Exhibit 4.6
SENIOR OPERATION ADVISOR
CONSULTING AGREEMENT
1. PARTIES
This agreement is entered into as of April 1, 2002, by and between
Rotary Power International, Inc., a Delaware corporation with its principal
office at X.X. Xxx 000, Xxxx-Xxxxx, Xxx Xxxxxx 00000-0000 (the "Company"),
Senior Operation Advisor, Xxxxx Xxxxxxxx an individual residing at 0000 Xxxxx
Xxxx, 000xx Xxxxxxx , Xxxxx Xxxxx, Xxxxxxx 00000 (the "Consultant").
2. ENGAGEMENT
The Company hereby agrees to engage the Consultant, in consideration
of such engagement, hereby agrees to provide the consulting services as further
described in but not limited to Section 3 below, such services to be provided
only as requested by the Company. The Consultant agrees to commit up to 100% of
his time to the Company.
3. STATEMENT OF SERVICES
3.1 Assisting in the continuing development of the business plan for the
main assembly/ manufacturing facility .
3.2 Evaluating the current R&D assembly process of the Series 70 2-rotor
rotary engines and provide the necessary schedules, assembly manuals
and technician training programs for a fully developed main production
process. This will apply for all models of the Series 70 rotary
engines.
3.3 The above mentioned (item #2) will also apply to the Series 580 rotary
engines as well.
3.4 Consultant will take guidance and directions from the President of the
Company.
3.5 Service provided by Consultant shall be as an independent contractor.
3.6 Consultant will be expected to provide monthly reports of his
activities hereunder.
3.7 Provide managerial and financial guidance and services and analysis.
This may include the following:
(a) Suggestion for structuring financing for both debt and equity for
the Company.
(b) Analysis of alternative financing activities/options presented to
the company by varies broker dealers, etc.
(c) To review the recurring financial filings and provide comments
thereon.
(d) Not withstanding any of the above noted services the Consultant
acknowledges that he does not have the authority to commit the
Company to any legal or financial obligations and will remain
independent at all times.
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The term of this Agreement shall be from the date of this Agreement to March 31,
2003 subject to paragraph 6.3 herein.
4. COMPENSATION
4.1 In consideration of the consulting services performed hereunder, the
Company agrees to pay Consultant at rate $10,000 per month for up to
100% of his time.
4.2 The Company agrees to reimburse Consultant for all actual business
expenses as may be required in connection with the performance of
services. Any major expenditures will be approved by the Company
prior to commitment.
4.3 The Consultant will submit invoices monthly for consulting services
and expenses incurred. Expenses billed to the Company shall be
accompanied by supporting documentation. The Company will make
payment of these invoices from Consultant in a timely fashion.
4.4 Upon the Company receiving $1,000,000, on or before December 31st,
2002 cumulatively, in equity financing the Consultant will have the
right to receive any unpaid consulting fees in cash or shares. Prior
to that the Consultant shall receive any such shares, issued within
30 days of the Company quarter shall be registered under the
Securities Act of 1933, as amended, pursuant to a registration
statement filed by the Company with the Securities and Exchange
Commission on Form S-8 (or, if Form S-8 is not then available, such
other form of registration statement then available for the
registration of such shares). Any and all costs of filing such
registration statement for such shares shall be the responsibility
of the Company.
4.5 The Consultant will receive earn out bonus of up to 250,000 shares
per quarter ( such shares to be promptly registered at the Company's
expense ) upon the successful completion of the milestones &
objectives set forth and approval by the Company Board within 30 days
for the Management Group.
4.6 The Company Board should have some latitude in granting something
less than 100% of the shares in the future if substantial but not complete
achievement of all goals is met.
4.7 Accordingly, if the Company is able to raise the funds to support the
increasing negative cash flow, notwithstanding the results of other
objectives, at least 50% of the earn out bonus would be granted.
4.8 An additional bonus of 500,000 shares will be paid to the Consultant
upon RPI's share trading at $2.00 per share for over 30 days within
the next 12 month period commencing from July 1st, 2002. (such shares
to be promptly registered at the Company's expense).
4.9 The Consultant will receive the full Compensation Package (remaining
salary, remaining bonus and supplemental bonus) upon finding a
Strategic Financial Partner who provides sufficient financing to
enable RPI to start manufacturing its engines in a serious way or a
change in control occurs or the Interim President & CEO, Xxx XxXxxxx
is forced to give up his current role.
5. LIMITATIONS
5.1 Nothing in this Agreement shall grant to either party the right to
make commitments of any kind for or on behalf of the other party
without prior written consent of the other party.
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5.2 Consultant represents that there is no conflict of interest between
his/its performance in a consulting capacity under this Agreement
and his/its relationship with other clients. If at any time in the
future it is believed that there is a potential conflict of
interest, Consultant will promptly so advise and the parties will
mutually agree in writing on the resolution of this potential
conflict.
6. NON-COMPETITION
For the term of this Agreement, Consultant will not directly or
indirectly, in any capacity, without prior written approval by the Company,
engage in or render services (including, without limitation, research,
development, marketing or sales) to, or have a financial interest in, any
person, consultant, corporation or other entity engaged in the rotary engine
business. With the exception of the existing relationship with Rotary Power
Marine Corp.
7. EXEMPTION FROM COMPANY BENEFIT PLANS, POLICIES AND PROCEDURES
The Consultant is not an employee of the Company and is, therefore,
not entitled to coverage under any of the benefit plans of the Company except as
agreed in writing by Consultant and the Company. The Consultant shall not be
bound by the policies and procedures of the Company but will conduct himself in
accordance with paragraph 3.4 herein.
8. FACILITIES AND SUPPORT
The Company shall provide Consultant with office space, equipment and
support reasonably necessary to perform the tasks which are performed on the
premises of the Company. The Consultant is responsible to provide facilities and
equipment necessary outside the premises of the Company.
9. CONFIDENTIAL INFORMATION
Consultant will not disclose any trade secrets or confidential
information identified as such by the Company to any person, consultant,
corporation, association, or other entity for any reason or purpose whatsoever,
nor shall Consultant make use of any such trade secrets or confidential
information for his/its own purpose or for the benefit of any person,
consultant, corporation, or other entity, except as authorized in writing by the
Company. Consultant agrees to deliver to the Company upon termination of this
Agreement, or at any other time the Company may request, any proprietary or
confidential material supplied to the Consultant during the term of this
Agreement and which the Company has previously identified as such, relating to
the business of the Company which he/it may then possess or have under his/its
control. However, there shall be no restriction on disclosure or use of
information which is publicly known other than as a result of a breach of this
Agreement, or which becomes legally available at any time from a third party
without restriction. Confidential information obtained while an employee of the
Company shall be specifically covered by this clause.
10. PROPERTY OF COMPANY
All ideas, inventions, discoveries, proprietary information, know-how,
processes and other developments and, more specifically, improvements to
existing inventions conceived by the Consultant that were developed in relation
to performance of the Consultant's and the Engineering Company's assignments for
the Company, shall be the property of the Company.
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11. MISCELLANEOUS
NOTICES: All notices pertaining to this Agreement shall be in writing
and shall be transmitted either by personal hand delivery or through the
facilities of the United States Postal Service, certified or registered mail,
return receipt requested. The addresses set forth in the first paragraph of this
Agreement for the respective parties shall be the places where notices shall be
sent, unless written notice of a change of address is given. Notices shall be
deemed to have been given at the time of delivery if transmission is by personal
hand delivery or, if mail, forty-eight (48) hours after deposited in a regularly
maintained receptacle of the United States Postal Service for mailing as
aforesaid.
CAPTION HEADINGS: Captions at the beginning of each numbered paragraph
of this Agreement are solely for the convenience of the parties and shall not be
deemed part of the context of this Agreement.
ENTIRE AGREEMENT: This Agreement contains the entire Agreement between
the parties hereto, and supersedes any written or oral agreement between the
parties concerning the subject matter contained herein. There are no
representations, agreements, arrangement or understandings, oral or written,
between or among the parties hereto, relating to the subject matter contained in
this Agreement, which are not fully expressed herein.
AMENDMENT: This Agreement may only be amended by the written consent
of both parties at the time of such amendment.
GOVERNING LAW: The validity, interpretation, construction and
performance of this Agreement shall be controlled by and construed under the
laws of the State of New Jersey. In the event of any litigation arising out of
any dispute in connection with this Agreement, the Company and Consultant and
Engineering Company hereby consent to the jurisdiction of the New Jersey courts.
COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but such counterparts, when taken
together, shall constitute but one agreement.
SEVERABILITY: In the event any provision of this Agreement is held to
be invalid, void or unenforceable, the rest of the provisions shall,
nonetheless, remain in full force and effect and shall in no way be affected,
impaired or invalidated.
12. RENEWAL
The parties may agree to renew this Agreement at any time by written
instruments signed by the parties. It is anticipated that each such renewal
shall be upon the same terms and conditions as herein provided, except for
necessary changes in dates, scope of work, or total compensation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
XXXXX XXXXXXXX ROTARY POWER INTERNATIONAL, INC.
(the Consultant) (the Company)
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. XxXxxxx
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Xxxxxx X. XxXxxxx
President & CEO
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