EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of August 20,
1998, by and between CONE, ROSE, THATCHER, LIMITED, a Delaware corporation
("CRT"), and AMERICAN TECHNOLOGIES GROUP, INC., a Nevada corporation ("ATG").
R E C I T A L S:
WHEREAS, ATG desires marketing and financial consulting in the areas
described herein (the "Services");
WHEREAS, CRT is capable of providing such consulting services.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, ATG and CRT hereby agree as follows:
1. ENGAGEMENT. Upon the terms, and subject to the terms and conditions,
contained herein, ATG hereby engages CRT on a non-exclusive basis to provide
consulting services and CRT agrees to provide such services as provided herein.
As part of CRT's obligations hereunder, CRT shall
a) Familiarize itself as required with the business, operations,
properties, conditions (financial and otherwise) and prospects of ATG and its
subsidiaries;
b) Assist management in understanding the functioning of the
secondary trading markets for its securities;
c) Consult and assist the Company in developing a general
corporate strategy including strategies to promote shareholder value in the
financial markets;
d) Assist, directly or indirectly, as requested, in the
negotiations of any contracts with third parties arising in connection with
the Services provided hereunder; and
e) Render such other consulting services as ATG may from time to time
request.
2. FEES. As compensation for the services rendered by CRT hereunder, ATG
shall pay CRT a one time fee of 500,000 shares of ATG Common Stock (the
"Shares"). The Shares shall be valued at $0.65 per share. The Shares to be
delivered to CRT hereunder shall be delivered upon registration of the Shares
under the Securities Act of 1933 on Form S-8. ATG shall use its best
efforts to cause the registration of the Shares as soon as practicable. Upon
written request by CRT and advanced written approval, ATG will reimburse
reasonable travel and other out-of-pocket expenses of CRT incurred in
connection with its performance hereunder.
3. CONFIDENTIAL INFORMATION.
3.1 DEFINITION. CRT recognizes that the relationship created by this
Agreement may involve access by CRT to information of substantial value to ATG,
including, but not limited to, designs, drawings, plans, software, programs,
material and manufacturing specifications, devices, trade secrets, applications,
formulae, know-how, methods, techniques, and processes (whether related to ATG's
patents, or otherwise), as well as financial, business, marketing and product
development information, and customer lists relating to the ATG's products and
operations (collectively, "Confidential Information"), provided that
Confidential Information shall not include information:
a) In the public domain or which subsequently falls into the public
domain;
b) Which CRT can prove was known through a source independent of ATG
prior to any communication by ATG; or
c) Disclosed to CRT in good faith by a third party having a legal
right to do so.
3.2 NON-DISCLOSURE. CRT acknowledges and agrees that ATG represents
that it owns or has the legal right to all right, title and interest in and to
the Confidential Information. CRT further agrees that it shall (i) maintain the
secrecy and confidentiality of all Confidential Information which comes to its
attention, (ii) take all necessary precautions to prevent any disclosure of
Confidential Information by any of its employees or agents, and (iii) during the
term of this Agreement and for so long as Confidential Information does not
enter into the public domain through no act or omission of CRT, neither publish,
disclose nor disseminate any part of such Confidential Information in any
manner, or use the same, without the prior written consent of ATG.
3.3 INJUNCTIVE RELIEF. CRT understands and agrees that the
Confidential Information has special value, the loss of which cannot be
reasonably or adequately compensated in damages or in an action at law, and
therefore, in the event of any breach or violation of the provisions of this
Section 3 by CRT, ATG shall be
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entitled to equitable relief by way of injunction without bond and without
the necessity of proving actual damages, in addition to, and not in
limitation of, any other relief or rights to which ATG may be entitled. The
terms and provisions of this Section 3 shall survive any termination or
expiration of this Agreement.
3.4 AFTER TERMINATION CRT shall cease to use any Confidential
Information and shall promptly return to ATG any and all physical, written
and descriptive matter (including all reproductions and copies thereof)
containing Confidential Information upon termination or expiration of this
Agreement.
4. INDEMNIFICATION. The parties hereto shall indemnify, defend and
hold each other and their respective officers, directors employees and agents
(collectively, the "Indemnitees") harmless from and against any and all
claims, actions, lawsuits, demands, costs, liabilities, losses, damages
and/or expenses (including reasonable attorneys' fees and costs of
litigation) made or incurred as a result of such parties performance
hereunder. In connection herewith, ATG represents and warrants to CRT that
all written information provided to CRT pursuant to this Agreement is true
and correct in all material respects.
5. TERM. Subject to the termination provisions of Section 6 hereof,
this Agreement shall expire on July 31, 1999.
6. TERMINATION.
6.1 MANNER. This Agreement may be terminated prior to the
expiration of the Term as follows:
a) By mutual consent of the parties in writing at any time;
b) By either party upon giving written notice to the other
party if such other party is in default of any term or provision hereunder,
and such default is not cured within ten (10) days of written notice of such
default; or
c) By either party on sixty (60) days advanced written notice.
6.2 EFFECT OF TERMINATION Termination of this Agreement shall not
relieve ATG of its obligation to pay to CRT any fees due under the second
sentence of Section 2 or due thereunder in connection with a transaction
initiated by CRT and entered into by ATG within one year of such termination
with any party identified in a writing delivered to ATG by such date.
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7. CRT'S REPRESENTATIONS. As a condition to the offer or sale of the
Shares, CRT hereby warrants and represents to ATG as follows, each of which
representation and warranty is material and is being relied upon by ATG and
each of which is true at and as of the date hereof:
7.1 CRT'S KNOWLEDGE. That CRT or its principal(s) have a
preexisting business or personal relationship with ATG, that they are aware
of the business affairs and financial condition of ATG and that they have
such knowledge and experience in businesses in the development stage and
financial matters with respect to companies in businesses similar to ATG
sufficient to enable them to evaluate the risks of the prospective investment
and to make an informed investment decision with respect thereto. CRT
further acknowledges that ATG has made available to it the opportunity to ask
questions and receive answers from ATG concerning the terms and conditions of
the issuance of the Shares and that it could be reasonably assumed to have
the capacity to protect its own interests in connection with such investment.
7.2 SPECULATIVE INVESTMENT. That CRT realizes that the purchase
of the Shares will be a speculative investment and that it is able, without
impairing its financial condition, to hold the Shares for an indefinite
period of time and to suffer a complete loss of the investment.
8. GENERAL PROVISIONS.
8.1 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of, and be binding upon, the respective successors and assigns of the
respective parties hereto; PROVIDED, HOWEVER, that neither party hereto shall
have the right to assign any of its rights under this Agreement without the
prior written consent of the other party.
8.2 NOTICES. All notices, requests, demands and other
communications which may be given or are required to be given under this
Agreement shall be in writing and in the English language. All notices shall
be sent by facsimile transmission and confirmed by overnight courier, and
shall be deemed given on the date of such facsimile transmission. All
notices shall be addressed as set forth below:
If to CRT: CONE, XXXX XXXXXXXX LIMITED
000 Xxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: President
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If to ATG: AMERICAN TECHNOLOGIES GROUP, INC.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
or to such other address as each party hereto may from time to time designate
by written notice to the other party as provided herein.
8.3 GOVERNING LAW. This Agreement has been executed and delivered in,
and shall be governed by and construed in accordance with the laws of the
State of California without regard to its conflict of laws provisions.
8.4 RESOLUTION OF DISPUTES. Any controversy or claim relating to this
Agreement (whether contract, tort, or both) or to the breach of this
Agreement shall be arbitrated by and in accordance with the then existing
commercial arbitration rules of the American Arbitration Association, in Los
Angeles, California. The arbitrator may render a judgment awarding actual
compensatory damages only, and no consequential, incidental, or punitive
damages may be awarded by the arbitrator. Judgment on the award rendered by
such arbitrator may be entered in any court having jurisdiction. Nothing in
this Section 8.4 shall affect ATG's right to bring an action or proceeding
against CRT in the courts of any jurisdiction where the purpose of such
action or proceeding is to seek injunctive relief against CRT. Service of
process in any such action or proceeding brought hereunder may be made by
mailing copies of such process to the address of the parties provided for in
Section 7.2 hereto, provided that nothing in this Section 8.4 shall affect
the right to serve legal process in any other manner permitted by law. In
the event of any action or proceeding to enforce this Agreement, the
successful or prevailing party will be entitled to recover its attorneys'
fees actually incurred and other costs incurred in any such action or
proceeding, in addition to any other relief to which it may be entitled.
8.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement, and shall not be deemed to limit or
affect any of the terms or provisions hereof.
8.6 WAIVER AND AMENDMENT. No waiver, amendment, modification or change
of any provision of this Agreement shall be effective unless and until made
in writing and signed by all of the parties hereto. No waiver, forbearance
or failure by any party hereto of its right to enforce any provision of this
Agreement shall constitute a waiver or estoppel of such party's
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right to enforce any other provision of this Agreement or a continuing waiver
by such party of compliance with any provision.
8.7 SEVERABILITY. The provisions of this Agreement are intended to be
interpreted and construed in a manner so as to make such provisions valid,
binding and enforceable. In the event that any provision of this Agreement
is determined to be partially or wholly invalid, illegal or unenforceable,
then such provision shall be deemed to be modified or restricted to the
extent necessary to make such provision valid, binding and enforceable, or,
if such provision cannot be modified or restricted in a manner so as to make
such provision valid, binding and enforceable, then such provision shall be
deemed to be excised from this Agreement and the validity, binding effect and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired in any manner.
8.8 COOPERATION. Each party hereto shall cooperate with the other
party hereto and shall take such further action and shall execute and deliver
such further documents as may be necessary or desirable in order to carry out
the provisions and purposes of this Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
8.10 ENTIRE AGREEMENT. This Agreement (including the exhibits and
schedules hereto, each of which is incorporated herein and made a part of
this Agreement) constitutes the entire agreement and understanding of the
parties hereto and terminates and supersedes any and all prior agreements,
arrangements and understandings, both oral and written, express or implied,
between the parties hereto concerning the subjec
t matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
"ATG" "CRT"
AMERICAN TECHNOLOGIES GROUP INC. CONE, XXXX XXXXXXXX LIMITED
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxx
_________________________ _________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxx Xxxx
Its: Chairman Its: Authorized Signatory
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