Exhibit 10.7
ASSIGNMENT
For $1 and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, ENERNOW TECHNOLOGIES, INC. ("EnerNow") hereby
assigns to ENER1 TECHNOLOGIES, INC. the contract entitled ENERNOW PROFESSIONAL
SERVICES CONSULTING AGREEMENT (IMPLEMENTED BY WORK ORDER) between XxxxXxx and
Xxxxxxxxx Xxxxxxx, dated April 22, 2002 (the "Consulting Agreement"), a true and
complete copy of which is attached hereto as Exhibit A, together with all of
EnerNow's rights and obligations under the Consulting Agreement, effective as of
September 1, 2002.
EnerNow agrees that it will cooperate with Xx. Xxxxxxx to determine any
and all payments that may have become due to Xx. Xxxxxxx prior to the effective
date hereof (including, without limitation, payments that may be due under Part
5: Fees, Deposits and Payment Schedule of SOW #1 in Exhibit A - Statement of
Work to the Consulting Agreement), and that, notwithstanding this Assignment,
EnerNow will remain obligated to, and shall, make all such payments that may
have become due to Xx. Xxxxxxx prior to the effective date hereof.
ENERNOW TECHNOLOGIES, INC. ENER1 TECHNOLOGIES, INC.
By: /s/Xxxxx X. Light By: /s/X. Xxxxxxx Xxxxxx
Name: Xxxxx X. Light Name: X. Xxxxxxx Xxxxxx
Title: President Title: Vice President
ACKNOWLEDGEMENT AND AGREEMENT TO ASSIGNMENT
For $1 and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, I hereby acknowledge, consent to and ratify the
above assignment, in accordance with the terms thereof.
/s/Xxxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxx
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EXHIBIT A
COPY OF EXECUTED CONSULTING AGREEMENT
[See attached pages]
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ENERNOW PROFESSIONAL SERVICES
CONSULTING AGREEMENT (IMPLEMENTED BY WORK ORDER)
This CONSULTING AGREEMENT (this "Agreement"), made and entered into
this 22nd day of April, 2002, by and between ENERNOW TECHNOLOGIES, Inc., a
Florida corporation, having a principal place of business at 0000 Xxxxx Xxxxx
Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, XXX (hereinafter "EnerNow"), and Xxxxxxxxx
Xxxxxxx, an individual, having a principal place of business at 000 Xxxxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter "Consultant").
ARTICLE 1
TERM AND TERMINATION
1.1 TERM. This Agreement will become effective on the date first shown
above and will continue in effect through the completion of each Work Order (as
described in Section 3.1 hereof), unless earlier terminated under Section 1.2.
The initial Work Orders are attached as Exhibit A and numbered sequentially.
Additional Work Orders may be added, from time to time, and shall be added under
Exhibit A and numbered sequentially.
1.2 TERMINATION OF WORK ORDERS. EnerNow or Consultant may, at their
sole option, terminate any Work Order, or any portion thereof, upon five (5)
business days advance written notice. If termination is enacted by XxxxXxx or
Consultant, upon receipt of such notice, Consultant shall advise EnerNow of the
extent to which performance has been completed through such date, and collect
and deliver to EnerNow whatever work product then exists in its current state as
requested by XxxxXxx. Consultant shall be paid for all work performed through
the date of termination within ten (10) business days of termination.
1.3 SURVIVAL. In the event of any termination of this Agreement,
Articles 5, 6, and 7 hereof shall survive and continue in effect.
ARTICLE 2
INDEPENDENT CONTRACTOR STATUS
2.1 INTENTION OF PARTIES. It is the intention of the parties that
Consultant be an independent contractor and not an employee, agent, or joint
venture of EnerNow. Nothing in this Agreement shall be interpreted or construed
as creating or establishing the relationship of employer and employee between
XxxxXxx and Consultant or any employee or agent of Consultant
2.2 NONEXCLUSIVE. Consultant shall retain the right to perform work for others
during the terms of this Agreement, provided such work does not interfere nor
compete with the services being provided to EnerNow. EnerNow shall retain the
right to cause work of the same or a different kind to be performed by its own
personnel or other contractors during the term of this Agreement
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ARTICLE 3
SERVICES TO BE PERFORMED BY CONSULTANT
3.1 WORK ORDERS. All work performed by Consultant shall be documented
in a Work Order signed by an authorized representative of EnerNow and by
Consultant. Each Work Order shall set forth, at a minimum, the work to be done,
the duration of the assignment, (including specific assignment start and end
dates and any associated bonus) and the fees for the work to be performed.
Consultant shall have the right to accept or decline any proposed Work Order.
3.2 METHOD OF PERFORMING SERVICES. Consultant, in consultation with
XxxxXxx, will determine the method, details, and means of performing the work to
be carried out for XxxxXxx. In addition, XxxxXxx shall be entitled to exercise a
broad general power of supervision and control over the results of work
performed by Consultant to ensure satisfactory performance. This power of
supervision shall include the right to inspect, stop work, make suggestions or
recommendations as to the details of the work, and request modifications to the
scope of the Work Order. Modifications to the scope of the Work Order by XxxxXxx
resulting in additional services by the Consultant shall be compensated
accordingly. Modifications to the scope of the Work Order by XxxxXxx resulting
in the extension of the duration of any assignment will not limit the Consultant
to attain any bonus associated with said assignment.
3.3 SCHEDULING. Consultant will try to accommodate the work schedule
requests of EnerNow to the extent possible. Should Consultant be unable to
perform scheduled services because of illness or other causes beyond
Consultant's reasonable control, Consultant will attempt to replace such effort
within a reasonable time and such effort will not limit the Consultant to attain
any bonus associated with said work schedule requests.
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3.5 REPORTING. EnerNow will advise Consultant of the EnerNow
representative to whom Consultant will report progress on day-to-day work for
each Statement of Work. EnerNow and Consultant shall develop appropriate
administrative procedures for performance of work. The Consultant will provide
EnerNow with a weekly status report after actual work efforts begin, advising
XxxxXxx of the status of Work Order activities. This report will outline the
status of tasks worked on during the period of the engagement.
ARTICLE 4
COMPENSATION
4.1 TIME AND MATERIALS BASED BILLING. Work performed by Consultant
under each Work Order shall be billed on a time and materials basis.
4.2 RATES. The hourly time and materials billing rate will be stated in
each Work Order
4.3 ESTIMATES. For a time and materials, work order estimates of total
fees for engagements may be provided in a Work Order. Consultant will notify
XxxxXxx as soon as possible if he expects that the actual fees or materials will
exceed the estimate and EnerNow may, if EnerNow so chooses, terminate the
engagement in the manner set forth in Section 1.2 above.
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4.4 INVOICES. Consultant shall submit invoices to EnerNow for the
services furnished and any pre-approved expenses incurred hereunder. Each
invoice will provide a breakdown and distribution of charges by hourly fees and
expense items. Payment fees, schedules and terms and conditions shall be as
provided in each specific Statement of Work.
4.5 PAYMENT TERMS. Payment terms shall be as stated in each specific
Statement of Work
4.6 EXPENSES. EnerNow shall reimburse Consultant for pre-approved
reasonable travel and related expenses, subject to any limits set forth in the
applicable Statement of Work.
ARTICLE 5
TREATMENT OF CONSULTANT AND ANY ASSOCIATES AS NON-EMPLOYEES OF ENERNOW
5.1 WORKERS' COMPENSATION. Notwithstanding any other workers'
compensation or insurance policies maintained by XxxxXxx, Consultant shall
procure and maintain workers' compensation coverage sufficient to meet any
statutory requirements.
5.2 STATE AND FEDERAL TAXES. As neither Consultant nor any of his
associates are XxxxXxx's employees, XxxxXxx shall not take any action or provide
neither Consultant nor his associates with any benefits or commitments
inconsistent with their status as non-employees of XxxxXxx. In particular, but
not limited to the following:
o EnerNow will not withhold FICA (Social Security) from
Consultant's payments.
o EnerNow will not make state or federal unemployment insurance
contributions on behalf of Consultant or his associates.
o EnerNow will not withhold state and federal income tax from
payment to Consultant
o EnerNow will not make disability insurance contributions on
behalf of Consultant or his associates.
o EnerNow will not obtain workers' compensation insurance on
behalf of Consultant or his associates.
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ARTICLE 6
INTELLECTUAL PROPERTY RIGHTS
6.1 CONFIDENTIALITY. "CONFIDENTIAL INFORMATION" shall mean all
information not known or generally available without restrictions on use,
including, without limitation, know-how, trade secrets, intellectual property,
operational methods, marketing plans or strategies, product development
techniques or plans, processes, designs and design projects, inventions and
research projects and other business affairs, including the terms and conditions
of this Agreement and the negotiations between the Parties with respect to this
Agreement. The Parties agree that all Confidential Information will be clearly
marked as such upon delivery to the other Party, or, if communicated orally,
will be clearly specified as Confidential Information at the time of
communication and confirmed in writing as confidential within thirty (30) days
thereafter. All Licensed Technology and Know-How shall constitute Confidential
Information of ENERNOW. Information subject to any of the following exceptions
shall not be considered Confidential Information:
a) information, which is or becomes generally available
other than as a result of the breach of this
Agreement by either Party;
b) information, the release of which is expressly
authorized in writing by the Party having the legal
right to disclose such information; or
c) information, which is already lawfully known to or
independently developed by either Party without the
use of any Confidential Information disclosed
hereunder; or
d) information, which is lawfully obtained from any
Third Party.
Consultant acknowledges that the Confidential Information constitutes
and shall constitute valuable assets and trade secrets. Accordingly, when
Consultant receives confidential information from EnerNow Consultant shall, both
during the term of this Agreement and for three (3) years following the
termination thereof, (i) keep secret and retain in strict confidence any
Confidential Information received from XxxxXxx, (ii) not disclose to any third
party any Confidential Information received from EnerNow for any reason
whatsoever, (iii) not disclose any Confidential Information received from
EnerNow to Consultant's employees or associates, except on a need-to-know basis
and only after instructing each such employee or associate not to disclose or
otherwise make available any Confidential Information to any third party and
provided each such employee or associate is bound by appropriate confidentiality
agreements with Consultant and (iv) not make use of any Confidential Information
received from EnerNow for its own purposes or for the benefit of any third party
except as authorized by this Agreement.
In the event of any legal action or proceeding or asserted requirement
under applicable law or government regulations requesting or demanding
Consultant to disclose this Agreement or any Confidential Information,
Consultant shall immediately notify EnerNow in writing of such request or demand
so that EnerNow may seek an appropriate protective order or take other
protective measures. Consultant shall, upon the request of XxxxXxx, cooperate
reasonably with XxxxXxx in contesting such request or demand at the expense of
EnerNow, including, without limitation, consulting with EnerNow as to the
advisability of taking legally available steps to resist or narrow such request
or demand. If in the absence of a protective order or a waiver hereunder from
XxxxXxx, Consultant is compelled to disclose this Agreement or any Confidential
Information to any tribunal or otherwise stand liable for contempt or suffer
other penalty, Consultant may disclose this Agreement or such Confidential
Information to such tribunal without liability hereunder; PROVIDED, HOWEVER,
Consultant (a) shall give EnerNow written notice of the Confidential Information
to be so disclosed as far in advance of its disclosure as is practicable, (b)
shall furnish only that portion of this Agreement or the Confidential
Information which is legally required, and (c) shall use best efforts, at
EnerNow's expense, to obtain an order or other reliable assurance that
confidential treatment will be accorded to such portions of this Agreement or
the Confidential Information to be disclosed as EnerNow designates.
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In the event Consultant becomes aware that any person or entity
(including, but not limited to, any Affiliate or employee of Consultant) is
taking, threatens to take or has taken any action which would violate any of the
foregoing provisions of this Agreement, Consultant shall promptly and fully
advise EnerNow of all facts known to Consultant concerning such action or
threatened action. Consultant shall not in any way aid, abet or encourage any
such action or threatened action, and Consultant agrees to use its best efforts
to prevent such action or threatened action, including, but not limited to,
assigning any cause of action it may have relating to the violation of the
foregoing provisions to EnerNow, and Consultant agrees to do all reasonable
things and cooperate in all reasonable ways as may be requested by EnerNow to
protect the trade secrets and proprietary rights of EnerNow in and to the
Confidential Information.
The terms and conditions of this Agreement will not be disclosed by
either Party, except with the prior written consent of the other Party, or as
may be required by law or necessary to establish its rights hereunder.
Notwithstanding the foregoing, (i) each Party shall have the right to disclose
the terms and conditions of this Agreement, if necessary, to any legal counsel
of such be required to establish its rights hereunder, and (ii) subsequent the
execution of this Agreement, the Parties may jointly or individually issue press
releases or otherwise publicly disclose the Parties' relationship, (a) provided
such Party has obtained the prior written approval of the content of such
disclosure for the other Party and (b) that such disclosure does not include
information which would be prohibited from disclosure by either Party pursuant
to this Agreement or that certain Confidentiality Agreement between the Parties.
The approval of such press release or other disclosure of the Parties'
relationship shall be given by a Party within ten (10) business days following
the request by the other Party, or in the event the approval is not given, the
disapproving Party shall provide commercially reasonable objections.
6.2 OWNERSHIP OF WORK PRODUCT. Including all pre-existing intellectual
property developed and owned by XXXXXXX, all copyrights, patents, trade secrets,
or other intellectual property rights associated with any ideas, concepts,
techniques, inventions, processes, or works of authorship developed or created
by Consultant or his associates in the course of performing EnerNow's work
(collectively, the "Work Product") shall belong exclusively to EnerNow and
shall, to the extent possible, be considered a work made for hire for EnerNow
within the meaning of Title 17 of the United States Code. Consultant
automatically assigns, at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest he may have
in such Work Product, including any copyrights or other intellectual property
rights pertaining thereto. Upon request of XxxxXxx, Consultant shall take such
further actions, and shall cause its personnel to take such further actions,
including execution and delivery of instruments of conveyance, as may be
appropriate to give full and proper effect to such assignment.
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6.3 RESIDUAL RIGHTS OF PERSONNEL. Notwithstanding anything to the
contrary herein, Consultant and his associates shall be free to use and employ
his and their general skills, know-how, and expertise, and to use, disclose, and
employ any generalized ideas, concepts, know-how, methods, techniques, or skills
gained or learned during the course of any assignment, so long as he or they
acquire and apply such information without disclosure of any confidential or
proprietary information of XxxxXxx and without any unauthorized use or
disclosure of the Work Product.
ARTICLE7
LIMITATIONS AND WARRANTIES
7.1 DISCLAIMER. CONSULTANT DOES NOT MAKE ANY WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY HIM OR THE RESULTS OBTAINED
FROM HIS WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
CONSULTANT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT
DAMAGES, OR FOR ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL OR RECKLESS IN
NATURE, REGARDLESS OF WHETHER HE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.2 LIABILITY. In no event shall either party be liable for indirect,
incidental, special or consequential damages or damages for lost profits or
revenues for any claim relating to the performance or non-performance of their
respective obligations under this Agreement or for any default or termination of
this Agreement.
7.3 WARRANTIES. Each party represents and warrants that (a) it has the
power and authority to enter into this Agreement, and (b) the execution,
delivery and performance of this Agreement does not conflict with any agreement,
instrument or understanding, oral or written, to which it is a party or by which
it may be bound.
ARTICLE 8
GENERAL PROVISIONS
8.1 NOTICES. Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change such address
by written notice in accordance with this paragraph. Notices delivered
personally will be deemed communicated as of actual receipt. Mailed notices will
be deemed communicated as of two days after mailing.
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8.2 NO DISCRIMINATION. Consultant agrees that in the performance of
this Agreement it will not discriminate or permit discrimination against any
person or group of persons on the grounds of sex, race, color, religion, or
natural origin in any manner prohibited by the laws of the United States.
8.4 ENTIRE AGREEMENT OF THE PARTIES. This Agreement supersedes any and
all agreements, either oral or written, between the parties hereto with respect
to the rendering of services by Consultant for EnerNow and contains all the
covenants and agreements between the parties with respect to the rendering of
such services in any manner whatsoever. Each party to this agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, that are not embodied herein, and that no other agreement, statement,
or promise not contained in this agreement shall be valid or binding. Any
modification of this agreement will be effective only if it is in writing signed
by the party to be charged.
8.5 PARTIAL INVALIDITY. If any provision in this agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
8.6 PARTIES IN INTEREST. This Agreement is enforceable only by XXXXXXX
and Consultant.
8.7 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Florida.
8.8 SUCCESSORS. This Agreement shall inure to the benefit of, and be
binding upon, XXXXXXX and PARTNER, their successors and assigns.
ENERNOW TECHNOLOGIES, INC. CONSULTANT
By: /s/Xxxxx Xxxxxx By: /s/Xxxxxxxxx Xxxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Director Title: Consultant
Date: 4/22/02 Date: 4/22/02
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Address for correspondence:
ENERNOW, Inc. Xxxxxxxxx Xxxxxxx, Consultant
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
XXX
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EXHIBIT A - STATEMENTS OF WORK
SOW # 1
DEVELOPMENT OF LINE INTERFACE MODULE FOR ENERWATCH POWER LINE CONTROLLER
PART 1: DESCRIPTION OF CLIENT'S PROJECT
Power Line Controller (PLC) Project:
The Power Line Controller will be a device that attaches to power lines. It will
be used to detect and correct the phenomena which cause harmful biological
effects and power line losses during power transmission.
This device is being developed by XxxxXxx and will be developed in phases. This
document's Statement Of Work will change as the development phases change.
PART 2: STATEMENT OF WORK:
The Consultant will work with XxxxXxx to develop and support the Following:
Design of PLC prototype Module:
o Design prototype PLC for non-contact to high voltage
lines
o Will be smaller than final PLC, have no correction
components, can use external receiver device
o Will monitor electromagnetic fields
o Will analyze fields for concurrence of modes
o Use software to;
o Record amplitude, frequency, calculate a FFT
Participate in Field Trial
o Locate prototype PLC in an environment where
concurrence of modes are present
o Record and analyze data o Modify measurement and
design criteria as necessary
o Decide if we need to measure vector potentials
o If yes, redesign hardware and rewrite software as
necessary
PART 3: DESCRIPTION OF HARDWARE
During this development of the first phase, the consultant will work with
XxxxXxx to design the prototype PLC module. This module will have several
critical design objectives including: ability to monitor electromagnetic fields,
analyze the data, and be designed in a robust manner which can operate over a
long duration in the field. The prototype PLC module will be built by EnerNow.
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PART 4: SCHEDULE & MILESTONES
o Design Phase - 6 weeks (Consultant)
o Device Fabrication -3 weeks (EnerNow)
o Field Trial -12 weeks (Consultant and EnerNow)
PART 5: FEES, DEPOSITS, AND PAYMENT SCHEDULE
All work will be billed on a time and materials basis at the following rates per
hour:
o Consultant Engineer @ $175.00 per hour
o The Consultant agrees to work a minimum of 8 hours per week
Statement of Work #1 Cost Estimate
This effort is estimated to run approximately 21 weeks at 8 hr/week or 168
hours = $29,400.
A bonus of 5,000 dollars will be paid if the initial design proposal is
completed within 6 weeks from signature of this SOW.
A bonus of an additional $10,000 dollars will be paid when the design is
fabricated and proved to be functional per the design specification.
Payment Schedule
The consultant will Invoice EnerNow on a weekly or monthly basis and be
paid within 10 days of Invoice.
Travel Expenses will be approved and billed in accordance with the terms of
our Consulting Agreement.
PART 6: REPORTING
Reporting will consist of weekly project conference calls with written minutes,
tracking and action item reporting and closure, weekly updates of activities and
hours and monthly project reviews against overall plan.
PART 7: DELIVERABLES
Consultant will provide a design specification for the PLC Module, along with
design calculations or models associated with the development of the design
specification. Consultant will review the fabrication of the module and test the
module for acceptable compliance to the design provided. Consultant will provide
analysis of collected field data and support EnerNow in the analysis of the
EnerWatch Power Line Controller System.
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ENERNOW, TECHNOLOGIES, INC. CONSULTANT - XXXXXXXXX XXXXXXX
By: /s/Xxxxx Xxxxxx By: /s/Xxxxxxxxx Xxxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: 4/22/02 Title: 4/22/02
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