EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of
December 21,1998, by and between CONE, ROSE, THATCHER, LIMITED ("CRT"), and
AMERICAN TECHNOLOGIES GROUP, INC., a Nevada Corporation.
RECITALS:
WHEREAS, ATG desires marketing and financial consulting in the areas
described herein (the "Services");
WHEREAS, CRT is capable of providing and consulting services.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, ATG and CRT hereby agree as follows:
1. ENGAGEMENT. Upon the terms, and subject to the terms and
conditions, contained herein, ATG hereby engages CRT on a non-exclusive basis
to provide consulting services and CRT agrees to provide such services as
provided herein. As part of CRT's obligations hereunder, CRT shall
a. Familiarize itself as required with the business, operations,
properties, conditions (financial and otherwise) and prospects of ATG and its
subsidiaries;
b. Assist management in understanding the functioning of the
secondary trading markets for its securities;
c. Consult and assist the Company along with the Company's other
consultants and advisors in developing a general corporate strategy,
including strategies to promote shareholder value in the financial markets;
d. Assist, directly or indirectly, as requested, in the negotiations
of any contracts with third parties arising in connection with the Services
provided hereunder; and
e. Assist the Company and its management, directly or through a
number of independent subcontractors with various areas of expertise in
public relations, government relations, legal, patent, marketing, university
scientific consulting and product development assistance, working in
affiliation with CRT to advise the Company in their respective areas of
expertise so as to advance the interests of the Company and aid in its
reception and approval in the public marketplace.
f. Render such other consulting services as ATG may from time to
time request.
2. FEES. As compensation for the services rendered by CRT
hereunder, ATG shall pay CRT a one time fee of 1,150,000 shares of ATG common
stock (the "Shares"). The Shares shall be valued at $0.50 per share. The
shares to be delivered to CRT hereunder shall be delivered upon registration
of the Shares under the Securities Act of 1933 on Form S-8. ATG shall use its
best efforts to cause the registration of the Shares as soon as practicable.
Upon written request by CRT and advanced written approval, ATG will reimburse
reasonable travel and other out-of-pocket expenses of CRT incurred in
connection with its performance hereunder.
3. CONFIDENTIAL INFORMATION
3.1 DEFINITION. CRT recognizes that the relationship created by this
Agreement may involve access by CRT to information of substantial value to
ATG, including, but not limited to, designs, drawings, plans, software,
programs, material and manufacturing specifications, devices, trade secrets,
applications, formulae, know-how, methods, techniques, and processes (whether
related to ATG's patents, or otherwise), as well as financial, business,
marketing and product development information, and customer lists relating to
ATG's products and operations (collectively, "Confidential Information"),
provided that the Confidential Information shall not include information:
a.) In the public domain or which subsequently falls into the public
domain;
b.) When CRT can prove was known through a source independent of ATG
prior to any communication by ATG; or
c.) Disclosed to CRT in good faith by a third party having a legal
right to do so.
3.2 NON-DISCLOSURE. CRT acknowledges and agrees that ATG represents
that it owns or has the legal right to all right, title and interest in and
to the Confidential Information. CRT further agrees that it shall (I)
maintain the secrecy and confidentiality of all Confidential Information
which comes to its attention, (ii) take all necessary precautions to prevent
any disclosure of Confidential Information by any of its employees or agents,
and (iii) during the term of this Agreement and for so long as Confidential
Information does not enter into the public domain through no act or omission
of CRT, neither publish, disclose nor disseminate any part of such
Confidential Information in any manner, or use the same, without the prior
written consent of ATG.
3.3 INJUNCTIVE RELIEF. CRT understands and agrees that the
Confidential Information has special value, the loss of which cannot be
reasonably or adequately compensated in damages or in an action at law, and
therefore, in the event of any breach or violation of the provisions of this
Section 3 by CRT, ATG shall be entitled inter alia to equitable relief by way
of injunction without bond and without the necessity of proving actual
damages, in addition to, and not in limitation of, any other relief or rights
to which ATG may be entitled. The terms and provisions of this Section 3
shall survive any termination or expiration of this Agreement.
3.4 AFTER TERMINATION. CRT shall cease to use any Confidential
Information and shall promptly return to ATG any and all physical, written
and descriptive matter (including all reproductions and copies thereof)
containing Confidential Information upon termination or expiration of this
Agreement.
4. INDEMNIFICATION. The parties hereto shall indemnify, defend and
hold each other and their respective officer, directors, employees and agents
(collectively, the "Indemnitees")
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harmless from and against any and all claims, actions, lawsuits, demands,
costs, liabilities, losses, damages and/or expenses (including reasonable
attorney's fees and costs of litigation) made or incurred as a result of such
parties performance hereunder. In connection herewith, ATG represents and
warrants to CRT that all written information provided to CRT pursuant to this
Agreement is true and correct in all material respects.
5. TERM. Subject to the termination provisions of Section 6 hereof,
this Agreement shall expire on September 30, 1999.
6. TERMINATION.
6.1 MANNER. This agreement may be terminated prior to the expiration
of the Term as follows:
a.) By mutual consent of the parties in writing at any time;
b.) By either party upon giving written notice to the other party if
such other party is in default of any term or provision hereunder, and such
default is not cured within ten (10) days of written notice of such default;
or
c.) By either party on sixty(60) days advanced written notice.
6.2 EFFECT OF TERMINATION. Termination of this Agreement shall not
relieve ATG of its obligation to pay to CRT any fees due under the second
sentence of Section 2 or due thereunder in connection with a transaction
initiated by CRT and entered into by ATG within one year of such termination
with any party identified in writing delivered to ATG by such date.
7. CRT'S REPRESENTATIONS. As a condition to the offer or sale of
the Shares, CRT hereby warrants and represents to ATG as follows: each of
which representation and warranty is material and is being relied upon by ATG
and each of which is true at and as of the date hereof;
7.1 CRT'S KNOWLEDGE. That CRT or its principal (a) have a
pre-existing business or personal relationship with ATG, that they are aware
of the business affairs and financial condition of ATG and that they have
such knowledge and experience in businesses in the development stage and
financial matters with respect to companies in businesses similar to ATG
sufficient to enable them to evaluate the risks of the prospective investment
and to make an informed investment decision with respect thereto. CRT
further acknowledges that ATG has made available to it the opportunity to ask
questions and receive answers from ATG concerning the terms and conditions of
the issuance of the Shares and that it could be reasonably assumed to have
the capacity to protect its own interests in connection with such investment.
7.2 SPECULATIVE INVESTMENT. That CRT realizes that the purchase of
the Shares will be a speculative investment and that it is able, without
impairing its financial condition, to hold the Shares for an indefinite
period of time and to suffer a complete loss of the investment.
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8. GENERAL PROVISIONS
8.1 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of, and be binding upon, the respective successors and assigns of the
respective parties hereto; provided, however that neither party hereto shall
have the right to assign any of its rights under this Agreement without the
prior written consent of the other party.
8.2 NOTICES. All notices, requests, demands and other communications
which may be given or are required to be given under notices shall be sent by
facsimile transmission and confirmed by overnight courier, and shall be
deemed given on the date of such facsimile transmission. All notices shall
be addressed as set forth below:
If to CRT: CONE, ROSE, THATCHER, LIMITED
000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
If to ATG: AMERICAN TECHNOLOGIES GROUP, INC.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Or to such other address as each party hereto may from time to time
designate by written notice to the other party as provided herein.
8.3 GOVERNING LAW. This Agreement has been executed and delivered
in, and shall be governed by and construed in accordance with the laws of the
State of California without regard to its conflict of laws provisions.
8.4 RESOLUTION OF DISPUTES. Any controversy or claim relating to
this Agreement (whether contract, tort, or both) or to the breach of this
Agreement shall be arbitrated by and in accordance with the then existing
commercial arbitration rules of the American Arbitration Association, in Los
Angeles, California. The arbitrator may render a judgement awarding actual
compensatory damages only, and no consequential, incidental, or punitive
damages may be awarded by the arbitrator. Judgment on the award rendered by
such arbitrator may be entered in any court having jurisdiction. Nothing in
this Section 8.4 shall affect ATG's right to bring an action or proceeding
against CRT in the courts of any jurisdiction where the purpose of such
action or proceeding is to seek injunctive relief against CRT. Service of
process in any such action or proceeding brought hereunder may be made by
mailing copies of such process to the address of the parties provided for in
Section 8.2 hereto, provided that nothing in this Section 8.4 shall affect
the right to serve legal process in any other manner permitted by law. In
the event of any action or proceeding to enforce this Agreement, the
successful or prevailing party will be entitled to recover its attorney's
fees actually incurred and other costs incurred in any such action or
proceeding, in addition to any other relief to which it may be entitled.
8.5 HEADINGS. The headings herein are for convenience only, and do
not constitute a part of this Agreement, and shall not be deemed to limit or
affect any of the terms or provisions hereof.
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8.6 WAIVER AND AMENDMENT. No waiver, amendment, modification or
change of any provision of this Agreement shall be effective unless and until
made in writing and signed by all of the parties hereto. No waiver,
forbearance or failure by any party hereto of its right to enforce any
provision of this Agreement shall constitute a waiver or estoppel of such
party's right to enforce any other provision of this Agreement or a
continuing waiver by such party of compliance with any provision.
8.7 SEVERABILITY. The provisions of this Agreement are intended to
be interpreted and construed in a manner so as to make such provisions valid,
binding and enforceable. In the event that any provision of this Agreement
is determined to be partially or wholly invalid, illegal or unenforceable,
then such provision shall be deemed to be modified or restricted to the
extent necessary to make such provision valid, binding and enforceable, or,
if such provision cannot be modified or restricted in a manner so as to make
such provision valid, binding and enforceable, then such provision shall be
deemed to be excised from this Agreement and the validity, binding effect and
enforceability of the remaining provision of this Agreement shall not be
affected or impaired in any manner.
8.8 COOPERATION. Each party hereto shall cooperate with the other
party hereto and shall take such further action and shall execute and deliver
such further documents as maybe necessary or desirable in order to carry out
the provisions and purposes of this Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
8.10 ENTIRE AGREEMENT. This Agreement (including the exhibits and
schedules hereto, each of which is incorporated herein and made a part of
this Agreement) constitutes the entire Agreement and understanding of the
parties hereto and terminates and supersedes any and all prior agreements,
arrangements and understandings, both oral and written, express or implied,
between the parties hereto concerning the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first written above.
"ATG" "CRT"
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxx
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Name: Xxxxxxxx X. Xxxxx Name: Xxxxxx Xxxx
Title: Chairman Title: Authorized Signatory
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