EXHIBIT 10.11
Page 1
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into on the lst day of
June, 2001, by and between ELECTROPURE, INC. (the "Company" or "Electropure"), a
California corporation, with its principal place of business at 00000 Xxxxx
Xxxxxx Xxxxx, Xxxxxx Xxxxx, XX 00000, and COMMUNICATIONS MANAGEMENT ASSOCIATES
("Consultant"), a Delaware corporation, with its principal place of business at
00000 Xxxxxxxx Xxxxxx, Xxx Xxx, XX 00000.
WHEREAS, the Company desires to engage the Consultant to consult on various
administrative, public relations and financial matters in connection with the
business of the Company and the Consultant desires to provide such consulting
services to the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, the parties agree as follows:
1. PURPOSE. The Company hereby engages the Consultant to act in an advisory
capacity to the Company's Board of Directors and to provide consulting services
for the purposes set forth above and the Consultant hereby agrees to such
engagement. Xxxxx X. Xxxxxxx, President of the Company, will serve as point of
contact for the Company. Xxxxxx Xxxxxx III will serve as point of contact for
Consultant and the Company has entered into this Agreement with the express
understanding that Xxxxxx Xxxxxx III will continue to serve in such capacity
throughout the term of this Agreement.
2. PRIOR AGREEMENTS. The parties have entered into no prior written
agreements with regard to the consulting arrangements herein set forth and all
prior oral discussions are merged herein.
3. TERM AND EFFECTIVE DATE. The Effective Date of this Agreement shall be
the date set forth above. Commencing on the Effective Date, this Agreement shall
continue for a period of one (1) year, at which time this Agreement shall
automatically terminate, subject to the provisions of Paragraph 11 hereof. This
Agreement may be renewed or extended only upon the written mutual agreement of
the parties hereto.
4. DUTIES AND SCHEDULING OF SERVICE. During the term of this Agreement,
Consultant agrees to perform the duties as described above in accordance with
the scheduling of such duties as from time to time may be mutually agreed upon
by the parties. Consultant shall devote the amount of time which the parties
mutually agree is necessary to the successful performance of such duties.
5. STATUS OF PARTIES. It is understood and agreed that the relationship of
the Company and Consultant shall be that of independent contractors, and neither
party, nor their agents or employees, shall be deemed to be the agent of the
other.
6. COMPENSATION. For all of the services rendered by Consultant, the
Company will pay Consultant as follows:
1
EXHIBIT 10.11
Page 2
A. The sum of One Thousand Two Hundred Fifty Dollars ($1,250.00) per
month during the term of this Agreement, payable on the last day
of each month; and
B. The Company will grant Consultant Five Thousand (5,000) shares of
its fully-paid and non-assessable common stock for each month of
the twelve month term of this Agreement. All of such shares shall
be issued as soon as practicable at the current Fair Market Value
of $0.35 per share and shall be subject to forfeiture on a
pro-rata basis if this Agreement shall terminate prior to its
one-year term.
C. Consultant will have the right to have the Common Stock issued
hereby registered for sale under the Securities Act of 1933, as
amended (the "Act"), if the Company files a registration
statement (except an amendment to a currently pending
registration statement or an underwritten public offering wherein
the underwriter objects to the inclusion and except on Forms S-4
or S-8) at any time following the issuance date of the shares.
The Company will use its best efforts to cause any such
registration to become effective and continue to be effective
(current)(including the taking of such steps as are necessary to
obtain the removal of any stop order) for a period equal to the
lesser of two (2) years following the issuance date or until the
Consultant has advised the Company that all shares have been
sold; provided, however, that if at the time of a proposed
registration statement, the shares can be sold under Rule 144 of
the Act without any restriction and the Company removes any
legends restricting transfers of the shares, the Company does not
have to include the shares in any registration statement.
7. EXPENSES. Consultant shall be responsible for its own office expenses,
if any, including telephone and secretarial expenses, unless authorized or
directly provided by the Company. Pre-authorized travel and related
out-of-pocket expenses, i.e., entertainment, lodging, meals, shall be billed to
the Company at Consultant's cost and in accordance with standard Internal
Revenue Code guidelines.
8. NON-COMPETITIVE SERVICE. It is recognized by both parties to this
Agreement that Consultant may furnish advisory services to other clients.
Consultant agrees to refrain from the following during the term of this
Agreement:
A. Performing services for other persons or firms competing with the
Company, unless prior written permission is obtained from the
Company; and
B. Disclosing confidential information, as defined in Paragraph 9
below, unless the Company consents in writing to such disclosure.
9. CONFIDENTIALITY. Consultant agrees that, during the term of this
Agreement and after its termination for any cause whatsoever:
2
EXHIBIT 10.11
Page 3
A. Consultant will keep in strictest confidence all information
identified as confidential or which, from the circumstances, in
good faith and good conscience ought to be treated as
confidential, including, but not limited to, customer lists,
information about processes, technical information, numbers of
instruments built, shipped and delivered, products, services,
systems, business plans, marketing methods, strategies and costs
of Electropure, Inc. relating, in any way, to the business and
affairs of the Company which Consultant may acquire in connection
with or as a result of Consultant's engagement ("Confidential
Information"); and
B. Consultant will not use or permit the use of any Confidential
Information for the benefit of anyone other than the Company; and
C. At the time this Agreement is terminated, Consultant will not
retain any Confidential Information in any form and Consultant
will immediately return all such Confidential Information to the
Company without any demand therefor.
D. Consultant agrees that all inventions, improvements, discoveries
or developments, including, but not limited to, computer software
authorized by Consultant ("Work Product") which Consultant may
make or conceive, either solely or jointly with others, whether
arising from Consultant's own efforts or suggestions received
from any other source, which arise out of Consultant's engagement
hereby or Consultant's exposure to Confidential Information,
shall be the exclusive property of the Company free from any
claim or retention of rights thereto by Consultant (including for
the purposes of copyright). Consultant further agrees to fully
disclose and assign to the Company, exclusively and absolutely,
all such Work Product and, at the request and expense of the
Company, to execute all instruments and documents and to do all
things which may be reasonably necessary to protect the rights of
the Company and best in the Company and its assigns all such Work
Product without charge beyond the regular fees paid to Consultant
by the Company as prescribed hereunder.
10. INDEMNIFICATION. The Company shall indemnify Consultant and hold
Consultant harmless from liability for acts or omissions to act by Consultant
while performing services for the Company to the greatest extent permitted by
the applicable laws of the State of California.
11. TERMINATION. Notwithstanding any provision herein to the contrary,
either party hereto shall have the right, at its option, to terminate this
Agreement by giving thirty (30) days' written notice thereof to the other party.
12. NOTICES. All notices, requests, demands and other communications shall
be in writing and shall be deemed to have been duly given or made upon personal
delivery or, if mailed by registered or certified mail, postage prepaid, on the
third day following deposition in a United States mail receptacle:
3
EXHIBIT 10.11
Page 4
If to Consultant, addressed to: If to the Company, addressed to:
Xxxxxx Xxxxxx III, President Xxxxx X. Xxxxxxx, President
Communications Management Assoc. Electropure, Inc.
14911 Caminoto Ladera 00000 Xxxxx Xxxxxx Xxxxx
Xxx Xxx, XX 00000 Xxxxxx Xxxxx, XX 00000
or to such other address as either party hereto may request by notice given as
aforesaid to the other party hereto.
13. NON-ASSIGNMENT. Neither Consultant nor the Company may transfer or
assign all or any of its respective rights, duties or obligations under this
Agreement without the prior written consent of the other party.
14. SEVERABILITY. In the event any one or more provisions or portions of
this Agreement should be determined to be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
15. TITLES AND HEADINGS. Titles and headings to paragraphs hereof are for
purposes of reference only and shall in no way limit, define or otherwise affect
the provisions hereof.
16. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
counterpart.
17. RIGHTS AND REMEDIES ARE CUMULATIVE. The rights and remedies provided in
this Agreement are cumulative, and the use of any one right or remedy by any
party shall not preclude or waive their right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights which any
party may have by law, statute, ordinance, or otherwise.
18. BINDING ON SUCCESSORS. The provisions of this Agreement shall, subject
to the terms and conditions hereof, be binding upon and inure to the benefit of
the heirs, successors and assigns of the parties.
19. ATTORNEYS' FEES. In the event of any dispute regarding the obligations
or the respective rights and interests of the parties hereunder, the prevailing
party shall recover, upon demand, from the other party, all reasonable fees,
costs and expenses (including, without limitation, such fees, costs and expenses
of litigation and appeals) incurred by such prevailing party in enforcing any
provision hereof, whether or not litigation has commenced with respect
4
EXHIBIT 10.11
Page 5
thereto and without regard to any schedule or the determination by a court as to
the fees, costs and expenses of such enforcement.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
21. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties hereto and may be modified or amended only by a written instrument
executed by both parties hereto.
22. AUTHORIZATION; NO CONFLICT. The execution and delivery of this Agreement
and the performance by the parties of their respective obligations under this
Agreement are within the corporate powers of the respective parties, have been
authorized by all necessary corporate action, have received all necessary
approvals (if any shall be required) and do not and will not contravene or
conflict with any provision of the law or of the charter or By-Laws of the
parties or any agreement binding upon either of them.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates indicated below, effective as of the date indicated above in Paragraph 3.
"COMPANY" "CONSULTANT"
ELECTROPURE, INC. COMMUNICATIONS MANAGEMENT
ASSOCIATES
By /S/ XXXXX X. XXXXXXX 6/26/01 By /S/ XXXXXX XXXXXX III 6-25-01
------------------------------- --------------------------------
Xxxxx X. Xxxxxxx (Date) Xxxxxx Xxxxxx III (Date)
President President
5
