Exhibit 4.1
CONSULTING AGREEMENT
PARTIES
This agreement is entered into as of September 7, 2001, by and between
Rotary Power International, Inc., a Delaware corporation with its principal
office at X.X. Xxx 000, Xxxx-Xxxxx, Xxx Xxxxxx 00000-0000 (the "Company"), and
Xxxxxxx X. Xxxxxx, an individual residing at 00 Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx
00000 (the "Consultant").
ENGAGEMENT
The Company hereby agrees to engage the Consultant, and the Consultant, in
consideration of such engagement, hereby agrees to provide consulting services
as further described in Section 3 below.
STATEMENT OF SERVICES
3.1. Consultant agrees that during the term of this Agreement, and any
renewal period thereof, he will provide consulting services to the
Company in connection with marketing and sales plans, product plans
(engine and options descriptions), sales forecasts, pricing
strategies, field prototype and demonstration plans, sales
presentations, customer marketing, sales and service contacts, and
assist in obtaining funding from Government and/or Government related
development agencies. The days in which the Consultant shall render
the services shall be agreed upon in advance between the Consultant
and the Company to the extent possible.
In addition, Consultant will provide services to develop legislative
initiatives, and related government marketing plans, on programs of
interest to the Company and will provide legislative liaison and
program management support as necessary to help carry out the programs
of the Company.
Notwithstanding anything in this Agreement to the contrary, the
consulting services to be rendered by Consultant in accordance with
this Agreement shall not include any consulting services in connection
with the offer or sale of the Company's securities in a capital
raising transaction and do not, and will not, directly or indirectly,
promote or maintain a market for the Company's securities.
Consultant will work with and take guidance and directions from the
President of the Company.
3.2. Service provided by Consultant shall be as an independent contractor.
The term of this Agreement shall be from the date of this Agreement to December
31, 2002.
COMPENSATION
4.1. In consideration of the consulting services performed hereunder, the
Company agrees to pay Consultant at rate of $50.00 per hour during
2001 and $65.00 per hour during 2002.
4.2. The Company agrees to reimburse Consultant for all actual business
expenses as may be required in connection with the performance of
services.
4.3. The Consultant will submit invoices semimonthly for consulting
services and expenses incurred. Expenses billed to the Company shall
be accompanied by supporting documentation. The Company will make
payment of these invoices from Consultant no later than 15 days from
delivery of the invoice by the Consultant.
4.4. The Company hereby acknowledges and agrees that (i) Consultant has
heretofore rendered bona fide satisfactory consulting services to the
Company, (ii) in accordance with invoices which Consultant has
rendered to the Company for such services and which remain outstanding
and unpaid as of the date hereof, the Company currently owes
Consultant the amount of $17,200.20 for the services rendered during
the months of June, July and August, 2000 to the Company, and (iii)
the services heretofore rendered by Consultant were not in any way
connected to or involved with the offer or sale of the Company's
securities in a capital raising transaction and did not, directly or
indirectly, promote or maintain a market for the Company's securities.
4.5. In full and complete satisfaction of the amounts owed to Consultant
and as partial consideration for Consultant entering into this
Agreement, the Company will, as soon as possible after the date of
this Agreement, issue and deliver 28,667 shares of the Company's
common stock (the "Shares") to Consultant. The Shares, when issued,
shall be registered under the Securities Act of 1933, as amended,
pursuant to a registration statement filed by the Company with the
Securities and Exchange Commission on Form S-8 (or, if Form S-8 is not
then available, such other form of registration statement then
available for the registration of the Shares). Any and all costs of
filing such registration statement for the Shares shall be the
responsibility of the Company.
4.6. The Company and Consultant may at any time agree that the Company can
issue shares of its common stock in satisfaction of any amounts that
may hereafter become due and owing to the Consultant in accordance
with this Agreement. The number of shares to be issued by the Company
shall be agreed upon with Consultant in writing and any such shares,
when issued, shall be registered under the Securities Act of 1933, as
amended, pursuant to a registration statement filed by the Company
with the Securities and Exchange Commission on Form S-8 (or, if Form
S-8 is not then available, such other form of registration statement
then available for the registration of such shares). Any and all costs
of filing such registration statement for such shares shall be the
responsibility of the Company.
LIMITATIONS
5.1. Nothing in this Agreement shall grant to either party the right to
make commitments of any kind for or on behalf of the other party
without prior written consent of the other party.
5.2. Consultant represents that there is no conflict of interest between
his performance in a consulting capacity under this Agreement and his
relationship with other clients. If at any time in the future it is
believed that there is a potential conflict of interest, Consultant
will promptly so advise and the parties will mutually agree in writing
on the resolution of this potential conflict.
5.3. Either party may terminate this Agreement by giving ninety (90) days
written notice of such termination.
NON-COMPETITION
For the term of this Agreement, Consultant will not directly or indirectly,
in any capacity, without prior written approval by the Company, engage in or
render services (including, without limitation, research, development, marketing
or sales) to, or have a financial interest in, any person, Consultant,
corporation or other entity engaged in the rotary engine business.
EXEMPTION FROM COMPANY BENEFIT PLANS, POLICIES AND PROCEDURES
The Consultant is not an employee of the Company and is, therefore, not
entitled to coverage under any of the benefit plans of the Company except as
agreed in writing by Consultant and the Company. The Consultant shall not be
bound by the policies and procedures of the Company.
FACILITIES AND SUPPORT
The Company shall provide Consultant with office space, equipment and
support, including secretarial help, reasonably necessary to perform the tasks
which are performed on the premises of the Company. The Consultant is
responsible to provide facilities and equipment necessary outside the premises
of the Company.
CONFIDENTIAL INFORMATION
Consultant will not disclose any trade secrets or confidential information
identified as such by the Company to any person, Consultant, corporation,
association, or other entity for any reason or purpose whatsoever, nor shall
Consultant make use of any such trade secrets or confidential information for
his own purpose or for the benefit of any person, Consultant, corporation, or
other entity, except as authorized in writing by the Company. Consultant agrees
to deliver to the Company upon termination of this Agreement, or at any other
time the Company may request, any proprietary or confidential material supplied
to the Consultant during the term of this Agreement and which the Company has
previously identified as such, relating to the business of the Company which he
may then possess or have under his control. However, there shall be no
restriction on disclosure or use of information which is publicly known other
than as a result of a breach of this Agreement, or which becomes legally
available at any time from a third party without restriction. Confidential
information obtained while
an employee of the Company shall be specifically covered by this clause.
PROPERTY OF COMPANY
All ideas, inventions, discoveries, proprietary information, know-how,
processes and other developments and, more specifically, improvements to
existing inventions conceived by the Consultant that were developed in relation
to performance of the Consultant's assignments for the Company, shall be the
property of the Company. Consultant shall execute all documents, including
patent applications and assignments, required by the Company to establish the
Company's rights under this paragraph.
MISCELLANEOUS
NOTICES: All notices pertaining to this Agreement shall be in writing and
shall be transmitted either by personal hand delivery or through the facilities
of the United States Postal Service, certified or registered mail, return
receipt requested. The addresses set forth in the first paragraph of this
Agreement for the respective parties shall be the places where notices shall be
sent, unless written notice of a change of address is given. Notices shall be
deemed to have been given at the time of delivery if transmission is by personal
hand delivery or, if mail, forty-eight (48) hours after deposited in a regularly
maintained receptacle of the United States Postal Service for mailing as
aforesaid.
CAPTION HEADINGS: Captions at the beginning of each numbered paragraph of
this Agreement are solely for the convenience of the parties and shall not be
deemed part of the context of this Agreement.
ENTIRE AGREEMENT: This Agreement contains the entire Agreement between the
parties hereto, and supersedes any written or oral agreement between the parties
concerning the subject matter contained herein. There are no representations,
agreements, arrangement or understandings, oral or written, between or among the
parties hereto, relating to the subject matter contained in this Agreement,
which are not fully expressed herein.
AMENDMENT: This Agreement may only be amended by the written consent of
both parties at the time of such amendment.
GOVERNING LAW: The validity, interpretation, construction and performance
of this Agreement shall be controlled by and construed under the laws of the
State of New Jersey. In the event of any litigation arising out of any dispute
in connection with this Agreement, the Company and Consultant hereby consent to
the jurisdiction of the New Jersey courts.
COUNTERPARTS: This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but such counterparts, when taken together,
shall constitute but one agreement.
SEVERABILITY: In the event any provision of this Agreement is held to be
invalid, void or unenforceable, the rest of the provisions shall, nonetheless,
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
RENEWAL
The parties may renew this Agreement at any time by written instruments
signed by the parties. It is anticipated that each such renewal shall be upon
the same terms and conditions as herein provided, except for necessary changes
in dates, scope of work, or total compensation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXX X. XXXXXX ROTARY POWER INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Title: President and CEO
