Exhibit 6.6
CONSULTING AGREEMENT
Date: 8/25/98
From: iQ Power Technology Inc.
(the "Company")
At: Xxxxx 000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx X0X 0X0
To: MAYON MANAGEMENT CORP.
(the "Consultant")
At: Xxxxx 000, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
IN CONSIDERATION for the mutual promises and covenants and the terms and
conditions set out in Sections 1 through 9 attached, the Company hereby offers
and the Consultant hereby accepts engagement with the Company upon the terms and
conditions set forth herein:
Position: Manager
Responsibilities: Those described in Schedule A.
Term of Agreement: This Agreement shall have a term of 3 years commencing
immediately.
Compensation: The Company shall pay the Consultant US$6,000 per
month as consideration for the services of the
Consultant hereunder, payable on the first business
day of each month during the term of this Agreement.
Governing Jurisdiction: British Columbia.
Executed and delivered by and on behalf of the Company at ________________,
effective the date and year first above written.
iQ Power Technology Inc.
Per:_________________________________
===============================================================================
Accepted, and signed, sealed and delivered by the Consultant at
_____________________________________________, effective the date and year first
above written.
MAYON MANAGEMENT CORP.
Per:_________________________________
Consulting Agreement
Page 2
IN CONSIDERATION for the mutual promises and covenants and the terms and
conditions contained in this Agreement, the Company hereby offers and the
Consultant hereby accepts engagement with the Company upon the terms and
conditions set forth herein.
1.00 Position
--------------
1.01 The Consultant shall hold the position indicated in on the first page
hereof and in such capacity, shall carry out the duties and responsibilities
commensurate with that position as such duties are more specifically defined
from time to time during the term of this Agreement by the Board of Directors of
the Company. The Consultant shall provide the services of Xxxxxxx Xxxxxx as an
employee and, at the election of the Board of Directors of the Company, an
officer of the Company. For the purpose of this Agreement, any reference to the
Consultant shall include reference to Xxxxxxx Xxxxxx.
2.00 Terms; Termination of Consulting
--------------------------------------
2.01 The term of engagement pursuant to this Agreement shall be for the term
stated on the first page hereof and thereafter engagement shall continue on an
annual basis until terminated by the Company or the Consultant.
Either party may terminate the Consultant's engagement as follows:
a. the Consultant may terminate his services at any time and for any reason
upon thirty days' written notice to the Company;
b. the Company may terminate the Consultant's services at will. If the Company
terminates the Consultant's engagement without cause, the Consultant's
salary and benefits shall continue for at least the current term of this
Agreement;
c. the Company may terminate the Consultant's services for cause after
reasonable notice of any non-performance has been given by the Company to
the Consultant and a reasonable opportunity has been afforded to the
Consultant to remedy any instance of non-performance. For purposes of the
preceding sentence, "cause" shall include:
i. fraud,
ii. conviction or confession of an indictable offense,
iii. destruction or theft of the Company's property,
iv. misconduct materially injurious to the Company, or
v. any breach or threatened breach of this Agreement; and
d. the Company may terminate the Consultant's services should the Consultant
no longer provide the services of Xxxx Xxxxxx as provided for in this
agreement, and the Consultant's salary and benefits will be terminated on
the date of such termination.
2.02 If the Consultant's engagement is terminated, he shall continue to be bound
by the terms of Sections 5.00 and 6.00 of this Agreement.
3.00 Compensation
------------------
3.01 During the term of this Agreement, the Consultant shall be paid in
accordance with the payment provisions on the first page hereof. The Company
shall remit to all government and regulatory authorities all engagement,
workers' compensation, and other statutory deductions as may be required by the
law of the Governing Jurisdiction. The compensation may be increased from time
to time subject to the approval of the Board of Directors of the Company.
4.00 Benefits
--------------
4.01 The Consultant shall be entitled to on approval by the Board of Directors
of the Company participate fully in all other benefits provided by the Company
to employees in his category of engagement.
Consulting Agreement
Page 3
4.02 For the duration of Consultant's engagement hereunder, Consultant will be
provided such holidays, sick leave and vacation as Company makes available to
its management level employees generally or as specifically stated on the first
page hereof. Company will reimburse Consultant in accordance with company
policies and procedures for reasonable expenses necessarily incurred in the
performance of duties hereunder against appropriate receipts and vouchers
indicating the specific business purpose for each such expenditure.
5.00 Covenant Not to Compete
-----------------------------
5.01 In consideration for the engagement granted to him under this Agreement,
the Consultant agrees that he will not directly or indirectly compete with the
Company during the term of his engagement with the Company and for a period of
two years from the date on which his engagement with the Company terminates. The
said covenant not to compete shall include all geographical areas in which the
Company is actively marketing or developing products or operates directly or
indirectly through a subsidiary or associated company having common control or
ownership during the term of engagement or as of the engagement termination date
and shall prohibit the following activities:
a. the design, development, manufacture, production, sale, marketing,
solicitation or acceptance of orders with regard to any product, concept,
or business line which is directly competitive with any aspect of the
business of the Company as conducted as of the termination date, whether or
not using any confidential information; and
b. having anywhere in the world where the Company is actively marketing
products or services as of the date of termination of engagement, any
business dealings or contacts except those which demonstrably do not relate
to or compete with the business or interest of the Company; and
c. being an employee, employer, Consultant, officer, director, partner,
consultant, trustee or shareholder of more than five percent of the
outstanding common stock of any person or entity that does any of the
activities referred to in the preceding paragraphs (a) and (b).
For the purpose of this section, the business of the Company includes, but is
not limited to, the design, development, manufacture and distribution of
lead-acid batteries and related technologies and products.
6.00 Ownership of Technology; Confidentiality
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6.01 Confidential Information
The Consultant recognizes and acknowledges that during the course of his
engagement, he will have access to certain information not generally known to
the public, relating to the products, sales or business of the Company which may
include, without limitation, software, literature, data, programs, customer
contact lists, sources of supply, prospects or projections, manufacturing
techniques, processes, formulas, research or experimental work, work in process,
trade secrets or any other proprietary or confidential matter (collectively, the
"Confidential Information"). The Consultant recognizes and acknowledges that
this Confidential Information constitutes a valuable, special and unique asset
of the Company, access to and knowledge of which are essential to the
performance of the Consultant's duties. The Consultant acknowledges and agrees
that all such Confidential Information, including without limitation that which
the Consultant conceives or develops, either alone or with others, at any time
during his engagement by the Company, is and shall remain the exclusive property
of the Company. The Consultant further recognizes, acknowledges and agrees that,
to enable the Company to perform services for its customers or its clients, such
customers or clients may furnish to the Company or the Consultant Confidential
Information concerning their business affairs, property, methods of operation or
other data, that the goodwill afforded to the Company depends on the Company and
its employees preserving the confidentiality of such information, and that such
information shall be treated as Confidential Information of the Company for all
purposes under this Agreement.
6.02 Non-Disclosure
The Consultant agrees that, except as directed by the Company, the Consultant
will not at any time, whether during or after his engagement with the Company,
use or disclose to any person for any purpose other than for the benefit of the
Company any Confidential Information, or permit any person to use, examine
and/or make copies of any documents, files, data or other information sources
which contain or are derived from Confidential Information, whether prepared by
Consulting Agreement
Page 4
the Consultant or otherwise coming into the Company's possession or control
without the prior written permission of the Company. Consultant's obligations
under subsections 6.01 and 6.02 are indefinite in term and shall survive the
termination of this Agreement.
6.03 Work Product and Copyrights.
Consultant agrees that all right, title and interest in and to the materials
resulting from the performance of Consultant's duties at Company and all copies
thereof, including works in progress, in whatever media, (the "Work"), will be
and remain in Company upon their creation. Consultant will xxxx all Work with
Company's copyright or other proprietary notice as directed by Company.
Consultant further agrees:
a. To the extent that any portion of the Work constitutes a work protectable
under the copyright laws of the United States, Canada or the Federal
Republic of Germany (the "Copyright Law"), that all such Work will be
considered a "work made for hire" as such term is used and defined in the
Copyright Law and that Company will be considered the "author" of such
portion of the Work and the sole and exclusive owner throughout the world
of copyright therein; and
b. If any portion of the Work does not qualify as a "work made for hire" as
such term is used and defined in the Copyright Law, that Consultant hereby
assigns and agrees to assign to Company, without further consideration, all
right, title and interest in and to such Work or in any such portion
thereof and any copyright therein and further agrees to execute and deliver
to Company, upon request, appropriate assignments of such Work and
copyright therein and such other documents and instruments as Company may
request to fully and completely assign such Work and copyright therein to
Company, its successors or nominees, and that Consultant hereby appoints
Company as attorney-in-fact to execute and deliver any such documents on
Consultant's behalf in the event Consultant should fail or refuse to do so
within a reasonable period following Company's request.
6.04 Inventions and Patents
For purposes of this Agreement, "Inventions" includes, without limitation,
information, inventions, contributions, improvements, ideas, or discoveries,
whether patentable or not, and whether or not conceived or made during work
hours. Consultant agrees that all Inventions conceived or made by Consultant
during the period of engagement with Company belong to Company, provided they
grow out of Consultant's work with Company or are related in some manner to the
Company's business, including, without limitation, research and product
development, and projected business of Company or its affiliated companies.
Accordingly, Consultant will:
a. Make adequate written records of such Inventions, which records will be
Company's property;
b. Assign to Company, at its request, any rights Consultant may have to such
Inventions for the Federal Republic of Germany, the U.S., Canada, and all
other countries;
c. Waive and agree not to assert any moral rights Consultant may have or
acquire in any Inventions and agree to provide written waivers from time to
time as requested by Company; and
d. Assist Company (at Company's expense) in obtaining and maintaining patents
or copyright registrations with respect to such Inventions.
Consultant understands and agrees that Company or its designee will determine,
in its sole and absolute discretion, whether an application for patent will be
filed on any Invention that is the exclusive property of Company, as set forth
above, and whether such an application will be abandoned prior to issuance of a
patent. Company will pay to Consultant, either during or after the term of this
Agreement, the following amounts if Consultant is sole inventor, or Consultant's
proportionate share if Consultant is joint inventor: $750 upon filing of the
initial application for patent on such Invention; and $1,500 upon issuance of a
patent resulting from such initial patent application, provided Consultant is
named as an inventor in the patent.
Consultant further agrees that Consultant will promptly disclose in writing to
Company during the term of Consultant's engagement and for one (1) year
thereafter, all Inventions whether developed during the time of such engagement
or thereafter (whether or not Company has rights in such
Consulting Agreement
Page 5
Inventions) so that Consultant's rights and Company's rights in such Inventions
can be determined. Consultant represents and warrants that Consultant has no
Inventions, software, writings or other works of authorship useful to Company in
the normal course of the Company's business, which were conceived, made or
written prior to the date of this Agreement and which are excluded from the
operation of this Agreement
6.05 Possession
The Consultant agrees that upon request by the Company and in any event upon
termination of engagement, the Consultant shall turn over to the Company all
Confidential Information in the Consultant's possession or under his control
which was created pursuant to, is connected with or derived from the
Consultant's services to the Company, or which is related in any manner to the
Company's business activities or research and development efforts, whether or
not such materials are in the Consultant's possession as of the date of this
Agreement.
7.00 Saving Provision
----------------------
7.01 The Company and the Consultant agree and stipulate that the agreements and
covenants contained in the preceding Sections 5.00 and 6.00, including the scope
of the restricted activities described therein and the duration and geographic
extent of such restrictions, are fair and reasonably necessary for the
protection of Confidential Information, goodwill and other protectable
interests, in light of all of the facts and circumstances of the relationship
between the Consultant and the Company. In the event a court of competent
jurisdiction should decline to enforce any provision of the preceding
paragraphs, such paragraphs shall be deemed to be modified to restrict the
Consultant's competition with the Company to the maximum extent, in both time
and geography, which the court shall find enforceable.
8.00 Injunctive Relief
-----------------------
8.01 The Consultant acknowledges that disclosure of any Confidential Information
or breach or threatened breach of any of the non-competition and non-disclosure
covenants or other agreements contained herein would give rise to irreparable
injury to the Company or clients of the Company which injury would be
inadequately compensable in money damages. Accordingly, the Company or where
appropriate, a client of the Company, may seek and obtain an injunctive relief
from the breach or threatened breach of any provision, requirement or covenant
of this Agreement, in addition to and not in limitation of any other legal
remedies which may be available. The Consultant further acknowledges, agrees and
stipulates that, in the event of the termination of engagement with the Company,
the Consultant's experience and capabilities are such that the Consultant can
obtain engagement in business activities which are of a different and
non-competing nature with his activities as an Consultant of the Company and
that the enforcement of a remedy hereunder by way of injunction shall not
prevent the Consultant from earning a reasonable livelihood. The Consultant
further acknowledges and agrees that the covenants contained herein are
necessary for the protection of the Company's legitimate business interests and
are reasonable in scope and content.
9.00 General
-------------
9.01 This Agreement is made under and subject to the laws of the Governing
Jurisdiction stated on the first page hereof.
9.02 Consultant authorizes Company, at its election, to reveal the terms of this
Agreement to any future employer or potential employer of Consultant or as may
otherwise be required under any disclosure laws applicable to the Company.
9.03 Consultant represents and warrants to Company that Consultant is free to
enter into this Agreement and has no commitment, arrangement or understanding to
or with any party that restrains or is in conflict with Consultant's performance
of the covenants, services and duties provided for in this Agreement.
9.04 During Consultant's engagement, this Agreement may not be assigned by
either party without the written consent of the other; provided, however, that
Company may assign its rights and obligations under this Agreement without
Consultant's consent to a successor by sale, merger or liquidation, if such
successor carries on the business of the Company substantially in the form in
which it is being conducted by the Company at the time of the sale, merger or
liquidation.
Consulting Agreement
Page 6
9.05 This Agreement is binding upon Consultant, Consultant's heirs, personal
representatives and permitted assigns and on Company, its successors and
assigns.
9.06 Any notice required or permitted to be given hereunder are sufficient if in
writing and delivered by hand, by facsimile or by registered or certified mail,
to a party at its address noted on the first page hereof
9.07 If any provision of this Agreement or compliance by any of the parties with
any provision of this Agreement constitutes a violation of any law, or is or
becomes unenforceable or void, then such provision, to the extent only that it
is in violation of law, unenforceable or void, shall be deemed modified to the
extent necessary so that it is no longer in violation of law, unenforceable or
void, and such provision will be enforced to the fullest extent permitted by
law. If such modification is not possible, said provision, to the extent that it
is in violation of law, unenforceable or void, shall be deemed severable from
the remaining provisions of this Agreement, which provisions will remain binding
on the parties.
9.08 No failure on the part of either party to exercise, and no delay in
exercising, any right or remedy hereunder will operate as a waiver thereof; nor
will any single or partial waiver of a breach of any provision of this Agreement
operate or be construe as a waiver of any subsequent breach; nor will any single
or partial exercise of any right or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy granted
hereby or by law.
9.09 This instrument contains the entire agreement of the parties with respect
to the relationship between Consultant and Company and supersedes all prior
agreements and understandings, and there are no other representations or
agreements other than as stated in this Agreement related to the terms and
conditions of Consultant's engagement. This Agreement may be changed only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
9.10 In the event it becomes necessary to enforce this Agreement through legal
action, whether or not a suit is actually commenced, the party which obtains
substantial success in a legal action shall be entitled to his or actual
reasonable solicitor's fees and disbursements.
9.11 Any reference in this Agreement in the masculine gender shall include the
feminine and neuter genders, and vice versa, as appropriate. Any reference in
this Agreement in the singular shall mean the plural and vice versa, as
appropriate.
9.12 All references to money in this Agreement are or shall be to money in
lawful money of the Governing Jurisdiction stated on the first page hereof.
SCHEDULE A
Duties shall include:
a. retaining the services of professionals for the purpose of reviewing all
prospects introduced to the Corporation for investment or participation;
b. selecting on the basis of evaluations provided by professionals, after
consideration of the risk factors involved, suitable business opportunities
for acquisition and participation;
c. negotiating contracts with potential participants in ventures to be
participated in by the Corporation;
d. negotiating for and obtaining the services of operators for the
Corporation's prospects, or if the Corporation is the operator or manager,
negotiating for and obtaining the services of independent contractors;
e. conducting on-site inspections of all projects undertaken by the
Corporation;
f. arranging for and securing financings for the Corporation as may be
permitted by regulatory bodies;
g. arranging for timely disclosure of all material facts in the affairs of the
Corporation;
h. arranging for the collection of all receivables to be obtained by the
Corporation;
i. negotiating for and concluding all sales and other contracts;
j. establishing and maintaining suitable banking relations;
k. ensuring the maintenance of proper accounting records and compiling monthly
statements of source and application of funds;
l. arranging for payment of all payables of the Corporation and/or any
subsidiaries;
m. perusing and replying to all corporate enquiries and correspondence;
n. securing and obtaining for the benefit of the Corporation competent tax
advice, legal advice and services and accounting services; and
o. and all such other duties as may be imposed upon the Manager from time to
time due to the nature of the Corporation's business.
All duties shall be performed in cooperation with the President of the Company.
For greater certainty, the Consultant may not enter into any contracts on the
Company's behalf without the prior written consent of the Company's Board of
Directors.
