CONSULTANCY AGREEMENT
This
agreement is made and entered into this 2nd day of May 2007
Between
EESTECH
INC.
of 00000
Xxxxxxx Xxxxxxx, Xxxxx X-00 Xxxxxx Xxxxx, Xxxxxxxxxx 00000 Xxxxxx Xxxxxx of
America (“EESTech”)
And
XXXXXX
XXXXX XXXXXX
of 00
Xxxxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx
(“you/your”)
BACKGROUND
A.
|
EESTech
is a technology company incorporated in Delaware,
USA;
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B.
|
EESTech
is desirous of appointing you as a Consultant to the company and
President
of EESTech on a worldwide basis;
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C.
|
You
have agreed to accept the position subject to and conditional upon
the
terms and conditions of this
agreement.
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OPERATIVE
PROVISIONS
1.
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Position
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1.1.
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By
the execution of this agreement you are appointed as a Consultant
of
EESTech and President of EESTech or to such other position as may
be
determined by EESTech and agreed to by
you.
|
1.2.
|
You
are not required to give your full time and attention to this position
but
you must give such time and attention to your duties hereunder as
will
enable you to fulfill your duties and obligations under this agreement
to
the reasonable satisfaction of
EESTech.
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2.
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Commencement,
Term and Option
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2.1.
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Your
appointment as a Consultant commences on the First day of January
2007 and
terminates on the Thirty-First day of December 2012 unless terminated
earlier pursuant to the terms of this
agreement.
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2.2.
|
You
have the option to extend the term of your Consultancy Agreement
for a
further period of five (5) years ie. from the First day of January
2012 to
the Thirty-First day of December 2017 on the same terms and conditions
as
contained in this agreement with the exception of this clause and
Schedule
A. During the option period remuneration will be as agreed upon between
the parties but in no event shall be less than the remuneration set
out in
Schedule A increased by twenty-five percent (25%) per annum. You
must give
notice of exercise of this option to EESTech in writing not later
than one
(1) month prior to the expiration of the term set out in clause
2.1.
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3.
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Remuneration
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3.1.
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Particulars
of your remuneration are set out in Schedule A to this
agreement.
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4.
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Your
Duties
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4.1.
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You
must:-
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(a)
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perform
to the best of your ability and knowledge the duties assigned to
you by
EESTech from time to time at such places as EESTech
requires;
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(b)
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serve
EESTech faithfully and diligently to the best of your
ability;
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(c)
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act
always in the best interests of
EESTech;
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(d)
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comply
with all lawful directions given to you by
EESTech;
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(e)
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comply
with all law applicable to your position and the duties assigned
to you;
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(f)
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report
to the person or persons nominated by EESTech from time to
time;
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4.2.
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Without
limiting your duties to EESTech, during your consultancy you must
not:-
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(a)
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act
in conflict with the group’s best interests;
or
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(b)
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be
involved in competing with any member of the
group.
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4.3.
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Unless
you are a Director of EESTech, you acknowledge that you have no authority
to bind, or make representations on behalf of, EESTech, except to
the
extent that you are from time to time expressly authorized to do
so.
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4.4.
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If
you become aware of or suspect any unlawful or unethical act or omission
by any personnel or person associated with EESTech, then you must
advise
EESTech immediately.
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5.
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Travel
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5.1.
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EESTech
may require you to travel (including interstate and overseas) on
EESTech
business and, as part of this, use such transport as EESTech
determines.
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6.
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Expenses
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6.1.
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EESTech
will pay for or reimburse you for your reasonable work related expenses
approved by EESTech subject to you providing the appropriate receipts
or
tax invoices as required by
EESTech.
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7.
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Confidential
Information
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7.1.
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You
must keep confidential all confidential information other than
confidential information that:
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(a)
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you
are required to disclose in the course of your duties as a Consultant
of
EESTech; or
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(b)
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you
are required by law to disclose.
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7.2.
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You
must only use confidential information for the purpose of performing
your
duties as a Consultant of EESTech and not for personal benefit or
for that
of any third party.
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7.3.
|
You
must immediately notify EESTech of any suspected or actual unauthorized
use, copying or disclosure of confidential
information.
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7.4.
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You
must provide assistance reasonably requested by EESTech in relation
to any
proceedings EESTech may take, or threaten to take, against any person
for
unauthorized use, copying or disclosure of confidential
information.
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8.
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Intellectual
Property Rights
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8.1.
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You:
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(a)
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presently
assign to EESTech all existing and future intellectual property rights;
and
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(b)
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acknowledge
that by virtue of this clause all such existing intellectual property
rights are vested in EESTech and, on their creation, all such future
intellectual property rights will vest in
EESTech.
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8.2.
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You
must disclose all intellectual property rights to
EESTech.
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8.3.
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You
must do all things reasonably requested by EESTech to enable EESTech
to
exploit and further assure the rights assigned.
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9.
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Termination
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9.1.
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You
may terminate this agreement by giving EESTech four (4) weeks notice
in
writing.
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9.2.
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Without
limiting EESTech’s rights, this contract may be terminated by EESTech at
any time immediately if you, (whether before or after the date of
this
agreement);
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(a)
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are
guilty of serious misconduct, including, without
limitation:
|
(i)
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wilful,
or deliberate behaviour by you that is inconsistent with the continuation
of this consultancy agreement;
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(ii)
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conduct
that causes imminent, or serious, risk
to:
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A.
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the
health or safety of a person; or
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B.
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the
reputation, viability or profitability of EESTech’s
business;
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(iii)
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during
the course of this agreement, engage in theft, fraud or assault;
or
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(b)
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breach
any provision of this agreement.
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(c)
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Are
charged or found guilty by a court of a criminal
offence;
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(d)
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You
are declared bankrupt;
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9.3.
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Termination
under this clause does not affect any accrued rights or remedies
of either
party.
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9.4.
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This
clause 9 prevails over the remainder of this agreement and is not
limited
by any other provision of this agreement (including implied
terms).
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10.
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What
Happens After Termination of this
Agreement
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10.1.
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If
this agreement is terminated for any
reason:-
|
(a)
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EESTech
may set off any amounts you owe EESTech against any amounts EESTech
owes
you at the date of termination; and
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(b)
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You
must return all EESTech property to EESTech on
termination.
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2
10.2.
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On
and from the termination of this agreement for any
reason:
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(a)
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your
obligations under clause 7 continue to apply except in respect of
information that is part of your general skill and knowledge but
is not a
trade secret;
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(b)
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you
must not record any confidential information in any
form;
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(c)
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as
and when required by EESTech you must disclose any password, security
access codes or other information used by you in the course of this
agreement; and
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(d)
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you
must not represent yourself as being associated with
EESTech.
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11.
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Restraint
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11.1.
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During
the restraint period, you must not within the restraint
area:
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(a)
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Either
on your own behalf, or on behalf of another solicit, canvass, approach
or
accept any approach from any client or customer of EESTech with a
view to
obtaining the custom of that client or customer in a firm or business
that
is the same as or similar to any part or parts of
EESTech.
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(b)
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Interfere
with the relationship between EESTech and any of its clients, customers,
employees or contractors; or
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(c)
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Induce
or assist any employee or consultant to leave their employment or
consultancy with EESTech.
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11.2.
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In
this clause:
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(a)
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client
and customer
means any client or customer of EESTech with whom you have worked
or had
dealings with during the twelve (12) months prior to the date of
termination of this agreement;
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(b)
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employee
and contractor
means any employee or contractor of EESTech with whom you have worked
or
had dealings with at any time during the twelve (12) months prior
to the
date of termination of this
agreement.
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(c)
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restraint
area means
the whole of any country in which EESTech is conducting
business.
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(d)
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Restraint
period means
the period of three (3) months from the termination of this
agreement.
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12.
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Confidentiality
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12.1.
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You
must keep the terms of this agreement (including your remuneration
package) and any subsequent amendments confidential. They may not
be
disclosed by you to any other person other
than:
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(a)
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for
the purpose of obtaining professional legal or accounting advice;
or
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(b)
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as
expressly provided by this
agreement.
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13.
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Information
Technology
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13.1.
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EESTech
notifies you that it may carry out ongoing, intermittent survellance
of
the use of computer systems by contractors - including emails, internet
and files (including files stored on your work computer or
otherwise).
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14.
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Representations
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14.1.
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In
entering into this agreement you are not relying on any representations
by, or on behalf of, EESTech unless expressly incorporated into this
agreement.
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15.
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Alteration
of Agreement
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15.1.
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This
agreement may only be altered in writing signed by each
party.
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16.
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Continuation
of Terms and Conditions
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16.1.
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If
your position with EESTech changes for any reason, then the terms
of this
agreement will continue to apply unless expressly varied by the parties
in
writing.
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17.
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Warranties
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17.1.
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You
warrant that you have disclosed everything to EESTech which may be
material to EESTech’s decision to enter into this
agreement.
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17.2.
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You
warrant that in entering into this agreement and performing your
duties
under this agreement, you will not be in breach of any agreement
with, or
an obligation owed to, or infringe the rights of any third
person.
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18.
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Severability
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18.1.
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Part
or all of any clause of this agreement that is illegal or unenforceable
will be severed from this agreement and the remaining provisions
of this
agreement continue in force.
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3
19.
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Waiver
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19.1.
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The
failure of either party at any time to insist on performance of any
provision of this agreement is not a waiver of its right at any later
time
to insist on performance of that or any other provision of this
agreement.
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20.
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Entire
Agreement
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20.1.
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This
agreement:
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(a)
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constitutes
the entire agreement between you and EESTech;
and
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(b)
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supersedes
any prior understanding or agreement between EESTech and you and
any prior
condition, warranty, indemnity or representation imposed given or
made by
a party.
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21.
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Notice
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21.1.
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A
party giving notice under this agreement must do so in writing. Without
limiting the ways in which a written notice may be sent, a notice
given in
accordance with this clause 21 is taken to be
received:
|
(a)
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If
hand delivered, on delivery;
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(b)
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If
sent by prepaid post, three (3) business days after the date of posting;
or
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(c)
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If
sent by facsimile, when the sender’s facsimile system generates a message
confirming successful transmission of the total number of pages of
the
notice, unless, within eight (8) business hours after that transmission,
the recipient informs the sender that it has not received the entire
notice.
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22.
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Approvals
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22.1.
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Except
where this agreement expressly states otherwise, a party may, in
its
discretion, give conditionally or unconditionally, or withhold any
approval or consent under this
agreement.
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23.
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Headings
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23.1.
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Headings
are for ease of reference only and do not affect the meaning of this
agreement.
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24.
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Applicable
Law
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24.1.
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This
agreement is governed by the law of the Commonwealth of Australia
and the
parties irrevocably and unconditionally submit to the exclusive
jurisdiction of the courts of the Commonwealth of
Australia.
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25.
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Defined
Terms
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25.1.
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Agreement
means this agreement and any agreed amendments
thereof.
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25.2.
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EESTech
personnel
means any director, officer, employee or contractor of any group
member.
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25.3.
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EESTech
property
includes:
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(a)
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any
property of EESTech including all written or machine readable material,
software, computers, credit cards, keys, mobile telephones, and security
passes; and
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(b)
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any
document (including any form of electronic record) which includes
any
confidential information or which relates to the business of EESTech
or a
customer or supplier of any group
member.
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25.4.
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Confidential
Information
means:
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(a)
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all
confidential information including, but not limited to, information
and
material relating to the business, affairs and operations of EESTech
and
its customers and clients of which you become aware or generate (both
before and after the day this agreement is signed) in the course
of, or in
connection with, your duties as a Consultant (including confidential
information belonging to a third party such as a customer, client
or
contractor); and
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(b)
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all
copies, notes and records based on or incorporating the information
referred to in paragraph 25.4.(a).
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but
does
not include any information that was public knowledge when this agreement was
signed or became so at a later date (other than as a result of a breach of
confidentiality by, or involving, you).
25.5.
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Group
means
EESTech and any other company, entity or person which is or becomes
a
member of the EESTech group and group means any member of the
group.
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25.6.
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Intellectual
Property Rights
means all intellectual property rights created or generated by you
(whether alone or with any other persons) in the course of or in
connection with your duties as a Consultant (whether before or after
this
agreement is signed) including:
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4
(a)
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patents,
copyright, registered designs, trade marks and the right to have
confidential information kept confidential;
and
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(b)
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any
application or right to apply for registration of any of those
rights.
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25.7.
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Performance
Bonus
means the bonus by way of share issue to e paid to the Consultant
pursuant
to the remuneration provisions of this
agreement.
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25.8.
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Remuneration
means the remuneration set out in Schedule A
hereto.
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5
SCHEDULE
‘A’
Remuneration
PART
A
-
Basic
Consultancy Payments (Cash)
Year
One
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-
USD$350,000.00
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Year
Two
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-
USD$350,000.00
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Year
Three
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-
USD$350,000.00
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Year
Four
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-
USD$350,000.00
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Year
Five
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-
USD$350,000.00
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The
remuneration shall be paid by monthly instalments in arrears, such payments
to
commence on and from the commencement of this agreement.
PART
B - Performance Bonus - Issue of Shares
EESTech
acknowledges and represents that it is in the process of increasing the share
capital of the company. As soon as practicable after the increase in share
capital has been approved by the Securities Exchange Commission (SEC), then
EESTech will issue to you Two Million Five Hundred Thousand (2,500,000) shares
in the company unencumbered except for the restriction under Rule 144 of the
1933
Securities Act.
as part
remuneration for your past and present services hereunder (“the shares”).
PART
C - Issue of Shares
The
Consultant will be issued an additional Two Hundred and Fifty Thousand (250,000)
shares per annum during the term of the consultancy, by monthly tranches of
Twenty Thousand Eight Hundred and Thirty-Four (20,834) shares. The first of
such
tranches will be issued on the date of commencement of this
agreement.
PART
D - Employees Share Option Plan
The
Consultant will be considered an employee for the purposes of the Employee
Stock
Option Plan and will be entitled to participate in the Employee Stock Option
Plan adopted or to be adopted by EESTech.
6
Executed
as a Deed.
SIGNED
for and on behalf of EESTECH
INC.
by
a person duly authorized for that purpose who certifies that he is
duly
authorized in accordance with its constitution:
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)
)
)
|
…/s/
Xxx Xxxxxxxxx……………………………….
……………………………………………………….
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SIGNED
by
the Consultant XXXXXX
XXXXX XXXXXX
in
the presence of:
…/s/
Xxxxx Xxxxxxx ………………………………….
Witness
|
)
)
)
)
)
|
…/s/
Xxxxxx Xxxxx Xxxxxx ……………………….
|
7