CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered
into in Salt Lake County, Utah, this 10th day of May, 2004, by and between Oak
Ridge Micro-Energy, Inc. (the "Company"), a Colorado corporation, with offices
at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000; and Water & Gold,
Inc. (the "Consultant"), a New York corporation, with offices at 00 Xxxxxxxxx
Xx., Xxxxx 0X, Xxx Xxxx, XX 00000.
R E C I T A L S:
WHEREAS, the Company is a publicly traded corporation and is
engaged in the business of developing, manufacturing, marketing and selling
thin-film lithium batteries; and
WHEREAS, the Consultant is an independent advisor experienced in
providing corporate consulting services to publicly traded companies and
privately held companies; and
WHEREAS, the Company wishes to retain the services of the
Consultant on the following terms and conditions:
NOW THEREFORE, upon consideration duly paid, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties agree
upon the following terms and conditions:
1. Term of Engagement: The Company hereby retains Consultant's
services for a term 15 months. In exchange for the "Consulting Services" (as
that term is defined herein), the Consultant shall receive the "Retainer
Compensation," described below. Consultant shall also be entitled to receive
its reasonable travel and other expenses, if any, as requested and
pre-approved by the Company.
2. Consulting Services: Consultant shall provide the following
consulting services (the "Consulting Services") to the Company, described in
detail hereinafter: (A) Location and introduction to the Company of potential
Executive Management and Development personnel; (B) Assistance in obtaining
patent protection for the Company's products (the "Products"); (C) Location
and introduction to the Company of potential sales personnel and marketing
firms, and (D) Location and introduction to the Company of other business
ventures (publicly and/or privately held) for the purpose of a potential
merger and/or acquisition. The Consulting Services are described as follows:
(A) Board of Directors and Management: Consultant shall
locate candidates to fill vacancies in the Company's board of directors (the
"Board") as well as vacancies in certain key management positions. The
Consultant shall immediately begin mining through potential candidates with
the proper credentials and corporate "fit" to fill said vacancies. Consultant
shall submit resumes and its recommendations to the Company for each candidate
it proposes. Consultant agrees to submit quarterly reports (the "Management
Search Reports") of its progress in locating candidates for the Board and
other management positions within the Company's organization.
(B) Patent and IP Protection. The Company's core business
plan and potential of the Company resides in its Products and its exclusive &
licensed patent rights as well as its exclusive intellectual property
surrounding the Products (referred to herein collectively as the "Intellectual
Property"). Consultant agrees to locate the proper professionals to research
and file the required filings to protect the Company's current Products; and
to perform the research and development necessary to determine the viability
of filing for patent protection on other products related to the Products or
the Intellectual Property. Consultant agrees to submit a monthly report to the
Company detailing its efforts in this regard (the "IP Report").
(C) Market Development: Consultant shall use its best
efforts and engage its numerous contacts and relationships to increase the
Company's exposure and recognition, both within and outside its industry as
well as the technical and business communities. Consultant shall use its best
efforts to assist the Company and its management in gaining preeminence and
recognition, both in the technical and the non-technical or general public
communities in which it currently works and potentially may enter. The purpose
of this market development is to enhance the Company's reputation and to
generate sales and revenues for the Company. Some of the potential markets as
of now either wholly ignored or severely under-represented in the Company's
current marketplace presence are:
(i) Governmental agencies, departments, bureaus and other
organizations, on the federal, state and municipal
level. Both the "Homeland Security" avenues, as well
as non-security related uses including citizen on
non-citizen national identification, visas,
motor-vehicle and other state and federal licenses,
certification labels, permits, etc. The obvious
"Homeland Security" uses are of course enormous both
in scale and in current public and governmental
attention. Though the Company has current and future
avenues into this market already in place or in the
pipeline, the Consultant can increase the potential
for the Company by an order of magnitude.
(ii) Scientific governmental agencies, both domestic and
foreign, can be targeted for significant potentiality
of market development. Among others, these fields and
organizations might include; NASA, ESA (the European
Space Agency), NOAA (the National Oceanic and
Atmospheric Agency), USGS (the United States
Geographic Survey), as well as many preeminent
Universities, as well as other public and private
scientific groups or organizations. The Consultant
contends that the space exploration and general earth
sciences represent two as of yet untapped areas of
marketplace exposure.
(iii) Nanotechnology--an emerging and anticipated market for
the Company--has not been adequately addressed or
approached. The fit between the Company's
technological business model and the working
parameters typical in most general nano-applications
makes multiple symbioses relevant and commercially
viable.
(iv) Other items-the Consultant and the Company recognize
that items not specific to this document, may arise in
the course of day to day operations, and performance
of services by the Consultant in these areas shall not
be unreasonably withheld.
Consultant shall include a summary of its efforts in marketing the
Company and the Products in the IP Report, submitted monthly to the Company by
Consultant. Such report shall specific its efforts in creating market
awareness of the Company and its Products and its efforts in marketing the
Products and its resultant technology.
(D) Acquisitions: Consultant shall also seek to locate and
present to the Company, companies, technologies or opportunities for
acquisition. Consultant shall include in the IP Report, its efforts in this
area.
3. Relationship of the Parties: At all times, Consultant shall
be an independent contractor and shall have no right or authority to assume or
create any obligations or responsibility, express or implied, on behalf of or
in the name of the Company, unless specifically authorized in writing by the
Company. No provision of this Agreement shall be construed to preclude the
Consultant, or any officer, director, agent, assistant, affiliate or employee
of the Consultant from engaging in any activity whatsoever, including, without
limitation, receiving compensation for managing investments, or acting as an
advisor, broker, or dealer, to or participant in any corporation, partnership,
trust or other business entity or from receiving compensation or profit
therefore.
4. Liability: The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be liable for any
mistakes of fact, errors of judgment, for losses sustained by the Company or
any subsidiary or for any acts or omissions of any kind, unless caused by the
gross negligence or intentional misconduct of the Consultant or any person or
entity acting for or on behalf of the Consultant.
5. Confidentiality: The parties acknowledge that each may
receive valuable and confidential information about each other's business,
business practices, customers, products, customer lists and other trade secret
information, all of which is important and essential to each party's business
(the "Confidential Information"). It is each party's policy to maintain as
secret and confidential the Confidential Information heretofore or hereafter
acquired, developed or used by each other in relation to their respective
business, operations, employees and contracts that may give a competitive
advantage in either party's industries. The parties recognize that, by reason
of the relationship of the parties, the parties may acquire Confidential
Information of the party. The parties recognize that all such Confidential
Information is the property of the owning party. In consideration of the
parties entering into this Agreement, the parties agree that:
(A) They shall never, directly or indirectly, publicly
disseminate or otherwise disclose any Confidential Information obtained during
the term of this Agreement without the prior written consent of either party,
it being understood that the obligation created by this subparagraph shall
survive the termination of this Agreement;
(B) At all times, the parties shall exercise all due and
diligent precautions to protect the integrity of any of the other party's
documents embodying Confidential Information (which shall be marked
"Confidential" by the supplying party prior to delivery and, if not so marked,
shall not be deemed to embody Confidential Information), and upon termination
of this Agreement, each party shall return all such documents (and copies
thereof) in its possession or control to the other party; and
(C) In recognition of the foregoing, the parties represent,
warrant and covenant that they will not in the future use or disclose any such
Confidential Information for the benefit of any person or other entity or
organization under any circumstances at any time.
(D) The Consultant shall execute and deliver a
Non-Disclosure Agreement of the Company attached hereto as Exhibit A.
6. Mutual Indemnification: The parties and their present and
future subsidiaries jointly and severally, agree to indemnify and hold
harmless the each other and their present and future shareholders as well as
its and their officers, directors, affiliates, associates, employees,
attorneys and agents ("Indemnified Parties" or "Indemnified Party") against
any loss, claim, damage, lawsuit, judgment, award, litigation, investigation
or liability whatsoever (including reasonable attorneys' fees and expenses),
to which such Indemnified Party may become subject as a result of performing
any act (or omitting to perform any act) contemplated to be performed by the
either party pursuant to this Agreement.
7. Retainer Compensation: For the Consulting Services to be
rendered in the future by Consultant, the Company agrees to issue and deliver
Consultant 1,350,000 (One Million Three Hundred Fifty) shares (the "Stock
Compensation") of its restricted common stock. The Stock Compensation shall
be remitted to Consultant within thirty days from date of execution of this
Agreement. Consultant represents and warrants that it has thoroughly reviewed
and completely understands all reports/registration statements filed with the
Securities and Exchange Commission by the Company that are contained in the
Xxxxx Archives.
8. Miscellaneous Provisions: The Company hereby represents and
warrants to the Consultant as follows:
(A) Authorization: This Agreement has been duly
authorized, executed and delivered on behalf of the Company and is the valid
and binding obligation of the Company (subject to reporting requirements
described herein), enforceable in accordance with its terms, subject only to
the effect, if any, of bankruptcy laws or similar laws relating to the
insolvency of debtors and to principles of the equity and except as the
Company's indemnification and/or contribution obligations under this Agreement
may be limited under Federal or applicable state securities laws.
(B) Compliance: The execution and delivery of, and the
compliance with, this Agreement by the Company and the consummation by the
Company of the transactions herein contemplated will not, with or without the
giving of notice or the lapse of time, or both: (i) result in a material
conflict with or breach of any of the material terms or provisions of, or
constitute a default under, or result in the modification or termination of,
or require consent under, or result in the creation or imposition of any lien,
security interest, change or encumbrance upon any of the material properties
or assets of the Company pursuant to the terms of, any agreement or instrument
to which the Company is a party or by which the Company may be bound or to
which any of the property or assets of the Company is subject, or (ii) violate
the Company's articles of incorporation or by-laws or (iii) have any material
effect on any material license, permit, judgment, decree, order, statute, rule
or regulation applicable to the Company or any of its properties or
businesses.
(C) Binding Agreement: This Agreement shall be binding
upon the Company and the Consultant and their successors and assigns. In the
event that any dispute between the Company and the Consultant should result in
litigation or arbitration, the prevailing party in such dispute shall be
entitled to recover from the other party all reasonable fees, costs and
expenses of enforcing any right of the prevailing party, including without
limitation, reasonable attorneys' fees and expenses, all of which shall be
deemed to have accrued upon the commencement of such action and shall be paid
whether or not such action is prosecuted to judgment. Any judgment or order
entered in such action shall contain a specific provision providing for the
recovery of attorney fees and costs incurred in enforcing such judgment and an
award of prejudgment interest from the date of the breach at the maximum rate
allowed by law. For the purposes of this Section: Attorney fees shall
include, without limitation, fees incurred in the following: (i) post
judgment motions; (ii) contempt proceedings; (iii) garnishment, levy, and
debtor and third party examinations; (iv) discovery; and (v) bankruptcy
litigation and (b) prevailing party shall mean the party who is determined in
the proceeding to have prevailed or who prevails by dismissal, default or
otherwise.
(D) Invalidity: If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever; (i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held, invalid illegal or unenforceable.
(E) Amendment: No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both parties
hereto. No waiver of any other provisions hereof (whether or not similar)
shall be binding unless executed in writing by both parties hereto nor shall
such waiver constitute a continuing waiver. This Agreement may be executed in
one or more counterparts, each counterpart shall for all purposes be deemed to
be an original but all of which shall constitute one and the same Agreement.
A signed facsimile copy of this agreement shall have the same force and effect
as an original.
(F) Arbitration: The Parties agree that should any dispute
arise in the administration of this Agreement, that the dispute shall be
resolved through arbitration under the rules of the American Arbitration
Association in Salt Lake County, State of Utah; and any litigation regarding
this Agreement shall be resolved in Salt Lake County, State of Utah, only.
(G) Entire Agreement: This Agreement contains the entire
agreement between the parties with respect to the services to be provided to
the Company by the Consultant and supersedes any and all prior understandings,
agreement or correspondence between the parties.
(H) Termination: This Agreement may be terminated by
either party on 30 days written notice to the other.
(I) Default: In the event of any default or action to
enforce the terms and provisions hereof, the prevailing party shall be
entitled to recover reasonable attorney's fees and cost incurred in that
respect.
IN WITNESS WHEREOF, the Company and the Consultant have caused this
Agreement to be signed by their duly authorized representatives as of the day
and year first above written.
Oak Ridge Micro-Energy, Inc Water & Gold Inc.
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxx
President President
