CONSULTING AGREEMENT
EXHIBIT
10.3
This
CONSULTING AGREEMENT (the “Agreement”) is entered into as of the 29th day of
December, 2006 by and between HF Services LLC (“Consultant”), and Hydrogen
Power, Inc., a Delaware corporation (the “Company”).
WHEREAS,
the Company and Consultant wish to enter into an agreement whereby Consultant
will provide the Company certain services of Xxxxx Xxxx and/or Xxxxxx Xxxxx
on a
consulting basis.
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Consulting
Services.
During
the term of this Agreement, Consultant shall from time to time provide the
Company the following services to be provided by Xxxxx Xxxx and/or Xxxxxx
Xxxxx:
(a) Assist
management in compliance with Securities and Exchange Commission (“SEC”)
regulations;
(b) Assist
management, corporate counsel and independent auditors in preparation and
documentation relating to SEC filings, including with respect to periodic and
current reports filed with the SEC;
(c) Assist
management, corporate counsel and independent auditors in preparation and
documentation relating to registration statement filings with the
SEC;
(d) Assist
management and legal counsel in the preparation of private placement and public
filings, including Forms D and business plans and assist in compliance with
state “Blue Sky” requirements;
(e) Assist
management in the preparation of any required S&P listing and any other
required documentation for state securities agencies as applicable.
(f) Provide
SEC Electronic Data Gathering and Retrieval (XXXXX) filing services for SEC
filings;
(g) Assist
management, corporate counsel, outside consultants and independent auditors
to
facilitate implementation and compliance with SEC and Public Company Accounting
and Oversight Board (PCAOB) regulations, including Xxxxxxxx-Xxxxx Act of 2004
(“SOX”), SOX 404 Internal Control implementation and compliance, and SOX 302 and
906 compliance;
(h) Coordinate
with management and corporate counsel to facilitate compliance with, and
maintenance of, corporate governance regulations mandated by applicable listing
or securities exchange standards on which the Company’s securities
trade;
(i) Coordinate
with management, board of directors and corporate counsel to facilitate
compliance with SEC xxxxxxx xxxxxxx regulations, including Section 16 compliance
and the filing of Forms 3, 4, 5 and 13D and G, as applicable;
(j) Coordinate
with management and corporate counsel to facilitate investor relations
activities, including assistance with the preparation and dissemination of
press
releases and other investor and public relations releases, including, if
necessary, to act as shareholder and press point-of-contact;
(k) Coordinate
with management and assist with maintenance of the Company’s equity schedules
and equity securities as may be requested by Company;
(l) Coordinate
with and assist management with board of directors meetings and activities,
including Audit Committee, Compensation Committee and Nominating Committee
meetings and activities; act as focal point for all board of directors meetings
insure proper distribution of agenda and, if necessary, assist corporate
secretary with recordation and preparation of corporate minutes;
(m) Assist
management with preparation for annual shareholders meetings, including
preparation of draft proxy statement for management and legal review,
development of script and other meeting materials as necessary; and acting
as
liaison with transfer agent throughout balloting process; and
(n) Any
other
services agreed to by the Company and Consultant.
Notwithstanding
Consultant’s agreement to perform the services set forth herein, the Company
acknowledges and agrees that the responsibility to timely prepare and complete
necessary corporate and securities filings and take other necessary corporate
action is that of the Company, and that the veracity and completeness of
information set forth in documents prepared with the assistance of Consultant
and delivered to the SEC or any other party, whether a third-party or an
affiliate, and the responsibility therefor is that of the Company. The Company
hereby agrees to indemnify and hold harmless the Consultant, Xxxxx Xxxx and
Xxxxxx Xxxxx from and against any and all direct losses, claims, damages and
liabilities, joint or several, as incurred, to which such party may become
subject, and related to or rising out of the veracity or completeness of
information set forth in any such documents or such actions taken by the
Company, whether or not such information or action was prepared or taken with
the assistance of Consultant, Xxxxx Xxxx or Xxxxxx Xxxxx. The Company will
assume the defense of any action, suit or proceeding arising herefrom and will
employ counsel reasonably satisfactory to the indemnified party and will pay
the
fees and disbursements of such counsel, as incurred.
The
Company and Consultant hereby acknowledge and agree that: (i) Consultant is
not
a “broker” or “dealer” as defined under any applicable federal and/or state
securities laws; (ii) Consultant shall not engage in any acts for which it
is
required to be a broker-dealer; (iii) Consultant shall not engage in any sales
efforts in connection with any investment by any person or entity in the
Company; (iv) Consultant shall not participate in any negotiation of the terms
of any such investment; (v) Consultant shall not give any advice to anyone
regarding the valuation of, potential return on, or the terms of any investment
in, any securities of the Company, except as authorized by the Company.
Consultant makes no representations, warranties or guaranties of any specific
results or success. For purposes of this provision, “Consultant” shall include
Xxxxx Xxxx and Xxxxxx Xxxxx, individually and as representatives of the
Consultant.
2. Compensation.
In
consideration of the services to be rendered by Consultant hereunder, the
Company shall pay Consultant the following:
(a) $20,000
per month (prorated for any partial month), payable in cash on or before the
first day of each month during the Term (as defined in Section 3);
and
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(b) The
Company’s assignment and transfer hereby, effective as of the Effective Date (as
defined in Section 3), of all personal property of the Company located at the
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx address, including without
limitation the phone system, computers and furniture, such assets having a
depreciated aggregate book value of $8,962.42.
Additionally,
the Company shall, within thirty (30) days following the Company’s receipt of
such request, reimburse Consultant for all reasonable expenses incurred and
paid
by Consultant in connection with the provision of consulting services to the
Company pursuant to the terms hereof; provided that (i) prior to incurring
any
individual expense in excess of $500, Consultant shall submit a written request
to the Company for approval for such expense and (ii) Consultant shall provide
the Company with itemized receipts or other evidence of such expense along
with
its request for reimbursement.
3. Term;
Termination.
Unless
terminated earlier by Consultant for any reason, or no reason, with sixty (60)
days’ prior written notice to the Company, the term of this Agreement (the
“Term”) shall be for a period of one (1) year commencing on the date hereof (the
“Effective Date”). This Agreement is not terminable by the Company prior to the
expiration of the Term except in the event of willful misconduct of Consultant.
4. Confidentiality
Obligations.
As a
condition to Consultant’s continuing relationship with the Company as a
consultant, Consultant understands and agrees as follows:
(a) Consultant
hereby acknowledges that it may have received, or may receive in the future,
in
its role as a consultant, certain confidential or non-public information from
the Company concerning the Company (collectively, the “Confidential
Information”). The term “Confidential Information” shall also include all
reports, analyses, notes or other information that are based on, contain or
reflect any evaluation material. For purposes of this paragraph 4, “Consultant”
constitutes HF Services and Xxxxx Xxxx and Xxxxxx Xxxxx, as
individuals.
(b) Consultant
shall use the Confidential Information solely for the purpose of performing
the
services required to be performed by Consultant hereunder. Consultant, and
any
representatives and agents of Consultant, shall keep all Confidential
Information confidential by Consultant, and shall not disclose any Confidential
Information without the prior written consent of the Company; provided, however,
that any of such information may be disclosed to Consultant’s representatives or
agents who need to know such information for the purpose of performing such
services required to be performed hereunder (it being understood that Consultant
shall inform such representatives and agents of the confidential nature of
the
Confidential Information and shall direct such representatives and agents to
treat such information confidentially). Consultant shall be responsible for
any
breach of this Agreement by its representatives or agents.
(c) Following
the completion of its engagement by the Company, Consultant and any
representatives or agents of Consultant shall promptly return any Confidential
Information in their respective possessions to the Company, without retaining
any copy thereof, and destroy all analyses, compilations, studies or other
documents prepared by or for internal use which reflect, contain or embody
Confidential Information.
(d) For
the
purposes of this Agreement, the definition of “Confidential Information” shall
not include information which (A) had been made previously available to the
public by the Company; (B) is or becomes generally available to the public,
unless the information being made available to the public results in a breach
of
this Agreement; (C) prior to disclosure to Consultant or Consultant’s
representatives or agents, was already rightfully in any such person’s
possession without any requirement of confidentiality or (D) is obtained by
Consultant or Consultant’s
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representatives
or agents from a third party who is lawfully in possession of such information,
and not in violation of any contractual, legal or fiduciary obligation to the
Company, with respect to such information and who does not require Consultant
to
refrain from disclosing such information to others.
(e) Consultant
acknowledges and agrees that the obligations under this Section 4 shall survive
indefinitely, notwithstanding the earlier termination of this
Agreement.
5. Status
of Consultant as Independent Contractor.
(a) Using
its
best efforts, Consultant shall devote such time to the performance of the
services described in this Agreement as may be necessary to satisfactorily
complete the such services.
(b) Consultant
shall be an independent contractor in the performance of this Agreement, and
shall not be deemed an employee of the Company for any purpose whatsoever.
Neither Consultant nor any employees of Consultant shall participate in any
benefit programs for the Company employees, including without limitation health
benefits, life insurance, pension or profit sharing plans and paid vacation
and
sick leave. Consultant shall be solely responsible for the payment of its income
taxes as required by any and all government agencies with respect to
compensation paid to Consultant by the Company, and shall comply with all
regulations therefrom.
(c) Consultant
shall have no power to act as an agent of the Company or bind the Company in
any
respect.
(d) The
Company further acknowledges that the services of Consultant provided hereunder
are not exclusive to the Company, and nothing herein shall be construed to
limit
or restrict Consultant or its affiliates (including without limitation Xxxxx
Xxxx and Xxxxxx Xxxxx) in conducting such business with respect to others or
in
rendering similar services to others. Consultant hereby acknowledges that the
Company’s engagement of Consultant is similarly not exclusive, and the Company
is free to obtain similar services as provided by Consultant from third
parties.
6. Release
by the Company of Consultant and its Affiliates.
The
Company, on behalf of itself and its predecessors, successors, subsidiaries,
affiliates, officers, directors, employees, agents, representatives, attorneys
and assigns (collectively, the “Company Releasing Parties”) does hereby
absolutely and unconditionally release and forever discharge Consultant, Xxxxx
Xxxx and Xxxxxx Xxxxx and their respective affiliates (collectively, the
“Consultant Parties”) from any and all claims, demands, actions or causes of
action of any kind, nature, description or origin, under any state or federal
law or laws or the common law, from the beginning of time to the date hereof
which the Company Releasing Parties have ever had or now have against any
Consultant Party, whether known or unknown, relating to or arising out of,
directly or indirectly, Consultant Party’s role as an officer, director,
employee, shareholder of any Company Releasing Party.
7. Release
by Consultant Parties of Company and its Affiliates.
The
Consulting Parties (as defined in Section 6), on behalf of Consultant Parties
and their respective predecessors, successors, subsidiaries, affiliates,
officers, directors, employees, agents, representatives, attorneys and assigns,
as appropriate (collectively, the “Consultant Releasing Parties”) does hereby
absolutely and unconditionally release and forever discharge the Company and
its
affiliates (collectively, the “Company Parties”) from any and all claims,
demands, actions or causes of action of any kind, nature, description or origin,
under any state or federal law or laws or the common law, from the beginning
of
time to the date hereof which the Consultant Releasing Parties have ever had
or
now have against any Company Party, whether known or unknown, relating to or
arising out of, directly or indirectly, Consultant Party’s role as an
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officer,
director, employee, shareholder of any Company Party. Notwithstanding any other
provision herein, this Section 7 shall not be construed to, and shall not,
limit
in any manner any right of a Consultant Party to indemnification by the Company
against any third party claim, whether the obligation to indemnify arises
pursuant to statute, a provision of the Company’s certificate of incorporation,
bylaws or Indemnity Policy, any contractual obligation of the Company to such
Consultant Party or otherwise.
8. Miscellaneous.
(a) Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties with respect to the
subject matter hereof, and supersedes all prior agreements. This Agreement
may
not be amended or modified in any manner except by an instrument in writing
signed by the parties.
(b) Severability.
The
invalidity or unenforceability of one or more provisions of this Agreement
shall
not affect the validity or enforceability of any of the other provisions, and
this Agreement shall be construed as if such invalid or unenforceable provisions
were omitted. If any provision is unenforceable because it is overbroad, the
parties agree that such provision shall be limited to the extent necessary
to
make it enforceable, it being the intent of the parties that provisions of
this
Agreement be enforced to the maximum extent possible.
(c) Construction;
Venue; Attorneys’ Fees.
This
Agreement shall be deemed to have been entered into in, and shall be construed
and enforced in accordance with the laws of, the State of Colorado. All disputes
related to or arising under this Agreement must be brought in the State of
Colorado with each party consenting to the exclusive jurisdiction of the courts
therein and waiving any personal jurisdiction defenses. Each party hereby (i)
waives any objection which it might have now or hereafter to the foregoing
venue
of any such litigation, action or proceeding, (ii) irrevocably submits to the
exclusive jurisdiction of any such court set forth above in any such litigation,
action or proceeding, and (iii) waives any claim or defense of inconvenient
forum. Each party hereby consents to service of process by registered mail,
return receipt requested and expressly waives the benefit of any contrary
provision of law. If any party is made or shall become a party to any
litigation, including without limitation arbitration proceedings, commenced
by
or against another party involving the enforcement of any of the rights or
remedies of such party, or arising on account of a default of the other party
in
its performance of any of the other party’s obligations hereunder, then the
prevailing party in such litigation shall receive from the other party all
costs
incurred by the prevailing party in such litigation, plus reasonable attorneys’
fees to be fixed by the court or arbitrator, as applicable.
(d) Waivers.
The
failure of any party to insist, in any one or more instances, upon the
performance of any of the terms or conditions of this Agreement or to exercise
any right, shall not be construed as a waiver of the future performance of
any
such term or condition or the future exercise of such right.
(e) Notices.
Any
notice to be given shall be sufficiently given when received, and, if mailed,
shall be deemed received three (3) business days after the date of mailing
if
sent by certified mail, postage prepaid, to the address of the party set forth
below (or to such other address as the party shall designate by written
notice).
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If
to the Company, to:
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Hydrogen
Power, Inc.
0000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn:
Chief Executive Officer
|
|
If
to Consultant, to:
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HF
Services
0000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxx Xxxx
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(f) Assignment.
Consultant may not assign or subcontract its rights or obligations under this
Agreement without the prior written consent of the Company. The Company may
not
assign its rights to any affiliated entity without the prior written consent
of
Consultant.
(g) Third-Party
Beneficiary.
The
Company and Consultant acknowledge and agree that they expressly intend that
Xxxxx Xxxx and Xxxxxx Xxxxx, and their respective successors and assigns
(collectively, the “Beneficiaries”), are expressly intended to be third-party
beneficiaries to this Agreement, and that all provisions of this Agreement
relating to each such Beneficiary is intended to inure to the benefit of such
Beneficiary. Each such party is entitled to any rights, interest or claims
arising hereunder. If any Beneficiary is required to enforce or otherwise
litigate any of its rights or remedies under this Agreement arising on account
of a default of the Company in the performance of its obligations hereunder,
then such Beneficiary shall be entitled to receive from the Company all costs
incurred by such Beneficiary in enforcing its rights, including without
limitation its reasonable attorneys’ fees.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement the day and year
set forth below.
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HYDROGEN
POWER, INC.
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|
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Dated:
December 29, 2006
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By
/s/ Xxxxxx X. Xxxxxxx
Its
Director
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HF
SERVICES
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Dated:
December 29, 2006
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By
/s/ Xxxxx Xxxx
Its
Manager
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Dated:
December 29, 2006
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With
respect to Paragraphs 4, 5 and 7:
/s/
Xxxxx Xxxx
Xxxxx
Xxxx, individually
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Dated:
December 29, 2006
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/s/
Xxxxxx X. Xxxxx
Xxxxxx
Xxxxx, individually
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Consulting
Agreement - Signature Page
