CONSULTING AND CONFIDENTIALITY AGREEMENT
Exhibit
10.32
CONSULTING
AND CONFIDENTIALITY AGREEMENT
CONSULTING
AGREEMENT for the key personnel services of IEGT, Inc.’s employee Mo Xxxxxx,
dated as of August 10, 2009 (the “Agreement”), by IEGT, Inc., a Michigan
Corporation (“Consultant”), and Integral Technologies, Inc. a Nevada corporation
(the “Company” or “Integral”).
WHEREAS,
the Company desires to engage Consultant to provide certain consulting services
as the Company may direct. The Consultant is willing to be engaged by the
Company as a consultant and to provide such services, in assisting in the
development/commercialization of Integral’s ElectriPlast™ technology. Also,
depending on time available and subject to the direction of the Company, the
development/commercialization of the Carbon Fiber Wire Technology combined with
ElectriPlast™ on the terms and conditions set forth below;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
Company and Consultant agree as follows:
1. Consulting. The
Company hereby retains Consultant, and Consultant hereby agrees to make
Consultant’s employee Mo Xxxxxx available as a consultant to the Company, upon
the terms and subject to the conditions contained herein. During the
Consultant Term (as hereinafter defined), Consultant shall provide certain
consulting services to the Company as requested by management.
2. Term. Subject
to the provisions for termination hereinafter provided, the term of this
Agreement shall commence on the date set forth above (the “Effective Date”) and
shall continue until July 31, 2011 (the “Consultant Term”).
3. Compensation. In
consideration of the services to be rendered by Consultant hereunder, during the
Consultant Term the Company shall pay and grant to Consultant, and Consultant
agrees to accept the following:
(a) as
a consulting fee, $25,000 per month (the “Consulting Fee”)
payable at the beginning of each month. This consulting fee will be
reviewed every six months effective as of the date of this agreement.
Consideration will be given to renegotiating the Consulting Fee based upon the
success of Consultant obtaining contracts. Also, compensation per
each contract obtained shall be considered by the Company. The decision on
whether the Consulting Fee will be increased will be at the sole discretion of
the Company.
(b)
The
company shall grant to Consultant 2,000,000 options for the right to purchase
common stock of the Company. The Grant of Option forms part of this Agreement
and is attached as Exhibit A. These options shall be priced and vested pursuant
to the Grant of Option and as indicated below.
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Number
of Options
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Vesting
Date
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Option
Price
|
|
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200,000
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July
10, 2009
|
$0.25
|
|
|
200,000
|
October
10, 2009
|
$0.25
|
|
|
200,000
|
January
10, 2010
|
$0.25
|
|
|
200,000
|
April
10, 2010
|
$0.25
|
|
|
200,000
|
July
10, 2010
|
$0.25
|
|
|
200,000
|
October
10, 2010
|
$0.25
|
|
|
200,000
|
January
10, 2011
|
$0.25
|
|
|
200,000
|
April
10, 2011
|
$0.25
|
|
|
400,000
|
July
10, 2011
|
$0.25
|
The
consideration to be given by Consultant for the Consulting Fee and the grant of
options agreement shall include the following services and third
party costs over the two year contract:
Services:
*Engineering
– Application designs, Product Development, Technology Roadmap &
Implementation Timing Plan.
*Marketing-
Product Introduction with OEM, Tier I, Tier
II, Conventions, Associations & Publications.
*Customer
Approvals and Validation
*Patents–
Complete Analysis of all Patents (Awarded, Pending) and categorize them by
sector,
Industry,
Application, Priority of implementation, & identify potential
customers.
*Research &
Development- Design Technical
Solutions to make the “Integral Patents” Implementation
Ready &
“Differentiation”. This anticipates “New Competitive Innovation” for
market penetration with unique products and New Patent based on cost effective
systems solutions. Joint development with the Customer’s Advanced Engineering
Team for future implementation to transition into Core Approved Production
Technology and migrate as a Global
Customer
Strategy.
* Business
Case – Systems Analysis per Application/Sector for Technology
justification and detailing all the benefits (Financial, Technical Performance,
Assembly Processes, Packaging, Weight, impact on Fuel Efficiency, Environmental,
Tooling Investment impact such stamping tools versus molding tools and product
reliability).
*Expenses-
Mileage for Customers Travel & Customers Entertainment in
Michigan-/-surrounding states within reasonable driving distance 4 –
6 hrs. This includes driving to Jasper for meetings. Other travel expenses will
be funded by Integral.
*Joint
Development/Joint Venture – Identify Partner for joint development of
products implementation which includes embedding in applications plus all the
Testing up to approval phase and Business Award. Structure an
agreement frame and justification.
Work
with customer for all phases Pre-Award -
Prototype---Production.
*ElectriPlast™ Web
Site-assist by providing technical information to the personnel of the
Company and Jasper Rubber Products, Inc. of a new ElectriPlast™ web
site.
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*Funding-
Support Integral as required in the technical documentation & Presentations
for external funding justification such as the DOE, State, Government, Grants,
and VC.
Third
party costs:
Mileage
for Customers Travel & Customers Entertainment in Michigan-/-surrounding
states within reasonable driving distance 4 – 6 hrs. This includes
driving to Jasper for meetings. Other travel expenses will be funded by
Integral.
4.
Termination. The
Consultant Term will end on July 31, 2011 (the “Expiration Date”),
unless sooner terminated as provided below. Notwithstanding the foregoing,
the Consultant Term (i) will terminate upon the death of Mo Xxxxxx or upon
Notice of Termination (as defined below) delivered to Consultant as a result of
Mo Xxxxxx’x Disability (as defined in Section 4(e) below), and (ii) may be
terminated by the Company at any time prior to the Expiration Date for Cause (as
defined in Section 4(d) below) or without Cause (“Termination Date”). Any
termination of the Consultant Term by the Company or by Consultant (other than
termination upon Mo Xxxxxx’x death) must be communicated by written “Notice of
Termination” to the other party hereto. “Termination Date”
means (i) if the Consultant Term has not already been terminated by such date,
the Expiration Date, (ii) if the Consultant Term is terminated by Mo Xxxxxx’x
death, the date of Mo Xxxxxx’x death, or (iii) if the Consultant Term is
terminated upon Mo Xxxxxx’x Disability, by the Company, the date specified in
the Notice of Termination.
(a)
Either party may terminate the contract at the following “six month” intervals
with 30 days notice: January 31, 2010, July 31, 2010, and January 31,
2011.
(b)
If the Consultant Term is terminated by the Company without Cause, Consultant
will be entitled to receive the full amount of the remaining compensation as
identified in paragraph 3.a as it becomes due pursuant thereto.
(c)
If the Consultant Term is terminated by the Company for Cause, the Company will
pay Consultant only those amounts due as identified in paragraph 3.a,
prorated, to the Termination Date and any unpaid expenses as of the
Termination Date. Upon delivery of the payment described in this Section
4(b), the Company will have no further obligation to Consultant under this
agreement.
(d)
If Consultant terminates under paragraph 4(a) then the Company will pay
Consultant only those amounts due as indentified in paragraph 3.a prorated, to
the Termination Date and any unpaid expenses as of the Termination Date. Upon
delivery of the payment described in this Section 4(b), the Company will have no
further obligation to Consultant under this agreement.
(e)
If the Consultant Term is terminated upon death of Mo Xxxxxx or Disability, the
Company will pay Consultant only those amounts due as identified in paragraph
3.a, prorated, to the Termination Date and any unpaid expenses as of
the Termination Date. Upon delivery of the payment described in this
Section 4(c), the Company will have no further obligation to Consultant under
this agreement.
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(f)
“Cause” means any one of the following: (i) a material breach by Consultant of
this agreement, (ii) Mo Xxxxxx’x conviction of, guilty plea to, or confession of
guilt of, a felony, but expressly excluding misdemeanor traffic violations,
(iii) fraudulent, dishonest or illegal conduct, gross negligence or willful
misconduct by Consultant in the performance of services for or on behalf of the
Company or any of its subsidiaries or any other conduct detrimental to the
business, operations or reputation of the Company or any of its subsidiaries as
determined by the Board in good faith, regardless of whether such conduct is
within the scope of Consultant’s duties, (iv) Consultant’s misappropriation of
funds, (v) Consultant engaging in conduct involving an act of moral
turpitude, (vi) failure to comply with the directions of the Board,
provided that such directions are reasonable, lawful, and consistent with
Consultant’s duties and responsibilities hereunder, (vii) Consultant’s failure
to perform in any material respect all of Consultant’s obligations and duties
pursuant to this agreement, (viii) Consultant’s failure to achieve (or, as
applicable, failure by the Company to achieve) performance and other goals
established by the Board in good faith from time to time (except where such
failure results from extraordinary circumstances outside of your control (i.e.
force
majeure).
(g)
“Disability” means any accident, sickness, incapacity or other physical or
mental disability which prevents Mo Xxxxxx from performing substantially all of
the duties Consultant has been assigned by the Company or any of its
subsidiaries for either (i) 30 consecutive days or (ii) 30 days during any
period of 365 consecutive days, in each case as determined in good faith by the
Board.
5. Reimbursement. The
Company will reimburse Consultant for all reasonable out-of-pocket expenses
incurred in connection with this Agreement excluding Third Party Costs as set
forth in Section 3(a). In addition, the Company will be fund all costs related
to prototype development and testing.
6. Confidential
Information. Forming part of this Agreement as Exhibit
B, and to be executed by the Consultant and Mo Xxxxxx is the Company’s standard
Non Disclosure Agreement.
7. Independent
Contractor. It is understood and agreed that this Agreement
does not create any relationship of association, partnership or joint venture
between the parties, nor constitute either party as the agent or legal
representative of the other for any purpose whatsoever; and the relationship of
Consultant to the Company for all purposes shall be one of independent
contractor. Neither party shall have any right or authority to create
any obligation or responsibility, express or implied, on behalf or in the name
of the other, or to bind the other in any manner whatsoever.
8. Ownership. Consultant
agrees that all patentable material, notes, records, drawing, designs,
improvements, developments, discoveries and trade secrets (collectively,
“Material”) conceived, made or discovered by Consultant, solely or in
collaboration with others, while providing services to the Company
and the period of this Agreement which relate in any manner to the
business of the Company that Consultant may be directed to undertake or which
Consultant may become associated with the Company in performing the services
hereunder, are the sole property of the Company. Consultant further
agrees to assign (or cause to be assigned) and does hereby assign fully to the
Company all Material and any patents or other intellectual property rights
relating thereto.
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9. Further
Assurances. Consultant agrees to assist the Company, or its
designee, at the Company’s expense, in every proper way to secure the Company’s
rights in ElectriPlast™ and applications related thereto, and any patents 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 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 Material, and any patents 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 instrument or papers pursuant to this
Agreement shall continue after the termination of the Agreement.
10. Work Made for
Hire. The Company is engaging the services of Consultant to
provide services as described herein for or on behalf of the Company and/or for
a customer or customers of the Company. Consultant recognizes and agrees that
all work and products that Consultant creates or develops within the scope of
this engagement will be Work Made for Hire that belongs to the Company and will
remain the property of the Company. The Company will exclusively own,
solely and completely, any work, process, product, idea or concept – whether
such may be protected by patentable or not – that Consultant creates, conceives
or develops, in whole or in part, within the scope of Consultant’s engagement by
the Company. To the extent that Consultant’s work for the Company may not be
deemed a Work Made For Hire, Consultant hereby assigns all of his right,
ownership, interest and patents in such works completely and exclusively to the
Company.
11. Conflict of
Interest. Consultant and the Company hereby agree that there
is no conflict of interest in connection with the retention by the Company of
the Consultant pursuant to this Agreement.
12. Waiver of
Breach. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate nor be construed as a waiver of
any subsequent breach.
13. Notices. All
notices and other communications which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given (a)
when delivered in person, (b) one (1) business day after being mailed with a
nationally recognized overnight courier service, or (c) three (3) business days
after being mailed by registered or certified first class mail, postage prepaid,
return receipt requested, to the parties hereto at:
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If
to the Company, to :
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Integral
Technologies, Inc.
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000
X. Xxxxxxx Xxxxx, Xxxxx 0
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Xxxxxxxxxx,
XX 00000
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Fax:
000-000-0000
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Attn:
Xxxxxxx X. Xxxxxxxx, Chief Executive
Officer
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5
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If
to the Consultant, to:
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IEGT,
Inc.
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Mo
Xxxxxx, President
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000
Xxxxxxxx Xx.
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Xxxxxxxx
Xxxxxxx, XX 00000
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Fax:
000-000-0000
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14. Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersede all
other communications, whether written or oral. This Agreement may be modified or
amended only by a writing signed by the Party against whom enforcement is
sought.
15. Severability. The
invalidity of all or any part of any provision of this Agreement shall not
render invalid the remainder of this Agreement or the remainder of such
provision. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
16. Governing Law; Consent to
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the law of the State of Washington without giving
effect to the principles of conflicts of law thereof. The parties
each hereby submit themselves for the sole purpose of this Agreement and any
controversy arising hereunder to the exclusive jurisdiction of the state and/or
federal courts in the State of Washington.
17. Headings. The
headings herein are inserted only as a matter of convenience and reference, and
in no way define, limit or describe the scope of this Agreement or the intent of
the provisions thereof
18. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument. Signatures evidenced by facsimile transmission will be
accepted as original signatures.
19. Assignment. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by Consultant without the prior written consent of the Company. Any
assignment or delegation of rights, duties or obligations hereunder made without
the prior written consent of the Company shall be void and of no
effect.
20. Successors and
Assigns. This Agreement and the provisions hereof shall be
binding upon and shall inure to the benefit of each of the parties and their
respective permitted successors and assigns.
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21. Dispute Resolution and
Governing Law. Consultant agrees to initiate and maintain any legal
action in such designated jurisdiction and irrevocably consent to exclusive
personal jurisdiction and venue therein. Should Consultant bring legal action
against the Company, the Consultant shall irrevocably agree that it will be
brought and maintained on an individual basis (and not consolidated with similar
cases, such as class actions, aggregated actions, or mass actions) within one
(1) year after the claim arises or be barred. Furthermore, except for injunctive
relief, all disputes arising out of or relating to this Agreement or the subject
matter thereof involving less than one hundred thousand dollars ($100,000.00)
shall be submitted to arbitration administered by the American Arbitration
Association (“AAA”) under its Commercial Arbitration Rules. The parties
agree that if an issue arises as to whether any matter related to this Agreement
is subject to arbitration, the arbiter shall decide said issue. The
arbiter shall be selected according to the procedures set by AAA. If a
party to the arbitration fails or refuses to pay the fees of AAA, then any other
party to the arbitration may pay said fees and proceed with the
arbitration. The location of the arbitration shall be in Seattle,
Washington. The arbiter’s award may be entered as a judgment in any court of
competent jurisdiction. The Federal Arbitration Act shall govern the
interpretation, enforcement and all proceedings in the arbitration.
Disputes involving amounts exceeding the above dollar limit are not subject to
arbitration and may be taken directly to court by either party. The parties
agree that U.S. District Courts can hear cases involving copyright issues
between them.
22. Injunctive Relief.
The parties acknowledge that a violation or attempted violation of this
Agreement and the Terms and Conditions will cause such damage to the Company as
will be irreparable, the exact amount of which would be difficult to ascertain
and for which there will be no adequate remedy at law. Accordingly, the parties
agree that the Company shall be entitled to an injunction issued by any court of
competent jurisdiction, restraining such violation or attempted violation of
this Agreement by the Consultant or its affiliates, partners, or agents. The
parties agree that no bond or other security shall be required in connection
with such injunction.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first above written.
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INTEGRAL
TECHNOLOGIES, INC.
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By:
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/s/ Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx, President
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IEGT,
Inc.
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By:
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/s/ Mo Xxxxxx
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Mo
Xxxxxx, President
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