information, sales
manuals, client lists, business contacts, employee lists, operating procedures,
marketing techniques, manufacturing techniques and processes, business plans or
financial information (collectively, "Confidential Information") which
Confidential Information is disclosed to International Investment Management
Inc. by, or known to International Investment Management Inc. as a consequence
of or through, its engagement by BPC; provided, however, that Confidential
Information shall not include information or materials that are (i) generally
known to the public or publicly available, or (ii) constitute recognized
standard industry practice, (iii) already in the possession of International
Investment Management Inc. prior to the date hereof without disclosure from
International Investment Management Inc. These restrictions shall apply to all
Confidential Information whether written, oral such Confidential Information
being recognized and acknowledged as the sole and exclusive property of BPC. In
the event that International Investment Management Inc. is required by law,
court order or legal process to disclose any Confidential Information,
International Investment Management Inc. agrees that he will provide BPC prompt
notice of such requirement(s) so that BPC may consult with International
Investment Management Inc. as to the manner, timing and scope of such disclosure
and may seek an appropriate protective order.
7. Return of Confidential Information. In addition to any provisions contained
in the CDA, upon completion of the Term or any other time upon request,
International Investment Management Inc. will promptly deliver to BPC all notes,
memoranda, notebooks, drawings, records, reports, files, lists and other
documents (and all copies or reproductions of such materials no matter in what
form such information is recorded or stored) as well as any computer programs,
discs, tapes or other information storage and retrieval devices in the
possession or under the control of International Investment Management Inc.,
whether prepared by International Investment Management Inc. or others, which
contain Confidential Information.
8. Term and Termination. The initial term of this Agreement shall be six (6)
months; yet may be extended by BPC for any length it desires (the "Term").
Either party may terminate this Agreement at any time by giving thirty (30) days
written notice to the other party.
9. Miscellaneous.
9.1 Waiver of Breach. The failure of any party at any time or times to
require performance of any provision of this Agreement shall in no manner affect
that party's right at a later time to enforce the same. No waiver by any party
of the breach of any term or covenant contained herein, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained herein.
9.2 Notices. All notices, requests, demands, and any other communications
hereunder shall be made in writing, and shall be deemed to have been duly given
if and when delivered (including delivery by confirmed facsimile transmission),
or three days after being sent by recognized overnight delivery service,
addressed to BPC and International Investment Management Inc. at their
respective addresses shown below the signature lines hereof (or such other
address as either may notify to the other from time to time), with a copy being
sent (in the case of notices to BPC) to BPC counsel, Xxxxxx X. Xxxxx, Xxxxxxx &
Xxxxxx, LLP, 000 Xxxxxxx Xx., Xxxxxx, XX 00000, FAX: 000-000-0000.
9.3 Assignment; Binding Effect. No interest in this Agreement or in
International Investment Management Inc. rights or obligations hereunder may be
assigned by him, and any such purported assignment shall be void and of no force
or effect. This Agreement shall be binding upon and inure to the benefit of BPC,
its successors and assigns, and shall be binding upon International Investment
Management Inc., his successors and assigns.
9.4 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and,
unless otherwise provided herein, supersedes all prior agreements or
understandings, written or oral, in respect thereof. This Agreement may be
amended, modified, superseded, canceled, renewed, or extended, and the terms or
covenants hereof may be waived, only by a written instrument signed by the
parties hereto, or in the case of a waiver, by the party waiving compliance.
9.5 Governing law. This Agreement, and all questions arising in connection
therewith, shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
9.6 Certain Consultant Representations. International Investment Management
Inc. represents and warrants his engagement by BPC as described herein shall not
conflict with and will not be constrained by any prior engagement or consulting
agreement or relationship. International Investment Management Inc. represents
that he has no business relationship of any nature, direct or indirect, with any
Director or Officer of BPC.
9.7 Enforcement. The parties recognize and acknowledge that International
Investment Management Inc. is engaged under this Agreement to render services of
a unique character, requiring special expertise and experience by International
Investment Management Inc.. International Investment Management Inc. agrees that
a breach by him of Section 6 could not reasonably or adequately be compensated
in damages in an action at law and that BPC shall be entitled to injunctive
relief, which may include but shall not be limited to restraining International
Investment Management Inc. from rendering any service that would breach this
Agreement. However, no remedy conferred by any of the specific provisions of
this Agreement (including this Section) is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and in addition to every
other remedy given under this Agreement or now or hereafter existing at law or
in equity or by statute or otherwise. The election of any one or more remedies
by BPC shall not constitute a waiver of the right to pursue other available
remedies.
9.8 Indemnification. BPC shall indemnify and bear all costs, expenses and
final judgments/settlements incurred by International Investment Management Inc.
ensuing from any legal action naming International Investment Management Inc.
resulting from this Agreement; provided, however, that BPC shall have no such
obligation if the involvement of International Investment Management Inc. in
such legal action is a result of International Investment Management Inc.'s
fault, negligence, misconduct, misrepresentation or breach of this Agreement;
provided, that in connection with any claim or action described in this Section,
International Investment Management Inc. (aa) gives BPC prompt written notice of
the claim, (bb) cooperates with BPC (at its own expense) in connection with the
defense and settlement of the claim, and (cc) permits BPC to control the defense
and settlement of the claim, provided that BPC may not settle the claim without
International Investment Management Inc.'s prior written consent (which will not
be unreasonably withheld). Further, International Investment Management Inc. (at
his own cost) may participate in the defense and settlement of the claim.
International Investment Management Inc. shall indemnify and bear all costs,
expenses and final judgments/settlements incurred by Beacon ensuring from any
legal action naming Beacon resulting from this Agreement that is caused by
International Investment Management Inc.'s fault, negligence, misconduct,
misrepresentation or breach of this Agreement; provided, that in connection with
any claim or action described in this Section, BPC (aa) gives International
Investment Management Inc. prompt written notice of the claim, (bb) cooperates
with International Investment Management Inc. (at his own expense) in connection
with the defense and settlement of the claim, and (cc) permits International
Investment Management Inc. to control the defense and settlement of the claim,
provided that International Investment Management Inc. may not settle the claim
without BPC's prior written consent (which will not be unreasonably withheld).
BPC (at its own cost) may participate in the defense and settlement of the
claim.
9.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be effective as
an originally executed counterpart hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
International Investment Management Inc. BEACON POWER CORPORATION
/s/ Xxxxxxx X. Xxxx, Agent
Address:International Investment By: __/s/_Willian Stanton__
Management Inc.
---------------------------- Name: Xxxxxxx Xxxxxxx
P.O Box Main Street
---------------------------- Title: President and CEO
Charleston, Nevis
---------------------------- Address: Beacon Power Corp
0X Xxxx Xxxxxx
FAX: Xxxxxx XX 00000-0000
XXX
FAX: (000)-000-0000
