EXHIBIT 6.41
INVESTOR RELATIONS CONSULTING AGREEMENT
Between: XXXXX INTERNATIONAL (GUERNSEY) INVESTOR RELATIONS LTD.
(the "Consultant")
At: 00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
Facsimile: (00) 000 000 0000
And: iQ POWER TECHNOLOGY INC.
(the "Company")
At: x/x Xxxxxxxx Xxxx, Xxxxxxxxxxx Xxxxxxx 0,
X-00000 Xxxxxxxxxxxx, Xxxxxxx
Facsimile: 011-4989-614483-40
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: Investor Relations Part-Time Dependent Contractor.
Services: Services to be provided shall relate generally to the
position of the Consultant and shall include those items and
be provided in the manner described in Schedule A.
Term of Agreement: This Agreement shall have a term of 6 months plus a day and
be deemed to have commenced on December 1, 1999,
notwithstanding the date of execution.
Period of Services: As directed by the Company.
Compensation: As consideration for the Services of the Consultant
hereunder, the Company shall:
1. pay the Consultant a fee of US$5,000 per month for the
first six months of this Agreement, due on the last
business day of each calendar month during the term of
this Agreement; and
2. issue the Consultant forthwith following execution of
this Agreement, 100,000 one-year warrants (the
"Warrants"), which Warrants shall vest and be
exerciseable as follows:
a. 50% of the Warrants shall vest and be exerciseable
for the price of US$2 per share immediately;
and
b. the remaining 50% of the Warrants shall vest and
be exerciseable for the price of US$3 per share at
any time on or after June 1, 2000.
Executed and delivered by and on behalf of the Company at Executed and delivered
by and on behalf of the Consultant Unterhaching, Germany, effective December 8,
1999. at London, effective December 10, 1999.
XXXXX INTERNATIONAL (GUERNSEY)
iQ POWER TECHNOLOGY INC. INVESTOR RELATIONS LTD.
Per: "Xxxxx Xxxxx" Per: "Xxxx Xxxxx"
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Xxxxx Xxxxx, President Xxxx Xxxxx, President
CONSULTING AGREEMENT
TERMS AND CONDITIONS
1.00 Representations, Warranties, and Covenants of the Consultant
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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;
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;
g. the Consultant is not a "U.S. Person" (the definition of which includes,
but is not limited to, an individual resident in the United States and an
estate or trust of which any executor or administrator or trustee,
respectively, is a U.S. Person and any partnership or corporation organized
or incorporated under the laws of the United States);
h. the Consultant did not enter into this Agreement while in the United
States;
i. neither the Warrants nor any shares acquired on the exercise thereof (the
"Securities") are being or may be acquired, directly or indirectly, for the
account or benefit of a U.S. Person or a person in the United States;
j. the Consultant acknowledges that the Securities have not been registered
under the United States Securities Act of 1933, as amended (the "1933
Act"), and may not be offered or sold in the United States, and the
Consultant undertakes and agrees that it will not offer or sell the
Securities in the United States unless the Securities are registered under
the 1933 Act and the securities laws of all applicable states of the United
States or an exemption from such registration requirements is available;
and
k. the Consultant understands that the Company has no obligation or present
intention of filing a registration statement under the 1933 Act in respect
of the Securities.
2.00 Position
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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 or such person as may be
designated by him, subject to overriding directions from the Board of Directors
of the Company.
Consulting Agreement
Page 3
3.00 Terms; Termination of Engagement
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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;
b. the Company may terminate the Consultant's services at will. If the Company
terminates the Consultant's engagement without cause, the Consultant's
monthly compensation shall continue until at least May 31, 2000;
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:
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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
all unvested warrants shall be deemed void and not exerciseable; and
b. the Consultant shall continue to be bound by the terms of section 6.00 of
this Agreement.
4.00 Compensation
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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.
4.02 The Company shall reimburse the Consultant for its reasonable expenses
incurred on behalf of the Company incidental to the performance of its Services
hereunder upon the Consultant tendering receipts for the expenses so incurred in
the manner and time prescribed by the Company provided expenses in excess of
US$500 per month shall be subject to the prior written approval of an authorize
representative of the Company having jurisdiction to authorize such expenses.
5.00 Non-circumvention of Consultant
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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, existing or potential 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;
c. it shall not use such information except in the context of its engagement
of the Consultant, and never without the Consultant's prior written
approval; and
Consulting Agreement
Page 4
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 Company agrees that Confidential Information shall not include the
following information:
a. information which at the data hereof is disclosed in the public domain;
b. information which after the date hereof is published or otherwise becomes
part of the public domain through no fault or action of the Consultant or
any employees or agents;
c. information which the Consultant can prove was in its possession prior to
the date hereof and was not acquired by the Consultant directly or
indirectly from the Company or anyone under an obligation of
confidentiality to the Company; and
d. information received by the Consultant without restriction as to disclosure
from a third party who has the lawful right to disclose the same.
Consulting Agreement
Page 5
7.00 Saving Provision
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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 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
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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 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.
9.09 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.
Consulting Agreement
Page 6
9.10 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.
SCHEDULE A
Services shall include:
1. assisting in formulating plans and budgets from time to time for the
dissemination of information concerning the Company to its clients,
potential clients, existing shareholders, potential investors who have
contacted the Company seeking such information, financiers, the media, the
brokerage community and others as appropriate;
2. disseminating such information to the persons mentioned in accordance with
the marketing plan of the Company to encourage participation in the
development of the Company;
3. bank and institutional liaison and data compilation;
4. regular reports to the Company;
5. advising the Company on matters concerning corporate finance and arranging
introductions for the purpose of sourcing capital;
6. introducing the Company to prospective financiers and business contacts who
could assist in the development of the Company; and
7. providing to the President of the Company or such person designated by him
on a timely basis a list of contacts and presentations made by the
Consultant and such other information concerning the performance of its
services hereunder as may be required by the Company to coordinate its
investor relations program.
Services do not include the following matters which shall be the subject of
separate arrangements between the parties in addition to any fees and expenses
paid by the Company under this Agreement:
1. any future European road shows organized by Consultant will be subject to
separate billing and the prior approval of the Company; and
2. any funds raised through or with the assistance of the Consultant at a
future date will be subject to separate billing of an appropriate finders
fee to be negotiated in due course by the parties and paid to the
Consultant.
