Exhibit 10.27.7 - Consultant Agreement between Eurotech, Ltd. and EB Associates,
LLC dated April 29, 2002
EUROTECH, LTD.
ADVISORY AGREEMENT
This Advisory Agreement (the "Agreement"), dated this 29th day of April, 2002,
by and between Eurotech, Ltd., a District of Columbia corporation (the
"Company") with an address at 00000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000 and EB Associates, LLC, a New York limited liability company with an
address at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Advisor").
WHEREAS, the Company desires that the Advisor perform certain advisory
services as specified herein, through employees of the Advisor listed on
Schedule A attached hereto which have been approved by the Company; and
WHEREAS, the Advisor wishes to perform such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions as hereinafter set forth, the Company and the
Advisor, intending to be legally bound, hereto agree as follows:
1. APPOINTMENT. The Company hereby engages the Advisor to provide the
Company with advisory services on a full time basis. The Advisor shall
provide the following services to the Company: (i) review and
supervision of financial and bookkeeping systems, (ii) review and
supervision of financial statement preparation, (iii) coordination with
Audit Committee of the Board of Directors of Audit Committee minutes,
procedures and reviews, (iv) coordination with the accounting advisors
appointed by the Company, (v) review (in conjunction with the legal and
accounting advisors to the Company) of reports and other filings due
pursuant to the Securities Exchange Act of 1934, as amended, (vi)
review (in conjunction with the legal and accounting advisors to the
Company) of registration statements, prospectuses and other filings due
pursuant to the Securities Act of 1933, as amended, (vii) review and
analysis of cash flow issues, (viii) review and analysis of present
Company capitalization and future capitalization plans, (ix) review and
analysis of merger and acquisition candidates, (x) represent the
Company with shareholders, analysts, the press and other financial
professionals regarding the matters set forth above, and (xi) such
other activities as may, from time to time, be requested of the Advisor
by the Chief Executive Officer of the Company.
The Advisor hereby accepts the appointment as an Advisor on the terms
and conditions hereinafter set forth. In fulfilling its obligations to
the Company hereunder, the Advisor shall follow and abide by all
written and lawful policies, rules and regulations established by the
Board of Directors or the Chief Executive Officer of the Company, from
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time to time. The Advisor shall directly report to the Chief Executive
Officer of the Company.
2. TERM. The initial term of this Agreement shall commence on April 29,
2002 (the "Commencement Date") and shall terminate on the earlier of
October 28, 2002 at 11:59 p.m. New York City time or the death or
disability of all of the Advisor's employees listed on Schedule A,
unless earlier terminated (the "Initial Term"). After the first sixty
(60) days of the Initial Term, the Company may terminate this
Agreement, without cause, upon sixty (60) days notice to the Advisor.
After the Initial Term, this Agreement shall be automatically renewable
on a month-to-month basis. Either party may terminate this Agreement
upon not less than ten (10) business days written notice prior to the
expiration of the Initial Term. If the Agreement is terminated during
the Initial Term by the Company other than for cause (as defined in
Section 6 below), the Company shall pay the Advisor all amounts due and
owing during the Initial Term through the date of termination as set
forth in Section 3 below. After the Initial Term, either party may
terminate this Agreement upon ten (10) business days written notice
prior to the end of the applicable period. It is specifically
contemplated by the parties herein that the Advisor may provide certain
advisory services to the Company between the date of execution of this
Agreement and the Commencement Date ("Per Diem Services"). Any Per Diem
Services shall be subject to the terms and conditions of this Agreement
but will be compensated in accordance with Section 3(c) below. However,
for purposes of all calculations of time periods herein, the
Commencement Date shall govern.
3. COMPENSATION.
(a) FEE. For all services provided by the Advisor under this Agreement,
except for those made pursuant to Section 3(c) below, the Company shall
pay the Advisor US$5,000 per week for the duration of the Term (the
"Advisory Fee"). The Advisory Fee shall be payable by the Company to
the Advisor in arrears on every other Friday beginning the first pay
period after April 29, 2002.
(b) OPTIONS. The Company shall issue to the Advisor a non-qualified
stock option grant to purchase two hundred forty-nine thousand
(249,000) shares of the common stock of the Company, par value $.00025
per share, at the rate of forty-one thousand five hundred (41,500)
shares (the "Grant") for each full calendar month the Advisor is
retained by the Company. The Grant to be issued for any portion of a
month served shall be determined on a pro-rata basis. The Grant shall
be issued to the Advisor and deemed vested on the last business day of
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each month (the "Issue Date") with the exercise price being the average
closing bid price of the Company's shares on the American Stock
Exchange on three trading days prior to the Issue Date, pursuant to the
terms and conditions of a stock option agreement to be executed
contemporaneously herewith, which, when signed by the parties hereto,
shall be incorporated herein by reference. A total of 117,000 shares of
common stock are available for issuance pursuant to this Grant. The
issuance of the remaining 132,000 shares of common stock pursuant to
this Grant shall subject to the availability of authorized but unissued
shares of Common Stock of the Company.
(c) PER DIEM. Until the consummation of this Agreement on April 29,
2002, effective beginning April 9, 2002, The Company will pay the
Advisor $1,000 per full day for any Per Diem Services provided. No Per
Diem Services shall be provided, nor shall the Advisor be entitled to
compensation under this Section 3(c) without the prior consent of the
Company's Chief Executive Officer.
4. EXPENSES. In addition to the Advisory Fee, the Advisor shall be
reimbursed for reasonable business expenses incurred by the Advisor in
connection with any travel requested by the Company. All other business
expenses, including but not limited to office rent, computer expenses
and phone and telecommunication expenses, remain the sole
responsibility of the Advisor. The Company shall reimburse the Advisor
for all such approved travel expenses within (15) days of the
presentation by the Advisor of an itemized account of such
expenditures.
5. BEST EFFORTS OF THE ADVISOR. The Advisor shall devote such time as
reasonably necessary to fulfill the duties and responsibilities set
forth herein. The Advisor shall not engage in any activities that
involve a conflict of interest with the business of the Company during
the Term and any extensions thereto. The Advisor shall faithfully
discharge its duties with diligence and to the best of its ability,
experience and talents, perform all duties required of and from it
pursuant to the terms hereof, to the reasonable satisfaction of the
Chief Executive Officer.
6. TERMINATION.
(a) This Agreement may be terminated as provided in Section 2 of this
Agreement by either party. In addition, the Company shall have the
option to terminate the Advisor "for cause," in which case said
termination shall be effective immediately upon delivery of written
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notice as defined in Section 14 below. For purposes of this Section 6,
"cause" shall be defined as (i) the Advisor's continued failure to
perform his duties and responsibilities in good faith to the best of
his abilities, provided that the Company's Board of Directors, in good
faith, shall review such a determination and approve the termination of
this Agreement based on these grounds; (ii) conviction of a felony by
the Advisor; (iii) fraudulent misconduct by the Advisor; (iv)
embezzlement, misappropriation or theft by the Advisor; (v) material
breach of confidentiality agreements by the Advisor; (vi) gross
misconduct by the Advisor; or (vii) any willful or grossly negligent
act by the Advisor that has a material detrimental effect on the
Company's reputation or business. In the event the Company terminates
this Agreement for cause, the Advisor shall be paid all Advisory Fees
earned and shall retain all options vested prior to the date of
termination.
(b) In the event of a voluntary termination by the Advisor, or in the
event that Advisor terminates as a result of the death or disability,
no fees will be provided for the period after the date of termination,
but the Advisor shall receive all fees due to the Advisor up to the
date of termination.
(c) If this Agreement is terminated either by the Company or by the
Advisor, the Advisor shall participate in an exit interview conducted
by the Company's representative for the purposes of finalizing any
remaining matters, returning and certifying the return of all relevant
property and information to the Company, and assuring a proper
transition of duties.
7. RELATIONSHIP BETWEEN THE PARTIES. The Advisor is retained by the
Company only for the purpose and to the extent set forth in this
Agreement, and the Advisor's relationship to the Company during the
term of this Agreement shall be that of an independent contractor. The
Advisor shall not have employee status with the Company, nor be an
officer or director of the Company, nor be entitled to participate in
any medical, disability, pension or any other plan or benefit provided
by the Company to its employees or be covered by the Company in any
Unemployment Insurance or Workmen's Compensation Act of any state.
Nothing herein contained shall be construed to regard the parties as
being partners, or to constitute an arrangement herein provided for as
a partnership or joint venture. The Advisor acknowledges that he is
solely responsible for the payment of all taxes, income or other, due
and payable by reason of his engagement as an independent contractor by
the Company.
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8. DISCLOSURE OF COMPANY INFORMATION. In the course of providing advisory
services pursuant to this Agreement, the Advisor will likely be working
with and be exposed to the business and operations of the Company. The
Advisor recognizes and acknowledges that the Company's trade secrets,
confidential information, proprietary information and processes,
including but not limited to actual or potential products or services
and the business model associated therewith, are valuable, special and
unique assets of the Company's business, access to and knowledge of
which are essential to the performance of the Advisor's duties
hereunder. The Advisor will not during or after the Term, in whole or
in part, disclose such secrets, information or processes to any person,
firm, corporation, association or other entity for any reason or
purpose whatsoever, nor shall the Advisor make use of any such property
for his own purposes or for the benefit of any person, firm,
corporation or other entity (except the Company) under any
circumstances during or after the Term and any extensions thereto,
provided that after the Term and any extensions thereto these
restrictions shall not apply to such secrets, information and processes
which are then in the public domain (provided that the Advisor was not
responsible, directly or indirectly, for such secrets, information or
processes entering the public domain without the Company's consent).
The Advisor shall consider and treat as the Company's property, all
computer disks, memoranda, books, papers, lab reports, notes, letters,
formulas, schematics, reports, customer lists, financial statements and
budgets and all other data, and all copies thereof and therefrom, in
any way relating to the Company's business and affairs, whether created
by him or otherwise coming into its possession, and on termination of
its appointment, or on demand of the Company, at any time, to deliver
and certify the delivery of all embodiments of the confidential
information (whether written, typed or computer files) of the same to
the Company.
9. INVENTIONS OR DISCOVERIES. The Advisor acknowledges that, while
performing advisory services for the Company, any and all inventions,
improvements, discoveries, processes, programs or systems relating to
the business of the Company developed or discovered by the Advisor
shall be fully disclosed by him to the Company and shall be the sole
and absolute property of the Company. For the purpose of this Section
9, the meaning of the phrase "inventions, improvements, discoveries,
processes, programs or systems relating to the business of the Company"
shall be limited to inventions, improvements, discoveries, processes,
programs or systems which result in modifications or enhancements of,
or can be used in connection with or in lieu of, services or products
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then offered commercially by the Company, or which are the subject of
patents held or applied for by the Company, or which are under active
funded development by the Company during the Term and any extensions
thereto or at the date of the expiration or termination of this
Agreement. For the purpose of this Section 9, the meaning of the phrase
"under active funded development of the Company" shall be limited to
services or products which the Company has developed or is in the
process of developing and for which the Company has accounted for the
expenses of such development in accordance with generally accepted
accounting principles. The Advisor acknowledges that upon the request
of the Company, the Advisor shall execute, acknowledge and deliver,
such assignments, certificates or other documents as the Company may
consider necessary or appropriate to properly vest all right, title and
interest to any such invention or discovery in the Company. The
provisions of this Section shall survive the expiration of this
Agreement or its termination by either the Company or the Advisor and
shall remain in full force and effect.
10. COVENANT NOT TO COMPETE. For the term of this Agreement, and for a
period of six (6) months after the expiration or termination of this
Agreement, the Advisor shall not, either directly or indirectly, own,
manage, operate, control, be employed by, participate in, assist in the
recruitment of employees for, or be connected in any manner with the
ownership, management, operation or control of any business entity
involving technology, processes, programs or systems which are being
sold or marketed, or are under active funded development, by the
Company during the term of this Agreement or at the time of the
expiration or termination of this Agreement within the states of New
York, New Jersey, Virginia or Connecticut or in any other state or
territory in which the Company shall operate.
11. INDEMNIFICATION. The Company hereby agrees to indemnify, defend and
hold the Advisor and all of its employees, officers, and directors.(the
"Indemnified Parties") harmless from and against all demands, claims,
actions or causes of action, judgments, settlements, obligations,
assessments, losses, damages, liabilities of any kind or nature, costs
and expenses (collectively, the "Claims"), including without
limitation, interest, penalties and reasonable attorneys' fees, costs
and expenses, asserted against, resulting to, imposed upon or incurred
by the Indemnified Parties based upon, arising out of or in connection
with this Agreement or any other activities of the Company or the
Company's employees, officers or directors. The Indemnified Parties
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agree to promptly notify the Company of any Claim or potential Claim
asserted by any third party.
12. DISCLOSURE OF INFORMATION. Except as required by law, each party shall
not, and shall procure that their respective shareholders, employees,
officers, directors and consultants shall not, make any announcement,
or comment upon, or originate any publicity, or otherwise disclosure or
provide any information to any third party (other than its legal
advisors) concerning this Agreement including but not limited to, the
fact that the Advisor or any employee of the Advisor is performing
services for the Company, without the prior written consent of the
other parties.
13. INJUNCTIVE RELIEF. In the event of an actual or threatened breach by
the Advisor of the provisions of this Section or Sections 8, 9, or 10,
the Company shall be entitled to an injunction restraining the
Advisor's actions. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedy available to the Company for
such breach or threatened breach including, but not limited to, the
recovery of damages from the Advisor. The Advisor acknowledges the
necessity for and reasonableness of these provisions.
14. NOTICES. Unless provided otherwise herein, all notices, demands,
elections, opinions or requests (however characterized or described)
required or authorized by this Agreement shall be deemed sufficiently
given if in writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by Federal Express or other
overnight courier, or by facsimile to the number listed below.
In the case of the Company:
Eurotech, Ltd.
00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Solomon Xxxxx Xxxx Xxxxxxx & Xxxxx LLP
00 Xxxx Xxxxxx-00xx Xxxxx
Xxx Xxxx, X.X. 00000
Fax: (000) 000-0000
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and in the case of the Advisor:
EB Associates, LLC
c/o Xxxxxx Xxxxxxxxx, Managing Member
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Ellenoff Xxxxxxxx Schole & Cyruli, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
16. ASSIGNMENT OF AGREEMENT. No party to this Agreement may assign or
otherwise transfer this Agreement or any of its rights or obligations
hereunder without the prior written consent to such assignment or
transfer by the other party hereto. Any attempted assignment without
written consent by the non-assigning party shall be void and without
force or effect at the option of the latter. All the provisions of this
Agreement shall be binding upon the respective employees, delegates,
successors, heirs and permitted assignees of the parties.
17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement
and the representations, warranties, covenants and other agreements
(however characterized or described) by both parties hereto and
contained herein or made pursuant to the provisions hereof shall
survive the execution and delivery of this Agreement. The
confidentiality, inventions and non-compete provisions contained in
Sections 7, 8, 9, 10, 11, 12 and 13 shall remain in full force and
effect regardless of any termination or cancellation of this Agreement
for a period of not less than one year from the date of any termination
or cancellation of this Agreement.
15. FURTHER INSTRUMENTS. The parties hereto shall execute and deliver any
and all other instruments and shall take any and all other actions as
may be reasonably necessary to carry the intent of this Agreement into
full force and effect.
16. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or
inoperative for any reason by any court of competent jurisdiction,
government authority or otherwise, such holding, declaration or
pronouncement shall not effect adversely any other provisions of this
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Agreement, which shall otherwise remain in full force and effect and be
enforced in accordance with its terms and the effect of such holding,
declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
17. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and
remedies provided by law. No delay or failure on the part of either
party in the exercise of any right or remedy arising from a breach of
this Agreement shall operate as a waiver of any subsequent right or
remedy arising from a subsequent breach of this Agreement. The consent
of any party where required hereunder to any act or occurrence shall
not be deemed to be a consent to any other act or occurrence.
18. GENERAL PROVISIONS. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York.
This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior agreements and understandings
(except for those certain obligations arising out of a Non-Disclosure
Agreement executed by and between the parties hereto dated as of March
11, 2002 which shall stay in full force and effect) relating to this
subject matter, entered into between the Advisor and the Company, which
are, as of the date hereof, deemed terminated and released. This
Agreement may not be modified or amended or any term or provision
hereof waived or discharged except in writing signed by the party
against whom such amendment, modification, waiver or discharge is
sought to be enforced. The headings of this Agreement are for
convenience in reference only and shall not limit or otherwise affect
the meaning thereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument.
19. ARBITRATION. Any and all disputes arising out of this Agreement will be
determined by submission to binding arbitration before a three-member
arbitral panel, which arbitration shall be conducted in New York, New
York pursuant to the Rules of Arbitration of the American Arbitration
Association, the jurisdiction to which all parties hereto, as well as
their successors, assigns and transferees, hereby consent. All costs
and fees relating to such arbitration shall be equally borne by each
party hereto.
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ADVISOR ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE
WAS GIVEN AN OPPORTUNITY TO READ IT, EVALUATE IT AND WAS
ENCOURAGED BY THE COMPANY TO DISCUSS IT WITH HIS ADVISORS AND
ATTORNEYS AND WITH REPRESENTATIVES OF THE COMPANY. THE ADVISOR
ACKNOWLEDGES THAT HE FULLY UNDERSTANDS ALL TERMS, CONDITIONS
AND IMPLICATIONS OF THIS AGREEMENT. IN LIGHT OF THE FOREGOING
ACKNOWLEDGEMENT, IT IS FURTHER UNDERSTOOD THAT TO THE EXTENT
THAT THERE MAY BE ANY AMBIGUITIES IN ANY PROVISION HEREIN THAT
MIGHT HAVE TWO OR MORE PLAUSABLE CONSTRUCTIONS, THE LANGUAGE
OF THE AGREEMENT SHALL NOT BE CONSTRUED AGAINST EITHER PARTY
HERETO.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Eurotech, Ltd.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
President and Chief Executive Officer
EB Associates, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxx
Managing Member
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SCHEDULE A
----------
APPROVED EMPLOYEE OF THE ADVISOR
--------------------------------
Xxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
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