EXHIBIT 10.6
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective and entered
into as of December 1, 2003, by and between SAVE THE WORLD AIR, INC., a Nevada
corporation (the "Company"), and XXXXXX XXXXXXX ("Consultant"), with reference
to the following facts:
RECITALS
A. The Company has developed proprietary technologies for reducing
harmful emissions from fuel combustion engines and improving fuel
efficiency, among other benefits and is currently in process of
organizational development as it prepares to bring its products
to market.
B. The Company desires to engage the services of Consultant as an
independent contractor to assist with organizational and
administrative matters, as specified by the Company from time to
time during its transitional period of development.
C. Consultant has expertise in the area of the Company's business
requirements and desires to provide consulting services for the
Company upon the terms and conditions contained herein.
NOW, THEREFORE, the Company and Consultant hereby mutually agree as
follows:
Section 1. Scope of Services to be provided. Development of Company
Policies and Procedures and such policies' implementation and
administration when deemed appropriate by the Company.
(a) Consultant shall undertake and perform the tasks outlined.
in Section 1 and such additional or other responsibilities
as may be reasonably assigned to Consultant from time to
time by the Company's Chief Executive Officer, President and
Chief Operating Officer.
(b) Consultant shall keep confidential any proprietary or
confidential information of the Company, including without
limitation all information that may constitute a trade
secret or otherwise confer strategic or competitive
advantages to the Company, by use of passwords, locked
cabinets, identification of such information and materials
as "Confidential" and other limits on access as may be
customary or appropriate or set forth in Company policies.
Section 2. Non-Disclosure Obligations. Concurrently with the parties'
execution of this Agreement, Consultant shall execute and
deliver to the Company the Confidentiality Agreement
attached hereto as Annex B (the "Confidentiality
Agreement"), the provisions of which are incorporated herein
by this reference.
Section 3. Consultant's Representations and Covenants. Consultant
represents, warrants and covenants to the Company that:
(a) Consultant shall devote such time, energy, interest,
ability, and skill as may be fairly and reasonably necessary
to provide to the Company the services described in Section
1 above.
(b) Consultant shall not, during the term of this Agreement,
directly or indirectly, promote, participate, or engage in
any business activity that would materially interfere with
the performance of Consultant's duties under this Agreement
or which is competitive with the Company's or any Company
Affiliate's business, including, without limitation, any
involvement as a shareholder, director, officer, employee,
partner, joint venturer, consultant, advisor, individual
proprietor, lender, or agent of any business, without the
prior written consent of the Company. The term "Affiliate"
shall mean, with respect to any person or entity, any other
person or entity which, directly or indirectly through one
or more intermediaries, is in control of, is controlled by
or is under common control with, such person or entity.
"Control of," "controlled by" and "under common control
with" mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management
policies of a person or entity, by contract or credit
arrangement, as trustee or executor, or otherwise. The term
"Affiliate" includes, but is not limited to, each and every
subsidiary of the Company.
(c) During the term of this Agreement and for a period of one
year after the termination of this Agreement, Consultant
shall not solicit, attempt to solicit, or cause to be
solicited any customers of the Company for purposes of
promoting or selling products or services which are
competitive with those of the Company, nor shall Consultant
solicit, attempt to solicit, or cause to be solicited any
employees, agents, or other independent contractors of the
Company to cease their relationship with the Company.
(d) Consultant does not have any agreements with or commitments
to any other person or entity which conflict with any of
Consultant's obligations to the Company arising under this
Agreement.
(e) Consultant shall maintain any and all licenses and permits
as may be required for Consultant to provide the consulting
services contemplated hereby. In the event Consultant shall
utilize the services or shall acquire any products in order
to render the consulting services contemplated hereby,
Consultant shall be solely responsible for the payment for
such services and products, except to the extent
reimbursable by the Company in accordance with 0 below.
Consultant shall be solely responsible for any and all
income and other taxes that may be due to any state, local
or federal governmental authorities in respect of the
compensation to Consultant pursuant to this Agreement.
Consultant acknowledges that the Company shall not make any
withholdings from payments to Consultant hereunder.
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(f) Except upon the express written consent of the Company,
Consultant shall have no authority, and shall not represent,
suggest or imply that Consultant has the authority, express
or implied: (1) to bind the Company to any agreements or
arrangements, written or oral; (2) to make an offer or
accept an offer on behalf of the Company; or (3) to make
representations, warranties, guaranties, commitments or
covenants on behalf of Company.
Section 4. Ownership.
(a) The compensation payments set forth herein shall be full and
complete compensation both for all obligations assumed by
Consultant hereunder and for any and all Creations (as
defined in the Confidentiality Agreement) assigned under
this Agreement.
(b) The Company shall retain the exclusive right to use or
distribute, at its sole discretion, any and all Creations.
Consultant shall make no claim on any consideration received
by the Company for the sale, lease or use of the Creations.
Section 5. Term. This Agreement shall terminate on December 31, 2004,
unless earlier terminated in accordance with this Section 5.
In addition, this Agreement shall terminate automatically
upon the death of Consultant, or the mental or physical
incapacity of Consultant for a period of 60 consecutive
days. Either party hereto may terminate this Agreement upon
a material breach of this Agreement by the other party; and
the Company may terminate this Agreement upon a material
breach of the Confidentiality Agreement by Consultant.
Section 6. Compensation. Consultant's compensation for his services
hereunder shall be at a monthly rate of $3,500.00.
Section 7. Reimbursement of Business Expenses. To the extent Consultant
is authorized by the Company to make expenditures to carry
out Consultant's duties hereunder, the Company shall
reimburse Consultant for the actual costs thereof, subject
to receipt of such documentation and other information as
the Company may reasonably request or require in accordance
with its policies, and subject further to any limitations on
the amount that Consultant may be authorized to incur in
making expenditures on the Company's behalf. Reimbursement
for each qualifying expense shall be made upon the
presentation of a receipt by Consultant of such expense item
and any and all other documentation which the Company may
reasonably require regarding the expense item submitted to
Company.
Section 8. Independent Contractor. Consultant shall be retained by the
Company only for the purposes and to the extent set forth in
this Agreement, and his relation to the Company, during the
term of this Agreement, shall be that of an
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independent contractor. Consultant shall not be considered
as having an employee status.
Section 9. Injunctive Relief. Remedies at law shall be deemed to be
inadequate for any breach of any of the covenants of this
Agreement, and the Company shall be entitled to injunctive
relief in addition to any other remedies it may have in the
event of such breach.
Section 10. Amendments; Consents. No amendment, modification,
supplement, termination, or waiver of any provision in this
Agreement, and no consent to any departure therefrom, shall
be effective unless in writing and signed by both Consultant
and the Company and then only in the specific instance and
for the specific purpose given.
Section 11. Notices. Any notices required or permitted to be given in
writing will be deemed received when personally delivered
or, if earlier, ten (10) days after mailing by registered or
certified United States mail, postage prepaid, and return
receipt requested. Notice to the Company is valid if sent to
the Company's principal place of business and notice to
Consultant is valid if sent to Consultant at Consultant's
address as it appears in the Company's records. The Company
or Consultant may change their address only by notice given
to the other in the manner set forth herein.
Section 12. Counterparts; Facsimile Signatures. This Agreement may be
executed in two or more counterparts, and the counterparts,
taken together, shall constitute one original. Executed
copies of this Agreement and any amendments or modifications
thereto may be delivered by facsimile transmission in lieu
of an original.
Section 13. Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of Consultant and the
Company and their respective permitted successors and
assigns. This Agreement, including the rights and
obligations hereunder, shall not be assigned, delegated or
transferred by Consultant without the prior written consent
of the Company.
Section 14. Integration; Construction. This Agreement (together with
the appendices thereof) shall comprise the complete and
integrated agreement of the Company and Consultant and shall
supersede all prior agreements, written or oral, on the
subject matter hereof. Neither party hereto shall have a
provision construed against it by reason of such party
having drafted the same.
Section 15. Survival. The rights and obligations provided in Section 3
(b), Section 4, Section 6, Section 9, Section 13 and Section
19 shall survive termination of this Agreement.
Section 16. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the
State of California.
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Section 17. Severability of Provisions. Any provision in this
Agreement that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall be, as to that
jurisdiction only, inoperative, unenforceable, or invalid
without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity
of those provisions in any other jurisdiction, and to this
end the provisions of this Agreement shall be severable.
Section 18. Headings. Headings of this Agreement are included for
convenience only and shall not be considered a part of this
Agreement for any other purpose.
Section 19. Attorneys' Fees. In the event of any litigation or other
dispute arising as a result of or by reason of this
Agreement, the prevailing party in any such litigation or
other dispute shall be entitled to, in addition to any other
damages assessed, its reasonable attorneys' fees, and all
other costs and expenses incurred in connection with
settling or resolving such dispute. The attorneys' fees
which the prevailing party is entitled to recover shall
include fees for prosecuting or defending any appeal and
shall be awarded for any supplemental proceedings until the
final judgment is satisfied in full. In addition to the
foregoing award of attorneys' fees to the prevailing party,
the prevailing party in any lawsuit on this Agreement shall
be entitled to its reasonable attorneys' fees incurred in
any post judgment proceedings to collect or enforce the
judgment. This attorneys' fees provision is separate and
several and shall survive the merger of this Agreement into
any judgment.
Section 20. Waiver; Rights and Remedies. Neither Consultant's nor the
Company's failure to exercise any right under this Agreement
shall constitute a waiver of any other term or condition of
this Agreement with respect to any other preceding,
concurrent, or subsequent breach, nor shall it constitute a
waiver by the Company or Consultant of its rights at any
time thereafter to require exact and strict compliance with
any of the terms of this Agreement. The rights and remedies
set forth in this Agreement shall be in addition to any
other rights or remedies which may be granted by law.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed or caused their
respective duly authorized officer to execute this Agreement as of the
date first set forth above.
CONSULTANT
By______________________________________
Name: Xxxxxx Xxxxxxx
SAVE THE WORLD AIR, INC.
By______________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer
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CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement") which constitutes Annex A,
is entered into by and between the individual whose name appears on the
signature page of the related Consulting Agreement ("Consultant"), on the one
hand, and Save the World Air, Inc., a Nevada corporation (the "Company"), on the
other, with reference to the following facts:
RECITALS
A. This Agreement is being entered into pursuant to that
certain Consulting Agreement of even date herewith,
between the Company and Consultant ("Consulting
Agreement").
B. The Company has retained the services of Consultant
to provide Policies and Procedures and other services
as called upon from time to time.
C. The Company desires to protect various proprietary
and confidential information that it uses in its
business.
Therefore, the parties hereto do hereby agree as follows:
1. Definition of Confidential Information.
(a) For the purposes of this Agreement, the term
"Confidential Information" shall mean information, material and trade secrets
(i) proprietary to the Company or to any Affiliate (as defined below) of the
Company or (ii) designated as confidential by the Company, whether or not owned
or developed by the Company, which Consultant may obtain knowledge of or access
to, through or as a result of, Consultant's relationship with the Company or
with any Affiliate of the Company.
(b) Without limiting the generality of the foregoing,
Confidential Information shall include, but is not limited to, the following
types of information and other information of a similar nature (whether or not
reduced to writing or still in development):
(i) The "Technology," which means:
(1) Any and all "Creations" as defined below; and
(2) any and all enhancements thereto.
(ii) Economic and financial analyses, marketing techniques
and materials, marketing and development plans, customer names and
other information related to customers, price lists, pricing policies,
financial information and Consultant files.
(iii) Information constituting a "trade secret" as defined
in California Civil Code Section 3426.1.
(iv) Any information described above which Company obtains
from another party and which Company treats as proprietary or
designates as Confidential Information, whether or not owned or
developed by the Company.
(c) The term "Creations" shall mean any and all
discoveries, ideas, inventions, concepts, software in various states of
development, designs, drawings, specifications, techniques, models, data, source
code, object code, documentation, diagrams, flow charts, research, developments,
processes, procedures, "know-how," any enhancements to the foregoing and
Consultant's files that may be conceived or developed by Consultant, either
alone or with others, during the term of this Agreement, whether or not
conceived or developed during Consultant's working hours, that relate to the
Products or the Company's Business (each as defined in the Consulting Agreement)
or to the Company's actual or demonstrably anticipated research and development,
or that result from any services rendered by Consultant for the Company.
(d) The term "Affiliate" shall mean, with respect to any
person or entity, any other person or entity which, directly or indirectly
through one or more intermediaries, is in control of, is controlled by or is
under common control with such person or entity. "Control of," "controlled by"
and "under common control with" mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management policies of a
person or entity, by contract or credit arrangement, as trustee or executor or
otherwise. The term "Affiliate" includes, but is not limited to, each and every
subsidiary of the Company, if any.
(e) INFORMATION PUBLICLY KNOWN THAT IS GENERALLY EMPLOYED
BY THE TRADE AT OR AFTER THE TIME CONSULTANT FIRST LEARNS OF SUCH INFORMATION,
OR GENERIC INFORMATION OR KNOWLEDGE WHICH CONSULTANT WOULD HAVE LEARNED IN THE
COURSE OF SIMILAR SERVICES OR EMPLOYMENT ELSEWHERE IN THE TRADE, SHALL NOT BE
DEEMED PART OF THE CONFIDENTIAL INFORMATION.
(f) Any capitalized terms used and not otherwise defined
herein shall have the meanings, if any, ascribed to them in the Consulting
Agreement.
2. Confidential Treatment. Consultant hereby agrees, during the
term of his consulting arrangement with Company and at all times thereafter, to
hold in confidence and not to directly or indirectly reveal, report, publish,
disclose or transfer any of the Confidential Information to any person or
entity, or utilize any of the Confidential Information for any purpose, except
in the course of Consultant's services for Company, without the prior written
consent of the chief executive officer of Company. Consultant agrees that, as
between Consultant and Company, Company owns all of the Confidential
Information, and Consultant hereby agrees to regard and preserve as confidential
all Confidential Information. Consultant hereby agrees not to take, retain or
copy, without the prior written consent of the chief executive officer of
Company, any or all of the Confidential Information. Without limiting the
generality of the foregoing, during the term hereof and after termination of
Consultant's employment with the Company, Consultant shall not use, build,
reverse-engineer, decompile, modify for use or disassemble any of the
Technology.
3. Ownership. The Technology including without limitations any
and all Creations shall be the sole and exclusive property of the Company. At
any time upon the request of the Company, Consultant shall: (i) assign, without
charge to the Company, all his rights, title, and interests in any of the
Creations to the Company; (ii) execute, acknowledge, and deliver any and all
instruments necessary to confirm the Company's complete ownership of the
Creations; and (iii) perform all other reasonable acts which may be necessary to
perfect and to protect the Company's ownership rights in the Creations.
Consultant hereby assigns to the Company all of his right, title and inters in
and to the Creations. Consultant shall disclose promptly and only to
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the Company, and shall make an adequate record of, any and all Creations
conceived or developed by Consultant (either alone or jointly with others)
during the term of this Agreement and within one year thereafter, whether or not
the property of the Company.
4. Return of Materials and Copies. All notes, data, reference
materials, sketches, drawings, memoranda, documentation and records in any way
incorporating or reflecting any of the Confidential Information and all
proprietary rights therein, including copyrights, shall belong exclusively to
Company, and Consultant hereby agrees to turn over promptly all copies of such
materials in Consultant's control to Company upon Company's request or upon
termination of Consultant's employment by Company.
5. Non-Competition and Non-Solicitation. During the Company's
employment of Consultant and for a period of two (2) years following the term of
the Consulting Agreement, Consultant shall not assist, become employed by or
engage in any consulting or other services for any person or entity that is
engaged in any business or other activity in competition with the Company, nor
solicit or entice any of the Company's employees to do any of the foregoing.
During the Company's employment of Consultant and for a period of two (2) years
following the term of the Consulting Agreement, Consultant shall not set up or
take preliminary steps to set up or engage in any business enterprise that would
be in competition with the Company and Consultant shall disclose to the Company,
any and all competitive plans that Consultant may have, without regard to
Consultant's intent to act or not act on such plans.
6. Fiduciary Obligations. Nothing in this Agreement is intended
to limit Consultant's obligations to Company in any capacity, and Consultant
shall be bound by all fiduciary and other obligations to Company which may arise
by reason of Consultant's employment, capacity or other duties to the Company.
7. Injunctive Relief. Due to the unique nature of the
Confidential Information, Consultant understands and hereby agrees that Company
will suffer irreparable harm in the event that Consultant fails to comply with
any of Consultant's obligations under Section 2 or 3 above and that monetary
damages will be inadequate to compensate Company for such breach. Accordingly,
Consultant hereby agrees that Company will be entitled, in addition to any other
remedies available to it at law or in equity, to injunctive relief to enforce
the terms of Sections 2 and 3 above.
8. Amendments; Consents. No amendment, modification, supplement,
termination or waiver of any provision in this Agreement, and no consent to any
departure therefrom, shall be effective unless in writing and signed by both
Consultant and Company and then only in the specific instance and for the
specific purpose given.
9. Notice. Any notices required or permitted to be given in
writing and will be deemed received when personally delivered or, if earlier,
ten (10) days after mailing by registered or certified United States mail,
postage prepaid, and with return receipt requested. Notice to the Company is
valid if sent to the Company's principal place of business and notice to
Consultant is valid if sent to Consultant at Consultant's address as it appears
in the Company's records.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all such
counterparts when taken together shall be deemed to be but one and the same
instrument.
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11. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of Consultant and Company and their respective
permitted successors and assigns. This Agreement, including the rights and
obligations hereunder, shall not be assigned or transferred by Consultant
without the prior written consent of Company.
12. Integration; Construction. This Agreement (together with the
Consulting Agreement) shall comprise the complete and integrated agreement of
the Company and Consultant and shall supersede all prior agreements, written or
oral, on the subject matter hereof. Neither party hereto shall have a provision
construed against it by reason of such party having drafted the same.
13. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California.
14. Severability of Provisions. Any provision in this Agreement
that is held to be inoperative, unenforceable or invalid in any jurisdiction
shall be, as to that jurisdiction only, inoperative, unenforceable or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of those provisions in any other
jurisdiction, and to this end the provisions of this Agreement shall be
severable.
15. Headings. Headings of this Agreement are included for
convenience only and shall not be considered a part of this Agreement for any
other purpose.
16. Attorneys' Fees. In the event of any litigation or other
dispute arising as a result of or by reason of this Agreement, the prevailing
party in any such litigation or other dispute shall be entitled to, in addition
to any other damages assessed, its reasonable attorneys' fees, and all other
costs and expenses incurred in connection with settling or resolving such
dispute. The attorneys' fees which the prevailing party is entitled to recover
shall include fees for prosecuting or defending any appeal and shall be awarded
for any supplemental proceedings until the final judgment is satisfied in full.
In addition to the foregoing award of attorneys' fees to the prevailing party,
the prevailing party in any lawsuit on this Agreement shall be entitled to its
reasonable attorneys' fees incurred in any post judgment proceedings to collect
or enforce the judgment. This attorneys' fees provision is separate and several
and shall survive the merger of this Agreement into any judgment.
17. Waiver; Rights and Remedies. Neither Consultant's nor
Company's failure to exercise any right under this Agreement shall constitute a
waiver of any other term or condition of this Agreement with respect to any
other preceding, concurrent or subsequent breach, nor shall it constitute a
waiver by the Company or Consultant of its rights at any time thereafter to
require exact and strict compliance with any of the terms of this Agreement. The
rights and remedies set forth in this Agreement shall be in addition to any
other rights or remedies which may be granted by law.
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IN WITNESS WHEREOF, the parties hereto have executed or caused their
respective duly authorized officer to execute this Agreement as of the
date first set forth above.
SAVE THE WORLD AIR, INC.
By _________________________________
Its Chief Operating Officer
CONSULTANT
By __________________________________
Name Xxxxxx Xxxxxxx
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
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