CONSULTING AGREEMENT
Exhibit
10.45
THIS
CONSULTING AGREEMENT (“Agreement”) is entered into effective June 1, 2006 (the
“Effective Date”), by and between TRULITE, INC. (“the Company”) and Xxx Xxxxxxx
(“Consultant”). The Company and Consultant shall collectively be referred to
herein as “the Parties.”
WHEREAS,
the Company desires to obtain the benefit of the knowledge and experience of
Consultant by retaining Consultant on an independent contractor basis, and
Consultant is willing to render such services to the Company on the terms and
conditions set forth herein.
NOW
THEREFORE, in consideration of the promises and mutual covenants contained
herein, the receipt and sufficiency of which is acknowledged, the Parties agree
as follows:
1. Consulting
Services. The Company hereby retains Consultant to perform certain services
for the Company, and Consultant hereby agrees to provide such services (the
“Services”). Consultant’s roles and responsibilities will include: product
development; regulatory and governmental relations; strategic product and
technology alliances and acquisitions; advanced supply chain agreements and
alliances; research and development (external and internal); IP management
and
IP strategy formulation; and operational responsibilities for all of the above
as well as manufacturing. Consultant will receive direction from the President
and Chief Executive Officer (the “CEO”) of the Company.
All
of
Consultant’s services will be subject to the Company’s final approval and will
be performed in accordance with the Company standards, but Consultant shall
direct the details and means by which the services are accomplished. Consultant
shall conform to the rules, regulations, instructions, practices and policies
of
the Company now in force or hereafter enacted which are applicable to
consultants or independent contractors engaged by the Company.
2. Location.
Consultant will work out of the Company facility located at 00000 Xxxxxxxxxxxxx
Xxx, Xxxxx X, Xxxxxxxxx, Xxxx. The Company may change your work location from
time to time as it deems necessary. All reasonable expenses incurred if the
work
location is changed will be reimbursed by Trulite, Inc. The reasonableness
of
the expenses will be decided solely by the Company.
3. Compensation
for Services. The Company shall compensate Consultant for performance of the
Services pursuant to the following terms and conditions.
(a) Fee
for Services.
During
the term of this Agreement, the Company agrees to pay Consultant a prorated
fee
equal to $115,000
per year ($9,583
per
month).
(b) Benefits.
During
the Term of this Agreement, Consultant is NOT entitled to participate in and
receive company benefits as set out in the Trulite Human Resource’s Guidelines.
Benefits as per Trulite Human Resource’s Guidelines will begin upon becoming an
employee of Trulite.
(c) Bonus.
Consultant shall receive a $15,000 signing bonus upon the execution of this
Agreement.
Consultant will be eligible for a $15,000 performance bonus payable
on
or
before
November
30, 2006 to be based on agreed upon performance goals. The performance goals
applicable for the bonus will be established and concurred upon by the Chairman,
CEO and Xxx Xxxxxxx no later than July 1, 2006.
(d) Stock
Consideration.
The
Company’s Board of Directors has
approved a grant to Consultant of
an
option to purchase 12,000 shares of Company’s Common Stock as agreed upon in the
prior consulting agreement dated November 9, 2005 at an option price of $0.88
per share, which option shall be accelerated and fully vested pending
review by the Compensation Committee and approval by the Board of
Directors.
Xx.
Xxxxxxx will receive 300,000 Trulite options (based upon an option share price
at fair market value on the date the options are granted) effective upon signing
the employment agreement and subject to the Company’s Board of Directors
approval of grant options. Such option shall be granted as soon as reasonably
practicable after the date of this Agreement. The grant of such option shall
be
subject to the other terms and conditions set forth in the Company’s Amended and
Restated Stock Option Plan and in the Company’s standard form of Stock Option
Agreement.
(e) Stock
Incentive Bonuses.
You
will
be eligible to be considered for an incentive bonus option
grant with
a
target amount of 40,000
Trulite options.
Such
bonus (if any) shall be awarded based on objective and/or subjective criteria
established in advance by the Chairman of the Board, the CEO and Xx. Xxxxxxx.
The
exercise price per share for such grant shall be the fair market value per
share
of the Company’s Common Stock on the date of grant. The
determinations of the Board or its Compensation Committee with respect to such
bonus shall be final and binding. The stock incentive bonus option
grant is
payable on or before November 30, 2006 and you will not be entitled to receive
the incentive bonus option
grant if
you
are not engaged
as a consultant
by the
Company
pursuant
to this Agreement
on that
date.
(f) Vacation.
The
Company shall grant Consultant a total of two weeks (10 days) of paid vacation
effective upon signing the employment agreement. Eligibility for additional
vacation is at the discretion of the CEO of Trulite.
4. Term.
The term of this Agreement shall be for seven (7) months beginning June 1,
2006
and ending on December 31, 2006, or until otherwise terminated pursuant to
Paragraph 5 herein. Either Consultant or Trulite may terminate this Agreement
at
any time and for any reason during the term. However, Paragraph 5 of this
Agreement governs the terms and conditions that apply upon termination during
the term of this agreement.
5. Termination.
The following terms and conditions apply to the termination of this Agreement
prior to the conclusion of the seven month term:
(a) Termination
with Cause.
In the
event of termination for Cause by the Company, Consultant will be entitled
to
receive the base salary then in effect for a period of one (1) month from the
termination date. Consultant shall also have ninety (90) days to exercise stock
options vested if terminated for cause. A “Cause” event within this section
means any of the following: (i) the wrongful appropriation for Consultant’s own
use or benefit of property or money entrusted to Consultant by the Company;
(ii)
Consultant’s conviction for fraud, misappropriation or embezzlement, or any
felony of moral turpitude; (iii) Consultant’s continued willful disregard of
Consultant’s duties and responsibilities after written notice from the CEO of
such disregard and Consultant’s failure to cure within thirty (30) days of such
written notice; (iv) Consultant’s continued violation and failure to cure within
thirty (30) days of such written notice (other than policies as to drug or
alcohol abuse for which no notice and cure period shall be required); or (v)
Consultant’s material breach of any of the terms set out in this offer letter
and failure to cure such breach within thirty (30) days of written notice from
the CEO of such material breach.
(b) Termination
Without Cause or Voluntary Resignation by Consultant for Good
Reason.
The
Company may terminate without cause or Consultant may voluntarily resign
Consultant’s position with the Company for Good Reason, at any time on thirty
(30) days advance written notice. Consultant’s employment will terminate at the
end of the thirty (30) day period. In the event of such termination by the
Company or Good Reason resignation by Consultant, Consultant will be entitled
to
receive the base salary then in effect for a period of six (6) months from
the
termination date. Stock options previously granted and not yet exercised will
continue to vest for twelve (12) months following such termination or Good
Reason resignation per the appropriate vesting schedule. Options will expire
if
not exercised within twelve (12) months after such termination date. Consultant
will be deemed to have resigned for Good Reason in the following circumstances:
(i) the Company’s material breach of any terms set out in this offer letter and
failure of the Company to cure such breach within thirty (30) days after
receiving written notice from Consultant of such breach; (ii) Consultant’s base
salary is reduced below Consultant’s base salary in effect from time to time
pursuant to this offer letter; (iii) any material adverse change in Consultants
fringe benefits, unless such change applies similarly to all participants of
such fringe benefit plans/policies or applies equally to all similarly situated
executives; (iv) Consultant’s position and/or duties are materially modified or
Consultant no longer report to the CEO. If Consultant is terminated without
cause or voluntarily resign for Good Reason, Consultant will be reimbursed
for
any and all reasonable relocation expenses.
6. Travel
Expense Reimbursement. The Company shall reimburse Consultant for reasonable
out-of-pocket travel expenses (transportation, hotel, and meals) incurred by
him
in connection with any trip made at the request of the Company, provided
Consultant receives the Company’s prior written approval for the travel and
delivers appropriately documented receipts to the Company.
7. Use
of
Trulite name. While this Agreement is in effect, Consultant must use a
Trulite “signature”. Specifically, all references to Ascend Consulting on emails
or other correspondence will be replaced with the Trulite name and Trulite
confidentiality statement. Also, while this Agreement is in effect, Consultant
will use business cards provided by Trulite in connection with performing the
Services.
8. Independent
Contractor Relationship. In rendering Services hereunder it is expressly
understood and agreed that Consultant is not an employee of or controlled by
the
Company, but that Consultant is, in all respects, an independent contractor,
and
as such Consultant has no right or authority to make any disbursements or
purchases or to incur any liabilities on behalf of the Company or to otherwise
obligate the Company in any manner whatsoever, unless specifically authorized
to
do so by the CEO of the Company and in an amount that is less than $25,000.
The
Company will make no deductions from any of the payments due to Consultant
hereunder for state or federal tax purposes. Consultant agrees that he will
be
solely responsible for any and all taxes and other payments due on payments
received by Consultant from the Company hereunder, including withholding of
state and federal income, sales or ad valorem taxes, unemployment compensation,
workers’ compensation, Federal Insurance Contributions Act, Federal Unemployment
Tax Act or other taxes, costs or expenses incurred in the performance of any
engagement hereunder. Consultant expressly indemnifies and holds the Company
harmless from any such liabilities.
Consultant
understands and agrees that the Company is not responsible for paying any
employment benefits or retirement benefits to Consultant and that no active
employee benefits are available to Consultant based on the Services performed
by
Consultant under this Agreement including, without limitation, workers
compensation or unemployment benefits.
9. Confidentiality.
Consultant will be required, as a condition of this Agreement, to strictly
maintain the confidentiality of any business matters pertaining to the Company.
Consultant agrees not to use any confidential information acquired by
Consultant’s in connection with performing the Services for Consultant’s own
personal benefit or for the benefit of persons other than the Company.
Consultant agrees that Consultant’s obligations under this paragraph shall
continue in effect after termination of the Agreement, regardless of the reason
or reasons for termination, and whether such termination is voluntary or
involuntary on Consultant’s part.
10. Non-Compete
Agreement. Consultant will sign a non-compete agreement related to the
Company’s chemical hydride and fuel cell technology as it relates to current
products of the Company. The Non-Compete Agreement will remain in effect for
twelve (12) months after Consultant stops providing any services for the
Company.
11. No
Conflicting Agreements. Consultant represents and warrants that he is not a
party to, subject to, or otherwise bound by any other agreement, arrangement,
or
understanding, written or otherwise, which prohibits, restricts, or anyway
whatsoever conflicts with Consultant’s ability to enter into and fulfill his
obligations under this Agreement.
12. Choice
of Law, Venue and Forum. This Agreement, the entire relationship of the
Parties hereto, and any litigation between the Parties (whether grounded in
contract, tort, statute, law or equity) shall be governed by, construed in
accordance with, and interpreted pursuant to the laws of the State of Texas,
without giving effect to its choice of laws principles. Exclusive venue for
any
litigation between the Parties hereto shall be in Xxxxxx County, Texas, and
shall be brought in the State District Courts of Xxxxxx County, Texas, or in
the
United States District Court for the Southern District of Texas, Houston
Division. The Parties hereto waive any challenge to personal jurisdiction or
venue (including without limitation a challenge based on inconvenience) in
Xxxxxx County, Texas, and specifically consent to the jurisdiction of the State
District Courts of Xxxxxx County and the United States District Court for the
Southern District of Texas, Houston Division.
The
Company will reimburse your reasonable and actual travel expenses
related
to
support their choice of venue
in
connection with attending any litigation between the parties instituted by
the
Company.
13. Counterparts.
This Agreement may be executed in multiple counterparts, all of which shall
constitute one agreement and each of which shall constitute an original of
this
Agreement.
14. Headings.
The headings used in this Agreement have been included only in order to make
it
easier to locate the subject covered by each provision and are not to be used
in
construing this Agreement.
15. Entire
Agreement. This Agreement supersedes and replaces any prior understandings
or agreements, whether oral, written or implied, between Consultant and Trulite
regarding the matters described in this letter.
16. Invalid
Provisions.
Should
any portion of this Agreement be adjudged or held to be invalid, unenforceable
or void, such holding shall not have the effect or invalidating or voiding
the
remainder of this agreement and the parties hereby agree that the portion so
held invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this letter to the extent
required for the purposes of validity and enforcement thereof
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as
of the Effective Date.
COMPANY:
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TRULITE, INC. | ||
By: Trulite, Inc. | ||
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Name: |
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Date:
June 12, 2006
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CONSULTANT: | ||
Xxx
Xxxxxxx
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Date:
June 12, 2006
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