AXION POWER INTERNATIONAL, INC. - and - Andrew Carr Conway, Jr. (the "Consultant") dba Conway Enterprises, LLC,
Exhibit
10.1
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QuickTime™
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CONFIDENTIAL
INFORMATION
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THIS
CONSULTING AGREEMENT
is made
on August 31, 2007 (the "Effective
Date")
BETWEEN:
0000
Xxxxxx Xxxx, Xxx Xxxxxx XX 00000
-
and -
Xxxxxx
Xxxx Xxxxxx, Jr. (the "Consultant") dba Xxxxxx Enterprises, LLC,
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1.
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Glossary
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In
this
Consulting Agreement, certain words have specific meanings, including the
following:
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(a)
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The
words "we",
"us",
"our",
or "Axion"
means Axion Power International, Inc. and/or any of its subsidiaries,
affiliates, successors or assigns.
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(b)
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The
words "you"
or "your"
means the Consultant.
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(c)
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The
word "Parties"
means you and us, jointly.
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(d)
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The
words "Consulting
Agreement"
means this Consulting Agreement and all of the schedules attached
to it,
and any changes that the Parties may make in writing to any of the
Consulting Agreement or its schedules at any time.
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(e)
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The
words "Confidentiality Agreement" means the attached Confidentiality
and
Intellectual Property Rights Agreement, and any changes that the
Parties
may make in writing to it at any time.
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Other
words have the meanings given to them throughout this Consulting Agreement.
This
Executive Employment Agreement is entered into this 31th day of August 2007
between Axion Power International, Inc., a Delaware corporation, having a place
of business at 0000 Xxxxxx Xxxx, Xxx Xxxxxx Xxxxxxxxxxxx and Xxxxxx Xxxx Xxxxxx,
Jr. (the "Executive").
WHEREAS,
the
Company is engaged in research and development relating to a novel battery
technology that replaces the lead-based negative electrode in a lead-acid
battery with a highly permeable nanoporous carbon electrode; and
WHEREAS,
the
Company is desirous of making appropriate long-term arrangements for the
management of its business affairs; and
WHEREAS,
the
Company is desirous of retaining the Executive to serve as its Chief Financial
Officer on the conditions set forth herein for the entire term of this
Agreement, and
WHEREAS,
in such
capacity, the Executive will have access to all of the business methods and
confidential information relating to the Company and its business activities
including, but not limited to, its proprietary techniques and technologies,
its
operational and financial matters, its business and financial and development
plans, its personnel training and development programs and its industry
relationships.
NOW
THEREFORE,
in
consideration of the promises and of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
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1.
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Executive
Representations and Warranties.
The Executive represents and warrants to the Company that he is free
to
accept employment hereunder and that he has no prior or other obligations
or commitments of any kind to anyone that would in any way hinder
or
interfere with his acceptance of, or the full, uninhibited and faithful
performance of this Agreement, or the exercise of his best efforts
as an
executive officer of the Company. Notwithstanding the above Axion
recognizes the Executive has been engaged in the practice of accounting
and financial investigations. Executive has two engagements he must
in
good conscience complete for clients:
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a.
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Executive
performed accounting and investigative services for the lawyer
representing Xxxxxxx Xxxxxx, a person indicted for criminal securities
fraud by the state of Colorado. Executive expected to dispose of
this
matter August 23 and 24, 2007 when Executive returned to Denver at
his own
expense. This matter unfortunately ended with a mistrial. Accordingly
Executive may be called upon to render limited services.
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b.
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b.
Executive is committed to render expert testimony for the Boulder
District
Attorney's Office in a criminal matter. Executive previously prepared
an
expert's
report and is to render expert testimony at trial the week of November
5,
2007. Executive believes the testimony should take no more than
one day.
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c.
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Executive
will travel to complete these matters by traveling at his own expense.
Neither is expected to require substantial time. Executive will prorate
his monthly salary at Axion to take his time away into account.
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d.
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Executive
expressly agrees he will not accept additional/new engagements while
consulting full time with Axion. Executive notified the firm he previously
worked with, Heartland Xxxxxxxxx, he will not accept new consulting
engagements.
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2. Employment
and Duties.
The
Company shall employ the Chief Financial Officer of the Company and its wholly
owned subsidiary Axion Power Battery manufacturing, Inc., a Pennsylvania
corporation, or in such other comparable executive capacity as the Chief
Executive officer
of the Company shall specify from time to time. The Executive shall be employed
by and will
work
for the Company at Company's office in New Castle until such time as the SEC
filings are current. After that filing occurrence, the Executive may choose
to
perform some of the CFO's
work offsite. The Executive's initial responsibilities shall include all of
the
duties and responsibilities of the Chief Financial Officer as described in
the
By-laws of the Company (as supplemented by a more detailed job description
contained in this agreement, as the same may be amended from time to time.
In
addition, the Executive shall, perform such other mutually agreeable functions
and duties as the Chief Executive Officer may entrust or delegate to him
from
time
to time.
-2-
3. Conduct
of Executive.
During
the entire Term of this Agreement, the Executive shall devote his business
time,
effort, skill and attention to the affairs of the Company and its subsidiaries,
will use his best efforts to promote the interests of the Company, and will
discharge his responsibilities in a diligent and faithful manner, consistent
with sound business practices. During the entire Term of this Agreement, the
Executive shall agree to serve as a member of the Company's Board of Directors
if appointed to such position by the board of directors or elected to
such
position by the shareholders of the Company. In furtherance of the foregoing:
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(a)
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The
Executive understands and agrees that he owes the Company a fiduciary
duty, without limiting any other obligations or requirements that
are
imposed on the Executive elsewhere in this Employment Agreement or
by law.
As such, the Executive shall occupy a position of and commit to the
highest degree of trust, loyalty, honesty and good faith in all of
his
dealings with and on behalf of the Company.
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(b)
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The
Executive represents that his employment by the Company will not
conflict
with any obligations which he has to any other person, firm or
entity. The
Executive specifically represents that he has not brought to the
Company
(during the period before the signing of this Agreement) and he
will not
bring to the Company any materials or documents of a former or
present
employer, or any confidential information or property of any other
person,
firm or entity. Axion recognizes that Executive uses his own email
account
for business purposes so that he can access Axion matters in the
apartment
provided for him. Executive is unable to control email sent to
him on
prior business matters. With this exception, Executive covenants
he will
not bring other business matters to Axion's business premises,
including
the matters cited above.
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(c)
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The
Executive shall not, without disclosure to and approval of the Board
of
Directors of the Company, directly or indirectly, assist or have
an active
interest in (whether as a principal, stockholder, lender,
employee, officer, director, partner, consultant or otherwise) in
any
person, firm, partnership, association, corporation or business
organization, entity or enterprise that competes with or is engaged
in a
business which is substantially similar to the business of the
Company except that ownership of not more than 1% of the outstanding
securities of any class of any publicly-held corporation shall not
be
deemed a violation of this sub-paragraph 3(c).
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(d)
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The
Executive shall promptly disclose to the directors of the Company,
in
accordance with the Company's policies, full information concerning
any
interests, direct or indirect, he holds (whether as a principal,
stockholder, lender, Executive, director, officer, partner, consultant
or
otherwise) in any business which, as reasonably known to the Executive
purchases or provides services or products to the Company or any
of its
subsidiaries, provided that the Executive need not disclose any such
interest resulting from ownership of not more than 1% of the outstanding
securities of any class of any publicly-held corporation.
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(e)
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he
Executive shall not disclose to any person or entity (other than
to the
Company's Board of Directors or to others as required, in his judgment,
in
the due performance of
his duties under this Agreement) any confidential or secret information
with respect
to the business or affairs of the Company or any of its subsidiaries
or
affiliates.
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For
a
period of one year after termination for cause, the Executive shall not engage
in any business or activity that is directly competitive with the business
of
the Company, including the activities described above. Notwithstanding the
generality of the foregoing, nothing in this Agreement shall be deemed to
preclude the Executive from participating in other business opportunities if
and
to the extent that (i) such business opportunities are not directly competitive
with the business of the Company, (ii) the Executive's activities with respect
to such opportunities
do not have a material adverse effect on the performance of the Executive's
duties hereunder, and (iii) the Executive's activities with respect to such
opportunity have been fully disclosed in writing to the Company's Board of
Directors.
4. Conditions
of Employment.
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(a)
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Term
of Employment.
Unless terminated earlier in accordance with the provisions of this
Agreement, the Company will employ the Executive for a six month
period
commencing September 1, 2007 and terminating on February 28, 2008
(the
"Term"). Not less than 60 days before the termination of this Agreement,
the Company and the Executive shall open negotiations for a suitable
contract renewal if applicable. In the absence of a renewal contract,
this
agreement shall be automatically renewed for an additional six month
term.
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(b)
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Place
of Employment.
The Executive shall occupy offices at the Company's principal executive
office in the New Castle Metropolitan Area until the SEC filings
are
complete (or at such other Company office as the Company and the
Executive
may agree from time to time) which will be maintained for his use
by the
Company at the Company's expense. The Executive may perform some
of his
duties as CFO at a location
other than New Castle once the filings have been completed although
the
Executive expressly agrees that regular travel may be necessary as
part of
his duties.
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(c)
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Ownership
of Company Records and Reports.
The Executive shall not, except in the performance of his duties
hereunder, at any time or in any manner make or cause to be
made any copies, pictures, duplicates, facsimiles, or other reproductions
or recordings or any abstracts or summaries of any reports, studies,
memoranda, correspondence, manuals, records, plans or other written
or
otherwise recorded materials of any kind whatever belonging to or
in the
possession of the Company, or of any subsidiary or affiliate of the
Company, including but not limited to materials describing or in
any way
relating to the Company's business activities including, but not
limited
to, its proprietary techniques and technologies, its operational
and
financial
matters, its business and financial and development plans, its personnel
training and development programs and its industry relationships.
The
Executive shall have no right, title or interest in any such material,
and
the Executive agrees that, except in the performance of his duties
hereunder, he will not, without the prior written consent of the
Company
remove any such material from any premises of the Company, or any
subsidiary or affiliate of the Company, and immediately upon the
termination of his employment for any reason whatsoever Executive
shall
return to the
Company all such material in his possession.
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2.
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What
you will do
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Supervise
the ongoing re-statements and various filings required for SEC compliance.
Lead
Section 404 compliance.
Lead
compliance effort on all SEC filings including 10-QSB's and l0-KSB's
Manage
monthly financial closings, monthly management reviews and participate in
Audit
Committee meetings.
Develop
company accounting control practices.
Lead
future efforts to develop budgets and meaningful forecasting.
Assist
in
the search for a future permanent CFO.
Interpret
all SEC and GAAP pronouncements-In connection with these duties, Executive
will
be permitted to attend, at Axion's expense, the AICPA National Conference on
Current SEC and PCAOB Developments held in Washington DC from December 10 to
December 12,
2007.
Be
prepared to speak with current, or future, investors with respect to the
Company's present and future goals.
-5-
Any
other
tasks as assigned to you by the chief executive officer or the board of
directors.
The
foregoing description may be amended from time to time to refine the scope
of
work to include such other matters within your professional competence as we
may
mutually agree. In connection with any future amendments that increase the
scope
of your responsibilities to us, we will negotiate reasonable adjustments to
the
compensation provided for in this agreement.
You
will
not be an employee, of our company and you will perform all services required
by
this agreement as an independent contractor. We will not incur any liability
to
any third patties as the result of your actions and you will not, without our
written permission, represent to any third party that you are an employee of
our
company. You will not be entitled to receive the fringe benefits generally
offered to our full-time employees, but you will be entitled to participate
in
our
incentive stock plan to the extent that the compensation committee of our board
of directors concludes that such participation is warranted in light of your
contribution to our business.
During
the course of your engagement as a consultant, you will be responsible for
the
following:
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(a)
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You
will devote whatever time is required to bring the Company into SEC
compliance. You will devote whatever time is required thereafter
to
fulfill your fiduciary responsibilities.
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(b)
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From
time to time you may be called upon to travel in the course of performing
your responsibilities for us.
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(c)
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You
will not have any authority to sign contracts on our behalf or to
bind us
to any purchases, services, or commitments unless
you obtain our prior written approval.
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(d)
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You
will initially report to and take direction from Xx. Xxxxxx Xxxxxxxxx,
our
chief executive officer. This may change from time to time at Axion's
sole
discretion. You will report to the Audit Committee and take their
direction wherever required to comply with the by-laws of the corporation
and applicable FASB, SEC, PCAOB and stock market listing requirements.
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3.
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Compensation
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In
consideration of your agreement to perform these duties, we will provide you
with a compensation package that includes:
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·
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A
consulting fee of $15,000. per month for the services contemplated
by this
agreement;
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Inclusion
in the company Workers Compensation Plan;
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Such
additional or supplemental fees and bonuses as we may agree to from
time
to time.
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It
is
agreed and understood that the foregoing compensation package is based on our
current financial resources and our current expectations respecting the amount
of time you will be required to devote to our planned activities. Since we
recognize the likelihood that the specified compensation levels may prove to
be
inadequate if our planned manufacturing activities progress rapidly, we agree
to
re-evaluate your participation on a semi annual basis in 2008, should this
contract be extended, and make appropriate adjustments to your compensation
to
ensure that your contribution to our planned activities is recognized and that
you will be compensated at a mutually agreeable level..
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4.
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Annual
Stock Option
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In
consideration of your agreement to devote the time to accomplish the
requirements listed in this contract we will grant you an option to purchase
80,000 shares of our common stock at an exercise price of $4.50 per share.
The
option shall vest 20,000 upon execution of this contract and then at the rate
of
10,000 shares per month commencing on September 1, 2007 and continuing for
the
term of this contract, If your consulting relationship with us is terminated
for
any reason at any time during the first I month, all vested options will be
forfeit. Subject to the foregoing minimum length of service condition, vested
options may be exercised at any time or from time to time, in whole or in part,
for a period of two years. The option agreement attached hereto as "Exhibit
F"
shall be executed concurrently with this agreement.
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5.
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Expenses
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During
the course of your engagement as a consultant we will reimburse you for
reasonable expenses actually and properly incurred by you in performing your
duties in connection with our business. You agree not to incur any expenses
without prior approval.
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(a)
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Reasonable
expenses while traveling on company business include travel fares,
accommodations, meals, tips, telephone and fax charges.
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(b)
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You
are not authorized to incur entertainment expenses without our prior
approval.
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(c)
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All
expenses must be reported on our standard expense reimbursement forms,
accompanied by copies of all associated receipts and included with
your
regular monthly statement.
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(d)
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Living
expenses while in New Castle that will include: housing, rental car
allowance, mileage allowance and two round trip air fares home per
month
while located frill time at New Castle. Until Axion is current in
its
filings with the SEC Executive is expected to devote full time to
his
duties at Axion without trips home.
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6.
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Confidentiality
and intellectual Property
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Given
the
nature of your consulting engagement and of the products and markets that we
are
involved with, it is imperative to our viability and success that we enter
into
a Confidentiality and Intellectual Property Agreement with you. This additional
agreement, contained in Schedule
"A" — Confidentiality and Intellectual Property Rights
Agreement,
survives the termination of this Consulting Agreement for the periods of time
stated within it.
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7.
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Non-Corn
petition and Non-Solicitation. Included
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Given
the
nature of your consulting engagement and of the products and markets that we
are
involved with, it is imperative to our viability and success that we enter
into
a Confidentiality and Intellectual Property Agreement with you. This additional
agreement, contained in Schedule
"B" —Non-Competition/Non Solicitation Agreement
survives
the termination of this Consulting Agreement for the periods of time stated
within it.
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8.
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Term
and Termination
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(a)
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This
Consulting Agreement commences on the Effective Date, and continues
until
it is terminated.
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(b)
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Axion
can terminate this Consulting Agreement with cause at any time without
prior notice. Axion can also terminate this Consulting Agreement
without
cause as long as we give you four weeks advance written notice. Our
failure to give you said notice in writing will be a breach of this
subsection, which may cause you loss or harm for which we could be
liable.
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(c)
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If
you fail to work in good faith after a notice of termination, Axion
can,
acting reasonably, terminate you with cause.
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(d)
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You
can terminate this Consulting Agreement at any time as long as you
give us
at least four weeks prior written notice. Your failure to give us
said
notice in writing will
be a breach of this subsection.
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9.
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Severability
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In
the
event that part or all of any provision of this Consulting Agreement is
determined by an arbitrator or court to be void or invalid, then the remaining
provisions or pails will remain in full force and effect, If any arbitrator
or
court determines that pail or all of any provision of this Consulting Agreement
is so broad as to be unenforceable, then it is agreed by both of us that such
provision or part will be interpreted only broadly enough to be deemed
enforceable.
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10.
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Survival
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Schedule
"A" — Confidentiality and Intellectual Property Rights Agreement and Schedule
"B" — Non-Competition / Non Solicitation Agreement
survive
the termination or expiration of this Consulting Agreement, along with any
other
part or provision which might be required to survive in order to give effect
to
the same.
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11.
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Entire
Agreement
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Without
restricting the general intention of this clause, we both agree that from the
Effective Date forward, this Consulting Agreement takes the place of any other
contracts or agreements of the same nature, whether written or verbal, that
may
have existed between the both of us, except as may be noted in Schedule "E"
—
Other Covenants.
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12.
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Amendment
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Any
change or amendment to this Consulting Agreement must be made in writing and
signed by both of the Parties.
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13.
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Notices
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Any
notice to be given by either us or you may be properly given if delivered
personally or sent by registered mail, postage prepaid, and addressed to the
other at the address stated on page 1 above, and
additionally
to any
address fax or email address which is known to be a current and valid address
for corresponding with either party. Any notice that you send to us must be
addressed to HR at Axion.
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14.
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Governing
Law
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This
Consulting Agreement will be governed by the laws of the Commonwealth of
Pennsylvania.
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Signatures
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Both
of
us have fully read and understand this Consulting Agreement in its entirety
and
have signed it on the dates indicated in the spaces provided below.
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/S/
XXXXXX XXXXXXXXX
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9/21/07
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Date
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Per: Xxxxxx
Xxxxxxxxx
Title: C.E.O.
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/S/
XXXXXX XXXX XXXXXX, JR.
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9/26/07
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Consultant
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Date
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Per: Xxxxxx
Xxxx Xxxxxx, Jr.
Xxxxxx Enterprises, LLC
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-10-
Schedule
"A" — Confidentiality and Intellectual Property Rights Agreement
THIS
CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS AGREEMENT
is made
on July 29, 2007 (the "Effective
Date")
BETWEEN:
0000
XxxxxxXxxx, Xxx Xxxxxx XX 00000
-
and -
Xxxxxx
Xxxx Xxxxxx, Jr. (the "Consultant")
dba
Xxxxxx Enterprises, LLC,
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1.
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Glossary
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In
this
Consulting Agreement, certain words have specific meanings, including the
following:
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(a)
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The
word "Axion"
means Axion Power International, Inc. and/or any of its subsidiaries,
affiliates, successors or assigns.
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(b)
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The
word "Parties"
means the Consultant and Axion, jointly.
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(c)
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The
words "Confidentiality
Agreement"
means this "Confidentiality and Intellectual Property Rights Agreement",
and any changes that the Parties may make in writing to it at any
time.
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(d)
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The
words "Confidential
Information"
means any technical data, trade secrets or know-how proprietary to
or in
the possession of Axion, including, but not limited to, research,
product
plans, products, services, customer lists (including, but not limited
to,
customers of Ax ion on whom the Consultant called or with whom he/she
became acquainted during the term of his/her employment), markets,
software, developments, codes, inventions, processes, formulas,
technology, designs, drawings, equipment or engineering, prototypes,
compilations of information, marketing, finance or other business
information disclosed to the Consultant by Axion either directly
or
indirectly in writing, drawings, orally or in electronic form.
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(e)
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The
words "Prior
Inventions"
mean inventions, original works of authorship, developments, improvements,
and trade secrets made by the Consultant prior to his/her employment
with
Axion.
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Other
words have the meanings given to them throughout this Confidentiality Agreement.
-11-
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2.
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Background
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The
Parties have entered into a Consulting Agreement (the "Consulting
Agreement")
of
which this Schedule
"A" Confidentiality and Intellectual Property Rights Agreement
forms a
part.
Axion
requires that the Consultant enter into this Confidentiality Agreement as a
condition of employment as part of its ongoing efforts to keep confidential
its
information and trade secrets and the information and trade secrets of its
subsidiaries, affiliates, customers and suppliers.
The
Consultant understands that his acceptance of the terms and conditions contained
in this Agreement are essential to Axion's ability to compete in the energy
storage and be a viable business in that market. The Consultant acknowledges
that this Confidentiality Agreement is a reasonable and appropriate measure.
The
Parties agree to the following:
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3.
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Company
Information
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The
Consultant agrees, at all times during and after the term of his employment,
to
keep secret and not to use any Confidential Information of Axion, except for
the
benefit of Axion, or to disclose Confidential Information to any person, firm
or
corporation without the written authorization of the supervisor or his/her
designate.
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4.
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Former-employer
information
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The
Consultant agrees that, during his/her employment with Axion, he/she will not
improperly use or disclose any proprietary information or trade secrets of
any
former employer or other person or entity.
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5.
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Third
Party Information
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Axion
has
received and will receive from third parties their confidential or proprietary
information on the condition that Axion keep such information confidential
and
use it only for certain limited purposes. The Consultant understands this and
agrees to keep secret all such confidential or proprietary information and
not
to disclose it to any person, firm or corporation nor use it except where
necessary to carry out his/her work for Axion in a manner consistent with Axion
or Axion's agreements with such third parties. The Consultant further
understands and agrees that he/she may be required from time to time to confirm
the requirements of this position by way of the execution of a separate
agreement for the benefit of third parties.
Consultant
will continue to be obligated to retain confidentiality even respecting
information improperly released by others.
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6.
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Inventions
Retained and Licenses
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The
Consultant has attached to this Confidentiality Agreement, as Schedule
"D" — Statement
of Prior
Inventions, a list describing all Prior Inventions which belong to him/her,
which relate to Axion's Business, products or research and development and
which
are not assigned to Axion hereunder. The Consultant agrees that, where no such
list is attached, it shall constitute a representation by him/her that there
are
no such Prior Inventions.
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7.
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Assignment
of Inventions
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The
Consultant agrees to immediately disclose in writing to Axion any and all
inventions, original works of authorship, developments, concepts, improvements
or trade secrets related to Axion's e3
Supercell technology (which is generally described as a lead-acid-carbon
supercapacitor/battery hybrid), whether or not they are patentable or
registerable under copyright or similar laws, which he/she may conceive of,
develop or reduce to practice, or cause to be conceived, developed, or reduced
to practice during his employment with Axion (collectively referred to as
"Inventions").
The
Consultant agrees to hold the Inventions in trust for the sole benefit and
right
of Axion.
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8.
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Maintenance
of Records
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The
Consultant agrees to keep and maintain adequate and up-to-date written records
of all Inventions made by him/her (solely or jointly with another) during
his/her employment with Axion. The Consultant agrees that the records will
be in
the form of notes, sketches, drawings, and any other format that may be
specified by Axion and that the records will be available to and remain the
sole
property of Axion at all times.
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9.
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Patent
and Copyright Registrations
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The
Consultant agrees to assist Axion or its designee, at Axion's expense, in every
proper way to secure Axion's rights in the Inventions and any copyrights,
patents, mask works rights or other intellectual property rights relating
thereto in any and all countries, including the disclosure to Axion of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments
which
Axion shall deem necessary in order to apply for and obtain such rights and
in
order to assign and convey to Axion, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and
any
copyrights, patents, or other intellectual property rights relating thereto.
|
10.
|
Return
of Axion's Documents
|
The
Consultant agrees that, at the expiration or termination of the Consulting
Agreement, he/she will immediately deliver upon demand to Axion and not keep
in
his/her possession, recreate or deliver to anyone else any devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, xxxx of materials, process flow diagrams,
process sheets, process data, quality control data, materials, equipment, other
documents or property, or any reproductions of any above items stored in any
medium whatsoever developed by him/her pursuant to his/her employment with
Axion
or otherwise belonging to Axion. In the event of the termination or expiration
of his/her employment, the Consultant agrees to sign and deliver the
"Termination Certification".
-13-
|
11.
|
Notification
to a new employer
|
When
the
Consultant ceases to be employed by Axion for whatever reason, the Consultant
promises to Axion that he/she shall notify his/her new employer in writing
about
his/her rights and obligations under this Confidentiality Agreement, and shall
provide Axion with a copy of such written notification immediately upon demand.
|
12.
|
Representations
|
The
Consultant represents he/she has not entered into and agrees that he/she will
not enter into any oral or written agreement that conflicts with his/her
obligations under this Confidentiality Agreement. Axion is relying on these
representations in deciding to enter into this Confidentiality Agreement.
|
13.
|
Equitable
Remedies
|
The
Consultant understands and agrees that it may be impossible or inadequate to
measure and calculate Axion's losses or damages from a breach of the covenants
set forth in this Confidentiality Agreement. Accordingly, the Consultant agrees
that if he/she breaches any of such Sections, Axion will have available, in
addition to any other right or remedy available, the right to obtain an
injunction restraining such breach or threatened breach and to specific
performance of any such provision of this Confidentiality Agreement.
|
14.
|
Applicable
Law
|
This
Confidentiality Agreement is to be interpreted in accordance with the law of
the
Commonwealth of Pennsylvania and the federal laws of the United States of
America.
|
15.
|
Entire
Agreement
|
This
Confidentiality Agreement represents the entire agreement on thus subject
between Axion and the Consultant, and supersedes all prior or contemporaneous
oral or written agreements between them, relating to this subject matter. It
may
not be amended or altered except in writing signed by both Parties.
|
16.
|
Binding
Effect
|
This
Confidentiality Agreement is for the benefit of the Consultant and Axion, and
their respective successors, assigns, heirs, executors, administrators and
legal
representatives.
-14-
|
17.
|
Signatures
|
Both
of
us have fully read and understand this Confidentiality Agreement in its entirety
and have signed it e dates indicated in the spaces provided below.
|
/S/
XXXXXX XXXXXXXXX
|
9/21/07
|
||
|
|
Date
|
||
|
Per: Xxxxxx
Xxxxxxxxx
Title: C.E.O.
|
|
/S/
XXXXXX XXXX XXXXXX, JR.
|
9/26/07
|
||
|
Consultant |
Date
|
||
|
Per: Xxxxxx
Xxxx Xxxxxx, Jr.
Xxxxxx Enterprises, LLC
|
-15-
Schedule
"B" — Non-Competition I Non Solicitation Agreement
THIS
NON-COMPETITION / NON SOLICITATION AGREEMENT is
made
on August 31,
2007
(the "Effective Date ")
BETWEEN:
0000
Xxxxxx Xxxx, Xxx Xxxxxx XX 00000
-
and -
Xxxxxx
Xxxx Xxxxxx, Jr. (the "Consultant")
dba
Xxxxxx Enterprises, LLC,
|
1.
|
Glossary
|
In
this
Consulting Agreement, certain words have specific meanings, including the
following:
|
(a)
|
The
word "Axion"
means Axion Power International, Inc. and/or any of its subsidiaries,
affiliates, successors or assigns.
|
|
(b)
|
The
word "Parties"
means the Consultant and Axion, jointly.
|
|
(c)
|
The
words "Non-Competition
Agreement"
means this "Schedule
"B" — Non- Competition / Non Solicitation Agreement",
and any changes that the Parties may make in writing to it at any
time.
|
|
(d)
|
The
words "Competitive
Business"
means any business that is involved in the development of lead-acid-carbon
supercapacitor/battery hybrid energy storage devices and is directly
competitive with Axion's business, or in respect of which it carries
on
active sales, marketing, distribution, research or development activities.
|
Other
words have the meanings given to them throughout this Confidentiality Agreement.
|
2.
|
Non-Competition
Covenant
|
During
the period commencing on the Effective Date and ending 12
months
from the
date of termination or expiration of the Consulting Agreement, the Consultant
agrees not to participate, directly or indirectly in any way, in any Competitive
Business as of the date of such termination or expiration).
-16-
The
Parties agree that the Consultant shall be in violation of this Non-Competition
Agreement if he/she participates directly or indirectly in a Competitive
Business:
|
(a)
|
as
a principal, partner or employee;
|
|
(b)
|
as
an officer, director or similar official of any incorporated or
unincorporated entity (including but not limited to any corporation,
partnership, joint venture, association, syndicate or trust), which
is
engaged in any activities included as pail of the Competitive Business
("Other
Entity");
|
|
(c)
|
as
a consultant or advisor to or agent of any Other Entity in respect
of such
Competitive Business;
|
|
(d)
|
as
a shareholder of any Other Entity, who can vote or act with other
shareholders to exercise effective control of that Other Entity;
|
|
(e)
|
by
canvassing or soliciting on behalf of the Other Entity an order for
Competitive Business; or
|
|
(f)
|
by
providing, directly or indirectly, financial or other assistance
to a
business which is substantially similar to or competitive with the
Competitive Business.
|
|
3.
|
Non-Solicitation
of Personnel
|
Except
with Axion's prior written consent, during the term of the Consulting Agreement
and for a
period
of 12
months
after it
expires or terminates, the Consultant agrees that he/she will not solicit,
offer
or have any discussion with any employee, consultant, contractor or agent of
Axion ("Personnel")
concerning employment or engagement for any work, services, project or
business
other than the business of Axion, and the Consultant will not attempt to
influence any Personnel to terminate his or her employment or engagement with
Ax
ion.
In
the
event that the Consultant violates the above non-solicitation provision, the
Consultant understands and agrees that Axion will incur costs and suffer losses
that cannot be fully quantified. In addition to any other remedies contained
in
this Non-Competition Agreement or at law, the Parties agree that if the
Consultant violates the above non-solicitation provision, he/she shall be liable
for this violation.
The
Parties agree that this amount represents a genuine pre-estimate of the loss
of
such Personnel to Axion, and is not a penalty.
|
4.
|
Extension
During Periods of Violation
|
If
the
Consultant violates the foregoing non-solicitation provision, he/she agrees
that
the period of time specified therein shall not run during the period of the
violation. The Consultant further understands that the purpose of this clause
is
to give Axion the protection of the non-solicitation provision for the full
agreed-upon duration.
-17-
|
5.
|
Representations
|
The
Consultant represents he/she has not entered into and agrees that he/she will
not enter into any oral or written agreement that conflicts with his/her
obligations under this Non-Competition Agreement. Axion is relying on these
representations in deciding to enter into this Non-Competition Agreement.
|
6.
|
Equitable
Remedies
|
The
Consultant understands and agrees that it may be impossible or inadequate to
measure and calculate Axion's losses or damages from a breach of the covenants
set forth in this Non- Competition Agreement. Accordingly, the Consultant agrees
that if he/she breaches any of such Sections, Axion will have available, in
addition to any other right or remedy available, the right to obtain an
injunction restraining such breach or threatened breach and to specific
performance of any such provision of this Non-Competition Agreement.
|
7.
|
Applicable
Law
|
This
Non-Competition Agreement is to be interpreted in accordance with the law of
the
Commonwealth of Pennsylvania and the federal law of the United States of
America.
|
8.
|
Entire
Agreement
|
This
Non-Competition Agreement represents the entire agreement on that subject
between Axion and the Consultant, and supersedes all prior or contemporaneous
oral or written agreements between them, relating to that subject matter. It
may
not be amended or altered except in writing signed by both Parties.
|
9.
|
Binding
Effect
|
This
Non-Competition Agreement is for the benefit of the Consultant and Axion, and
their respective successors, assigns, heirs, executors, administrators and
legal
representatives.
-18-
|
10.
|
Signatures |
Both
of
us have fully read and understand this Non-Competition Agreement in its entirety
and have signed it on the dates indicated in the spaces provided below.
|
/S/
XXXXXX XXXXXXXXX
|
9/21/07 | ||
|
Axion Power International, Inc. |
Date
|
||
|
Per: Xxxxxx
Xxxxxxxxx
Title: C.E.O.
|
|||
|
/S/
XXXXXX XXXX XXXXXX, JR.
|
9/26/07 | ||
|
Consultant |
Date | ||
|
Per: Xxxxxx
Xxxx Xxxxxx, Jr.
Xxxxxx Enterprises, LLC
|
-19-
Schedule
"C" — Project Description Notes
This
Schedule may validly be left blank. Any amendment to this Schedule requires
the
signatures of
both Parties.
|
Axion Power International, Inc. |
Date
|
||
|
Per:
Title:
|
|||
|
Consultant |
Date
|
||
| Per: |
-20-
Schedule
"D" — Statement of Prior Inventions
This
Schedule may validly be left blank. Any amendment to this Schedule requires
the
signatures of
both Parties.
|
Axion Power International, Inc. |
Date
|
||
|
Per:
Title:
|
|||
|
Consultant |
Date
|
||
| Per: |
-21-
Schedule
"E" — Other Covenants
This
Schedule may validly be left blank. Any amendment to this Schedule requires
the
signatures of
both Parties.
|
Axion Power International, Inc. |
Date
|
||
|
Per:
Title:
|
|||
|
Consultant |
Date
|
||
| Per: |
-22-
