FAR EAST WIND POWER CORP. CONSULTING AGREEMENT
Exhibit
10.1
This Consulting Agreement (the “Agreement”), is made and entered into as of August 11, 2010 (the “Effective Date”), by and between Far East Wind Power Corp., a Nevada corporation located at 00000 X. Xxxxx Xxxx.,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (the “Company”), and Xxxx Xxx (the “Consultant”). The Company desires to retain Consultant
as an independent contractor to perform such services, on terms set forth more
fully below. In consideration of the mutual promises contained
herein, the parties agree as follows:
1. SERVICES AND
COMPENSATION
(a) Services. Consultant shall serve as the Company’s Senior Vice
President of Finance and shall perform such customary duties and
responsibilities implied by the position of Senior Vice President of Finance of
a Chinese-based business listed as a public company in the United State of
America including, without limitation, such duties and responsibilities to be
established by the Chief Financial Officer and President of the Company (the
“Services”). In such capacities Consultant shall
report directly to the Chief Financial Officer of the Company, or, in the
absence of a Chief Financial Officer, the Chief Executive Officer of the
Company. Consultant’s position,
duties, and responsibilities can be modified as reasonably required
to suit the specific requirements and needs of the Company. Consultant shall perform the
Services for the Company in a professional and diligent fashion.
(b) Compensation. The Company shall pay to Consultant a fee of $10,000 per month (the “Monthly Fee”) commencing as
of April 1, 2010 as follows: (i) commencing August 1, 2010, a portion of the
Monthly Fee equal to $5,000 per month shall be paid by the Company to Consultant
in immediately available funds on the 5th day of each month, and (ii) the remaining Monthly Fees
owed or owing shall accrue each month and
shall be paid to Consultant at such time as the Company completes a capital
raise in any form subsequent to the
Effective Date whereby the Company receives
gross proceeds in excess of $250,000 (the “Financing”). No interest will apply to any portion of
the accrued Monthly Fees. For any month following the completion of
the Financing the Company shall pay Consultant the Monthly Fee on the first day
of each month.
(c) Stock Awards.
(i) Stock Award. Subject
to approval by the Board of Directors of the Company (the “Board”), the Company
will grant to Consultant 350,000 shares of the Company’s common stock (the
“Stock Award”),
of which 50,000 shares shall be fully-vested upon the grant and the remaining
300,000 shares shall be subject to vesting at the rate of one thirty-sixth
(1/36) of such shares per month commencing on August 1, 2010, subject to
Consultant continuing to be a service provider to the Company pursuant to this
Agreement on such dates. The vesting schedule of the Stock Award shall be
subject to acceleration as described in Section 8(b) of this
Agreement.
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(d) Bonuses. Consultant
will be eligible to receive on an annual basis, a bonus in the form of a grant
of Company’s capital stock or cash, or a combination thereof, as determined by
the Board based on Consultant’s performance and subject to such terms and
conditions as approved by the Board.
(e) Expenses. The Company will pay or reimburse Consultant for all
necessary out-of-pocket transportation, hotel, and other expenses reasonably
incurred by Consultant in the conduct of the business of the Company upon
submission of such itemized vouchers, receipts or other documentation with
respect to any such expenses as shall be reasonably requested by the Company,
and, in any event, in accordance with the guidelines of the Company, if any,
published from time to time. In the event Consultant incurs or plans to incur
expenses in excess of $2,000 individually or in the aggregate in any calendar
month, Consultant shall obtain the prior written approval from the
Company.
2. PROPRIETARY INFORMATION;
CONFIDENTIALITY
(a) “Confidential
Information” means any Company proprietary information, technical data,
trade secrets or know-how, including, but not limited to, research and
development, product plans, products, services, customers, customer lists,
suppliers, manufacturers, government contacts, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances, in addition to
financial, accounting, statistical, marketing and personnel information of the
Company and/or its customers or other third-parties or other business
information disclosed by the Company either directly or indirectly in writing,
orally or by drawings or inspection of parts or equipment.
(b) Consultant
while performing the Services, will be exposed to and handling the Company’s
Confidential Information. Consultant will not, during or subsequent
to the term of this Agreement, use the Company’s Confidential Information for
any purpose whatsoever other than the performance of the Services on behalf of
the Company or disclose the Company’s Confidential Information to any third
party. Consultant agrees that the restrictions in this Section 2
shall also apply to Confidential Information conceived, originated, discovered
or developed by Consultant during the term of this Agreement. It is
understood that said Confidential Information shall remain the sole property of
the Company. Consultant further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential Information including,
but not limited to, having each employee of Consultant, if any, with access to
any Confidential Information, execute a nondisclosure agreement containing
provisions in the Company’s favor identical to Sections 2 and 3 of this
Agreement. Confidential Information does not include information which (i) is
known to Consultant at the time of disclosure to Consultant by the Company as
evidenced by written records of Consultant, (ii) has become publicly known and
made generally available through no wrongful act of Consultant, or (iii) has
been rightfully received by Consultant from a third party who is authorized to
make such disclosure. Without the Company’s prior written approval, Consultant
will not directly or indirectly disclose to anyone the contents of this
Agreement.
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(c) Consultant
agrees that Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any former or
current employer or other person or entity with which Consultant has an
agreement or duty to keep in confidence information acquired by Consultant, if
any, and that Consultant will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to such employer,
person or entity unless consented to in writing by such employer, person or
entity. Consultant will indemnify the Company and hold it harmless from and
against all claims, liabilities, damages and expenses, including reasonable
attorneys fees and costs of suit, arising out of or in connection with any
violation or claimed violation of a third party’s rights resulting in whole or
in part from the Company’s use of the work product of Consultant under this
Agreement.
(d) Consultant
recognizes that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject to a duty on
the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant agrees that Consultant owes
the Company and such third parties, during the term of this Agreement and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Services for
the Company consistent with the Company’s agreement with such third
party.
(e) Return of
Property. Upon the termination of this Agreement, or upon
Company’s earlier request, Consultant will deliver to the Company all devices,
records, data, disks, computer files, notes, reports, proposals, lists,
correspondence, materials, equipment, other documents or property, reproductions
of any aforementioned items developed by Consultant pursuant in the performance
of the Services to the Company, or Confidential Information that Consultant may
have in Consultant’s possession or control.
(f) Consultant
Information. Consultant represents and warrants to the Company
that information provided by Consultant in connection with this Agreement and
any supplemental information provided to the Company is complete, true and
materially correct in all respects. Consultant has not omitted
any information that is or may reasonably be considered necessary or useful to
evaluate the information provided by Consultant to the
Company. Consultant shall immediately notify the Company in writing
of any change in the accuracy or completeness of all such
information.
(g) Other
Agreements. Consultant represents that the performance of all
the terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by Consultant in confidence or in trust prior
to the execution of this Agreement. Consultant has not and shall not: (i)
disclose or use in the course of the Services to the Company, any proprietary or
trade-secret information belonging to another; or (ii) enter into any oral or
written agreement in conflict with this Agreement.
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3. OWNERSHIP
(a) Consultant
agrees that all copyrightable material, notes, records, drawings, designs,
inventions, improvements, developments, discoveries and trade secrets conceived,
made or discovered by Consultant, solely or in collaboration with others, during
the period of this Agreement which relate in any manner to the business of the
Company that Consultant may be directed to undertake, investigate or experiment
with, or which Consultant may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder (collectively, “Inventions”), are the
sole property of the Company. In addition, any Inventions which are related in
any manner to the business of the Company constitute copyrightable subject
matter shall be considered "works made for hire" as that term is defined in the
United States Copyright Act. Consultant further agrees to assign (or cause to be
assigned) and does hereby assign fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating to the business of the Company. Attached as Exhibit A hereto is a
list describing all inventions, original works of authorship, developments,
improvements and trade secrets which were made by Consultant prior to the date
of this Agreement, which belong to Consultant, and which are not assigned to the
Company (“Prior
Inventions”). Consultant represents and warrants that no patent
applications relating to Inventions or Prior Inventions are pending under his
name and no Inventions or designs provided to the Company have been used by
prior customers of Consultant or patented by such customers.
(b) Consultant
agrees to assist Company, or its designee, at the Company’s expense, in every
proper way to secure the Company’s rights in the Inventions and any copyrights,
patents, mask work rights or other intellectual property rights relating thereto
in any and all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments which
the Company shall deem necessary in order to apply for and obtain such rights
and in order to assign and convey to the Company, its successors, assigns and
nominees the sole and exclusive right, title and interest in and to such
Inventions, and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Consultant further agrees that Consultant’s
obligation to execute or cause to be executed, when it is in Consultant’s power
to do so, any such instrument or papers shall continue after the termination of
this Agreement.
(c) Consultant
agrees that if in the course of performing the Services, Consultant incorporates
into any Invention relating to the business of the Company developed hereunder
any invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
perpetual, irrevocable, worldwide license to make, have made, modify, use and
sell such item as part of or in connection with such Invention.
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(d) Consultant
agrees that if the Company is unable because of Consultant’s unavailability,
dissolution, mental or physical incapacity, or for any other reason, to secure
Consultant’s signature to apply for or to pursue any application for any United
States or foreign patents or mask work or copyright registrations covering the
Inventions assigned to the Company above, then Consultant hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as Consultant’s agent and attorney in fact, to act for and in Consultant’s
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of patents,
copyright and mask work registrations thereon with the same legal force and
effect as if executed by Consultant.
4. UNFAIR COMPETITION;
NON-SOLICITATION
(a) Unfair
Competition. During the term of this Agreement, Consultant has
a duty of loyalty and a fiduciary responsibility to the Company. Consultant
shall not, directly or indirectly, whether as a partner, employee, creditor,
stockholder, or otherwise, promote, participate, or engage in any activity or
other business which is directly competitive to the current operations of the
Company or the currently contemplated future operations of the
Company. The obligation of Consultant not to compete with the
Company shall not prohibit Consultant from owning or purchasing not more than a
five percent (5%) beneficial interest in any securities that are regularly
traded on a recognized stock exchange or on the
over-the-counter market subject to relevant federal and state securities
laws. To the fullest extent permitted by law, upon the termination of
this Agreement for any reason, Consultant shall not use any of the Confidential
Information to directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or any other individual or representative capacity, engage or participate in any
business, wherever located, that is in direct competition with the business of
the Company. Should any portion of this Section be deemed unenforceable because
of the scope, duration or geographical area encompassed by the undertakings of
the Consultant hereunder, and only in such event, then the Consultant and the
Company consent and agree to such limitation on scope, duration or geographical
area as may be finally adjudicated as enforceable by a court of competent
jurisdiction after the exhaustion of all appeals.
(b) Non-Solicitation of
Customers. While providing
Services to the Company, Consultant shall
not divert or attempt to divert (by solicitation or other means), whether
directly or indirectly, the Company’s customers for the purpose of inducing or
encouraging them to sever their relationship with the Company or to solicit them
in connection with any product or service competing with those products and
services offered and sold by the Company. Also, to the fullest extent
permissible under applicable law, following termination of this Agreement
for any reason, Consultant agrees not use any of the Confidential
Information to directly or indirectly divert or attempt to divert (by
solicitation or other means) the Company’s customers for the purpose of inducing or encouraging them to
sever their relationship with the Company or to solicit them in connection with
any product or service competing with those products and services offered and
sold by the Company.
(c) Non-Solicitation of
Employees. To the fullest extent permissible under applicable
law, Consultant agrees that both during the period of this Agreement and for a
period of two (2) years following termination of this Agreement, Consultant
shall not take any action to induce employees or independent contractors of the
Company to sever their relationship with the Company and accept an employment or
an independent contractor relationship with any other
business. However, this obligation will not affect any
responsibility Consultant may have as an employee of the Company with respect to
the bona fide hiring and firing of Company personnel.
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(d) Non-Disparagement. Upon
termination of this Agreement, Consultant agrees to not make any disparaging
remarks about the Company, or any officers, directors, employees, executive or
independent contractors of or to any of the foregoing.
5. TRADE
SECRETS. Consultant shall not disclose to any others, or take
or use for Consultant’s own purposes or purposes of any others, during the term
of this Agreement or at any time thereafter, any of the Company’s trade secrets,
including without limitation, Confidential Information, customer lists, wind
farm operators, government contacts, applications, software or intellectual
property of the Company. Consultant agrees that these restrictions
shall also apply to (i) trade secrets belonging to third parties in Company’s
possession and (ii) trade secrets conceived, originated, discovered or developed
by Consultant during the term of this
Agreement relating to the affairs of the
Company.
6. REPORTS. Consultant
agrees that Consultant will from time to time during the term of this Agreement
or any extension thereof keep the Company advised as to Consultant’s progress in
performing the Services hereunder and that Consultant will, as requested by the
Company, prepare written reports with respect thereto. It is understood that the
time required in the preparation of such written reports shall be considered
time devoted to the performance of Consultant’s Services.
7. CONFLICTING
OBLIGATIONS. Consultant certifies
that Consultant has no outstanding agreement or obligation that is in conflict
with any of the provisions of this Agreement, or that would preclude Consultant
from complying with the provisions hereof, and further certifies that Consultant
will not enter into any such conflicting agreement during the term of this
Agreement.
8. TERM AND
TERMINATION
(a) The
term of this Agreement shall commence on the Effective Date and shall continue
until terminated by either party, with or without written notice to the other
party, and for any reason whatsoever, subject to the provisions of Section 8(b)
below.
(b) Upon
termination of this Agreement all rights and duties of the parties toward each
other shall cease except:
(i) the
Company shall be obliged to pay, within thirty (30) days of the effective date
of termination, all undisputed amounts owing to Consultant for Services
completed and accepted by the Company prior to the termination date and related
expenses, if any, in accordance with the provisions of Section 1.
(ii) Consultant
shall continue to receive the Monthly Fees for a period of three (3) months
based on the Monthly Fee paid to Consultant for the last month prior to
termination.
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(iii) a
number of shares equal to twenty-five percent (25%) of the then unvested shares
subject to the Stock Award shall become vested and any repurchase right on
behalf of the Company shall lapse as to such shares.
(iv) Consultant’s
entitlement to receive the payments and benefits described in Sections 8(b)(i),
8(b)(ii) and 8(b)(iii) above is conditioned upon and subject to Consultant’s
execution of a full general release, releasing all claims, known or unknown,
that Consultant may have against the Company arising out of or any way related
to the relationship between the Company and Consultant or termination of
Consultant.
(v) Sections
2, 3, 4, 5, 8 and 12 shall survive termination of this Agreement.
9. ASSIGNMENT. Neither
this Agreement nor any right hereunder or interest herein may be assigned,
delegated or transferred by Consultant without the express written consent of
the Company.
10. INDEPENDENT
CONTRACTOR. Nothing in this Agreement shall in any way be
construed to constitute Consultant as an agent, employee or representative of
the Company, but Consultant shall perform the Services hereunder as an
independent contractor. Consultant agrees to furnish (or reimburse the Company
for) all tools and materials necessary to accomplish this Agreement, and shall
incur all expenses associated with performance, except as provided herein.
Consultant acknowledges and agrees that Consultant is obligated to report as
income all compensation received by Consultant pursuant to this Agreement, and
Consultant agrees to and acknowledges the obligation to pay all self-employment
and other taxes thereon. Consultant further agrees to indemnify the Company and
hold it harmless to the extent of any obligation imposed on Company to pay in
withholding taxes or similar items.
11. EQUITABLE
RELIEF. Consultant agrees that it would be impossible or
inadequate to measure and calculate the Company’s damages from any breach of the
covenants set forth in Sections 2, 3, 4, and 5 herein. Accordingly, Consultant
agrees that if Consultant breaches Sections 2, 3, 4, or 5, the Company will have
available, in addition to any other right or remedy available, the right to
obtain from any court of competent jurisdiction an injunction restraining such
breach or threatened breach and specific performance of any such provision.
Consultant further agrees that no bond or other security shall be required in
obtaining such equitable relief and Consultant hereby consents to the issuances
of such injunction and to the ordering of such specific
performance.
12. GOVERNING LAW; JURISDICTION;
ARBITRATION. This Agreement shall be governed and construed
and enforced in accordance with the internal, substantive laws of the State of
New York, without giving effect to the conflict of law rules thereof; provided, however, that the
interpretation and enforcement of the arbitration provision set forth in this
Section shall be governed by the Federal Arbitration Act. Any dispute or controversy between the Company and
Consultant, arising out of or relating to this Agreement, the breach of this
Agreement, or otherwise, shall be settled by binding arbitration in New York
City, New York administered by the American
Arbitration Association in accordance with
its Commercial Arbitration Rules then in effect by a single arbitrator.
Both the Company and Consultant shall be precluded from bringing or
raising in court or another forum any dispute that was or could have been
submitted to binding arbitration. This arbitration requirement does
not apply to claims for any provisional or injunctive relief remedies as set
forth in any New York statute or law. The parties irrevocably agree to submit to the
jurisdiction of the federal and state courts within the County of New York, New
York for any injunctive relief and in connection with any suit arising out of
the confirmation or enforcement of any award rendered by the arbitrator, and
waive any defense based on forum non convenience or improper venue with respect
thereto.
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No remedy conferred in this Agreement upon Consultant or
the Company is intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
conferred herein or now or hereafter existing at law or in equity or by statute
or otherwise.
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
CONSULTANT’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF CONSULTANT’S RELATIONSHIP WITH THE
COMPANY.
13. TAX ADVICE. Consultant acknowledges
that Consultant has not relied and will not rely upon the Company or the
Company’s counsel with respect to any tax consequences related to the terms and
conditions of this Agreement. Consultant assumes full responsibility
for all such consequences and for the preparation and filing of all tax returns
and elections which may or must be filed in connection with this
Agreement.
14. REPRESENTATION. The
parties to this Agreement, and each of them, acknowledge, agree, and represent
that it: (a) has directly participated in the negotiation and preparation of
this Agreement; (b) has read the Agreement and has had the opportunity to
discuss it with counsel of its own choosing; (c) it is fully aware of the
contents and legal affect of this Agreement; (d) has authority to enter
into and sign the Agreement; and (e) enters into and signs the same by its
own free will.
15. ENTIRE AGREEMENT AND
AMENDMENTS. This Agreement is the entire agreement of the
parties and supersedes any prior or contemporaneous agreements whether oral or
written between them with respect to the subject matter hereof. This Agreement
may be changed only if agreed to in writing by both parties.
16. COUNTERPARTS. This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
17. SEVERABILITY. If
any provision of this Agreement is held to be unenforceable for any reason, such
provision shall be adjusted rather than voided, if possible, in order to achieve
the intent of the parties to the maximum extent possible. In any
event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
18. WAIVER. The waiver of any term
or condition contained in this Agreement by any party to this Agreement shall
not be construed as a waiver of a subsequent breach or failure of the same term
or condition or a waiver of any other term or condition contained in this
Agreement.
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IN WITNESSETH WHEREOF, the undersigned have executed
this Agreement as of the date first above written.
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COMPANY:
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By:
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Xxxxx Xxxxx, Chief Financial
Officer
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CONSULTANT:
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By:
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Xxxx
Xxx
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EXHIBIT
A
LIST OF PRIOR
INVENTIONS
AND ORIGINAL WORKS OF
AUTHORSHIP
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Title
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Date
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Identifying Number or Brief Description
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__ No
inventions or improvements
__ Additional
Sheets Attached
EXHIBIT
A
