Exhibit 4.3
CONSULTING AGREEMENT
1. PARTIES
(a) CONSULTANT.
This Agreement is entered into as of June 1, 2001 by and between Rotary
Power International, Inc., a Delaware corporation with its principal office at
X.X. Xxx 000, Xxxx-Xxxxx, Xxx Xxxxxx 00000-0000 (the "Company"), and Xxxxxxx
Xxxxx, an individual residing at 000 Xxxxxxxxx Xxxxxxx XX, Xxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0 (the "Consultant").
(b) ENGINEERING COMPANY.
This agreement is entered into as of June 1, 2001, by and between Rotary
Power International, Inc., a Delaware corporation with its principal office at
X.X. Xxx 000, Xxxx-Xxxxx, Xxx Xxxxxx 00000-0000 (the "Company"), and Disenvisol
Incorporated (c/o President Xxxxxxx Xxxxx) an engineering company located at 000
Xxxxxxxxx Xxxxxxx XX, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 (the "Engineering
Company") hereinafter with the company referred to collectively as the parties.
2. ENGAGEMENT
The Company hereby agrees to engage the Consultant, and the Engineering
Company, and the Consultant and the Engineering Company, in consideration of
such engagement, hereby agree to provide consulting and engineering services as
further described in but not limited to Section 3 and Section 4 below, such
services to be provided only as requested by the Company.
3. STATEMENT OF SERVICES - CONSULTANT
(1) A written assessment detailing the potential of purposed buildings
for both the new R&D facility (New Jersey) and the main assembly
facility (Nova Scotia).
(2) Provision of all engineering drawings and associated services for
the sites that will be chosen for both the R&D facility and the main
assembly facility. This may include the following:
(a) To coordinate, assist and develop all levels of the
procurement requirements.
(3) Assisting in the continuing development of the business plan for the
main assembly/ manufacturing facility in an engineering capacity.
(4) Evaluating the current R&D assembly process of the Series 70 2-rotor
rotary engines and provide the necessary schedules, assembly manuals
and technician training programs for a fully developed main
production process. This will apply for all models of the Series 70
rotary engines.
(5) The above mentioned (item #4) will also apply to the Series 580
rotary engines as well.
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(6) Provision of any miscellaneous engineering information that may be
required for the continuing success of the rotary engines.
3.1. Consultant will take guidance and directions from the President and
the Vice President, Finance of the Company.
3.2. Service provided by Consultant shall be as an independent
contractor.
3.3 Consultant will be expected to provide monthly reports of his
activities hereunder.
4. STATEMENT OF SERVICES - ENGINEERING COMPANY
(1) Provision of all engineering drawings and associated services for
the sites that will be chosen for both the R&D facility and the main
assembly facility. This may include the following:
(a) All engineering drawings and the associated engineering
disciplines to complete a proper engineering package. (Layout,
Piping, Structural, etc.)
(b) To oversee and coordinate the construction phase for the R&D
facility and the main assembly plant.
(c) To obtain all permits required for the plant(s) construction.
(d) To ensure that the engineering drawings are certified and
checked by qualified engineers in the respected disciplines.
(e) To provide a "TURN-KEY" operating facility for both the R&D
and main assembly facilities. This will include proper
engineering data books with all the pertinent information of
the facilities including "AS- BUILT" drawings.
4.1. Engineering Company will take guidance and directions from the
President and the Vice President, Finance of the Company.
4.2. Service provided by Engineering Company shall be as an independent
contractor.
4.3 Engineering Company will provide monthly reports of its activities
hereunder.
The term of this Agreement shall be from the date of this Agreement to December
31, 2002 subject to paragraph 6.3 herein.
5. COMPENSATION
5.1. In consideration of the consulting services performed hereunder, the
Company agrees to pay Consultant at rate of U.S. $65.00 per hour.
5.2 In consideration of the engineering services performed hereunder,
the Company agrees to pay the Engineering Company at a rate of U.S.
$80.00 per hour.
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5.3 The Company agrees to reimburse Consultant and Engineering Company
for all actual business expenses as may be required in connection
with the performance of services. Any major expenditures will be
approved by the Company prior to commitment.
5.4 The Consultant and Engineering Company will submit invoices monthly
for consulting services and expenses incurred. Expenses billed to
the Company shall be accompanied by supporting documentation. The
Company will make payment of these invoices from Consultant and
Engineering Company in timely fashion.
5.5 The Company and Consultant and the Company and Engineering Company
may at any time agree that the Company can issue shares of its
common stock in satisfaction of any amounts that may hereafter
become due and owing to the Consultant and Engineering Company in
accordance with this Agreement. The number of shares to be issued by
the Company shall be agreed upon with Consultant and Engineering
Company in writing and a minimum of 25% any such shares, when
issued, shall be registered under the Securities Act of 1933, as
amended, pursuant to a registration statement filed by the Company
with the Securities and Exchange Commission on Form S-8 (or, if Form
S-8 is not then available, such other form of registration statement
then available for the registration of such shares). Any and all
costs of filing such registration statement for such shares shall be
the responsibility of the Company.
6. LIMITATIONS
6.1 Nothing in this Agreement shall grant to either party the right to
make commitments of any kind for or on behalf of the other party
without prior written consent of the other party.
6.2 Consultant/Engineering Company represent(s) that there is no
conflict of interest between his/its performance in a consulting
capacity under this Agreement and his/its relationship with other
clients. If at any time in the future it is believed that there is a
potential conflict of interest, Consultant/Engineering Company will
promptly so advise and the parties will mutually agree in writing on
the resolution of this potential conflict.
6.3 Either the Consultant or the Engineering Company or the Company may
terminate this Agreement by giving thirty (30) days written notice
of such termination.
7. NON-COMPETITION
For the term of this Agreement, Consultant and Engineering Company will
not directly or indirectly, in any capacity, without prior written approval by
the Company, engage in or render services (including, without limitation,
research, development, marketing or sales) to, or have a financial interest in,
any person, consultant, corporation or other entity engaged in the rotary engine
business.
8. EXEMPTION FROM COMPANY BENEFIT PLANS, POLICIES AND PROCEDURES
The Consultant is not an employee of the Company and is, therefore, not
entitled to coverage under any of the benefit plans of the Company except as
agreed in writing by Consultant and the Company. The Consultant shall not be
bound by the policies and procedures of the Company but will conduct himself in
accordance with paragraph 3.1 herein.
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9. FACILITIES AND SUPPORT
The Company shall provide Consultant with office space, equipment and
support reasonably necessary to perform the tasks which are performed on the
premises of the Company. The Consultant is responsible to provide facilities and
equipment necessary outside the premises of the Company.
10. CONFIDENTIAL INFORMATION
Consultant and Engineering Company will not disclose any trade secrets or
confidential information identified as such by the Company to any person,
consultant, corporation, association, or other entity for any reason or purpose
whatsoever, nor shall Consultant and Engineering Company make use of any such
trade secrets or confidential information for his/its own purpose or for the
benefit of any person, consultant, corporation, or other entity, except as
authorized in writing by the Company. Consultant and Engineering Company
agree(s) to deliver to the Company upon termination of this Agreement, or at any
other time the Company may request, any proprietary or confidential material
supplied to the Consultant and Engineering Company during the term of this
Agreement and which the Company has previously identified as such, relating to
the business of the Company which he/it may then possess or have under his/its
control. However, there shall be no restriction on disclosure or use of
information which is publicly known other than as a result of a breach of this
Agreement, or which becomes legally available at any time from a third party
without restriction. Confidential information obtained while an employee of the
Company shall be specifically covered by this clause.
11. PROPERTY OF COMPANY
All ideas, inventions, discoveries, proprietary information, know-how,
processes and other developments and, more specifically, improvements to
existing inventions conceived by the Consultant and Engineering Company that
were developed in relation to performance of the Consultant's and the
Engineering Company's assignments for the Company, shall be the property of the
Company. Consultant and Engineering Company shall execute all documents,
including patent applications and assignments, required by the Company to
establish the Company's rights under this paragraph.
12. MISCELLANEOUS
NOTICES: All notices pertaining to this Agreement shall be in writing and
shall be transmitted either by personal hand delivery or through the facilities
of the United States Postal Service, certified or registered mail, return
receipt requested. The addresses set forth in the first paragraph of this
Agreement for the respective parties shall be the places where notices shall be
sent, unless written notice of a change of address is given. Notices shall be
deemed to have been given at the time of delivery if transmission is by personal
hand delivery or, if mail, forty-eight (48) hours after deposited in a regularly
maintained receptacle of the United States Postal Service for mailing as
aforesaid.
CAPTION HEADINGS: Captions at the beginning of each numbered paragraph of
this Agreement are solely for the convenience of the parties and shall not be
deemed part of the context of this Agreement.
ENTIRE AGREEMENT: This Agreement contains the entire Agreement between the
parties hereto, and supersedes any written or oral agreement between the parties
concerning the subject matter contained herein. There are no representations,
agreements, arrangement or understandings, oral or written, between or among
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the parties hereto, relating to the subject matter contained in this Agreement,
which are not fully expressed herein.
AMENDMENT: This Agreement may only be amended by the written consent of
both parties at the time of such amendment.
GOVERNING LAW: The validity, interpretation, construction and performance
of this Agreement shall be controlled by and construed under the laws of the
State of New Jersey. In the event of any litigation arising out of any dispute
in connection with this Agreement, the Company and Consultant and Engineering
Company hereby consent to the jurisdiction of the New Jersey courts.
COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but such counterparts, when taken
together, shall constitute but one agreement.
SEVERABILITY: In the event any provision of this Agreement is held to be
invalid, void or unenforceable, the rest of the provisions shall, nonetheless,
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
13. RENEWAL
The parties may agree to renew this Agreement at any time by written
instruments signed by the parties. It is anticipated that each such renewal
shall be upon the same terms and conditions as herein provided, except for
necessary changes in dates, scope of work, or total compensation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
XXXXXXX XXXXX ROTARY POWER INTERNATIONAL, INC.
(the Consultant) (the Company)
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx X. XxXxxxx
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Xxxxxxx Xxxxx Name: Xxxxxx X. XxXxxxx
Title: President & CEO
DISENVISOL INCORPORATED
(the Engineering Company)
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President
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