Exhibit 10.1
This Professional Services
Consulting Agreement ("Agreement") is entered into as of this 7th day of August, 2006
("Effective Date"), by and between Electro Energy, Inc. ("Company"), and Xx. Xxxxxx
Xxxxxx ("Consultant").
WHEREAS,
the Consultant is a member of the Board of Directors of the Company;
WHEREAS,
the Company wishes to retain Consultant for technical advisory services; and
WHEREAS,
the Consultant is willing to provide such services to the Company, in addition to those
duties otherwise required by Consultant in his capacity as a member of the Board of
Directors of the Company.
NOW,
THEREFORE, in consideration of the promises and the mutual agreements set forth herein
and other good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties agree as follows:
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1.1 |
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SERVICES
TO BE PROVIDED. The Consultant shall serve as a consultant to the Company and provide the
following services (collectively, the “Services”), which, together with the
Additional Services as defined below, shall be rendered in accordance with the terms and
conditions of this agreement: |
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1.1.1 |
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Consultant
will provide consulting expertise, in either oral or written form , at the request of the
Company, in each case, on a 24-hour “round the clock” basis, to any senior
officer of the Company or its directors; |
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1.1.2 |
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Consultant
will coordinate and convene meetings as requested by the Company with prominent research
scientists, engineers or business executives with whom the Company might advantageously
collaborate; |
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1.1.3 |
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Consultant
will review and advise the Company regarding technology plans or business initiatives as
requested by the Company; |
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1.1.4 |
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Consultant
will exploit his network of contacts and associates with whom Consultant has, or has had
in the past, business relationships in, or related to, the battery industry, for
opportunities beneficial to the Company; and |
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1.1.5 |
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Consultant
will provide such other services as are mutually agreed upon by and between the
Consultant and the Chief Executive Officer of the Company. |
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1.2 |
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Additional
Services. At the Company's request, the Consultant shall also perform the following
Additional Services: |
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1.2.1 |
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Consultant
shall be available for occasional onsite meetings at the Company. |
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1.2.2 |
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Consultant
will attend conferences, symposia or conventions at the reasonable request of the Company
and register either as a Company representative or as an individual as requested by the
Company. |
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1.3 |
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PERFORMANCE
OF SERVICES. The Consultant shall, to the best of his ability, render the Services in a
timely and professional manner consistent with generally accepted industry
standards. |
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1.4 |
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OWNERSHIP
OF WORK PRODUCT. As used herein, the term “Work Product” means all
materials, software, tools, data, inventions, works of authorship and other innovations
of any kind, including, without limitation, any deliverables under this Agreement and any
improvements or modifications thereon, that Consultant may make, conceive, develop or
reduce to practice, alone or jointly with others, in the course of performing the
Services or as a result of such Services, whether or not eligible for patent, copyright,
trademark, trade secret or other legal protection. Consultant agrees that all Work
Product shall be the property of the Company and hereby assigns all rights it may have in
the Work Product and in all related patents, patent applications, copyrights, mask work
rights, trademarks, trade secrets, rights of priority and other proprietary rights to the
Company. Consultant acknowledges that the Company in its sole discretion, shall have the
right to license the Work Product or any portion thereof, and/or incorporate the Work
Product or any portion thereof into the Company products, for use by other licensees or
Consultants of the Company. |
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2.1 |
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In
consideration of the Services, the Consultant shall receive a monthly consulting fee of
$1,500 (pro rated for any partial month during which the Consultant has rendered
services). The Consultant shall receive $1,000 for each full day during which the
Consultant has rendered Additional Services. In addition, the Consultant shall be
entitled to receive reimbursement for: (i) the cost of any required materials, lowest
cost travel, rental car expense, and lodging, in each case, incurred by the Consultant in
connection with providing the Additional Services and which are not provided directly by
the Company; and (ii) conference registration fees incurred in accordance with Section
1.2.2 and approved in advance by the Company. Any such fees and costs will be invoiced
monthly and will be payable within thirty (30) days of the date of invoice. |
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2.2 |
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Notwithstanding
the foregoing, Consultant shall not be compensated hereunder for Services or Additional
Services which are deemed to be duties otherwise required or customarily expected of him
in his capacity as a member of the Board of Directors of the Company. |
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3.1 |
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TERM.
This Agreement shall commence on the Effective Date and shall continue until terminated
by either party with 30 days advance written notice. |
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3.2 |
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EFFECT
OF TERMINATION. Upon termination of this Agreement, the Consultant shall cease performing
any Services and Additional Services in accordance with the notice of termination and as
directed by the Company, and the Company shall pay the Consultant any compensation due
for Services and Additional Services actually rendered through the effective date of
termination. Sections 1.4 and 4, shall survive the termination of this Agreement.
Termination of this Agreement by either party shall not act as a waiver of any breach of
this Agreement and shall not act as a release of either party from any liability for
breach of such party’s obligations under this Agreement. Neither party shall be
liable to the other for damages of any kind solely as a result of terminating this
Agreement in accordance with its terms, and termination of this Agreement by a party
shall be without prejudice to any other right or remedy of such party under this
Agreement or applicable law. |
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CONFIDENTIALITY
AND NON-COMPETITION. |
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4.1 |
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NON-DISCLOSURE
OF CONFIDENTAL INFORMATION. Except as required in the performance of his duties to the
Company, during the term of his consultancy and for five years thereafter, Consultant
shall treat as confidential and shall not, directly or indirectly, use, disseminate,
disclose, publish, or otherwise make available to any person, firm, corporation,
unincorporated association or other entity any Confidential and Proprietary Information
or any portion thereof. “Confidential and Proprietary Information”shall mean
any and all information that is disclosed or made available to the Consultant or becomes
known by the Consultant as a direct or indirect consequence of or through his consultancy
to the Company and not in the public domain and or generally known in the industry in
which the Company is or may become engaged, including, but not limited to, customers,
clients, contracts and agreements, marketing, plans, publications, financial information,
and any information or data related to the Company’s products, materials,
technologies, procedures, methods, formulae, techniques, , analytical tools and methods,
services, finances, research, development, consultants, analysis or accounting. This
paragraph 4.1 shall in no event limit or reduce any duty or obligation of Consultant with
respect to Confidential and Proprietary Information, or any other asset or interest of
the Company, that may exist as a result of Consultant’s serving as a director of the
Company. |
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4.2 |
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EXCLUSIONS.Notwithstanding
the foregoing, this Agreement shall not prevent the Consultant from disclosing
Confidential and Proprietary Information of the Company to the extent required by a
judicial order or other legal obligation, provided that, in such event, the Consultant
shall promptly notify the Company to allow intervention (and shall cooperate with the
Company) to contest or minimize the scope of the disclosure (including application for a
protective order) to such party requiring said disclosure. |
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4.3 |
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NON-COMPETITION.
During the term this Agreement, Consultant agrees that he will not, without the prior
written consent of the Company, directly or indirectly own, consult with or be employed
by any enterprise other than the Company that develops, creates, manufactures,
distributes, or markets batteries, except: (i) in connection with Consultant’s
affiliations with Xxxxxx Enterprises, LLC and XCECOM LLC, and the companies (and to the
extent) set forth on Schedule A attached hereto; and (ii) as a holder of less
than five percent of the shares of a company whose stock is publicly traded. It is
expressly understood that Consultant shall not be prohibited or limited from engaging in,
participating in, being employed by or owning any other business, venture or business
entity. |
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5.1 |
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GOVERNING
LAW. This Agreement is to be construed in accordance with and governed by the internal
laws of the State of Connecticut, without giving effect to or application of
provisions relating to choice of law. |
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5.2 |
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SEVERABILITY.
If any provision of this Agreement is unenforceable, then such provision will be enforced
to the maximum extent possible under applicable law so as to effect the intent of the
parties and the other provisions of this Agreement will continue in full force and
effect. |
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5.3 |
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COUNTERPARTS.
This Agreement may be executed in counterparts. |
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5.4 |
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ENTIRE
AGREEMENT; AMENDMENTS; WAIVER. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes all prior or
contemporaneous communications, negotiations, and agreements, written or oral, regarding
the subject matter hereto. No modification of or amendment or waiver to this Agreement
will be effective unless in writing and signed by each of the parties. |
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intentionally left blank; signature page follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date written above.
| ELECTRO ENERGY, INC. |
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CONSULTANT |
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| By: |
/s/ Xxxxxxx X. Xxxx |
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/s/ Xx. Xxxxxx Xxxxxx |
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Name: Xxxxxxx X. Xxxx |
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XX. XXXXXX XXXXXX |
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Title:
Chief Executive Officer |
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