EXHIBIT 6.43
CONSULTING AGREEMENT
Strategic Adviser
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Between: IQ POWER TECHNOLOGY INC. And: XXXXXXX X. XXXXXX
(the "Company") (the "Consultant")
At: x/x Xxxxxxxx Xxxx, Xxxxxxxxxxx At: 000 Xxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxx 0, X-00000 Xxxxxxxxxxxx, Xxx Xxxx 00000 XXX
Germany
Facsimile: 011-4989-614483-40 Facsimile: -------
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IN CONSIDERATION of the mutual promises and covenants and the terms and
conditions set out in sections 1.00 through 9.00 attached, the Company hereby
offers and the Consultant hereby accepts engagement with the Company upon the
terms and conditions set forth herein:
Position: Strategic Adviser
Services: Services to be provided shall relate generally to the position of
the Consultant and shall include prime responsibilities for
business development consulting to the Company including but not
limited to securing new contacts and customers, product
application, matters related to use of the technology in the
manufacturing process, industry events, generation of information
about the process to reach potential users as required by the
Company management and similar. Further, the position could
require participation in contract negotiations, both on projects
found by the Company and ones initiated by the Consultant.
Term of This Agreement shall have an initial term of 24 months and be
Agreement: deemed to have commenced on August 1, 2000, notwithstanding the
date of execution.
Period of The Consultant shall devote no less than 8 full working hours per
Services: day per week solely to the duties and obligations noted in this
Agreement. Such work shall be provided for the benefit of the
Company for the minimum average of 1 day per week (i.e. 52
working days per year, minimum). Should the Company require
additional days or the presence of the Consultant for contiguous
periods of more than 2 days in a row such days shall be provided,
at the request of the Company made at least 4 calendar weeks in
advance, in a continuous block of working days up to 5 week days
in a row or 7 days in a row, including weekend working days,
unless the foregoing conflicts with a predetermined travel
schedule or prior obligation of the Consultant.
Compensation: As consideration for the Services of the Consultant hereunder,
the Company shall:
1. pay the Consultant a fee of US $2,000 per full work day,
such fees to be paid monthly on the first business day of
the month for amounts due for that month following
submission in advance by the Consultant to the Company of
scheduled efforts for that month with any adjustments for a
greater or lesser number of work days actually worked being
made within 2 weeks of the month end of the month in which
the services were provided;
2. advance the Consultant a 4-week deposit to be applied
against the last 4 weeks compensation due under this
Agreement; and
3. issue the Consultant forthwith following execution of this
Agreement, options to purchase 25,000 shares of the Company
(the "Options") exerciseable for the price of US$1.50 per
share during the life of the Agreement, which Options shall
vest and be exerciseable as follows:
a. 50% of the Options shall vest and be immediately
exerciseable; and
b. the remaining 50% of the Options shall vest and be
exerciseable 12 months following the date of this
Agreement.
Notwithstanding the foregoing, until such time as the Company
completes a new equity financing raising not less than
US$5,000,000 following the date of this Agreement, 50% of all
cash compensation owing to the Consultant hereunder as well as
any monthly compensation in excess of US$5,000 shall be deferred
and be payable only upon and within 30 days of completion of such
financing during the term of this Agreement.*
Performance Subject to performance, the Company shall pay the Consultant a
Incentive: finder's fee for contracts brought to the Company as a direct
result of the Consultant's efforts as follows:
1. 6% of the benefit to the Company on contracts of
US$1,000,000 or less;
2. [4 - struck out and initialed in original] 5% of the benefit
to the Company on contracts greater than US$1,000,000 but
not greater than US$4,000,000;
3. [3 - struck out and initialed in original] %4 of the benefit
to the Company on contracts of greater than US$4,000,000 but
not greater than US$10,000,000; and
* or note later than December 31, 2000; whichever shall come
first. [Handwritten in original, initialed and dated]
Consulting Agreement
Page 2
4. [2 - struck out and initialed in original] 3% of the benefit
to the Company on contracts of greater than US$10,000,000.
Executed and delivered by and on behalf Executed and delivered by and on
of the Company at Unterhaching, Germany, behalf of the Consultant at New York,
effective August 12, 2000. USA effective 12 August 2000.
IQ POWER TECHNOLOGY INC.
Per: /s/ Xxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxx Xxxxx, President XXXXXXX X. XXXXXX
CONSULTING AGREEMENT
TERMS AND CONDITIONS
1.00 Representations, Warranties, and Covenants
1.01 The Consultant represents and warrants to, and covenants with, the Company,
as follows:
a. the Consultant has the ability, experience and skills necessary to carry
out its obligations under this Agreement;
b. the Consultant and its officer, employees, agents and consultants shall
comply with all securities laws and regulations applicable to the Company
or the Consultant, and all policies, rules and requirements of any exchange
or quotation system on which the shares of the Company trade;
c. the Consultant shall, and shall cause its officers, employees, agents and
co-consultants to, act at all times in the best interests of the Company;
d. the Consultant, upon notice from the Company, will cease all Services for
the period directed by the Company without effect on the payment of
compensation due hereunder unless this Agreement is terminated in
connection with the request to cease Services;
e. the Consultant will not distribute or disseminate any information
concerning the Company in any form or medium, unless such information has
been provided to the Consultant by the Company for distribution or
dissemination, or the Company has reviewed and approved such information
prior to its distribution of dissemination by the Consultant, or such
information is in the public domain or known to the Consultant through his
general knowledge of the industry;
f. the Consultant will not engage in any transaction involving the offer or
sale of securities of the Company, and will not solicit or encourage any
other party to engage in any transaction involving the offer or sale of
securities of the Company, at any time that the Consultant is in possession
of material non-public information concerning the Company; and
g. except as otherwise provided herein or as may be authorized in writing by
the Company, the Consultant shall have no authority to contract any
obligation in the name of, on account of or on behalf of the Company or to
make any representation or commitment with respect to the Company or its
products or services.
1.02 The Company represents and warrants to, and covenants with, the Consultant
to provide sufficient support, as limited to the Company's capabilities, so as
to enable to the Consultant to perform its obligations set forth in this
Agreement and for this purpose, upon the Consultant's reasonable request, to
make available such of its officers and personnel and other assets subject to
the overriding discretion of the President of the Company.
2.00 Position
2.01 The Consultant shall provide the Services indicated on the first page
hereof and in such capacity, shall carry out the duties and responsibilities
commensurate with that position as such duties are more specifically defined
from time to time during the term of this Agreement by the Board of Directors of
the Company.
2.02 In providing his services hereunder, the Consultant shall report to and
take directions from the President of the Company subject to overriding
directions from the Board of Directors of the Company.
3.00 Terms; Termination of Engagement
3.01 The term of engagement pursuant to this Agreement shall be for the term
stated on the first page hereof and thereafter engagement shall continue on a
monthly basis until terminated by the Company or the Consultant. Either party
may terminate the Consultant's engagement as follows:
a. the Consultant may terminate his services at any time and for any reason
upon one month's written notice to the Company;
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Consulting Agreement
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b. the Company may terminate the Consultant's services at will provided,
however, if the Company terminates the Consultant's engagement without
cause at any time after an initial probationary period off three months,
the Consultant's salary and benefits shall continue for at least 3 months;
c. the Company may terminate the Consultant's services for cause after
reasonable notice of any non-performance has been given by the Company to
the Consultant and a reasonable opportunity has been afforded to the
Consultant to remedy any instance of non-performance. For purposes of the
preceding sentence, "cause" shall include but not be limited to:
i. fraud,
ii. conviction or confession of an indictable offense,
iii. destruction or theft of the Company's property,
iv. misconduct materially injurious to the Company, or
v. any breach or threatened breach of this Agreement.
3.02 If the Consultant's engagement is terminated:
a. subject to paragraph 3.01.b, no further compensation coming due under this
Agreement after the date of termination shall be payable by the Company;
and
b. the Consultant shall continue to be bound by the terms of section 6.00 of
this Agreement.
4.00 Compensation
4.01 During the term of this Agreement, the Consultant shall be paid in
accordance with the compensation provisions on the first page hereof. This
compensation may be increased from time to time subject to the approval of the
Board of Directors of the Company and, where required, any regulatory body
having jurisdiction. To minimize outlay of cash, 50% of the compensation due to
the Consultant from time to time may be paid, at the discretion of the Company,
through the issue of shares at a deemed price per share equal to the closing
price of the Company's shares on the trading day prior to the day of issue on
the NASD over the counter market or such other exchange as the shares of the
Company may be traded on or by the delivery of some other consideration in kind
agreed to by the Consultant. For the purpose of paying compensation through the
issue of shares, the Company shall be entitled to delay any compensation for
services until such services are actually rendered.
4.02 The Consultant acknowledges and agrees that office and consultancy costs
and expenses associated with the Consultant's performance under the terms of
this Agreement shall be at his own expense unless the Company agrees to pay
expenses for services above the scope of this Agreement. Such expenses will
include travel to sites of the Company's operations and offices inside outside
the USA, to industry events as designated by the Company, and any other mutually
agreed requests made by the Company. Expenses shall include air travel, hotel
accommodation and ground expenses in accordance with the Company's policy or
common practice. Such expenses are in addition to the Consultant's per diem fee.
Such company paid expenses, where possible, will be submitted to the Company in
writing by the Consultant prior to the undertaking of the expenses and approved
in writing by the President of the Company.
5.00 Non-circumvention of Consultant
5.01 In and for valuable consideration, the Company agrees that:
a. the Consultant may introduce the Company (whether written, oral, data, or
otherwise made by the Consultant) to opportunities (the "Opportunities"),
including, without limitation, potential partners, suppliers, customers,
contacts, investors, lenders, borrowers, trusts, corporations, and
unincorporated business entities;
b. the identity of the Opportunities, and all other information concerning the
Opportunities (including, without limitation, all mailing information,
telephone and facsimile numbers, email addresses, and other contact
information) introduced hereunder are the property of the Consultant and
shall be treated as confidential information;
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c. it shall not use such information except in the context of joint venture
with the Consultant, and never without the Consultant's prior written
approval;
d. neither it, nor its employees, affiliates and assigns shall enter into, or
otherwise arrange (either for itself or any other person of entity) any
business relations, contact any person of an Opportunity, either directly
or indirectly, or any of its affiliates, or accept any compensation or
advantage in relation to an Opportunity except as directed through the
Consultant, without the prior written approval of the Consultant.
The Consultant is relying on the Company to assent to these terms and the
intent of the Company to be bound by the terms as evidenced by the
Company's execution of this Agreement. Without the assent of the Company to
these terms, the Consultant would not introduce any Opportunity or disclose
any confidential information in pursuance of this Agreement.
6.00 Ownership of Technology; Confidentiality
6.01 The Consultant recognizes and acknowledges that during the course of his
engagement, he will have access to certain information not generally known to
the public, relating to the products, sales or business of the Company which may
include, without limitation, software, literature, data, programs, customer
contact lists, sources of supply, prospects or projections, manufacturing
techniques, processes, formulas, research or experimental work, work in process,
trade secrets or any other proprietary or confidential matter (collectively, the
"Confidential Information"). The Consultant recognizes and acknowledges that
this Confidential Information constitutes a valuable, special and unique asset
of the Company, access to and knowledge of which are essential to the
performance of the Consultant's duties. The Consultant acknowledges and agrees
that all such Confidential Information, including without limitation that which
the Consultant conceives or develops, either alone or with others, at any time
during his engagement by the Company, is and shall remain the exclusive property
of the Company. The Consultant further recognizes, acknowledges and agrees that,
to enable the Company to perform services for its customers or its clients, such
customers or clients may furnish to the Company or the Consultant Confidential
Information concerning their business affairs, property, methods of operation or
other data, that the goodwill afforded to the Company depends on the Company and
its employees preserving the confidentiality of such information, and that such
information shall be treated as Confidential Information of the Company for all
purposes under this Agreement.
6.02 The Consultant agrees that, except as directed by the Company, the
Consultant will not at any time, whether during or after his engagement with the
Company, use or disclose to any person for any purpose other than for the
benefit of the Company any Confidential Information, or permit any person to
use, examine and/or make copies of any documents, files, data or other
information sources which contain or are derived from Confidential Information,
whether prepared by the Consultant or otherwise coming into the Company's
possession or control without the prior written permission of the Company.
6.03 The Consultant agrees that upon request by the Company and in any event
upon termination of engagement, the Consultant shall turn over to the Company
(or provide proof of destruction of) all Confidential Information in the
Consultant's possession or under his control which was created pursuant to, is
connected with or derived from the Consultant's services to the Company, or
which is related in any manner to the Company's business activities or research
and development efforts, whether or not such materials are in the Consultant's
possession as of the date of this Agreement.
6.04 The provisions of this section 6.00 shall apply with such necessary changes
to the Confidential Information of the Consultant to which the Company obtains
access by virtue of this Agreement.
7.00 Saving Provision
7.01 The Company and the Consultant agree and stipulate that the agreements and
covenants contained in the preceding sections 5.00 and 6.00, including the scope
of the restricted activities described therein and the duration and geographic
extent of such restrictions, are fair and reasonably necessary for the
protection of the parties and the information described, goodwill and other
protectable interests, in light of all of the facts and circumstances of the
relationship between the Consultant and the Company. In the event a court of
competent
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jurisdiction should decline to enforce any provision of the preceding
paragraphs, such paragraphs shall be deemed to be modified to restrict them to
the maximum extent, in both time and geography which the court shall find
enforceable.
8.00 Injunctive Relief
8.01 Each party acknowledges that a breach or threatened breach of any of the
covenants or other agreements contained herein would give rise to irreparable
injury to the party relying on such covenant or other agreement which injury
would be inadequately compensable in money damages. Accordingly, such party or
where appropriate, a client of such party, may seek and obtain an injunctive
relief from the breach or threatened breach of any provision, requirement or
covenant of this Agreement, in addition to and not in limitation of any other
legal remedies which may be available.
8.02 The parties acknowledge and agree that the covenants contained herein are
necessary for the protection of the parties' respective legitimate business
interests and are reasonable in scope and content.
9.00 General
9.01 This Agreement and all matters arising hereunder will be governed by and
construed in accordance with the laws of the State of Washington, and the laws
of the United States applicable therein, and all disputes and claims, whether
for specific performance, injunction, declaration or otherwise howsoever both at
law and in equity, arising out of or in any way connected with this Agreement
will be referred to the courts of the State of Washington exclusively, and, by
execution and delivery of this Agreement, each party hereby irrevocably submits
and attorns to such jurisdiction.
9.02 In the event it becomes necessary to enforce this Agreement through legal
action, whether or not a suit is actually commenced, the party which obtains
substantial success in a legal action shall be entitled to his or actual
reasonable solicitor's fees and disbursements.
9.03 Any reference in this Agreement in the masculine gender shall include the
feminine and neuter genders, and vice versa, as appropriate. Any reference in
this Agreement in the singular shall mean the plural and vice versa, as
appropriate.
9.04 There is no verbal or other agreement which may modify or affect this
Agreement.
9.05 All dollars expressed in this Agreement are United States dollars.
9.06 This Agreement shall be considered and construed as a single instrument and
the failure to perform any of the terms and conditions in this Agreement shall
constitute a violation or breach of the entire instrument or Agreement and shall
constitute the basis for cancellation or termination.
9.07 The parties hereto agree to do or cause to be done all acts or things
necessary to implement and carry into effect the provisions and intent of this
Agreement.
9.08 Should any provisions of this Agreement be determined to be unenforceable
or prohibited by any applicable law, this Agreement shall be valid for all but
the non-conforming portion which portion only shall then be considered null and
void.
9.09 This Agreement may not be assigned by the parties hereto without the
agreement of the other party.
9.10 Each party hereto shall have the right to correct a default in the
performance of such party's obligations hereunder within fourteen days upon
receiving notice by certified mail to the appropriate address of the defaulting
party.
9.11 All notices, requests, demands and other communications which are required
to be or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered in person or transmitted by e-mail
or other telecommunication facility or on receipt after dispatch by certified or
registered first class mail, postage prepaid to the party to whom the same is so
given or made to its address noted on the first page.
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9.12 This Agreement, including all Schedules attached hereto, constitutes the
entire agreement and supersedes all prior agreements and understandings, oral
and written, between the parties hereto with respect to the subject matter
hereof and may not be amended, modified or terminated unless in a written
instrument executed by the party or parties sought to be bound.
9.13 This Agreement may be executed in any number of counterparts, each of which
when executed, shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument and a facsimile copy of this
Agreement executed by a party hereto in counterpart or otherwise will be deemed
to be a valid and binding Agreement and accepted as an original of the Agreement
until such time as each of the parties has an originally executed Agreement in
its possession.
[INITIALS & DATE]
