PRIME SUN POWER INC. CHIEF TECHNOLOGY OFFICER SERVICES AGREEMENT
EXHIBIT
10.6
This
Chief Technology Officer Services Agreement, dated this 22nd day of September,
2008 (the “Agreement”),
by
and between Prime Sun Power Inc., a Nevada corporation (the “Company”),
and
Xxxxxxxxx Xxxxxx Xxxxx (the “Executive”).
WHEREAS,
the Company desires to engage the Executive to serve as Chief Technology Officer
of the Company and the Executive desires to serve as the Chief Technology
Officer of the Company;
WHEREAS,
the Company desires for the Executive to serve on the Board of Directors of
the
Company and the Executive desires to accept such appointment pursuant to the
terms and conditions of a separate Director Agreement dated as of even date
herewith (the “Director
Agreement”);
NOW
THEREFORE, in consideration of the premises and the mutual agreements made
herein, the Company and the Executive agree as follows:
1. Employment;
Duties.
The
Company hereby engages the Executive to serve as Chief Technology Officer of
the
Company. The Executive shall (i) provide all technical and economic assessments
of all Company projects; (ii) interface with banks and other institutions to
complete bankable feasibility studies for the Company; (iii) design and
implement a research and development program for the Company and (iv) undertake
such other services as reasonably requested by the Board of Directors from
time
to time related to solar energy, photovoltaic products and ancillary business
advice and services, including, but not limited to, the matters set forth on
Annex A attached hereto. The Executive shall serve the Company in such capacity
for the Employment Period as defined in Section 2. The Executive shall report
to
the Chief Executive Officer. The Executive agrees that during the course of
employment rendered to the Company, he shall devote his professional attention,
knowledge and experience and give his best effort, skill and abilities to
promote the business and interests of the Company. The Executive agrees to
accept direction from Chief Executive Officer of the Company or the Board of
Directors of the Company or a committee of the Board of Directors to which
the
Board of Directors has duly delegated authority thereof (collectively, the
“Board”).
The
Executive shall devote approximately fifty percent (50%) of his professional
time to Company services. The Company acknowledges and agrees that the services
rendered to the Company shall not be exclusive to the Company and the Executive
may pursue other academic and business activities so long as such other business
activities are not in conflict with the Company. The Executive agrees to
faithfully and diligently perform such reasonable duties commensurate with
the
position of Chief Technology Officer as may from time to time be assigned to
the
Executive by the Board. For purposes of clarity, except with respect to
subsidiaries of the Company, to the extent the Executive renders services to
any
other organizations, all such services must be rendered in a separate capacity
and shall not be deemed to constitute services of the Executive
as
Employment
Agreement
an
agent
of any such other organization to the Company or as an agent by or on behalf
of
the Company to such other organizations unless expressly delegated in writing
to
such effect.
2. Employment
Period.
This
Agreement shall have an initial term of three (3) years to be effective
commencing as of the date hereof and ending on the third anniversary of hereof
(the “Initial
Employment Period”),
unless sooner terminated in accordance with the provisions of Section 7 or
Section 8. This Agreement shall automatically renew and continue to remain
in
effect after the Initial Employment Period for successive one year periods
(each, a “Renewal
Employment Period”),
until
terminated as provided herein, unless either party provides the other party
with
written notice of non-renewal not later than sixty (60) days prior to the
expiration of the Initial Period or the anniversary of such date in any
subsequent Renewal Employment Period. The Initial Employment Period and each
Renewal Employment Period of this Agreement is referred to herein as the
“Employment
Period.”
3. Compensation.
(a) Base
Compensation.
The
Executive shall be paid a base salary of one-hundred
eighty thousand (180,000) Euros per annum,
payable
incrementally on a monthly basis and pro-rated for any partial year of
employment, less any applicable statutory or regulatory deductions (the
“Base
Salary”).
The
Base Salary shall be payable in accordance with the Company’s regular payroll
practices, as the same may be modified from time to time. The Base Salary shall
be the complete and total compensation for all services rendered to the Company
as Chief Technology Officer and as a member of the Board of Directors.
(b) Options
and Benefits.
The
Executive shall be granted stock options for the purchase of 500,000 (five
hundred thousand) shares of Company common stock at a purchase price equal
to
the fair market value per share as of the date of this Agreement. The fair
market value per share shall be determined by reference to the publicly quoted
closing price per share on the date immediately preceding the date of approval
of this Agreement by the Board of Directors of the Company. The stock options
shall be subject to the customary terms and conditions pertaining to all Company
stock options. The Executive shall be eligible to participate in all Company
benefits and incentive plans granted at the discretion of the Board of
Directors.
(c) Expense
Reimbursement.
The
Executive shall be entitled to reimbursement of reasonable out-of-pocket
expenses incurred in connection with travel and matters related to the Company's
business and affairs if made in accordance with written Company policy as in
effect from time to time as determined by the Board.
(d) Vacation.
The
Executive shall be entitled to vacation each calendar year in accordance with
written Company policy as in effect from time to time as determined by the
Board. No compensation shall be paid for accrued but untaken vacation.
(e) Place
of Employment.
The
parties agree that the principal place of services to be rendered to the Company
by Executive shall be outside of the United States of America and all
compensation shall be paid to Executive outside of such jurisdiction. The
Company
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acknowledges
and agrees that Executive may reside from time to time in other jurisdictions
and may travel to any and all other jurisdictions related to services to be
rendered to the Company and Executive, none of which shall have the effect
of
changing the deemed principal place of services rendered by Executive to the
Company unless otherwise required by the laws of such other jurisdictions.
4. Trade
Secrets.
The
Executive agrees that it is in the Company's legitimate business interest to
restrict his disclosure or use of Trade Secrets and Confidential Information
relating to the Company or its affiliates as provided herein, and Executive
agrees not to disclose or use the Trade Secrets and/or Confidential Information
relating to the Company or its affiliates for any purpose other than in
connection with his performance of his duties. For purposes of this Agreement,
“Trade
Secrets”
shall
mean all confidential and proprietary information belonging to the Company
(including current client lists and prospective client lists, ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or
not
reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial and
marketing plans and customer and supplier lists and information). For
purposes of this Agreement, “Confidential
Information”
shall
mean all information in addition to Trade Secrets used by, or which is in the
possession of the Company and relating to the Company’s business or assets
specifically including, but not limited to, information relating to the
Company’s products, services, strategies, pricing, customers, representatives,
suppliers, distributors, technology, finances, employee compensation, computer
software and hardware, inventions, developments, in each case to the extent
that
such information is not required to be disclosed by applicable law or compelled
to be disclosed by any governmental authority. Notwithstanding the foregoing,
the terms “Trade
Secrets”
and
“Confidential
Information”
do
not
include information that (i) is or becomes generally available to or known
by
the public (other than as a result of a disclosure by the Executive),
provided,
that
the
source of such information is not known by the Executive to be bound by a
confidentiality agreement with the Company; or (ii) is independently developed
by the Executive without violating this Agreement.
5. Return
of Documents and Property.
Upon
the expiration or termination of the Executive's employment with the Company,
or
at any time upon the request of the Company, the Executive (or his heirs or
personal representatives) shall deliver to the Company (a) all documents and
materials (including, without limitation, computer files) containing Trade
Secrets and Confidential Information relating to the business and affairs of
the
Company or its affiliates, and (b) all documents, materials, equipment and
other
property (including, without limitation, computer files, computer programs,
computer operating systems, computers, printers, scanners, pagers, telephones,
credit cards and ID cards) belonging to the Company or its affiliates, which
in
either case are in the possession or under the control of the Executive (or
his
heirs or personal representatives).
6. Discoveries
and Works.
All
Discoveries and Works which are made or conceived by the Executive during his
employment by the Company, solely, jointly or with others, that relate to the
Company's present or anticipated activities, or are used or useable by the
Company within the scope of this Agreement shall be owned by the Company. For
the purposes of this Section 6, (including the definition of “Discoveries
and Works”)
the
term “Company”
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Employment
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shall
include the Company and its affiliates. The term “Discoveries
and Works”
includes, by way of example but without limitation, Trade Secrets and other
Confidential Information, patents and patent applications, service marks, and
service xxxx registrations and applications, trade names, copyrights and
copyright registrations and applications. The Executive shall (a) promptly
notify, make full disclosure to, and execute and deliver any documents requested
by the Company, as the case may be, to evidence or better assure title to
Discoveries and Works in the Company, as so requested, (b) renounce any and
all
claims, including but not limited to claims of ownership and royalty, with
respect to all Discoveries and Works and all other property owned or licensed
by
the Company, (c) assist the Company in obtaining or maintaining for itself
at
its own expense United States and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with the Company or thereafter,
all applications or other endorsements necessary or appropriate to maintain
patents and other rights for the Company and to protect the title of the Company
thereto, including but not limited to assignments of such patents and other
rights. Any Discoveries and Works which, within one year after the expiration
or
termination of the Executive's employment with the Company, are made, disclosed,
reduced to tangible or written form or description, or are reduced to practice
by the Executive and which pertain to the business carried on or products or
services being sold or delivered by the Company at the time of such termination
shall, as between the Executive and, the Company, be presumed to have been
made
during the Executive's employment by the Company. The Executive acknowledges
that all Discoveries and Works shall be deemed “works
made for hire”
under
the U.S. Copyright Act of 1976, as amended 17 U.S.C. Sect. 101.
7. Termination.
(a) Manner
of Termination.
The
Company and the Executive may terminate this Agreement, with or without cause,
only in accordance with the provisions of this Section 7.
(b) Termination
Without Cause.
The
Company may terminate this Agreement without cause at any time during the
Employment Period effective immediately upon giving written notice of
termination to the Executive, provided however, that if the Company terminates
this Agreement other than for cause during the Employment Period the Company
shall pay the Executive payments equivalent to Executive’s annual Base Salary
following such termination date in accordance with the Company’s regular payroll
procedures through the remainder of the Employment Period plus reimbursement
of
any and all reasonable and pre-approved expenses incurred by Executive as of
the
date of notice of such date, and all of such payments shall completely and
fully
discharge any and all obligations and liabilities of the Company to the
Executive.
(c) Termination
for Cause.
The
Company may terminate this Agreement for cause at any time during the Employment
Period effective immediately upon giving written notice of termination to the
Executive. For purposes of this Agreement, “cause”
shall
mean, with respect to the Executive, (i) any act of fraud or dishonesty, willful
misconduct or negligence in connection with the Executive's performance of
his
duties, (ii) repeated failure of the Executive to follow reasonable instructions
of the Board, (iii) dishonesty of the Executive which causes a material
detriment to the Company or its affiliates, (iv) a breach by the Executive
of
any
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Agreement
provision
hereof or of any contractual or legal fiduciary duty to the Company (including,
but not limited to, the unauthorized disclosure of Trade Secrets or other
Confidential Information, non-compliance with the policies, guidelines and
procedures of the Company or engaging during his employment in any other
employment or business without the express written approval of the Company’s
Board of Directors), (v) the arrest of the Executive for the commission of
a
felony, whether or not such alleged felony was committed in connection with
the
Company's business or (vi) the commencement of any bankruptcy proceedings
(whether voluntary or involuntary), the appointment of a trustee or receiver
for
the Executive or the general assignment of the Executive's assets to his
creditors.
(d) Termination
by Executive.
The
Executive may terminate this Agreement at any time during the Employment Period
upon two weeks’ prior written notice of termination to the Company.
(e) Effect
of Termination.
Except
as otherwise provided herein with respect to a termination pursuant to Section
7(b), in the event this Agreement is terminated pursuant to this Section 7,
the
Executive's rights and the Company's obligations hereunder shall cease as of
the
effective date of the termination, including, without limitation, the right
to
receive Base Salary, and all other compensation or benefits provided for in
this
Agreement, and the Executive shall not be entitled to any further compensation
or severance compensation of any kind, and shall have no further right or claim
to any compensation benefits or severance compensation under this Agreement
or
otherwise against the Company or its affiliates, from and after the date of
such
termination, except as required by applicable law. Any termination under this
Section 7 is subject to the provisions of Sections 18 and 20 hereof.
(f) Relinquishment
of Authority.
Notwithstanding anything to the contrary set forth herein, upon written notice
to the Executive, the Company may immediately relieve the Executive of all
his
duties and responsibilities hereunder and may relieve the Executive of authority
to act on behalf of, or legally bind, the Company.
8. Disability:
Death.
(a) If,
prior
to the expiration of any applicable Employment Period, the Executive shall
be
unable to perform his duties hereunder by reason of physical or mental
disability for at least ninety (90) calendar days, the Company shall have the
right to terminate this Agreement and the remainder of the Employment Period
by
giving written notice to the Executive to such effect. Immediately upon the
giving of such notice, the Employment Period shall terminate.
(b) Upon
termination of this Agreement pursuant to Section 8(a), the Executive shall
be
paid his Base Salary through the effective date of such termination. All other
compensation and benefits provided for in Section 3 of this Agreement shall
cease upon termination pursuant to Section 8(a), except as otherwise
required by applicable law.
(c) In
the
event of a dispute as to whether the Executive is disabled within the meaning
of
Section 8(a), either party may from time to time request a medical examination
of the
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Executive
by a doctor appointed by the chief of staff of a hospital selected by mutual
agreement of the parties, or as the parties may otherwise agree, and the written
medical opinion of such doctor shall be conclusive and binding upon the parties
as to whether the Executive has become disabled and the date when such
disability arose. The cost of any such medical examination shall be borne by
the
requesting party.
(d) If,
prior
to the expiration of the Employment Period or the termination of this Agreement,
the Executive shall die, the Executive's estate shall be paid his Base Salary
and other compensation due through such date of death. Except as otherwise
provided in this Section 8(d), upon the death of the Executive, the Employment
Period shall terminate without further notice and the Company shall have no
further obligations hereunder, including, without limitation, obligations with
respect to compensation and benefits provided for in Section 3 of this
Agreement, other than as set forth in the immediately preceding sentence or
as
otherwise required by law.
(e) Any
termination under this Section 8 is subject to the provisions of Section 18
hereof.
9. No
Conflicts.
The
Executive has represented and hereby represents to the Company and its
affiliates that the execution, delivery and performance by the Executive of
this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under
any
contract, agreement or understanding, whether oral or written, to which the
Executive is a party or of which the Executive is or should be aware and that
there are no restrictions, covenants, agreements or limitations on his right
or
ability to enter into and perform the terms of this Agreement, and agrees to
indemnify and save the Company and its affiliates harmless from any liability,
cost or expense, including attorney’s fees, based upon or arising out of any
such restrictions, covenants, agreements, or limitations that may be found
to
exist. For purposes of this Agreement, “affiliate”
shall
include any subsidiary in the case of the Company, and any person or entity
directly or indirectly controlled by or controlling the Company.
10. Non-competition.
Except
as authorized by the Board of Directors, during the Executive’s employment by
the Company, Executive will not (except in the capacity of an officer or
director of the Company or any subsidiary or affiliate thereof) either directly
or indirectly, whether or not for consideration, (i) in any way, directly or
indirectly, solicit, divert, or take away the business of any person who is
or
was a customer of the Company, or in any manner influence such person to cease
doing business in part or in whole with Company; (ii) engage in a Competing
Business; (iii) except for investments or ownership in public entities,
mutual funds and similar investments, none of which constitute more than 5%
of
the ownership or control of such entities, own, operate, control, finance,
manage, advise, be employed by or engaged by, perform any services for, invest
or otherwise become associated in any capacity with any person engaged in a
Competing Business in the United States; or (iv) engage in any practice the
purpose or effect of which is to intentionally evade the provisions of this
covenant. For purposes of this section, “Competing
Business”
means
any company or business which is engaged directly or indirectly in any business
carried on or planned to be carried on by the Company or any of its subsidiaries
or affiliates. In the event that the Executive’s employment by
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the
Company is terminated without cause, as described in Section 7(b) hereof, the
limitations of this Section 10 shall cease to apply as of the final payment
made
in respect of the termination of the Executive’s employment with the Company as
set forth in Section 7(b) above.
11. Non-Solicitation.
During
the Executive’s employment by the Company and for a period of thirty days
thereafter (the “Restricted
Period”),
the
Executive, directly or indirectly, whether for his account or for the account
of
any other individual or entity, shall not solicit or canvas the trade, business
or patronage of, or sell to, any individuals or entities that were either
customers of the Company during the time the Executive was employed by the
Company, or prospective customers with respect to whom a sales effort,
presentation or proposal was made by the Company or its affiliates, during
the
one year period prior to the termination of the Executive’s employment. The
Executive further agrees that during the Restricted Period, he shall not,
directly or indirectly, (i) solicit, induce, enter into any agreement with,
or
attempt to influence any individual who was an employee or consultant of the
Company at any time during the time the Executive was employed by the Company,
to terminate his or her employment relationship with the Company or to become
employed by the Executive or any individual or entity by which the Executive
is
employed or (ii) interfere in any other way with the employment, or other
relationship, of any employee or consultant of the Company or its
affiliates.
12. Enforcement.
The
Executive agrees that any breach of the provisions of this Agreement would
cause
substantial and irreparable harm, not readily ascertainable or compensable
in
terms of money, to the Company for which remedies at law would be inadequate
and
that, in addition to any other remedy to which the Company may be entitled
at
law or in equity, the Company shall be entitled to temporary, preliminary and
other injunctive relief in the event the Executive violates or threatens to
violate the provisions of this Agreement, as well as damages, including, without
limitation consequential damages, and an equitable accounting of all earnings,
profits and benefits arising from such violation, in each case without the
need
to post any security or bond. Nothing herein contained shall be construed as
prohibiting the Company from pursuing, in addition, any other remedies available
to the Company for such breach or threatened breach. A waiver by the Company
of
any breach of any provision hereof shall not operate or be construed as a waiver
of a breach of any other provision of this Agreement or of any subsequent breach
by the Executive.
13. Determinations
by the Company.
All
determinations and calculations with respect to this Agreement shall be made
by
the Board or any committee thereof to which the Board has delegated such
authority, in good faith in accordance with applicable law, the certificate
of
incorporation and by-laws of the Company, in its sole discretion, and shall
be
final, conclusive and binding on all persons, including the Executive and the
personal representative of his estate.
14. Successors
and Assigns.
This
Agreement shall inure to the benefit of and shall be binding upon (i) the
Company, its successors and assigns, and any company with which the Company
may
merge or consolidate or to which the Company may sell substantially all of
its
assets, and (ii) Executive and his executors, administrators, heirs and legal
representatives. Since
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Employment
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the
Executive’s services are personal and unique in nature, the Executive may not
transfer, sell or otherwise assign his rights, obligations or benefits under
this Agreement.
15. Notices.
Any
notice required or permitted under this Agreement shall be deemed to have been
effectively made or given if in writing and personally delivered, or sent
properly addressed in a sealed envelope postage prepaid by certified or
registered mail, or delivered by a reputable overnight courier delivery service.
Unless otherwise changed by notice, notice shall be properly addressed to the
Executive if addressed to the address of record set forth on Annex B; and if
to
the Company as properly addressed to the Company’s corporate registered office,
or in each case as changed pursuant to notice in accordance with the foregoing
provisions of this paragraph.
16. Severability.
It is
expressly understood and agreed that although the Company and the Executive
consider the restrictions contained in this Agreement to be reasonable and
necessary for the purpose of preserving the goodwill, proprietary rights and
going concern value of the Company, if a final determination is made by
arbitration or any court having jurisdiction that any provision contained in
this Agreement is invalid, the provisions of this Agreement shall not be
rendered void but shall be deemed amended to apply as to such maximum time
and
territory and to such other extent as such arbitral body or court may determine
or indicate to be reasonable. Alternatively, if the arbitrable body or court
finds that any provision or restriction contained in this Agreement or any
remedy provided herein is unenforceable, and such restriction or remedy cannot
be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein or the
availability of any other remedy. The provisions of this Agreement shall in
no
respect limit or otherwise affect the Executive's obligations under any other
agreements with the Company.
17. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument. Delivery of an executed copy of this Agreement in person or by
electronic facsimile transmission, scan or other means of electronic
communication capable of producing a printed copy will be deemed to be execution
and delivery of this Agreement as of the date of such confirmed transmission.
18. Effects
of Termination.
Notwithstanding anything to the contrary contained herein, if this Agreement
is
terminated pursuant to Section 7 or Section 8 or expires by its terms, the
provisions of Sections 4-6 and 10-20 of this Agreement shall survive and
continue in full force and effect.
19. Arbitration.
All
disputes and controversies arising out of or relating to this Agreement shall
be
finally settled and binding under the Rules of International Commercial Dispute
Resolution of the American Arbitration Association (“ICDR”). The place of
arbitration shall be New York City. The Arbitration shall be conducted in
English by a single arbitrator appointed in accordance with the ICDR rules.
Any
award, verdict or settlement issued under such arbitration may be entered by
any
party for order of enforcement by any court of competent jurisdiction. The
arbitrator shall have no power to take interim measures he or she
deems
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necessary,
including injunctive relief and measures for the protection or conservation
of
property.
20. Miscellaneous.
This
Agreement constitutes the entire agreement, and supersedes all prior agreements,
of the parties hereto relating to the subject matter hereof, and there are
no
written or oral terms or representations made by either party other than those
contained herein. This Agreement cannot be modified, altered or amended except
by a writing signed by both parties. No waiver by either party of any provision
or condition of this Agreement at any time shall be deemed a waiver of such
provision or condition at any prior or subsequent time or of any other provision
or condition at the same or any prior or subsequent time.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
EXECUTIVE
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
By:
/s/
Xxxxxxx X. Xxxx
Name:
Xxxxxxx
X. Xxxx
Title:
Corporate
Secretary
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Annex
A
Chief
Technology Officer Services
The
Chief
Technology Officer shall render services to the Company with respect to solar
energy, photovoltaic products and ancillary business advice and services. The
scope of such services shall include the following and such other services
as
reasonably requested by the Board of Directors from time to time (collectively
referred to as the “Services”):
|
1.
|
Technical
and economic assessment of all Company
projects;
|
|
2.
|
Facilitating
the acquisition of licences pertaining to the generation and sale
of
photovoltaic electrical energy, obtaining land and regulatory clearances
and liaising with relevant government authorities and third
parties;
|
|
3.
|
Interfacing
with banks to complete bankable feasibility
studies;
|
|
4.
|
Complete,
if necessary, the bankable feasibility studies prepared by the
banks
|
|
5.
|
design
and implement a research and development program for the Company
|
|
6.
|
Interfacing
with suppliers;
|
|
7.
|
Providing
project summaries and shareholder news letters;
and
|
|
8.
|
Assisting
the Company’s Chief Financial Officer to establish and maintain adequate
corporate controls and procedures with respect to Company audits
and
reporting to the United States Securities & Exchange Commission.
|
The
Board
of Directors may reasonably modify the scope of such Services as the business
and affairs of the Company may necessitate over time.
# # #
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Annex
B
Addresses
for Notices
If
to:
00
Xxxx
Xxxxxx, 00xx Xxxxx,
Xxx
Xxxx
XX 00000
Fax:
000-000-0000
With
copies to:
Xxxxx
Xxxxxxxx, Chief Financial Officer and Interim Chief Executive
Officer
000
Xxxxxx Xxxxxx, Xxx 00
Xxxxxx,
XX 00000-0000
Fax:
x0
(000) 000-0000
Xxxxxx
X.
Xxxxxx, Esq.
Wuersch
& Xxxxxx LLP
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
If
to: Xxxxxxxxx
Xxxxxx Xxxxx
_________________________
_________________________
_________________________
Fax:
With
copies to:
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