Exhibit 10(viii)
CONSULTING AGREEMENT
This agreement is made and effective as of this 1st day of February 2001 by
and between Xxxx Xxxxx, an individual residing in Canada ("Consultant") and
Trimol Group, Inc., a Delaware corporation (the "Company") (the "Agreement").
WHEREAS, the Company desires to engage Consultant to perform certain
business, marketing and public relations services ("Services"); and,
WHEREAS, Consultant desires to perform said Services for the Company,
pursuant to the terms and conditions stated herein:
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, the parties agree as follows:
1. Services to be Performed. The Company desires that Consultant perform, and
Consultant agrees to perform, certain business, marketing and public
relations services for the Company in connection with the development and
commercialization of the Company's aluminum-air fuel cell technology. The
Consultant's position will be that of Marketing Director and such title and
position supercedes all previous titles, positions or responsibilities.
2. Consultant's Performance. All services to be performed by Consultant shall
be of the highest professional standard and shall be performed to the
Company's reasonable satisfaction.
3. Status. Consultant agrees that it will perform its obligations under this
Agreement as an independent contractor of the Company, and not that of an
officer or employee, and will make no representations contradicting this
status. Consultant acknowledges that any and all arrangements or agreements
that Consultant may negotiate for the Company, shall be subject to
acceptance only by the Company and to be evidenced by execution by an
authorized officer for the Company. Consultant does not have authority to
bind the Company either by oral or written agreement.
4. Compensation. As the sole form of compensation in consideration of the
services to be rendered by Consultant to the Company hereunder, the Company
shall pay to Consultant a monthly consulting fee of $5,000 U.S., payable
monthly in arrears, and shall grant Consultant an option to purchase up to
500,000 shares of the Company's common stock at an exercise price of $0.50
pursuant to the Company's 2001 Omnibus Plan.
5. Term. The term of this Agreement shall commence as of February 1, 2001 and
will continue for a period of two (2) years. Thereafter this Agreement can
be renewed upon the mutual consent of both parties.
6. Confidentiality. During the term of this Agreement, and thereafter in
perpetuity, Consultant shall not, without prior written consent of the
Company, disclose to anyone any Confidential Information. "Confidential
Information" for the purposes of this Agreement shall include Company's
proprietary and confidential information relating to its aluminum-air fuel
cell technology as well as, but not limited to, consumer lists, business
plans, marketing plans, financial information, technology specifications,
designs, drawings, specifications, models, prototypes, software, source
codes and object codes. Confidential Information shall not include any
information that: (a) is disclosed by Company without restriction or; (b)
becomes publicly available through no act of Consultant.
7. Termination. This Agreement may be terminated by either party for Cause (as
that term is defined below). In the event that this Agreement is terminated
for Cause, then Company's obligations to Consultant shall be limited to the
compensation earned up to the date of Consultant's termination for Cause.
(a) Definition of Cause. "Cause" shall mean:
(i) any action by either party which constitutes dishonesty relating
to the other party, a willful violation of law (other than traffic
offenses and similar minor offenses) or a fraud against a party;
(ii) Consultant is charged by indictment for, is convicted of or
pleads guilty to a felony or other crime;
(iii) misappropriation of Company's funds or assets by Consultant for
his personal gain;
(iv) failure by either party to perform their respective duties and
responsibilities to the other party in a competent manner;
(v) any material violation by either party of any covenant contained
in this Agreement, including covenants related to confidentiality; and
(vi) any other willful misconduct which materially injures the other
party.
8. Federal, State and Local Payroll Taxes. Company will not withhold or pay on
behalf of Consultant or any of his employees: (a) federal, state or local
income taxes; or (b) any other payroll tax of any kind, in any
jurisdiction. In accordance with the terms of this Agreement and the
understanding of the parties herein, Consultant shall not be treated as an
employee with respect to the services to be performed hereunder for any
federal, state or local tax purposes.
9. Notice to Consultant Regarding Tax Liability. Consultant understands that
he is responsible to pay his income tax in accordance with applicable
federal, state and local law.
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10. Worker Compensation Insurance. Since Consultant is engaged as an
independent consultant and is not an employee of the Company, Company will
not obtain worker's compensation insurance for Consultant.
11. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
12. Final Agreement. This Agreement constitutes the final understanding and
agreement between the parties with respect to the subject matter hereof and
supercedes all prior negotiations, understandings and agreements between
the parties, whether written or oral. This Agreement may be amended,
supplemented or changed only by an agreement in writing signed by both
parties.
13. Severability. If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement, including
all of the remaining terms, will remain in full force and effect as if such
invalid or unenforceable term had never been included.
14. Restrictions on Assignment. Consultant may not assign or otherwise transfer
his rights or delegate its obligations created hereunder to any third party
without the prior written consent of the Company. Notwithstanding the
foregoing, this Agreement shall bind and inure to the benefit of the
successors and assigns of the parties.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of this 1st day of February 2001.
TRIMOL GROUP, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
President & CEO
/s/ Xxxx Xxxxx
Xxxx Xxxxx
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