EXHIBIT 10(h)
CONFIDENTIALITY, NON-COMPETITION, NON-CIRCUMVENTION
FEE AGREEMENT
This CONFIDENTIALITY, NON-COMPETITION, NON-CIRCUMVENTION, FEE AGREEMENT
("Agreement"), is entered into on the date set forth by the signatures of the
parties, below, is by and between Xx. Xxxxxx X. Xxxxx (referred to as Xx.
Xxxxx), a technology consultant, and Power Technology Incorporated, a Public
Corporation, and its subsidiaries (referred to as Power Technology), their
officers, directors, shareholders, successors and assigns (together the
"Parties");
WHEREAS, Xx. Xxxxx is in the business of developing technologies,
accessories and solutions for a variety of industries and has considerable
experience in deploying, advising, consulting, marketing, referring to research
institutions, corporations, individuals and industry, and acquiring financing,
investing in, or entering into other business relationships with a variety of
companies, or is very familiar with the technologies being developed by Power
technology, and other
WHEREAS, Power Technology and or its assigns is in the business of
developing, using, and deploying advanced technologies including marketing,
referring for institutions, corporations, individuals, and acquiring, financing,
investing in or entering into other business relationships with a variety of
companies, and is in similar business to Xx. Xxxxx; and other
WHEREAS, Xx. Xxxxx and Power Technology are interested in exchanging
confidential and proprietary information with each other (i) to investigate the
potential for Power Technology to invest in or enter into some business or
financial arrangement or combination with Xx. Xxxxx, its, assigns or its
successor and Xx. Xxxxx and to investigate the potential for Xx. Xxxxx to
introduce strategies and relationships, and (ii) to determine the
appropriateness of and to evaluate the feasibility of a joint venture, business
or investment relationship or arrangement, collaborative marketing effort or
other common enterprise or financing arrangement by and between Xx. Xxxxx (or
his approved associates) and Power Technology, and all such confidential,
proprietary or non-public information (all of which collectively called
"Evaluation Material") to be related to or disclosed by either Party to the
other Party is vital to each Party's business success, and to guard the
legitimate interests of each Party it is necessary for them to protect the
integrity of their confidential and proprietary information by maintaining and
treating all such Evaluation Material as secret and confidential; and
NOW, THEREFORE, in consideration of the mutual terms and conditions
herein contained, the Parties consent and agree as follows:
1. CONFIDENTIALITY: DISCLOSURE OF EVALUATION MATERIAL: The Parties
shall disclose each to the other such Evaluation Information as necessary,
required and reasonable to enable each to determine whether to enter into a
business relationship with each other. Such Evaluation Material shall include
any business plans, marketing infOrmation, business relationships or letter or
letters of intent, financial projections for the proposed marketplace(s), or any
other information, whether in writing or disclosed orally, and whether disclosed
by the Parties or their authorized agents, attorneys and accountants. All such
Evaluation Material is and shall be considered _________
and proprietary, and is disclosed in confidence. Neither party shall disclose
any Evaluation Material, except as contemplated by this Agreement; provided,
however, that any Evaluation Material may be disclosed (i) to any third party
with the prior written consent of the party which initially disclosed such
information, or (ii) to such of its officers, attorneys or accountants as
necessary for its evaluation and due diligence process, such parties being bound
by this Agreement, or (iii) as required by law, except that the party
responsible for maintaining the confidentiality of Evaluation Material disclosed
to it shall first and without delay give notice of such legal requirement to the
other Party so that it shall have an opportunity to take whatever steps
available to it to legally prevent such disclosure.
2. NON-COMPETITION: Neither Party shall use defined confidential
Evaluation Material provided to it by the other Party for the purpose of
directly or indirectly competing with the disclosing Party. In addition, neither
Party shall use any Evaluation Material for any purpose other than to evaluate a
business or financial opportunity or relationship between the Parties. Neither
Party shall use any Evaluation Material of the other Party in any way directly
or indirectly detrimental to the other Party.
3. NON-CIRCUMVENTION: Xx. Xxxxx has developed confidential and critical
business connections or relationships; and both Xx. Xxxxx and Power Technologies
have relationships with financing and capital sources and providers; all of
which are essential to such Party's business plans and opportunities, and are
considered and held confidential to and by such Party, and are therefor
confidential and proprietary contacts and relationships. Neither Party shall,
without the express written consent of the other Party, directly or indirectly:
contact or enter into any business, research or financial relationship with any
contact disclosed by the other Party not previously known and acknowledged upon
signing by the Party. All introductions or disclosures shall be made in
strictest confidence and only for purposes of each Party evaluating the
potential business opportunity with the other Party.
4. OWNERSHIP OF EVALUATION MATERIAL: All Evaluation Material, including
any and all written or oral information or documents, notes, drawings and
communications provided to each Party shall be and remain the sole and exclusive
property of the disclosing Party which alone shall possess all rights and
interests therein. All Evaluation Material, and all notes and records relating
to oral disclosures, shall be promptly returned to the disclosing Party upon
completion of the purpose for which it was disclosed, but no later than ten (10)
days after request for return by the disclosing Party.
5. TERM OF AGREEMENT: The provisions of this Agreement shall remain in
force for a period of two (2) years from the date of the last documented
disclosure of Evaluation Material. Nothing in this Agreement prevents or
precludes either Party from engaging in their normal and customary businesses;
provided, however, that no Evaluation Material shall be used in said business.
6. EMPLOYEES AND AGENTS: Each Party agrees that Part/s employees,
agents, advisors and the like required to have access to the Evaluation Material
of the other Party hereto is and shall be bound by the terms of this Agreement.
7. PARTNERSHIP/AGENCY: Each Party agrees that no agency, partnership,
joint venture or other obligation to such is created by this Agreement, and that
nothing in this Agreement shall obligate any Party in any manner whatsoever with
respect to the entering into of any business or financial relationship between
the Parties. Should the Parties, subsequent to their due diligence and review of
the Evaluation Material, decide to enter into a business relationship with each
other, then such business relationship will be detailed in a separately executed
document or letter of intent by and between the Parties.
8. SEVERABILITY OF PROVISIONS: If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated to any degree. The failure of either Party
to enforce any provision of this Agreement shall not be construed as a waiver of
any such provision or any other provision of this Agreement. The rights granted
both Parties herein are cumulative and the waiver by a Party of any of its
rights hereunder shall not constitute a continuing or complete waiver of such
Party's right to assert all legal remedies available for breach hereof by the
other Party.
9. CAPTIONS: The captions in this Agreement are for convenience only and
shall not have any effect in construing the terms of this Agreement.
10. EQUITABLE RELIEF: The Parties agree that money damages alone would
not be a sufficient remedy for any breach of this Agreement, and that in
addition to all other remedies, the Parties shall be entitled to specific
performance and injunctive or other equitable relief as additional remedies for
any such breach, and each Party agrees to waive any requirement for the securing
or posting of any bond by the other Party in connection with such remedy or
relief.
11. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, without giving effect to the
principles of conflict of laws of such state.
12. ENTIRE AGREEMENT; MODIFICATION: This Agreement constitutes the
entire agreement between the Parties hereto and covers their entire relationship
concerning the Confidentiality, Non-Competition, Non-Circumvention and Fee
between them. All prior or contemporaneous promises, representations,
understandings or agreements, verbal or otherwise, are hereby expressly merged
and superseded. No agent or employee of either Party is authorized to make any
modification, addition, or amendment to, or waiver of this Agreement or any of
its provisions, unless in writing and signed by the authorized officers or
signatories of the Parties hereto.
13. AUTHORITY: Each Party represents, warrants and verifies that the
individual(s) executing this Agreement on behalf of each Party so named has the
power and is duly authorized to enter into this Agreement and bind their
respective entities, and the Party's signatures given below constitute valid and
legal signatures of such Party sufficient to bind the terms, covenants and
provisions hereof. This Agreement may be executed in multiple
counterparts, with copies exchanged by telefacsimile containing signatures
thereon, any such executed copy to be fully enforceable as if it were an
executed original document.
14. FEE ARRANGEMENTS: Power Technology agrees to pay fifty thousand
shares as an engagement fee, in unrestricted shares of Power Technology. At
closing, when Xx. Xxxxx supplies acquisitions or technologies to Power
Technology. Xx. Xxxxx shall receive a fee of six percent (6%), in stock for any
equity or at the rate of valuation of corporations, technologies, or value for
any funding, acquisition, technology, capitalization, joint venture, merger,
debt financing (for customer/company business) or financial growth, new
business, or contributions vis equity or equity in kind brought forth by Xx.
Xxxxx. Power Technology agrees to pay a three percent (3%) commission for any
new business introduced by Xx. Xxxxx for companies owned by Power Technology,
based on gross sales, generated by these relationships. This commission is to be
paid fifteen days after Power Technology is in receipt of the sales revenues.
All records and progress shall be reported on a monthly basis agreed by both
parties once companies or products are introduced into this program. In
addition, after written approval, any out of pocket expenses incurred in the
pursuit of fUnding or sales relationships shall be reimbursed out of the
proceeds of this business venture within thirty days (30) of invoicing. All
assignments and goals are to be approved in writing after signing of this
agreement.
IN WITNESS WHEREOF, the Parties have executed and have AGREED TO and
ACCEPTED this Confidentiality, Non-Competition, Non-Circumvention and Fee
Agreement this ____ day of October, 2002.
Xx. Xxxxxx X. Xxxxx, Technology Consultant
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By:
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Power Technology Inc.
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By: /s/ Xxx Xxxxx
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Title:
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