Exhibit 10.4
AGREEMENT
This Agreement is made September 1, 2005, between Powerhouse Technologies,
Inc., a Delaware Corporation having offices at 000 Xxxx Xxxxxxx Xxxxx (the
"Company"), and Xxxx Xxxxxx, an individual with an address at 00 Xxxxxxxxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxx").
In consideration of the mutual covenants contained herein, the parties
hereby agree as follows:
1. SERVICES. Xxxxxx agrees to provide the following services to the
Company (collectively, the "Services"):
1.1 CHAIRMAN OF BOARD. Xxxxxx agrees to serve as the Executive
Chairman of the Company's Board of Directors (the "Board") commencing as soon as
practical after the closing date of the funding contemplated by the company and
until Xxxxxx'x resignation from the Chairman position or removal from the
Chairman position by the Company's Board of Directors, whichever occurs first.
1.2 CONSULTING SERVICES. Xxxxxx agrees to provide advice, analysis
and expertise to the company regarding the financial, operational, developmental
or other aspects of the business of the Company. It is anticipated that Xxxxxx
will offer such services for approximately 20 hours per week. Should the Board
of Directors desire a full time and/or exclusive employment or consulting
arrangement with Xxxxxx, the parties will negotiate different or additional
terms as may be appropriate.
1.3 OTHER EMPLOYMENT. It is agreed that Xxxxxx'x services rendered
hereunder shall not be exclusive, and he is free to accept other consulting
engagements. Board seats, or employment, so long as he remains available to
offer the services specified hereunder.
2. TERM. Commencing September 1, and continuing for a period of 12 months,
extending through August 31, 2006. This agreement will be extended monthly
thereafter unless terminated by one or both of the parties. The parties'
obligations under Sections 4 and 6 hereof shall survive the expiration or
termination of the Employment Period.
3. COMPENSATION; Expenses.
3.1 COMPENSATIONS AND OTHER CONSIDERATION. As full compensation for
the Services to be provided by Xxxxxx pursuant to this Agreement and the other
terms set forth herein, the Company agrees to pay Xxxxxx the compensation set
forth below:
a. During the Consulting Term, and in addition to any other
consideration that may be payable to him hereunder, Xxxxxx shall be paid the sum
of $150,000, payable at the rate of $12,500 per month, payable in advance, on a
monthly basis. In consideration of services rendered in connection with the
funding, the payment of such consulting fee shall be retroactive to September
1,2005, and Xxxxxx shall be reimbursed for reasonable travel and lodging
expenses incurred on behalf of the company for such tune.
b. For his services as Chairman of the Board of Directors,
Xxxxxx will receive 1,200,000 options to purchase the Company's common stock, at
a strike price of $.32 (Thirty Two cents) per share. The options shall vest as
follows: 25% upon commencement of Xxxxxx'x service hereunder, and thereafter 25%
on each six month anniversary of such commencement date. Should Xxxxxx'x
position as Chairman of the Board cease for any reason, whether by termination,
resignation, or change of control, all unvested, outstanding stock options shall
immediately vest.
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Xxxxxx shall have 60 months after the termination of his board service within
which to exercise such stock options. Xxxxxx shall be reasonably accessible
during such 60-month interval for purposes of consulting regarding his past
services and issues related thereto.
c. In addition to the stock options specified above, and also
in consideration of his services, Xxxxxx shall receive 300,000 shares of
restricted common stock of the company. Said restrictions shall lift from the
shares on January 1, 2007, or upon his removal from the Board of Directors (if
not for "Cause), whichever occurs first.
d. In addition, in the event Xxxxxx assumes full time
employment responsibilities on or before January 1, 2007, he will receive an
additional 1,500,000 options to purchase the Company's common stock, at a strike
price of $.32 (Thirty Two cents) per share. The options shall vest as follows:
25% upon commencement of Xxxxxx'x service as a full time employee hereunder, and
thereafter 25% on each six month anniversary of such commencement date, with all
unvested options to accelerate upon a change of control. Xxxxxx shall have 60
(sixty) months after the termination of his employment within which to exercise
any options vesting hereunder.
3.2 EXPENSES. Company shall prepay, or reimburse, as applicable,
Xxxxxx for reasonable, actual expenses (including travel, meals or other
out-of-pocket expenses) incurred by Xxxxxx in the course of providing the
Services ("Expenses"). Xxxxxx shall document all such Expenses in reasonable
detail if requested by the Company.
4. INVENTION ASSIGNMENT, CONFIDENTIALITY AND RESTRICTIVE COVENANTS.
4.1 DISCLOSURE OF INNOVATIONS. Xxxxxx agrees to disclose in writing
to the Company all inventions, improvements and other innovations of any kind
that he may have made,conceived, developed or reduced to practice, alone or
jointly with others, during the Term, whether or not they are related to the
Services and whether or not they are eligible for patent, copyright,
trademark, trade secret or other legal protection ("Innovations"). Examples of
Innovations shall include, but are not limited to, discoveries, research,
inventions, formulas, techniques, processes, know-how, marketing plans, new
product plans, production processes, advertising, packaging and marketing
techniques and improvements to computer hardware or software
4.2 ASSIGNMENT OF OWNERSHIP OF INNOVATIONS. Xxxxxx agrees that all
Innovations, which are in any way related to the business or planned business of
the Company, are the sole and exclusive property of the Company and he hereby
assigns all of his rights, title and interest in the Innovations and in all
related patents, copyrights, trademarks, trade secrets, rights of priority and
other proprietary rights to the Company. At the Company's request and expense,
during and after the Term, Xxxxxx will assist and cooperate with the Company in
all respects and will execute documents, and, subject to his reasonable
availability, give testimony and take further acts requested by the Company to
obtain, maintain, perfect and enforce for the Company patent, copyright,
trademark, trade secret and other legal protection for the Innovations. Xxxxxx
hereby appoints the President and Chief Executive Officer, or another authorized
officer of the Company as his attorney-in-fact to execute documents on his
behalf for this purpose. Xxxxxx has attached hereto as Exhibit "A" a list of
Innovations as of the date hereof which belong to him and which are not assigned
to the Company hereunder (the "Prior Innovations"), or, if no such list is
attached, he represents that there are no Prior Innovations.
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4.3 PROTECTION OF CONFIDENTIAL INFORMATION OF THE COMPANY. During
and after the Term, Xxxxxx will not use or disclose or allow anyone else to use
or disclose any "Confidential Information" (as defined below) relating to the
Company, its products, suppliers or customers except as may be necessary in the
performance of his work for the Company or as may be authorized in advance by
appropriate officers of the Company. "Confidential Information" shall include
methodologies,processes, tools, innovations, business strategies, financial
information, forecasts, personnel information, customer lists, trade secrets and
any other non-public technical or business information,whether in writing or
given to Xxxxxx orally, which he knows or has reason to know the Company would
like to treat as confidential for any purpose, such as maintaining a competitive
advantage or avoiding undesirable publicity. Xxxxxx will keep Confidential
Information secret and will not allow any unauthorized use of the same, whether
or not any document containing it is marked as confidential.These restrictions,
however, will not apply to Confidential Information that has become known to
the public generally through no fault or breach of Xxxxxx or that the Company
regularly gives to third parties without restriction on use or disclosure.
4.4 NON-COMPETITION, NON-SOLICITATION, NON-INTERFERENCE. Because
Xxxxxx acknowledges and agrees that he has and will continue to have access to
confidential and trade secret information of the Company, the following
restrictive covenant is necessary to protect the interests and continued success
of the Company. Except as otherwise expressly consented to in writing by
the Company, during the time period that begins on the commencement of the Term
of this Agreement and ends twelve (12) months from the date of termination of
this Agreement (the "Restricted Period"),Xxxxxx shall not, directly or
indirectly, acting as an employee, owner, shareholder, partner, joint venturer,
officer, director, agent, salesperson, Xxxxxx, advisor, investor or principal of
any corporation or other business entity:
(a) Engage, in any state or territory of the United States of
America where the Company is actively doing business (determined as of the
commencement of the Term), in direct or indirect competition with the business
conducted by the Company; specifically, eServices or knowledge management; or
(b) Request or otherwise attempt to induce or influence,
directly or indirectly, any customer or supplier, or prospective customer or
supplier, of the Company, or other persons sharing a business relationship with
the Company, to cancel, limit or postpone their business with the Company, or
otherwise take action which might be to the material disadvantage of the
Company; or
(c) Hire or solicit for employment or other business
relationship, or induceor actively attempt to influence, any employee, officer,
director or other business associate of the Company to terminate his or her
employment or discontinue such person's Xxxxxx, contractor or other business
association with the Company.
(d) Nothing in this section, whether express or implied, shall
prevent Xxxxxx from being a holder or not more than one percent (1%) of the
total outstanding stock of either a publicly held company under Section 12 of
the Securities Exchange Act of 1934, as amended, or any privately held company.
If Xxxxxx violates any of the restrictions contained in this
section, the Restricted Period shall be increased by the period of time from the
commencement of any such violation until the time such violation shall be cured
by Xxxxxx to the satisfaction of the Company, and the Company may
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withhold any and all payments otherwise due and owing to Xxxxxx under this
Agreement, if any, other than Base Salary.
5.0 BUSINESS OPPORTUNITIES. Xxxxxx agrees that, during the Term, he
will not take personal advantage of any business opportunities that are similar
or substantially similar to the business of the Company without: (a) first
offering in writing such opportunity to the Company; and (b)thereafter obtaining
a written refusal of such opportunity from the Company. In addition, Xxxxxx
to the Board must promptly and fully disclose all material facts regarding any
such business opportunities as soon as Xxxxxx becomes aware of any such
opportunity.
5.1 COMPANY PROPERTY. All records, files, lists, including computer
generated lists,drawings, documents, equipment and similar items relating to the
Company's business that Xxxxxx shall prepare for or receive from the Company
shall remain the Company's sole and exclusive property.Xxxxxx agrees than upon
termination of this Agreement, or upon demand from the Company, he shall
immediately return to the Company all property of the Company in his possession,
custody or control.Xxxxxx further represents that he will not copy or cause to
be copied, print out, or cause to be printed out any software, documents or
other materials belonging to the Company.
6.0 SURVIVAL. Sections 5, 6 and 7 of this Agreement shall survive
the termination by either party of this Agreement for any reason.
6.1 CHOICE OF LAW AND JURISDICTION. This Agreement shall be
construed,interpreted and the rights of the parties determined in accordance
with the laws of the State of California, without giving effect to any choice or
conflict of law provision or rule that would cause the application of laws of
any jurisdictions other than those of the State of California.
6.2 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the Company, and the Company shall
be obligated to require any successor to expressly assume its obligations
hereunder. This Agreement shall inure to the benefit of and be enforceable by
Xxxxxx or his legal representatives, executors, administrators, successors,
heirs,distributes, devisees and legatees. Xxxxxx may not assign any of his
duties, responsibility, obligations or positions hereunder to any person and any
such purported assignment by him shall be void and of no force and effect. The
Company may assign its rights hereunder to any other party.
6.3 WAIVER. Any waiver or consent from the Company with respect to
any term or provision of this Agreement or any other aspect of Xxxxxx'x conduct
or employment shall be effective only in the specific instance and for the
specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of the Company at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to any term or
provision of this Agreement or any other aspect of Xxxxxx'x conduct or
employment in no manner (except as otherwise expressly provided herein) shall
affect the Company's right at a later time to enforce any such term or
provision.
6.4 NOTICES. All notices, requests, demands, and other
communications hereunder must be in writing and shall be deemed to have been
duly given if delivered by hand or mailed within the continental United States
by first class, registered mail, return receipt requested, postage and registry
fees prepaid, to the applicable party, at the addresses first stated above or at
such other subsequent address as is made known to the other party as an address
at which such party receives similar important correspondence.
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6.5 AMENDMENT. This Agreement may be amended or modified only be a
written instrument executed by Xxxxxx and a representative of the Company duly
authorized by the Board.
6.6 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court
of competent jurisdiction declares that any term or provision hereof is invalid
or unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to limit the term or
provision, to delete specific works or phrases, or to replace any invalid
or unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified.
6.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement.
6.8 HEADINGS. The section headings contained in this Agreement are
used for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.9 CONSTRUCTION. Every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any party.
6.10 ACKNOWLEDGMENT. Xxxxxx represents and agrees that he fully
understands his rights to discuss all aspects of this Agreement with his
counsel, that he has been given the opportunity to avail himself of this right,
that he has carefully read and fully understands all the provisions of this
Agreement, that he is competent to execute this Agreement, that his decision to
execute this Agreement has not been obtained by any duress, that he freely and
voluntarily enters into this Agreement, and that he has read this document in
its entirety and fully understands the meaning, intent, and consequences of this
Agreement.
7.0 COUNTERPARTS; FACSIMILE SIGNATURE. This Agreement may be
executed in two (2) or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
This Agreement may be executed by facsimile signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth above.
AGREED TO BY:
POWERHOUSE TECHNOLOGIES GROUP, INC.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: CEO
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
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