Exhibit 10.15
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made effective for all purposes
as of August 1, 2000 by and between TSET, Inc. (the "Company") and Xxxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxx (Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx are
hereinafter collectively referred to as "Consultant").
RECITALS:
A. Company is engaged in the business to seek out select business opportunities
globally among a wide range of prospects that meet the companies general
acquisition and investment criteria, enhance asset base and increase shareholder
value.
B. Company wishes to have Consultant provide the Company certain consulting
services and, subject to the terms and conditions set forth herein, Consultant
is willing to provide such consulting services.
C. Company and Consultant wish to set forth terms and conditions upon which
Consultant will provide consulting services to the Company.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual premises
hereinafter set forth, and of other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. SERVICES OF CONSULTANT. Consultant shall use its best efforts to assist the
Company during the term of this Agreement in connection with the work products
set forth in detail on Exhibit A attached hereto and made a part hereof, the
subject of which shall include, without limitation, the following: (i) assisting
the Company in connection with its investor presentations; (ii) assisting the
Company in connection with its business plans and a summary version of such
plan; (iii) assisting the Company in establishing licensing strategies; and (iv)
such other matters mutually determined by the Consultant and the Company to be
appropriate for Consultant's services. Consultant shall work on a part time
basis and shall comply with Companies instruction for maximum hours of
consulting services in any given calendar period, which shall be in writing
prior to first day of each subsequent month.
2. FEE FOR SERVICES. In consideration for Consultant providing the services
described in Section 1 hereof, the Company agrees to pay Consultant an hourly
compensation of Eighty Dollars ($80) per hour, with payment due no later than
the earlier to occur of (a) five days after funds received from investors
pursuant to a financing in which the Company receives financing (whether debt or
equity-based), cumulatively or in a lump sum, of at least $3,000,000, first
become available for expenditure by the Company, or (b) December 31, 2000. At
Consultant's sole discretion, Consultant may elect to convert hourly cash
compensation to an option to purchase shares of common stock of the company
providing one hundred option shares (100) for each hour of consulting services.
Such Conversion Option, once elected, shall be exercisable for a period of three
(3) years following the date of such election at an exercise price of two
dollars and fifty cents ($2.50) per share. Consultant must make selection of
method of consideration prior to five days after funds received from investors
pursuant to the Memorandum first become available for expenditure by the
Company. Consultant acknowledges (i) that it is an independent contractor and
not an employee and (ii) that it shall be responsible for any and all tax
obligations arising from the payments made hereunder. The Company hereby
acknowledges that Consultant has, prior to the date of this Agreement, provided
112 hours of services in the Company's behalf, which shall be compensated in the
manner provided herein.
3. GRANT OF OPTION. In consideration for Consultant's willingness to provide the
services set forth herein, the Company in addition to fee for Services also
agrees to grant Consultant an option to purchase shares of common stock of the
Company. Such Stock Option to be exercisable for a period of three (3) years at
a price of two dollars and fifty cents ($2.50) per share for one hundred shares
(100) for each hour of consulting services.
4. EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Consultant for
all normal out-of-pocket expenses, including meals, travel and entertainment
related to the Company's business that are actually paid or incurred by
Consultant in the performance of its services under this Agreement upon the
delivery of invoices or other evidence of payment therefor.
5. TERM. This Agreement shall remain in effect for an initial term of six (6)
months, and shall thereafter be automatically renewed for successive terms of
six (6) months each, unless either party indicates its intention to terminate
this Agreement prior to the expiration of such initial term or any successive
term. Termination hereunder may occur for any reason or no reason at either
party's option upon 30 days' prior written notice to be given by the party
terminating this Agreement.
6. CONFIDENTIALITY. Consultant will maintain the confidentiality of this
Agreement, all provisions of this Agreement and all materials of the Company
received by Consultant pursuant to its consulting services to the Company
(collectively, "Confidential Information"), and, without the prior written
consent of the Company, the Consultant shall not make any press release or other
public announcement of or otherwise disclose any Confidential Information to any
third party. The foregoing stall not restrict Consultant from disclosing such
Confidential Information (i) to its professional advisors whose duties
reasonably require familiarity with this Agreement, provided that such persons
are bound to maintain the confidentiality of this Agreement, and (ii) to the
extent such disclosure may be required by applicable law or regulation, provided
that Consultant will only disclose such information as is legally required will
use reasonable efforts to obtain confidential treatment for any information that
is so disclosed. If Consultant is required to disclose any Confidential
Information pursuant to or in connection with any subpoena, order, or other
event involving any legal, administrative or regulatory action or proceeding,
Consultant shall immediately notify the Company.
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7. AGREEMENT NOT TO COMPETE.
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a. Consultant agrees that it will not, during the term hereof, and for a period
of one (1) year thereafter, engage in any business or businesses competitive
to that conducted by the Company or any subsidiary or affiliate of the
Company, as such business is described in Section 7(b)(iii) of this
Agreement.
b. The Consultant further agrees that it will not, for a period of one (1) year
after the termination of this Agreement (the "Non-Compete Period"):
(i) Solicit any customers of the Company or of a subsidiary or affiliate of
the Company; or
(ii) Solicit for employment, hire, request or cause any employee of Company to
terminate his or her employment with Company or otherwise attempt to
engage the services of any employee of the Company or any subsidiary or
affiliate of the Company for any purpose or any endeavor (either on the
Company's own behalf or on behalf of any business referred to in Section
7(a) above) without the prior consent of the Company.
(ii) For purposes of this Agreement, the parties acknowledge and agree that the
Company's business is the creation and licensing of Ion Wind Generation
products.
8. INDEMNIFICATION.
a. The Company hereby agrees to indemnify and hold harmless the Consultant
from and against any and all loss, cost, damage, claim or liability of any
sort, including, without limitation, reasonable attorney's fees and
expenses (collectively, a "Claims") arising out of or in connection with
the services being provided by the Consultant to the Company hereunder;
provided, the foregoing provision shall not apply to indemnify the
Consultant for any Claim suffered by Consultant as a result of its own
negligent action.
b. In the case of Consultant's negligent actions, the Consultant shall
indemnify and hold harmless the Company from and against any and all
Claims arising out of or in connection with such negligent action.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, without regard to principles of
conflicts of laws thereof. In case of any dispute arising hereunder, the parties
agree that such matter shall be submitted to binding arbitration in the
Portland, Oregon metropolitan area, for arbitration in accordance with the rules
of the American Arbitration Association.
10. COSTS OF COLLECTION. Should either party to this Agreement be required to
incur costs in connection with the collection of any amounts due from the other
party hereunder, including the reasonable costs of counsel engaged for such
purpose (collectively, "Collection Costs"), the party required to pay the amount
being collected hereunder shall also be liable for the payment of the Collection
Costs.
11. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of any
successors and assigns of the parties hereto; provided, however, that the
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services of Consultant engaged by the Company hereunder are personal and shall
not be assigned or delegated by Consultant without the Company's express prior
written consent, which may be withheld in the Company's sole discretion.
12. INTEGRATION. This document sets forth the entire agreement between Company
and Consultant relating to the subject matter herein and supersedes any previous
written or oral agreements relating to this subject matter between them.
13. AMENDMENTS. This Agreement may not be varied, altered, modified, changed, or
in any way amended except by an instrument in writing, executed by the parties
hereto or their legal representatives.
14. HEADINGS. Headings and paragraph captions used in this Agreement are
intended for convenience of reference only and shall not affect the
interpretation of this Agreement.
15. COUNTERPART AND FACSIMILE EXECUTION. This Agreement may be executed in any
number of counterparts, which taken together shall be deemed to constitute one
original. Execution of this Agreement by facsimile shall be sufficient for
all purposes and shall be binding upon any that so executes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
TSET, Inc.
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Chairman and Chief
Executive Officer
XXXXXXX X. XXXXXX
/S/ XXXXXXX X. XXXXXX 8/8/00
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XXXXXX X. XXXXXX
/S/ XXXXXX X. XXXXXX 8/21/00
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Exhibit A -- Statement of Work
1. Create investor Powerpoint presentation draft and investor
executive summary
2. Review and comment upon TSET's Form 10K draft
3. Review, suggest modifications, and rewrite as necessary business
plans (including financial models and marketing plans)
4. Review and create license strategy and general term sheet for
Kronos Air Technologies; assist in marketing as requested
5. Detailed review of Atomic Soccer and XxxxXxxxx.xxx business
plans; evaluate strategies for improved scalability and business effectiveness
6. Other work efforts in support of TSET and subsidiaries, as
mutually agreed
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Maximum 1200 hours during the next 6-month period, unless otherwise mutually
agreed in writing. All work product and completion dates are subject to change
by mutual agreement.
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