Exhibit 10.11
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into this
15th day of March, 2000, by and between H POWER CORP., a Delaware corporation
with principal offices located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000
(the "Company"), and MILLENNIUM CAPITAL RESOURCES, LLC, a Delaware limited
liability company with principal offices located at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 (the "Consultant").
WITNESSETH:
WHEREAS, the Company wishes to avail itself of the advice and services of
the Consultant, and the Consultant is desirous of providing such advice and
services to the Company, pursuant to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. Retention:
(a) The Company hereby retains the Consultant to perform
non-exclusive consulting services related to corporate finance, and other
matters, and the Consultant hereby accepts such retention and shall undertake
reasonable efforts to perform for the Company the duties described herein. In
this regard, subject to Section 7 hereof, the Consultant shall devote such time
and attention to the business of the Company, as shall be reasonably necessary
to carry out its duties hereunder, subject to the direction of the Chief
Executive Officer or Board of Directors of the Company.
(b) In addition to the general financial consulting services set
forth in subsection (a) above, at the Company's prior written request, the
Consultant agrees to place at the disposal of the Company its judgment and
experience and to provide business development services to the Company,
including, but not limited to, the following:
(i) Assist the Company in developing a strategy for acquiring
companies and/or technologies or for entering into strategic
alliances in the Company's business sector, defined as encompassing
alternative energy, fuel cells and distributed energy (the
"Sector");
(ii) Assist the Company in identifying specific candidates in
the Sector that meet the Company's investment or acquisition profile
for the purpose of a purchase or equity investment, strategic
partnership or other form of strategic alliance;
(iii) Assist the Company in identifying domestic and
international marketing and sales opportunities in the Sector that
meet the Company's criteria as potential partners or customers for
on-site power units (units of 1 to 25 kilowatts) and portable power
units (units of 0.05 to 15 kilowatts);
(iv) Assist the Company in formulating and implementing a
financial strategy in the conduct of its business in the Sector; and
(v) Assist the Company in expanding its business activities in
the Sector, including assistance in sales and marketing of the
Company's products.
The Company and Consultant shall mutually agree in advance in writing on (i) the
scope of any such business development services (the "Work Program") to be
undertaken by the Consultant on behalf of the Company and (ii) the amount, terms
and other conditions of the "Success Fee," if any, payable to the Consultant.
2. Term: The parties agree that the Consultant shall perform general financial
consulting services for the Company for a period of thirty-six (36) months,
commencing October 2, 2000. This Agreement may be terminated at any time by the
Company upon the delivery of written notice of termination to the Consultant.
Upon any early termination of this Agreement by the Company, the quarterly sums
payable to the Consultant pursuant to Section 3(a) shall be accelerated and
become due and payable to the Consultant immediately in their entirety. The
Consultant may terminate this Agreement at any time by the delivery of written
notice of termination to the Company. Upon any early termination of this
Agreement by the Consultant, the Company shall have no obligation to make any
further quarterly payments to the Consultant pursuant to Section 3(a) for any
period subsequent to such date of termination. Any quarterly compensation that
has accrued to the Consultant under Section 3(a) and is unpaid at the date of
any termination by the Consultant shall be forfeited by the Consultant.
3. Compensation:
(a) As compensation for its general financial consulting services
hereunder, the Consultant shall receive a quarterly retainer of $60,000, payable
in arrears on the first business day of each calendar quarter commencing January
2, 2001, so long as it remains a Consultant. Upon the failure by the Company to
make payment of any quarterly installment, the Consultant may make written
demand for payment. Upon the failure of the Company to make payment within 30
days after receipt of notice of any written demand for payment, the Company's
obligations under this Agreement shall be accelerated and the unpaid balance
shall thereupon immediately become due and payable in full.
(b) If, as a result of the Work Program commenced by the Consultant,
the Company during the term of this Agreement and for a period of six (6) months
thereafter consummates a Transaction with a company and/or technology introduced
to the Company by the Consultant, the Company shall pay
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the Consultant the "Success Fee," if any, previously negotiated by the parties
as provided for in Section 1(b) above so long as all of terms and conditions of
that "Success Fee" have been met to the reasonable satisfaction of the Company.
For purposes of this Agreement, a "Transaction" shall mean any transaction or
series or combination of transactions, including multi-step transactions,
whereby, the Company directly or indirectly, acquires control over, or a
material interest in, or enters into a strategic alliance with, any business
and/or technology introduced to the Company by the Consultant pursuant to the
Work Program. A Transaction shall include: a sale or exchange of capital stock
or assets; a lease of assets or intellectual properties, with or without
purchase options; a merger or consolidation; a tender or exchange offer; a
leveraged buy-out; a joint venture, partnership or other form of strategic
alliance; a minority investment; a loan; or any other form of business
combination.
4. Expenses: The Company agrees to reimburse the Consultant for any reasonable
out-of-pocket expenses (in accordance with normal Company policy) incurred by
the Consultant in connection with the services rendered hereunder upon
presentment of vouchers for those expenses. Major travel and expense
expenditures shall be precleared by the Company and incurred in accordance with
normal Company travel and expense policies.
5. Company Property; Confidentiality:
(a) The Consultant agrees that all data, reports, equipment and
other property furnished to Consultant by the Company or produced by Consultant
in connection with its consulting services hereunder shall remain the property
of the Company.
(b) The Consultant will not disclose to any other person, firm,
entity or corporation, nor use for its own benefit, during or after the term of
its engagement, any trade secrets or other information reasonably deemed or
designated as confidential by the Company which are acquired by the Consultant
in the course of performing its services. (A trade secret is information not
generally known to the trade which gives the Company an advantage over its
competitors. Trade secrets can include, by way of example, products or services
under development, production methods and processes, sources of supply, customer
lists, marketing plans, and information concerning the filing or pendency of
patent applications.) Any financial advice rendered by the Consultant pursuant
to its engagement, may not be disclosed publicly in any manner without the prior
written approval of the Company. At the conclusion of its engagement, the
Consultant shall return all material deemed confidential, supplied by the
Company.
6. Status of Consultant: The Consultant shall be deemed to be an independent
contractor, and, except as expressly provided or authorized in this Agreement,
shall have no authority to act for or represent the Company. The Consultant
shall have no authority to bind the Company to any contract or other legal
obligation, whether written, oral or implied.
7. Other Activities of Consultant: The Company recognizes that the Consultant
now renders and may continue to render financial consulting and other investment
banking services to other companies which
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may or may not conduct business and activities similar to those of the Company.
The Company and Consultant shall schedule periodic meetings at the Company's
offices in Clifton, New Jersey at intervals to be established to review and
consult.
8. Control: Nothing contained herein shall be deemed to require the Company to
take any action contrary to its Certificate of Incorporation, as amended, or
By-Laws, as amended, or any applicable statute or regulation, or to deprive its
Board of Directors of their responsibility for overseeing the business and
affairs of the Company.
9. Notice: Any notices hereunder shall be sent to the Company and the Consultant
at their respective addresses as set forth above. Any notice shall be given by
registered or certified mail, postage prepaid, and shall be deemed to have been
given when deposited in the United States mail. Either party may designate any
other address to which notice shall be given, by giving written notice to the
other of such change of address in the manner herein provided.
10. Governing Law: This Agreement has been made in the State of New York and
shall be construed and governed in accordance with the laws thereof without
regard to conflicts of laws.
11. Arbitration of Disputes: Any controversy or claim arising out of or relating
to this Agreement or the breach thereof, shall be settled by arbitration in the
City of New York in accordance with the then existing expedited rules of the
American Arbitration Association (three arbitrators), and judgment upon the
award rendered may be entered in any court having jurisdiction thereof. The
parties shall split equally the costs of arbitration unless the arbitrators
order otherwise, or unless the parties agree to allocate the costs differently.
The parties agree that the award of the arbitrators shall be final and binding.
12. Entire Agreement: This Agreement contains the entire agreement between the
parties and may not be altered or modified, except by means of a writing signed
by each of the parties hereto. Any and all previous or contemporaneous
agreements, understandings, representations and statements, oral or written,
between the parties relating to consulting and/or advisory services are hereby
superceded and shall be of no further force or effect.
13. Binding Effect: Assignment: This Agreement shall be binding upon the parties
hereto and their respective heirs, administrators, successors, and assigns.
Notwithstanding the foregoing, the Consultant may not assign this Agreement and
may not assign or subcontract the performance of its services hereunder.
14. Counterparts: This Agreement may be executed in counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same agreement.
This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
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15. Severability: If any provision of this Agreement for any reason shall be
held to be illegal, invalid or unenforceable, such provision shall not effect
any other provision of this Agreement, and this Agreement shall be construed as
if such illegal, invalid or unenforceable provision had never been included
herein.
16. Limitation of Liability: In the event the Consultant fails to perform, is
unable to perform or is prevented from performing its duties under this
Agreement, the Consultant's entire liability shall not exceed the amount of
compensation the Consultant has received from the Company.
17. Drafting: Each party acknowledges that its legal counsel participated in the
preparation of this Agreement and, therefore, stipulates that the rule of
construction that ambiguities are to be resolved against the drafting party
shall not be applied in the interpretation of this Agreement to favor any party
against the other.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
H POWER CORP.
By: /s/ H. Xxxxx Xxxxxxx
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H. Xxxxx Xxxxxxx
Chief Executive Officer
MILLENNIUM CAPITAL RESOURCES, LLC
By: /s/ R. Xxxxxxx Xxxxxx
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R. Xxxxxxx Xxxxxx
Managing Director
