ADVISORY AGREEMENT
Exhibit
10.69
This
Advisory Agreement (the “Agreement”) is made
and entered into as of July 1, 2007 (“Effective Date”), between Kronos Advanced
Technologies, Inc. (“Kronos”), a Nevada
corporation and Xxxxx Xxxxxxx, an individual resident in the State of New York
(“Advisor”).
Recitals
WHEREAS,
Kronos desires Advisor to provide certain services as described herein and is
willing to compensate Advisor, subject to the covenants, conditions and
limitations set forth in this Agreement; and
WHEREAS,
Advisor has special knowledge and other background experience relevant to the
field and is willing to provide certain services subject to the covenants,
conditions and limitations of this Agreement.
Agreement
In
consideration of the foregoing recitals and the mutual covenants hereinafter
provided, and for other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged and intending to be legally and
equitably bound hereby, the parties agree as follows:
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I.
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Scope and Limitations
of Engagement.
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1. Kronos appoints
Advisor. Kronos hereby appoints Advisor and Advisor hereby
accepts such appointment, on a non-exclusive basis, to provide certain services
(“Services”) as described in Attachment A (“Statement of
Work”). The Statement of Work may be modified or amended by
mutual written consent of Kronos and Advisor.
2. Independent Status of
Advisor. Advisor shall, at all times during the Term of this
Agreement, be an independent contractor hereunder, rather than a co-venturer,
agent, employee, or representative of Kronos. Advisor shall be
responsible for Advisor’s taxes, shall not be required to work on
a continuing daily basis or any specific work schedule, and shall not be
provided with office space or administrative support by Kronos. Advisor is
permitted to engage in other businesses and ventures during the Term of this
Agreement. Advisor shall be solely responsible for complying with all
laws, rules, and regulations applicable to its services
hereunder. Kronos shall not be liable for any injury (including
death) to Advisor or others, workmen’s compensation, employer’s liability,
social security, withholding tax, or other taxes of similar nature for or on
behalf of Advisor or any other person, persons, firms or corporations consulted
by Advisor in carrying out this Agreement. It is understood, however,
that should Kronos be held liable for any social security, withholding or other
taxes of a similar nature on behalf of Advisor, then Kronos shall have the right
to recover an equivalent amount from Advisor or deduct such amount from any
compensation due to Advisor pursuant to this Agreement.
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3. Confidentiality. The
Advisor acknowledges that during the Term of this Agreement, the Advisor may be
given access to or may become acquainted with Confidential Information (as
hereinafter defined) and/or trade secrets of Kronos. Subject to the
exceptions set forth below and permitted uses of Confidential Information in
connection with the provision of services pursuant to this Agreement, the
Advisor acknowledges that the Confidential Information and/or trade secrets of
Kronos as such may exist from time to time, are valuable, confidential, special
and unique assets of Kronos, expensive to produce and maintain and essential for
the operation of its business. The Advisor hereby agrees that he shall not,
during the Term of this Agreement and for a period of five (5) years thereafter,
directly or indirectly, communicate, disclose or divulge to any Person, as
defined below, or use for its benefit or the benefit of any Person, in any
manner any Confidential Information or trade secrets of Kronos acquired before
or during the Term of this Agreement, or any other Confidential Information
concerning the conduct and details of the businesses of Kronos, except as may be
required for the Advisor to perform the services hereunder and otherwise to
comply with the terms and conditions and intent of this Agreement and by law, or
to enforce the Advisor’s rights hereunder. As used in this Section,
"Confidential
Information” of Kronos means any and all information (verbal and written)
relating to Kronos or any of its subsidiaries or any of its affiliates, or any
of their respective activities, including, but not limited to, information
relating to trade secrets, personnel lists, financial information, research
projects, services used, pricing, software, software code, technical memoranda,
designs and specifications, new products and services, comparative analyses of
competitive products, technology, know-how, customers, customer lists and
prospects, product sourcing, marketing and selling and
servicing. Confidential Information shall not include information
that, at the time of disclosure, (a) is known or available to the general public
by publication (including, without limitation, the public disclosure of
information pursuant to Kronos’s reporting obligations under applicable federal
and state securities laws) or otherwise through no act or failure to act on the
part of the Advisor in violation of this Section I(3), (b) became known or
was derived by the Advisor by some demonstrable means other than as a result of
the Advisor’s access thereto, (c) was rightfully received from a third party
without similar restrictions and without breach of this Agreement or any other
agreement, or (d) was independently developed by the Advisor without any
utilization of the Confidential Information. The Advisor shall not be
liable for any disclosure of Confidential Information made pursuant to a valid
and enforceable judicial or governmental order (a “Mandated Disclosure”)
not sought by the Advisor for the purpose of circumventing his obligations
hereunder; provided, however, that the Advisor’s obligations under this Section
I (3) shall be deemed satisfied if, promptly upon the Advisor’s receipt of
a subpoena or other written notice seeking disclosure of Confidential
Information, the Advisor shall provide written notice to Kronos of any attempt
to obtain the Mandated Disclosure and in any event prior to any disclosure of
Confidential Information pursuant thereto, and reasonably cooperates with Kronos
in the event that Kronos elects to legally contest and avoid the Mandated
Disclosure.
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II.
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Intellectual
Property.
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1. Advisor
covenants and agrees that any works of authorship, work product, materials,
copyrights, discoveries, improvements, inventions and/or patent rights and
anything else that Advisor may make or acquire, either solely or jointly with
others, which result from Advisor’s contact with Kronos personnel and operation
or from Advisor’s work for Kronos, during the Term of this Agreement or while
engaged upon the advisory work under this Agreement, and for six (6) months
thereafter (“Works”), shall be the exclusive property of Kronos and agrees to
assign, and by these presents does hereby assign and transfer all his entire
right, title and interest in and to such inventions, improvements and patent
rights to Kronos, its successors and assigns, and Advisor agrees upon the
request of Kronos to execute and deliver all documents and perform such acts
necessary or advisable to secure to Kronos, its successors and assigns or its
nominee without payment of additional consideration therefor other than the
payment for said advisory services as herein provided, the entire right, title
and interest in and to said discoveries, improvements and inventions, including
applications for and/or letters patent of the United States and countries
foreign thereto provided the cost of preparing such papers, assignments and
applications for letters patent and the prosecution and maintenance of said
applications for and/or letters patent and all proceedings and litigation is
borne by Kronos or its nominee. Both parties agree that any
obligation Advisor may now have to assign inventions to Kronos is not waived or
changed by terms of this Agreement.
2. Advisor
agrees that any and all information including know-how and trade secrets that
may be imparted to him by Kronos as well as Advisor’s advice, recommendations
and opinions resulting from such advisory service shall be maintained
confidential and secret and Advisor shall not use or disclose said information
to others except officials and duly authorized employees and representatives of
Kronos, without prior written consent and approval of Kronos.
3. Advisor
shall at all times during and after the Term of this Agreement, upon the request
and the expense of Kronos, execute and deliver any and all papers, and do any
and all lawful acts that may be necessary or desirable in the opinion of Kronos
including but not limited to:
a. To
obtain letters patent, both domestic and foreign on said
inventions;
b. To
secure, establish and maintain title in Kronos, its successors and assigns, to
said inventions, applications and letters patent, including making such title of
lawful and public record;
c. To
cooperate fully with Kronos, both during and after the Term of this Agreement,
with respect to the procurement, perfection of title, maintenance and
enforcement of copyrights, patents and other intellectual property rights (both
in the United States and foreign countries) relating to developments or
inventions; to sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal assignments,
assignments of priority rights, and powers of attorney, which Kronos may deem
necessary or desirable in order to protect its rights and interests in any
development or invention. If Kronos is unable, after reasonable
effort, to secure Advisor’s signature on any such papers, any executive officer
of Kronos shall be entitled to execute any such papers as his agent and
attorney-in-fact, and Advisor hereby irrevocably designates and appoints each
executive officer of Kronos as his agent and attorney-in-fact to execute any
such papers on Advisor’s behalf, and to take any and all actions as Kronos may
deem necessary or desirable in order to protect its rights and interests in any
development or invention, under the conditions described in this
sentence.
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d. To
defend, establish or otherwise preserve the validity of said letter patent
against any and all infringers.
4. Advisor
shall promptly disclose to Kronos or its designees, in writing, all inventions
(regardless of whether such inventions are related to the business, products or
services of Kronos or any of its affiliated companies) made or conceived, either
solely or jointly with others, during the term of this Agreement and for six (6)
months thereafter.
5. Advisor
shall within two (2) days after written request by Kronos turn over to Kronos
all plans, notes, blueprints, designs, models, laboratory notebooks, etc.,
relating to inventions conveyed or covered by this Agreement, and Advisor hereby
assigns, sells, transfers and sets over unto Kronos all right, title and
interest in and to said plans, notes, blueprints, designs, models, laboratory
notebooks, etc.
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III.
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Compensation.
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1. Advisors
Fee. Kronos shall pay to Advisor and Advisor shall receive
from Kronos the Advisor’s Fee as described in the Statement of
Work. Any compensation payable to any person other than the Advisor
in connection with the provision of the Advisor’s services hereunder shall be
paid out of the compensation described in this Section III. The
compensation to be paid in accordance with the Statement of Work is the sole
compensation to be paid by Kronos in connection therewith.
2. Expense
Reimbursement. Kronos shall reimburse pre-approved travel or
other pre-approved expenses incurred by Advisor in connection with services to
be rendered by Advisor pursuant to this Agreement, as expressly agreed in
advance and writing by Kronos. Pre-approved travel and pre-approved
other expenses will be reimbursed within thirty (30) business days from receipt
of expense documentation.
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IV.
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Advisors Warranties,
Representations and Additional
Covenants.
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1. Full
Authority. Advisor warrants and represents to Kronos
that: (i) Advisor has the full unrestricted right to enter into this
Agreement, (ii) by entering into this Agreement, Advisor is not violating or
otherwise contravening any agreement to which Advisor is bound or any applicable
law; and (iii) no person must consent to the execution and performance of this
Agreement by Advisor.
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2. Fraud and Bad
Acts. Advisor represents and warrants to Kronos that Advisor
is not now, and covenants that Advisor shall not in the future be, a Person (i)
subject to an order of any regulator under applicable law, or (ii) convicted
within the previous ten (10) years of a felony.
3. Compliance with all
laws. Advisor covenants with Kronos that Advisor shall comply
with all applicable laws in connection with the execution and performance of
this Agreement.
4. Full Disclosure to
Kronos. Without limiting any other provision of this
Agreement, Advisor agrees to fully disclose all activities in which Advisor is
engaged other than pursuant to this Agreement.
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V.
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Term and
Termination.
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1. The
term of this Agreement is one year from the Effective Date (the “Term”).
2. This
Agreement may be terminated immediately by Kronos, without notice, in the event
that Advisor commits a material breach of this Agreement.
3. In
the absence of breach by Advisor, Kronos may terminate this Agreement upon ten
(10) days prior written notice to Advisor. In this event, Advisor
shall be entitled to all compensation pursuant this Agreement which has been
earned.
4. Advisor
may terminate this Agreement upon ten (10) days prior written notice to
Kronos.
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VI.
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Miscellaneous.
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1. Binding Effect and Survival
of Rights. This Agreement will benefit and bind the parties
and their respective personal representatives, executors, administrators, heirs,
legatees, devisees, successors and assigns.
2. Notices. All
notices, demands, requests and other communications required or permitted to be
given by any provision of this Agreement will be in writing addressed as
follows:
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If to Kronos:
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Kronos
Advanced Technologies, Inc.
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Telephone: 000.000.0000
Attention: Xxxxxx
X. Xxxxxx, President
and
Chief Executive Officer
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If to Advisor:
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Xxxxx
Xxxxxxx
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX
Telephone: 1.
(000) 000-0000
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Any such notice, demand, request or
communication will be deemed to have been given and received for all purposes
under this Agreement: (a) on the date of delivery when delivered in person; (b)
on the date of transmission when delivered by facsimile transmission (provided
such transmission is confirmed by transmission receipt and such notice is
promptly confirmed by some other means described herein); and/or (c) on the next
business day after the same is deposited with a nationally recognized overnight
delivery service that guarantees overnight delivery; provided, however, if the
day such notice, demand, request or communication will be deemed to have been
given and received as aforesaid is not a business day, such notice, demand,
request or communication will be deemed to have been given and received on the
next business day.
Any party to this Agreement may change
such parties address for the purpose of notice, demands, requests and
communications required or permitted under this Agreement by providing written
notice of such change of address to all of the parties by written notice as
provided herein.
3. Interpretation. The
parties acknowledge to each other that each party has reviewed and participated
in the negotiation of this Agreement. Accordingly, the normal rule of
construction to the effect that any ambiguities are resolved against the
drafting party will not be employed in the interpretation of this
Agreement.
4. Incorporation. The
Recitals, all exhibits and schedules attached hereto, or to be attached hereto,
and all other agreements and instruments referred to herein are hereby
incorporated by reference into this Agreement as fully as if copied herein
verbatim.
5. Further
Assurances. The parties further agree that, upon request, they
will do such further acts and deeds and will execute, acknowledge, deliver and
record such other documents and instruments as may be reasonably necessary from
time to time to evidence, confirm or carry out the intent and purpose of this
Agreement.
6. Lawful
Authority. Each party executing this Agreement hereby
represents and warrants to all other parties that they have been fully
authorized to execute and deliver this Agreement.
7. Attorneys
Fees. If any legal action or other proceeding (including
arbitration pursuant to this Agreement) is brought for the enforcement of this
Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with any provisions of this Agreement, the
prevailing party will be entitled to recover reasonable attorneys fees, court
costs and all reasonable expenses, even if not taxable or assessable as court
costs (including, without limitation, all such fees, costs and expenses incident
to appeal) incurred in that action or proceeding in addition to any other relief
to which such party may be entitled.
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8. Waivers and
Consents.
(i) Each
and every waiver of any provision of this Agreement must be in writing and
signed by each party whose interests are adversely affected by such
waiver.
(ii) Unless
otherwise expressly provided in a waiver, no such waiver granted in any one
instance will be construed as a continuing waiver applicable in any other
instance.
(iii) No
waiver by any party to this Agreement to or of any breach or default by any
other party to this Agreement in the performance by such other party of its
obligations hereunder will be deemed or construed to be a waiver of any breach
or default of any other party of the same or any subsequent obligations
hereunder.
(iv) Subject
to applicable statutes of limitation, the failure on the part of any party to
this Agreement to complain of any act or failure to act of any other party to
this Agreement or to declare such other party in default, irrespective of how
long such failure continues, shall not constitute a waiver by the non-defaulting
party of its rights hereunder.
(v) Each
and every consent by any party to this Agreement must be in writing signed by
the party to be bound thereby. No consent will be deemed or construed
to be a consent to any action except as described in such writing.
9. Section
Headings. The Section headings contained in this Agreement are
for reference purposes only and will not affect the interpretation of this
Agreement.
10. Governing
Law. This Agreement will be governed in all respects,
including validity, interpretation and effect by, and will be enforceable in
accordance with, the internal laws of the State of Nevada without regard to
conflicts of laws principles.
11. Severability. If
any provision of this Agreement is held to be unlawful, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
will be fully severable, and this Agreement will be construed and enforced
without giving effect to such unlawful, invalid or unenforceable
provision. Furthermore, if any provision of this Agreement is capable
of two (2) constructions, one of which would render the provision void, and the
other which would render the provision valid, then the provision will have the
meaning which renders it valid.
12. Counterpart
Execution. This Agreement may be executed in multiple
counterparts, each one of which will be deemed an original, but all of which
will be considered together as one and the same instrument. Further,
in making proof of this Agreement, it will not be necessary to produce or
account for more than one (1) such counterpart. Provided all parties
have signed at least one counterpart, the execution by a party of a signature
page hereto will constitute due execution and will create a valid, binding
obligation of the party so signing, and it will not be necessary or required
that the signatures of all parties appear on a single signature page
hereto.
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13. Amendments. Each
and every modification and amendment of this Agreement must be in writing and
except as otherwise provided herein, signed by all the parties
hereto.
14. Entire
Agreement. This Agreement contains the entire agreement
between the parties regarding the subject matter hereof. Any prior
agreements, discussions or representations not expressly contained in this
Agreement will be deemed to be replaced by the provisions hereof, and no party
has relied on any such prior agreements, discussions or representations as an
inducement to the execution hereof.
15. Rules of
Construction. (a) All terms in this Agreement in the singular
and plural will have comparable meanings when used in the plural and vice-versa
unless otherwise specified; (b) the words hereof, herein, hereunder
and words of similar import when used in this Agreement, will refer to this
Agreement as a whole and not any particular provision of this Agreement and all
references to articles, sections and subdivisions thereof are to this Agreement
unless otherwise specified; (c) the words include, includes and
including will be deemed to be followed by the phrase without
limitation; (d) all pronouns and any variations thereof will be
deemed to refer to masculine, feminine or neuter, singular or plural, as the
identity of the individual, individuals, entity or entities may
require; (e) all references to documents, contracts, agreements or
instruments will include any and all supplements and amendments
thereto; and (f) all accounting terms not specifically defined herein
will be construed in accordance with generally accepted accounting principles or
generally accepted auditing standards then applied in the United
States.
16. Forum
Selection. ADVISOR AND KRONOS DO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMIT TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK AND DO FURTHER IRREVOCABLY AND UNCONDITIONALLY STIPULATE
AND AGREE THAT THE FEDERAL COURTS IN THE STATE OF NEW YORK OR THE STATE COURTS
OF NEW YORK WILL HAVE JURISDICTION TO HEAR AND FINALLY DETERMINE ANY DISPUTE,
CLAIM, CONTROVERSY OR ACTION ARISING OUT OF OR CONNECTED (DIRECTLY OR
INDIRECTLY) WITH THIS AGREEMENT THAT IS NOT SUBJECT TO ARBITRATION, OR TO ENTER
A JUDGMENT CONSISTENT WITH ANY ARBITRATION AWARD. ADVISOR AND KRONOS FURTHER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL OBJECTIONS OR DEFENSES
TO SAID JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT SERVICE UPON ANY PARTY HERETO SHALL BE MADE BY
DELIVERY VIA PRIORITY OVERNIGHT DELIVERY (E.G., FEDEX) AND BY FACSIMILE OF A
COPY OF SUCH PROCESS TO THE ADDRESS OF SUCH PARTY FOR NOTICES TO SUCH PARTY AS
SET FORTH IN THIS AGREEMENT LETTER (OR SUCH DIFFERENT ADDRESS AT SUCH PARTY WILL
HEREAFTER SPECIFY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT). THE FOREGOING CONSENT, IN ADVANCE, TO THE JURISDICTION OF
THE AFOREMENTIONED COURTS AND THE AFOREMENTIONED METHOD OF SERVICE ARE MATERIAL
INDUCEMENTS FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT.
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17. Personal Nature of
Undertaking. Advisor acknowledges that the engagement of
Advisor’s services hereunder by Kronos is personal to Advisor, and such services
shall not be delegated or assigned to any other Person or Advisor without
Kronos’ express prior written consent, which may be withheld in Kronos’ sole and
absolute discretion.
IN WITNESS WHEREOF, the
parties have executed this Advisors Agreement effective as of the date signed by
the parties, as shown below.
Kronos Advanced
Technologies:
By:___________________________________
Xxxxxx X.
Xxxxxx
Title: President
and Chief Executive Officer
Advisor:
By:______________________________________
Name: Xxxxx
Xxxxxxx
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ATTACHMENT
A
Project: Advisory consultation
to the Company on general business matters, funding and customer
relationships.
Advisory Fee: $20,833 /
month
Limitation: The Advisor is not
an Officer or Director of the Company and is limited solely to an advisory role
to the Company.
