Consulting Agreement
Exhibit
10.1
This
Consulting Agreement (“Agreement”)
is made and entered into as of February 12, 2009, by WindTamer Corporation, a
New York corporation (the “Company”),
and Xxxxxxxx Xxxx (“Consultant”).
Recitals
A. The
Company is in its development stage as an independent developer of wind turbine
technology.
B. In
connection with its product development and commercialization efforts, the
Company wishes to utilize the services of Consultant, a licensed real estate
agent, to assist the Company in conducting searches for and locating, either for
purchase or lease, potential wind turbine sites that may be used by the Company
for construction and testing of new WindTamer prototypes, or by purchasers of
the Company's commercially produced turbines.
C. Consultant
has substantial experience and expertise in planning, directing and executing
commercial real estate searches that target strategic locations for
implementation of operational, manufacturing, product development and product
testing activities for development stage companies having objectives similar to
those of the Company with respect to commercialization and expansion, and
regularly provides consulting services and advice to companies that are in a
similar business stage, in connection with the formulation of business plans and
strategies and analysis of potential business locations and operating
procedures.
D. Consultant
and the Company have agreed on the terms and conditions pursuant to which
Consultant will be retained to provide consulting services.
NOW, THEREFORE, the parties
agree as follows:
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1.
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Appointment of
Consultant
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1.1 Appointment;
Reporting. By this Agreement, the Company appoints Consultant,
and Consultant accepts such appointment, to provide advice and consulting
services to the Company, in accordance with the terms and conditions of this
Agreement.
1.2 Nature of Consulting
Services. Consultant is retained to perform the following
consulting services (the “Services”):
(a) To
assist the Company in locating and developing potential manufacturing
sites;
(b) To
locate, and purchase or lease, on behalf of the Company, the most cost-effective
and productive sites upon which to erect new WindTamer prototypes and place
units purchased by the Company's commercial and residential customers;
and
(c) To
analyze and provide advice regarding the Company's strategic plan. The
Company may, at any time, request Consultant to make changes within the scope of
the Services or to perform extra work.
1.3 Reporting. Consultant
shall provide a detailed, written report of Consultant's advice and analysis of
the foregoing matters, including specific recommendations for action to be taken
by the Company, and suggestions for implementation, together with such
supporting information and schedules as may be necessary to permit the Board to
evaluate such recommendations. In addition, Consultant shall provide interim
reports at the request of the Company.
1.4 Hours of Consulting;
Personnel; Additional Consultants. It is expressly agreed that Consultant
will devote a minimum of twenty (20) hours per week during the term of this
Agreement.
1.5 Status of
Consultant. Consultant and the Company expressly agree that
Consultant is an independent contractor, and all Services performed under this
Agreement are performed by Consultant as an independent contractor. Consultant
shall control the time, manner, and place of performance of the
Services.
1.6 Standard of
Performance. Consultant shall perform her services and
complete her tasks to the Company’s satisfaction. Consultant shall comply with
all applicable federal, state, and local laws, ordinances, codes, and
regulations in performing the Services.
1.7 Scheduling.
A. The
Consultant will develop and maintain a detailed schedule for completion of the
Services. The schedule will be a work plan showing activities to be performed
and their sequence. A preliminary schedule shall be submitted to the Company
within ten (10) days after execution of this Agreement for review and
establishment of the level of detail to be included.
B. The
Consultant will submit monthly progress data for the reporting period which will
include the percentage complete and actual start date and actual finish date for
all activities worked on by the Consultant during the period. Any changes in
delivery dates will be reported. Other information, such as actual hours
expended, will be furnished monthly, or as requested, by the Company. If
requested by the Company, update meetings will be held to discuss the results of
schedule analysis and necessary action to meet the requirements of the
schedule.
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2.
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Term; Termination or
Suspension.
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A. Except
as provided below, this Agreement, and the Services to be performed under it,
shall commence on the date this Agreement is executed by both parties, and shall
continue thereafter through and including February 12, 2010.
B. The
Company may terminate this Agreement at-will without cause in its sole
discretion.
C. Upon
termination or cancellation of this Agreement, the Company shall have no
liability to Consultant except for charges for Services performed by Consultant
and accepted by the Company prior to termination. The terms and
conditions in this Agreement that by their sense and context are intended to
survive the performance hereof by either or both parties hereunder shall so
survive the termination, cancellation, or completion of performance of this
Agreement.
D. Upon
completion of Consultant's services hereunder or at such other time as may be
requested by Company, Consultant shall return to Company all documents, records,
notebooks, including copies thereof, whether prepared by Consultant or others,
in Consultant's possession, and other Company property utilized by Consultant in
performing the Services.
E. The
Company reserves the right to suspend work on the Services, with or without
cause, in whole or in part, upon giving notice to Consultant. Consultant shall
resume the Services so suspended when directed to do so by the Company. If only
a portion of the work on the Services is suspended, Consultant shall be
compensated only for Services actually performed during such
suspension.
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3.
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Compensation;
Expenses.
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3.1 Consulting
Fees. As the sole compensation for the performance of the
Services, Consultant shall be paid the following amounts:
(a) The
sum of five-thousand dollars ($5,000) per month, payable on the last day of each
full month during the term of this Agreement during which the Services are
performed.
3.2 Reimbursement of
Expenses. The Company shall reimburse Consultant for all
reasonable and necessary business and travel expenses actually incurred by
Consultant in performing the services, subject to receipt of a written request
for reimbursement, accompanied by appropriate supporting documentation.
Consultant may request reimbursement not more frequently than once every month
during the term of this Agreement.
3.3 Withholding;
Benefits. All fees payable to Consultant under this Agreement
shall be made in full, and without any withholding, deduction, or offset of any
state or federal withholding taxes, FICA, SDI, or income taxes, nor shall the
Company be obligated to pay any of Consultant's employees' taxes. Consultant
hereby covenants and agrees that it shall be solely responsible for all taxes,
withholding, FICA, SDI, and other similar items (both employee and employer
portions) with respect to all fees paid by the Company under this Agreement, and
agrees to indemnify and hold the Company harmless with respect to such taxes and
withholding. Neither Consultant nor Principal shall be eligible for, shall
participate in, or shall be entitled to compensation in lieu of any insurance,
benefit, retirement, or other plan or program provided by the Company to its
employees.
4. Confidentiality; Non-Solicitation;
Intellectual Property. As a material inducement to the Company
to enter into this Agreement and pay the compensation set forth in Section 3,
the Consultant hereby expressly agrees to be bound by the following covenants,
terms and conditions:
A. During
the course of the Consultant's relationship with the Company or any of its
affiliates, the Consultant has had, and will have, access to Confidential
Information relating to the Company and its affiliates and their respective
suppliers, partners and customers. The Consultant agrees to keep secret and
retain in strictest confidence all of such Confidential Information, and will
not disclose, disseminate or use such information for the Consultant's own
advantage or for the advantage of any other person or entity other than the
Company in accordance with the terms of the Consultant's employment or
relationship with the Company. In the event disclosure of any such
Confidential Information is required or purportedly required by law, the
Consultant will provide the Company with prompt notice of any such requirement
so that the Company may seek an appropriate protective order prior to
disclosure.
B. In
the event that the Consultant as part of his activities on behalf of the Company
generates, creates, authors or contributes to any invention, design, new
development, device, product, method or process (whether or not patentable or
reduced to practice or constituting Confidential Information), any copyrightable
work (whether or not constituting Confidential Information) or any other form of
Confidential Information relating directly or indirectly to the Company's
business (including anything that has occurred since the first date Consultant
provided services to the Company), the Consultant acknowledges that such
Intellectual Property is the exclusive property of the Company and hereby
assigns all right, title and interest in and to such Intellectual Property to
the Company. Any copyrightable work prepared in whole or in part by
the Consultant is and will be deemed “a work made for hire” under Section 201(b)
of the 1976 Copyright Act, and the Company shall own all of the rights comprised
by the copyright therein. The Consultant shall promptly and fully
disclose all Intellectual Property to the Company and shall cooperate with the
Company to protect the Company's interests in and rights to such Intellectual
Property (including, without limitation, providing reasonable assistance in
securing patent protection and copyright registrations and executing all
documents as reasonably requested by the Company, whether such requests occur
prior to or after termination of the Consultant's employment with the
Company). Notwithstanding the date of this Agreement or anything else
herein to the contrary, the provisions of this Section 4 shall be deemed to be
effective as of and apply to all matters occurring since the first date
Consultant provided services to the Company.
C. As
requested by the Company from time to time for any reason, the Consultant shall
promptly deliver to the Company all copies and embodiments, in whatever form, of
all Confidential Information and Intellectual Property in the Consultant's
possession or within his control (including, but not limited to, written
records, notes, photographs, manuals, notebooks, documentation, program
listings, flow charts, magnetic media, disks, diskettes, tapes and all other
materials containing any Confidential Information or Intellectual Property)
irrespective of the location or form of such material and, if requested by the
Company, shall provide the Company with written confirmation that all such
materials have been delivered to the Company.
D. The
Consultant agrees that, for the period of this Agreement and for two years
thereafter, it will not directly or indirectly represent, be employed by,
consult for, or otherwise be associated with any other business engaged in wind
turbine technology.
E. The
Consultant acknowledges that in the event the Consultant violates any provisions
of this Section 4, in addition to its other rights and remedies, the Company
shall be entitled to injunctive relief without the necessity of proving actual
damages. The Consultant further acknowledges that if any provision of
this Section 4 is held to be unenforceable, the court making such holding shall
have the power to modify such provision and in its modified form such provision
shall be enforced.
F. Without
in any way limiting the provisions of this Section 4, the Consultant further
acknowledges and agrees that the provisions of this Section 4 shall remain
applicable in accordance with their terms after the termination or cessation of
services to the Company or exercise or termination of the Option.
G. “Confidential
Information” means information or material proprietary to the Company or
designated as Confidential Information by Company and not generally known by
non-Company personnel, which the Consultant develops, or of which Consultant
obtains knowledge, or to which the Consultant may obtain access, through or as a
result of, the Consultant's relationship with the Company (including information
conceived, originated, discovered or developed in whole or in part by the
Consultant). Confidential Information includes, but is not limited
to, the following types of information and other information of a similar nature
(whether or not reduced to writing): discoveries, ideas, concepts, software in
various stages of development, designs, drawings, specifications, techniques,
models, data, source code, object code, data structures, instruction sets,
documentation, diagrams, flow charts, research, development, training methods,
training manuals, processes, procedures, “know-how”, marketing techniques and
materials, marketing and development plans, customer names and other information
related to customers, price lists, pricing policies and financial
information. Confidential information also includes any information
described above which the Company obtains from other entities and which the
Company treats as proprietary or designates as Confidential Information, whether
or not owned or developed by the Company. Notwithstanding the
foregoing, information publicly known that is generally employed by the trade at
or after the time Consultant first learns of such information, or generic
information or knowledge which associate would have learned in the course of
similar employment or work elsewhere in the trade, shall not be deemed part of
the confidential information.
H. “Intellectual
Property” shall mean those forms of authorship (as understood from Title 17 of
the United States Code), invention (as understood by Title 35 of the United
States Code) and identification (as understood from Title 15 of the United
States Code Section 1051 et seq., trademarks and service marks) and such other
forms of property rights in ideas, “know how,” inventions, discoveries, or in
their physical embodiments as shall related to or involve the Company's business
or any of its products, services or strategies.
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5.
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Miscellaneous.
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5.1 Entire
Agreement. This Agreement and the Company’s 2008 Equity
Incentive Plan, constitute the entire understanding between the parties, and
supersedes all prior agreements and negotiations, whether oral or written. There
are no other agreements between the parties, except as set forth in this
Agreement. No supplement, modification, waiver, or termination of this Agreement
shall be binding unless in writing and executed by all parties to this
Agreement.
5.2 Assignment; Binding
Effect. Neither this Agreement nor any rights, benefits, or
obligations under it may be assigned by any party to this Agreement without the
prior express written consent of the other party. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon all of the parties
to this Agreement and their respective executors, administrators, successors,
and permitted assigns.
5.3 Severability. In
the event any of the provisions of this Agreement are found by a court of
competent jurisdiction to be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not be
affected.
5.4 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
5.5 Counterparts. This
Agreement may be executed in two or more counterparts, which shall together
constitute one and the same agreement.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
FUTURE
ENERGY SOLUTIONS, INC.
/s/ Xxxxxx X.
Xxxxx
By:
Xxxxxx X. Xxxxx
Its:
President and CEO
CONSULTANT
/s/ Xxxxxxxx
Cole____________________
Xxxxxxxx
Xxxx
