Exhibit 10.22
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into as of
March 26, 2007 by and between Hybrid Technologies, Inc. (the "Company"), a
Nevada corporation, and Xxxxxxx Trading Company, a Nevada corporation
("Consultant").
NOW, THEREFORE, for and in consideration of the mutual promises herein contained
and the benefits that have and will inure to each of the parties hereto, the
parties hereto do agree as follows:
1. Services. Subject to the terms and conditions of this Agreement, Consultant
agrees to perform for Company the following services;
A. Identify and coordinate investor relations and investor communication
services
B. Coordinate construct and redevelop Home Web site and corresponding links
C. Engage in development, production, and distribution of authorized marketing
materials
D. Coordinate press and there distribution
E. Develop and Coordinate media, including such avenues as print, radio, cable,
satellite, air commuter commercials, news paper ,ect.
F. Identify appropriate merger and acquisition candidates
G. Maximize efficiency of media generated interest in Hybrid
H. Business Development
All marketing, press and or advertising will meet with all rules and regulations
of the SEC NASD FCC, and any other governing body.
Such services are hereinafter referred to as "Services." Company agrees that
Consultant shall have ready access to Company's staff and resources as necessary
to perform the Consultant's Services provided for by this Agreement. Company
agrees that the cost of legal, accounting, investor relations services provided
by third parties are the responsibility of the Company and not of the
Consultant.
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2. Period of Performance. The Company shall hire Consultant for a period of one
(1) year commencing March 26, 2007 and ending March 25, 2008 unless earlier
terminated pursuant to the terms of this Agreement.
3. Standard of Performance. Consultant agrees that the Services performed
hereunder will represent his best efforts and will be of the highest
professional standards and quality.
4. Compliance with Company's Policies. Notwithstanding the fact that the
Consultant is an independent contractor, while on the Company premises,
Consultant shall observe and obey and cause its employees and subcontractors to
observe and obey, all policies, procedures, rules, and regulations of Company
applicable to Company's own employees.
5. Compensation for Services. Company agrees to compensate Consultant for
Services in the amount of $2,600,000. Consultant and the Company agree that the
Company may issue to the Consultant three million one hundred thousand
(3,100,000) shares of its common stock in payment of this amount. The Company
and the Consultant determined the number of shares to be issued for the Services
using the Black Scholes Option Pricing Model as determined on the attached
Schedule A. The shares shall be restricted shares" and shall have no
registration rights.
6. Expense Reimbursement: Consultant agrees that he will supply all
instrumentalities, tools, implements, appliances, and other materials needed for
the performance of Services and will bear all routine business and not
operational expenses incurred to perform such Services. The Company will not
reimburse Consultant for the following out-of-pocket expenses, unless such
expenses are pre-approved in writing by the Company and documented, and incurred
in performing the Services:
a. Travel Expenses. The Company shall reimburse Consultant for the following
reasonable travel expenses incurred by Consultant directly in the performance of
Services for the Company: (1) transportation expenses, including air fare rental
cars, gas, and taxi fare; (2) hotel expenses; and (3) meals.
b. Receipt required. For the reimbursement of expenses identified in the above
paragraph 6(a) that exceed twenty-five dollars ($25.00), the Company requires
that the Consultant present an original receipt for such expenses.
7. Return of Company Property. When the Services are completed, Consultant
agrees to return to the Company all property of the Company, and all data and
records of Company Data, as defined herein, including all copies thereof. This
includes all of the Company's processes, customer lists, customer requirements,
and information not generally known relating to research, development,
manufacture and sale of Company products.
8. Termination. For the duration of the Period of Performance, this Agreement
may be terminated only:
a. by mutual agreement of the Company and Consultant; or
b. Notwithstanding a. above the Company may terminate this agreement in the
first 90 days from the date of this agreement; and 80% of total compensation
plus 90% of the dividend paid shall be returned forthwith by the Company,
effective immediately, if Consultant (a) is convicted or pleads guilty or nolo
contendere to a felony or misdemeanor involving fraud, embezzlement, theft, or
dishonesty, or other criminal conduct; or (b) commits any act of fraud or
dishonesty with respect to the Company; or
d, by Consultant if the Company materially breaches this Agreement and fails to
cure any such breach within ten (10) days of receiving written notice from
Consultant stating the specific nature of the breach.
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9. Nondisclosure of Company Data. Whereas the Company has a proprietary interest
in, and its business is one that requires secrecy concerning "Company Data,"?
which is defined as Company information that is not generally known by or
readily ascertainable to the public, and includes (i) inventions, formulas,
data, patterns, designs, drawings, discoveries, improvements, know-how, methods,
processes, and methods employed or sold by the Company, or relating to their
businesses; (ii) client data (whether or not reduced to writing or capable of
being memorized), including but not limited to client lists, client preferences,
the specific services and/or products provided to specific clients, client
contacts, pricing information, concessions and prior bids; (iii) marketing
information, including but not limited to business strategy, plans and research;
(iv) business plans, including but not limited to capital projects; (v)
financial information; and (vi) trade secrets as defined by California law.
Company Data includes documents, records, tapes, files, media, and any other
medium of communicating information.
a. Consultant shall hold in trust for the Company, and not disclose to any
unauthorized person or use for any purpose other than the performance of this
Agreement any Company Data without the prior written consent of the Company,
unless and only to the extent that Company Data becomes generally known to and
available for use by the public other than as a result of Consultant's acts or
omissions.
b. Consultant hereby acknowledges that during the performance of Services
pursuant to this Agreement, the Consultant may learn of or receive Company Data
concerning the business or affairs of the Company that are the property of the
Company. Therefore, Consultant hereby confirms that all such information
relating to the Company's business will be kept confidential by the Consultant,
except to the extent that such information is required to be divulged to the
Consultant's clerical or support staff or associates in order to enable
Consultant to perform Consultant's obligations under this Agreement. Upon
request by the Company, Consultant shall deliver to the requesting party all
memoranda, notes, plans, records, reports, computer tapes, printouts and
software and other documents and data (and copies thereof) relating to Company
Data of the requesting party that Consultant may then possess or have under his
or her control.
10. Remedies for Breach of Consultant's Covenants of Non-Disclosure. If, at the
time of enforcement of paragraphs 10, 10(a) and 10(b) above, a court shall hold
that the scope of restrictions stated therein are unreasonable under
circumstances then existing, the parties agree that the maximum scope reasonable
under such circumstances shall be substituted for the stated scope and that the
court shall be allowed to revise the restrictions contained herein to cover the
maximum scope permitted by law. Consultant agrees that the restrictions
contained in paragraphs 10, 10(a) and 10(b) are reasonable. In the event of the
breach or a threatened breach by Consultant of any of the provisions of
paragraphs 10, 10(a) and 10(b) the Company, in addition and supplementary to
other rights and remedies existing at law or equity in its favor, may apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce or prevent any violations of the provisions
hereof (without posting a bond or other security).
11. Representations. Consultant represents and warrants to the Company that
Consultant is subject to no agreement or obligation (including, without
limitation, any non-competition or confidentiality agreement) or bound by any
contract with any person, corporation, or other entity that would in any way
interfere with the performance of Consultant's duties and obligations to the
Company under this Agreement. Consultant agrees to hold the Company and their
officers, directors, employees, managers, members, shareholders and agents
harmless from any claim (and the expenses associated therewith) by a third party
under a non-competition, confidentiality or similar agreement.
12. Survival. Paragraphs 5 through 10 shall survive and continue in full force
and effect notwithstanding any termination of this Agreement.
13. Notices. All notices, consents, changes of address and other communications
required or permitted to be made under the terms of this Agreement shall be in
writing and shall be (i) personally delivered by an agent of the relevant party,
or (ii) transmitted by postage prepaid, certified or registered mail:
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To the Company:
Hybrid Technologies, Inc.
0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Executive Officer
To Consultant: Xxxxxxx Trading Company
0000 X. Xxxxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
14. Waiver of Breach. The waiver by any party of a breach by another party of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by the breaching party. No waiver shall be valid unless in
writing and signed by the party sought to be bound.
15. Assignment. Consultant acknowledges that the services to be rendered by
Consultant are unique and personal. Accordingly, Consultant may not assign any
of Consultant's rights or delegate any of Consultant's duties or obligations
under this Agreement, except to the extent amounts are payable to Consultant
hereunder after Consultant's death, in which case those benefits may be assigned
by will or the law of descent. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
Company and its successors and assigns.
16. Severability. In the event that any of these provisions shall be held to be
invalid or unenforceable, the remaining provisions hereof shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. The parties in no way intend to include a
provision that contravenes public policy. Therefore, if any provision of this
Agreement is unlawful, against public policy, or otherwise declared void or
unenforceable, such provision shall be deemed excluded from this Agreement,
which shall in all other respects remain in effect.
17. Entire Agreement, Modification or Amendment. The parties hereby agree that
this Agreement contains the entire agreement and understanding by and between
the parties with respect to the subject matter hereof, and no representations,
promises, agreements, or understandings, written or oral, relating to the
subject matter hereof not contained herein shall be of any force or effect.
Consultant agrees that Consultant has actively participated in negotiating the
provisions contained in this Agreement, that these provisions have been
negotiated in good faith by all parties, and that the terms of this Agreement
should not be construed against either the Company or Consultant. This Agreement
may be amended only by written amendment signed by the parties.
18. Counterparts. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one instrument. Rebuttable proof of
execution of this Agreement by any party may be made by presentation of a copy
of this Agreement bearing a facsimile or photostatic copy of the signature of
the party whose execution is sought to be proved, and such copies shall be as
valid as the originals and as admissible as evidence of proof of the execution
and terms and provisions hereof as the originals.
19. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
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20. Arbitration. Any and all disputes arising out of or relating to the
interpretation, application, formation, or the termination of this Contract
shall be subject to binding and final arbitration in Orange County, California,
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association, the cost of which shall be equally shared between the parties.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
California's rules of conflicts of law, and regardless of the place or places of
its physical execution and performance.
22. Independent Contractor Relationship. The parties hereto intend that an
independent contractor-owner relationship will be created by this Agreement.
Company is interested only in the result to be achieved, and the conduct and
control of the Services will lie solely with Consultant. Consultant is not to be
considered an agent or employee of Company for any purpose, and neither
Consultant nor his employees are entitled to any of the benefits that Company
may provide for its own employees. It is understood that Company does not agree
to use Consultant exclusively. It is further understood that Consultant is free
to contract for similar or other services to be performed for other owners while
under this Agreement with Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above-written.
Witnesses: HYBRID TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Print Name: Print Name: Xxxxx X. Xxxxxxxxx
Title: President
4-9-07
CONSULTANT
Xxxxxxx Trading Company
------------------------
/s/ Xxxxx Xxxxxxxxxx April 4/ 2007
------------------------------
Print Name: __________________
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SCHEDULE A
Hybrid Technologies, Inc.
Common Stock Valuation
26-Mar-07
Option value per Note 10 to the Financial Statements as of July 31, 2006
Number of options granted 1,474,000
Price per share at grant $ 6.40
Total value 9,433,600
Option value per Black Scholes valuation 7,568,000
Option value as a per cent of market value 80%
Restricted share value as a percent of market value 20%
Share value at March 23, 2007 $ 4.21
Option value using the same criteria as used in
the July 31, 2006 financial statements 3.37
Restricted share value $ 0.84
Contract value $ 2,600,000
Restricted share value 0.84
Number of shares 3,095,238.10
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