Date: June 3, 2002
Xxxxxxx X. Xxxxxx, Xx.
0 Xxxxxxxxx Xxxxx, #00-X
Xxx Xxxx, Xxx Xxxx 00000
Re: Agreement to provide contract Consulting Services
Dear Xx. Xxxxxx:
This letter ("Agreement") will confirm the understanding between
Synergy Technologies Corporation (the "Company") having its address at 0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000-0000 and you ("Consultant") regarding your
engagement by the Company to provide certain consulting services to the Company
on the following terms and conditions:
1. ENGAGEMENT. Consultant is hereby engaged by the Company to provide
consulting services to the Company consistent with those of a Chief Financial
Officer, pursuant to the terms set forth herein.
2. TERM. The term of the Agreement shall be for thirteen weeks,
beginning June 3, 2002 and ending August 30, 2002, which may be extended by the
mutual agreement of the parties evidenced by a subsequent written agreement
signed by the parties.
3. FEES.
A. CASH PAYMENT: The Company shall pay the Consultant $2,500.00
per week. If the Consultant works more than 45 hours in a week,
the Cash Payment shall be increased by $62.50 for each hour
exceeding 45. The Company shall also reimburse the Consultant for
all out-of-pocket expenses associated with the work performed
pursuant to this agreement. The Company shall pay the Cash Payment
and expenses to the Consultant, in accordance with the Company's
payroll schedule.
B. STOCK PAYMENT: The Company shall pay the Consultant the
equivalent of $3,500.00 per week in Common Stock. If the
Consultant works more than 45 hours in a week, the Stock Payment
shall be increased by $87.50 for each hour exceeding 45. The Stock
Payment shall be paid at the same time as the Cash Payment, and
the number of shares to be delivered shall be calculated based on
the average of the closing prices for the stsock for the 5 trading
days immediately preceeding the payment date. The shares delivered
shall be registered and freely tradeable.
C. STOCK OPTIONS: Consultant shall receive options representing
the right to purchase 100,000 shares of Company common stock
(OILS.OB) at an exercise price of $0.72 per share. Consultant
shall obtain the right to exercise these options ("vest") at a pro
rata rate over the 13 week term of this agreement (i.e., a rate of
approximately 7,692 options per week). The Stock Options shall
have a term of 10 years. The shares underlying the Stock options
shall be registered and freely tradeable.
D. The Company shall not make any deductions or any withholdings
from the compensation paid to Consultant. Consultant shall be
responsible for any and all taxes, withholdings, penalties or
claims of governmental entities arising from or related to the
payment of compensation to Consultant.
4. PERFORMANCE OF SERVICES. In performing his services hereunder,
Consultant shall undertake only such assignments as may be given to Consultant
from time to time by Xxxxx Xxxxxx, the Company's CEO.
5. EXPENSES AND REIMBURSEMENT. The Company shall reimburse Consultant
for all reasonable business expenses, including, but not limited to, travel,
telephone, and other like expenses. Expenses shall be approved in advance by the
Company. Expense reports shall be submitted within two weeks of the date the
expense was incurred, and the Company shall reimburse the Consultant on the next
applicable pay period per the Company's payroll schedule. All expense reports
submitted by Consultant shall be supported by receipts or other documentation
showing the costs incurred and the purpose therefor. Consultant shall use
reasonable, good faith efforts to obtain reasonable rates for any such expenses
incurred.
6. BOOKS AND RECORDS. Consultant shall maintain adequate and accurate
records, books and accounts regarding the performance of Services hereunder,
which shall be open to inspection by the Company upon request.
7. INDEPENDENT CONTRACTOR. Consultant and the Company agree that
Consultant is not, for any purpose, an employee of the Company. To the contrary,
Consultant shall perform the services contemplated hereunder as an Independent
Contractor, and not as an employee or partner of the Company, in accordance with
the terms of this Agreement and all applicable laws and regulations, and the
parties hereto represent, warrant and agree that they have and will maintain
such a non-employment, non-partner relationship. Consultant acknowledges and
agrees that Consultant shall not be entitled to participate in or enjoy the
benefits of any retirement, pension, profit-sharing, group insurance, health
insurance or other similar plans which have been or may be instituted by the
Company or any of its affiliates for the benefit of their respective employees,
including without limitation, any Worker's Compensation or disability coverage.
Consultant understands that he is not a named or additional insured on any
general liability policy insuring the company or any of its affiliates.
Notwithstanding the foregoing, the Company agrees that it will provide the same
indemnification protections to Consultant as it provides to its officers under
the Company's certificate of incorporation, by-laws and/or other applicable plan
or policy and that it will use its best efforts to provide Consultant with
coverage
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under its directors and officers insurance policies comparable to that provided
to the Company's officers.
8. USE OF IDEAS AND MATERIALS. The Company and any of its affiliates
have full and exclusive right to make full and complete use of all
recommendations, concepts, ideas, plans, processes, inventions, trade secrets
and any other information (collectively "Ideas"), and all reports, analysis,
technical data, specifications, diagrams, designs, drawings, charts, programs,
systems, intellectual property (collectively "Materials") created, developed or
prepared by Consultant pursuant to, or in connection with, this Agreement, but
neither the Company nor its affiliates shall be under any obligation to make any
use of any such Ideas or Materials. Consultant shall not have the right to use
any such Ideas or Materials other than in connection with the performance of
Consultant's services hereunder without the prior written consent of the
Company.
9. OWNERSHIP OF IDEAS AND MATERIALS. The Company and Consultant
expressly acknowledge and agree that it is the intention of the Parties hereto
that all rights, including copyright and other proprietary rights, in any and
all Ideas and Materials created, developed or prepared by Consultant pursuant to
or in connection with this Agreement shall vest in the Company as the party who
ordered or commissioned such Ideas and Materials, and further agree that all
such Ideas and Materials shall be considered "work made for hire" within the
meaning of the copyright laws of the United States of America. The Company is
entitled, as author of such Ideas and Materials, to the copyright therein, to
the right to seek, or not seek statutory registration of such copyright, to the
right to obtain other proprietary rights therein, and the right to make such
changes therein or uses thereof as the Company may determine in its sole
discretion. If, for any reason whatsoever, such Ideas and Materials are not
considered "work made for hire" under the copyright laws, then Consultant hereby
grants and assigns to the Company all of Consultant's right, title, and interest
in and to such Ideas and Materials and agrees to take whatever additional action
may reasonably be necessary, and sign whatever documents the Company may
reasonably require, in order to vest in the Company all right, title and
interest in and to such Ideas and Materials. This paragraph shall survive the
expiration or termination of this Agreement.
10. INVENTIONS AND PATENTS. Consultant agrees that all reasonably
patentable inventions, innovations or improvements in the Company's products or
methods of conducting its business (including new contributions, improvements,
ideas and discoveries, whether patentable or not) conceived or made by
Consultant while he is employed by the Company, belong to the Company without
the payment of any further compensation to the Consultant. Consultant will
promptly disclose such inventions, innovations or improvements to the officers
of the Company. This paragraph shall survive the expiration or termination of
this Agreement.
11. PROPERTY OF THE COMPANY. All books, documents, lists and records
pertaining to the Company's business (collectively the "Records"), whether
written, typed, printed or contained in any other form, including but not
limited to electronic form, are the sole and exclusive property of the Company.
Upon termination of this Agreement, Consultant shall promptly return to the
Company all records and copies thereof that are in the Consultant's possession
or that Consultant has removed from the Company's premises.
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12. NO CONFLICTS. Consultant represents and warrants that (a) all Ideas
and Materials provided to the Company by Consultant hereunder shall be original
with Consultant and shall not infringe the statutory or common law copyright,
trademark, patent or other rights of third parties; and (b) that there does not
exist any contract, agreement or arrangement with any third party which would
prevent or interfere with Consultant from entering into this Agreement or
rendering any of the services contemplated to be provided pursuant hereto. This
paragraph shall survive the expiration or termination of this Agreement.
13. TERMINATION OF CONSULTANCY.
A. TERMINATION BY THE COMPANY FOR CAUSE: The Company may
terminate this agreement in the event of: (1) Consultant's
conviction for, or plea of guilty to, a felony, (2)
Consultant's willful misconduct in the course of performing
his duties to the Company, or (3) Consultant's gross neglect
of his duties to the Company. Any Stock Options that have not
yet "vested" as of the date of Termination shall expire upon
Termination for Cause. Stock Options that have vested shall
be exerciseable for 12 months following Termination. The
Consultant shall not be entitled to any Cash Payment or Stock
Payment following such Termination.
B. TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE: The Company
may terminate this agreement for any reason upon two weeks
written notice to the Consultant. Any Stock Options that have
not yet "vested" as of the date of Termination shall vest as
of such date, and all Stock Options shall be exerciseable for
the remainder of their term. The Consultant shall continue to
receive the Cash Payment and Stock Payment for three weeks
following the date of Termination (i.e. five weeks from
notice).
C. TERMINATION BY THE CONSULTANT FOR GOOD REASON: The Consultant
may terminate this agreement in the event: (1) Xxxxx Xxxxxx
is no longer the CEO of the Company, (2) the Company asks the
Consultant to work primarily outside the New York City
metropolitan area, (3) the Company asks the Consultant to
perform any illegal act, or (4) the Company assigns the
Consultant duties that are inconsistent with those of a CFO.
Any Stock Options that have not yet "vested" as of the date
of Termination shall vest as of such date, and all Stock
options shall be exerciseable for the remainder of their
term. The Consultant shall continue to receive the Cash
Payment and the Stock Payment for three weeks following the
date of Termination.
D. TERMINATION BY THE CONSULTANT OTHER THAN FOR GOOD REASON: The
Consultant may terminate this agreement for any reason upon
two weeks written notice to the Company. Any Stock Options
that have not yet "vested" as of the date of Termination
shall expire upon Termination. Stock Options that have vested
shall be exerciseable for 12 months following Termination.
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The Consultant shall not be entitled to any Cash Payment or
Stock Payment following such Termination.
14. CONFIDENTIALITY, NON-DISCLOSURE AND NON-COMPETE.
A. Consultant understands that the Company's business and
operations (except to the extent that such business and
operations have become a matter of public record) are highly
confidential. Since the Company is a public corporation,
improper disclosures of the Company's business plans or
operations could have adverse consequences for the Company,
its officers, employees and shareholders. "Confidential
Information" means all aspects of the Company's business
which have not been made a matter of public record.
B. Consultant agrees that Consultant will not disclose to any
third person any Confidential Information unless compelled to
do so by law, subpoena, or other appropriate legal process.
This paragraph shall survive the expiration or termination of
this Agreement.
C. Consultant agrees that Consultant will not use any
Confidential Information for the benefit of himself
personally or for the benefit of any third party who is not
affiliated with the Company.
D. Consultant agrees that for a period of one year after the
termination of this agreement, he will not engage in any
business activity, whether for his own benefit or any third
party, that is reasonably likely to involve the Consultant's
use of or reliance upon Confidential Information.
E. Consultant further agrees that during the time period he
provides consulting services for the Company and for a period
of one year after the termination of this Agreement,
Consultant will not directly or indirectly, request, assist
or advise any Customer, competitor or other person having
business dealings with the Company to withdraw from, curtail,
cancel or modify such business dealings.
F. Consultant further agrees that for a period of one year after
the termination of this Agreement, he will not solicit,
encourage or bring about the resignation of or departure of
any employees of the Company for the purpose of working with
or for, or otherwise rendering any services to any person any
person or company by whom Consultant is then employed, any
person with whom Consultant has any contractual relationship,
or any person or entity in which Consultant has a financial
interest.
15. EQUITABLE AND LEGAL REMEDIES. Consultant understands and agrees
that damages alone will be an inadequate remedy for a breach or violation of any
provision of the Agreement.
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Accordingly, in addition to any other rights that Company may have as a result
of such breach or violation, the Company may obtain enforcement of the
provisions of the Agreement by preliminary and permanent injunction, specific
performance and other equitable relief. The Company shall be permitted to and
Consultant hereby consents to, the issuance of an injunction compelling the cure
of such default or breach and the specific performance of Consultant's
obligations under this Agreement, in addition to an action for damages or other
relief which may be available to the Company, in law or equity.
16. CHOICE OF LAW AND FORUM. The Agreement, including all issues of
performance hereunder, shall be governed by the law of the State of New York.
Further, any actions to enforce any rights or remedies granted by the Agreement
shall be brought in the United States District Court for the Southern District
of Manhattan.
17. INTEGRATED CONTRACT. The Agreement contains the entire agreement
between the parties and supersedes any and all prior agreements, whether written
or oral. The Agreement shall not be amended or modified in any manner, except by
an instrument in writing executed by both parties.
18. MISCELLANEOUS.
A. Any notices required or permitted to be given hereunder by
either party to the other shall be sufficient if in writing and if delivered
personally or by certified mail, return receipt requested. Mailed notices shall
be addressed to the parties at the following addresses:
Synergy Technologies Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxx, Xx.
0 Xxxxxxxxx Xxxxx, #00-X
Xxx Xxxx, XX 00000
B. Neither the Agreement nor any rights or duties hereunder may be
assigned or delegated by either party unless the other party consents in
writing.
C. Except as otherwise provided, the Agreement shall be binding on
and inure to the benefit of the parties and their respective heirs, personal
representatives, successors and assigns.
Sincerely yours,
SYNERGY TECHNOLOGIES CORPORATION
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000-0000
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By:
--------------------------------
Title:
-----------------------------
Accepted and Agreed:
-----------------------------------
By: Xxxxxxx X. Xxxxxx
Title: Consultant
0 Xxxxxxxxx Xxxxx, #00-X
Xxx Xxxx, Xxx Xxxx 00000
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