Exhibit 10.21
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made effective for all
purposes as of the 1st day of January, 2001 by and between TSET, Inc. (the
"Company") and Xxxxxx, Xxxxxx & Associates, LLC ("DTA") with Xxxxxxx X. Xxxxxx
and Xxxxxx X. Xxxxxx as principals (hereinafter collectively referred to as the
"Consultant").
RECITALS:
A. Company is engaged in the business to seek out select business
opportunities globally among a wide range of prospects that meet the
companies general acquisition and investment criteria, enhance asset
base and increase shareholder value.
B. Company wishes to have Consultant continue to provide the Company
certain consulting services as previously provided under Consulting
Agreement dated August 11, 2000 and expired as of January 1, 2001 and,
subject to the terms and conditions set forth herein, Consultant is
willing to provide such consulting services, all as disclosed to and
approved by the Company's board of directors.
C. Company recognizes Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx as
principals of DTA are also Members of the Board of TSET, Inc. and
recognizes that performance of both functions are not in conflict.
D. Company recognizes previously executed Finder's Agreement dated August
9, 2000, as disclosed to and approved by the Company's board of
directors, of which continued performance is not in conflict with this
Agreement or TSET Board representation.
E. Company and Consultant wish to set forth terms and conditions upon
which Consultant will provide consulting services to the Company.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
premises hereinafter set forth, and of other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Services of Consultant. Consultant shall use its best efforts to
assist the Company during the term of this Agreement in connection
with the following: (i) assisting the Company with management
consulting services including performing operational management
responsibilities as may be mutually agreed; (ii) assisting the Company
in connection with the creation of its business plans and investor
presentation versions of such plan; (iii) assisting the Company in
establishing Intellectual Property and licensing strategies; (iv)
assist the Company in operational matters with its subsidiaries and
other investments; and (v) such other matters mutually determined by
the Consultant and the Company to be appropriate for Consultant's
services. Consultant shall work on a part time basis and shall provide
a maximum of 1200 hours during the period ending April 30, 2001 unless
otherwise agreed in writing. Consultant shall perform all services
hereunder in compliance with all applicable laws, rules, and
regulations.
2. Fee for Services. In consideration for Consultant providing the
services described in Section 1 hereof, the Company agrees to pay
Consultant an hourly compensation of One Hundred and Fifty Dollars
($150) per hour, with payment in full due no later than the earlier of
(a) five days after funds received from investors pursuant to a
financing in which the company receives financing (whether debt or
equity based), cumulative or in lump sum, of at least $3,000,000,
first become available for expenditure by the Company, or (b) April
30, 2001. At Consultant's sole discretion, Consultant may elect to
convert unpaid hourly cash compensation to an option to purchase
restricted shares of common stock of the Company providing one hundred
option shares (100) for each hour of consulting services. Such
Conversion Option, once elected, shall be exercisable for a period of
three (3) years at a price of two dollars and zero cents ($2.00) per
share. Consultant must make selection of method of consideration prior
to five days after closing of first round of Private Placement
Memorandum or April 30, 2001 whichever is earlier. Consultant
acknowledges (i) that it is an independent contractor and not an
employee and (ii) that it shall be responsible for any and all tax
obligations arising from the payments made or options granted or
exercised hereunder. Interest shall accrue on any unpaid cash amounts
due hereunder calculated at the annual rate of 12% until all such
amounts have been paid in full.
3. Grant of Option. In consideration for Consultant's willingness to
provide the services set forth herein, the Company in addition to Fee
for Services also agrees to grant Consultant an option to purchase
Shares of common stock of the company. Such Stock Option to be
exercisable for a period of three (3) years at a price of two dollars
and zero cents ($2.00) per share for one hundred shares (100) for each
hour of consulting services.
4. Expense Reimbursement. The Company shall promptly reimburse Consultant
for all normal out-of-pocket expenses, including meals, travel, phone,
other incidental office expenses and entertainment related to the
Company's business that are actually paid or incurred by Consultant in
the performance of its services under this Agreement upon the delivery
of invoices or other evidence of payment therefor. Consultant shall
not incur any individual item of expense in excess of $2,500.00
without the Company's prior written consent.
5. Term. This Agreement shall remain in effect for an initial term of six
(6) months, and shall thereafter be automatically renewed for
successive terms of six (6) months each, unless either party indicates
its intention to terminate this Agreement prior to the expiration of
such initial term or any successive term. Termination hereunder may
occur for any reason or for no reason at either party's option upon 30
days' prior written notice to be given by the party terminating this
Agreement.
6. Confidentiality. Consultant will maintain the confidentiality of this
Agreement, all provisions of this Agreement and all materials of the
Company received by Consultant pursuant to its consulting services to
the Company (collectively, "Confidential Information"), and, without
the prior written consent of the Company, the Consultant shall not
make any press release or other public announcement of or otherwise
disclose any Confidential Information to any third party. The
foregoing shall not restrict Consultant from disclosing such
Confidential Information (i) to its professional advisors whose duties
reasonably require familiarity with this Agreement, provided that such
persons are bound to maintain the confidentiality of this Agreement,
and (ii) to the extent such disclosure may be required by applicable
law or regulation, provided that Consultant will only disclose such
information as is legally required and will use reasonable efforts to
obtain confidential treatment for any information that is so
disclosed. If Consultant is required to disclose any Confidential
Information pursuant to or in connection with any subpoena, order, or
other event involving any legal, administrative, or regulatory action
or proceeding, Consultant shall immediately notify the Company.
7. Agreement Not To Compete.
a. Consultant agrees that it will not, during the term hereof, and
for a period of one (1) year thereafter, engage in any business
or businesses competitive to that conducted by the Company or any
subsidiary or affiliate of the Company, as such business is
described in Section 7(b)(iii) of this Agreement.
b. The Consultant further agrees that it will not, for a period of
one (1) year after the termination of this Agreement (the
"Non-Compete Period"):
(i) Solicit any customers of the Company or of a subsidiary or
affiliate of the Company; or
(ii) Solicit for employment, hire, request or cause any employee of
Company to terminate his or her employment with Company or
otherwise attempt to engage the services of any employee of the
Company or any subsidiary or affiliate of the Company for any
purpose or any endeavor (either on the Company's own behalf or on
behalf of any business referred to in Section 7(a) above) without
the prior consent of the Company.
(iii) For purposes of this Agreement (and specifically this Section
7), the parties acknowledge and agree that the Company's business
is the creation and licensing of Ion Wind Generation products.
8. Indemnification.
a. The Company hereby agrees to indemnify and hold harmless the
Consultant from and against any and all loss, cost, damage, claim or
liability of any sort, including, without limitation, reasonable
attorney's fees and expenses (collectively, a "Claims") arising out of
or in connection with the services being provided by the Consultant to
the Company hereunder; provided, the foregoing provision shall not
apply to indemnify the Consultant for any Claim suffered by Consultant
as a result of the Consultant's own negligent or illegal action.
b. Consultant hereby agrees to indemnify, defend, and hold harmless the
Company from and against any and all Claims arising out of any illegal
action, violation of applicable laws, rules, or regulations, fraud,
any misrepresentation or omission of material facts provided to the
Company or any prospective investor or other third party, or other
acts of negligence or misconduct by Consultant.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, without regard to principles of
conflicts of laws thereof. In case of any dispute arising hereunder, the parties
agree that such matter shall be submitted to binding arbitration in the
Portland, Oregon metropolitan area, for arbitration in accordance with the rules
of the American Arbitration Association.
10. Costs of Collection. Should either party to this Agreement be required
to incur costs in connection with the collection of any amounts due from the
other party hereunder, including the reasonable costs of counsel engaged for
such purpose (collectively, "Collection Costs", the party required to pay the
amount being collected hereunder shall also be liable for the payment of the
Collection Costs.
11. Successors and Assigns. This Agreement shall inure to the benefit of
any successors and assigns of the parties hereto; provided, however, that the
services of Consultant engaged by the Company hereunder are personal and shall
not be assigned or delegated by Consultant without the Company's express prior
written consent, which may be withheld in the Company's sole discretion.
12. Integration. This document sets forth the entire agreement between
Company and Consultant relating to the subject matter herein and supersedes any
previous written or oral agreements relating to this subject matter between them
including, without limitation, that certain Consulting Agreement dated as of
August 11, 2000, which is superseded and replaced in its entirety by this
Agreement.
13. Amendments. This Agreement may not be varied, altered, modified,
changed, or in any way amended except by an instrument in writing, executed by
the parties hereto or their legal representatives stating that such instrument
is intended to amend the provisions hereof.
14. Headings. Headings and paragraph captions used in this Agreement are
intended for convenience of reference only and shall not affect the
interpretation of this Agreement.
15. Counterpart and Facsimile Execution. This Agreement may be executed in
any number of counterparts, which taken together shall be deemed to constitute
one original. Execution of this Agreement by facsimile shall be sufficient for
all purposes and shall be binding upon any that so executes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
TSET, Inc.
/s/ Xxxxxxx Xxxxxx
By: Xxxxxxx Xxxxxx Chairman and Chief Executive Officer
Xxxxxx, Xxxxxx & Associates, LLC
/s/ Xxxxxxx X. Xxxxxx
By: Xxxxxxx X. Xxxxxx
Managing Partner
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Managing Partner
