EXHIBIT 10.4
AMENDED AND RESTATED
BUSINESS ADVISORY AND CONSULTING AGREEMENT
AMENDED AND RESTATED BUSINESS AND ADVISORY CONSULTING AGREEMENT (the
"Agreement") dated as of the 17TH day of August 2004, between DYNECO
CORPORATION, with offices at 000 Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
("DynEco") and MBN CONSULTING, LLC, with offices at 0000 Xxxxx Xxxxx Xxxx, #000,
Xxxx Xxxxx, XX 00000 ("Consultant").
R E C I T A L S:
A. DynEco is engaged in the development, manufacture (through others)
and sale of high efficiency compressors and pumps (the "Business");
B. DynEco and Consultant are parties to a consulting agreement dated
November 10, 2003 (the "Original Agreement"); and
C. DynEco and Consultant desire to terminate the Original Agreement and
enter into this Amended and Restated Business and Advisory Consulting Agreement
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and the mutual
undertakings contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, it is
agreed as follows:
1. Termination of Original Agreement. The Original Agreement is hereby
terminated and shall cease to be of any further force or effect. However, the
parties acknowledge that Consultant and DynEco have complied with their
respective obligations under the Original Agreement, that neither party is in
breach of their respective obligations thereunder and that the 2,000,000 shares
of DynEco's common stock issued to Consultant in accordance with the Original
Agreement were issued in consideration of the following services provided to
DynEco by MBN: (a) advising DynEco in connection with restructuring its board of
directors; (b) providing advice and consultation prior to and in connection with
DynEco's relationship with Xxxxxx-Xxxxxxxx Corporation, including the May 2003
License Agreement; (c) serving as liaison to DynEco's shareholders and providing
investor relations services; (d) serving as DynEco's liaison to its financial
and legal advisers; (e) providing administrative support and services to relieve
DynEco's Chief Executive Officer of those responsibilities so that he could
attend to his designated duties; and (f) providing advice and consultation with
respect to new business development.
2. Term. Subject to the terms and conditions set forth herein, this
Agreement shall commence on the date hereof (the "Effective Date") and expire on
November 10, 2006 (the date on which this Agreement shall expire is hereinafter
referred to as the "Expiration Date").
1
3. Services, Availability of Consultant. DynEco hereby engages
Consultant to provide the services herein described (the "Services") and to
faithfully perform all the obligations set forth herein. Consultant hereby
agrees to make available the services of Xxxxxx Xxxxxxx, its managing member, to
render the Services required of Consultant hereunder. Consultant shall devote
such time as is reasonably necessary in order to perform its duties under this
Agreement.
4. Duties. During the term of this Agreement, the Services to be
provided by Consultant shall consist of:
(a) advising DynEco with respect to the implementation of
short and long range strategic planning to fully develop and enhance DynEco's
assets, resources, products and services;
(b) serving as liaison between DynEco and its shareholders;
and providing such investor relations services as may reasonably be requested by
DynEco;
(c) identifying and providing advice and consultation in the
areas of strategic alliances and business combinations, including mergers and
acquisitions; and preparation for and attendance at meetings and conferences
relating thereto;
(d) arranging meetings between representatives of DynEco and
members of the investment community at which presentations concerning DynEco and
its business operations may be discussed;
(e) preparing such documents and information as may reasonably
be requested by DynEco for use in connection with (c) and (d), above;
(f) advising DynEco with respect to marketing of products and
new product development;
(g) providing sponsoring and exposure in connection with the
dissemination of corporate information about DynEco to the investment community,
provided that Consultant shall not disseminate press releases or other
information about DynEco without DynEco's prior written consent;
(h) providing advice and consultation relating to internal
business operations including (i) advice regarding the formation of corporate
goals and their implementation, advice regarding the financial structure of
DynEco and its divisions or subsidiaries, (iii) advice regarding the securing of
debt and/or equity financing and (iv) advice regarding corporate organization
and personnel;
(i) advising DynEco with respect to relationships with
existing and potential market makers, broker-dealers, underwriters and
investors;
2
(j) serving as liaison between DynEco and its legal and
accounting advisors; and
(k) providing such other services as may be mutually agreed
upon by DynEco and Consultant (the "Services").
5. Compensation. Except as otherwise set forth herein, in consideration
of the Services, Consultant shall be compensated at the rate of $3,000 per month
commencing at such time as DynEco has received gross proceeds of at least
$1,000,000 in combined equity and debt financing. Nothing in the foregoing shall
preclude DynEco and Consultant from entering into further agreements and
understandings with respect to compensation to be paid to Consultant for
services rendered in connection with individual projects that may be agreed upon
between DynEco and Consultant from time to time following the date hereof.
6. Return of Documents. On termination of this Agreement or at any time
upon the request of DynEco, Consultant shall return to DynEco all documents,
including all copies thereof, and all other property relating to the Business of
DynEco and/or its affiliates, including without limitation, Confidential
Information (as hereinafter defined), in its possession or control, no matter
from whom or in what manner they may have acquired such property.
7. Confidentiality.
(a) In connection with the transactions contemplated by this
Agreement, Consultant may gain access to Confidential Information (as
hereinafter defined) of DynEco and/or its affiliates. Confidential Information
includes information communicated orally, in writing, by electronic or magnetic
media, by visual observation, or by other means, and may be marked confidential
or proprietary, or bear a marking of like import, or which DynEco or its
affiliate states to be Confidential or proprietary, or which would logically be
considered confidential or proprietary under circumstances of its disclosure
known to Consultant.
(b) Consultant acknowledges and understands that (i)
Confidential Information provides DynEco and its affiliates with a competitive
advantage (or that could be used to the disadvantage of DynEco and its
affiliates by a competitor), (ii) DynEco and its affiliates have a continuing
interest in maintaining the confidentiality of Confidential Information and
(iii) DynEco and its affiliates have a compelling business interest in
preventing unfair competition stemming from the use or disclosure of
Confidential Information. Moreover, Consultant acknowledges that customers of
DynEco and/or its affiliates entrust DynEco and its affiliates with
responsibility for acquiring knowledge relating to aspects of their customers'
businesses, with the expectation that DynEco and its affiliates will hold all
such knowledge, including in some cases the fact that they are doing business
with DynEco and its affiliates, and the
3
specific transactions in which they are engaged, in the strictest confidence
("Customer Confidences").
(c) For purposes hereof, "Confidential Information" includes,
but is not limited to information pertaining to business plans, joint venture
agreements, licensing agreements, financial information, contracts, customers,
Customer Confidences, employees, products, trade secrets, specifications,
designs, plans, drawings, software, data, prototypes, processes, methods,
research, development or other information relating to the business activities
and operations of DynEco and/or its affiliates.
(d) Consultant agrees to keep Confidential Information
confidential and, except as authorized by DynEco or its affiliate, in writing,
Consultant shall not, directly or indirectly, use Confidential Information for
any reason except to perform its obligations under this Agreement. Consultant
acknowledges that Confidential Information includes material non-public
information about DynEco and its Business, and Consultant covenants and agrees
that it will not, directly or indirectly, buy, sell or otherwise engage in
transactions in DynEco's securities while it is in possession of material
non-public information. No rights or licenses to trademarks, inventions,
copyrights, patents or any other intellectual property rights are implied or
granted under this Agreement or by the conveying of Confidential Information to
Consultant.
(e) Consultant shall restrict disclosure of Confidential
Information to its own employees with a "need to know" (i.e., employees that
require the Confidential Information to perform their responsibilities in
connection with this Agreement) and not disclose it to any other person or
entity without the prior written consent of DynEco or its affiliate. Consultant
shall use Confidential Information only for purposes of performing under this
Agreement, and shall advise those employees who access the Confidential
Information of their obligations with respect thereto. Further, Consultant shall
copy Confidential Information only as necessary, and ensure that all
confidentiality notices are reproduced in full on such copies.
(f) The restrictions in subsection (d) of this Section shall
not apply to any Confidential Information if Consultant can demonstrate that the
Confidential Information: (i) is or becomes available to the public through no
breach of this Agreement; (ii) was previously known by Consultant without any
obligation to hold it in confidence; (iii) is received from a third party free
to disclose such information without restriction; (iv) is independently
developed by Consultant without the use of the Confidential Information; (v) is
approved for release by written authorization of DynEco; (vi) is required by law
or regulation to be disclosed, but only to the extent and for the purposes of
such required disclosure; or (vii) is disclosed in response to a valid order of
a court or lawful request of a governmental agency, but only to the extent of
and for the purposes of such order or request, provided that Consultant notifies
DynEco of the order or request ten days prior to disclosure and permits DynEco
and/or its affiliate to seek an appropriate protective order.
4
8. Assignment of Inventions.
(a) If at any time or times prior to, during the term of this
Agreement or during the two-year period following the termination of this
Agreement (either alone or with others) Consultant makes, conceives, creates,
discovers, invents or reduces to practice any invention, modification,
discovery, design, development, improvement, process, software program, work of
authorship, documentation, formula, data, technique, know-how, trade secret, or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes or
subject to analogous protection (each, an "Invention") that (i) relates to the
Business of DynEco or any of its affiliates or any customer of or supplier to
DynEco or any of its affiliates or any of the products or services being
developed, manufactured or sold by DynEco or any of its affiliates or which may
be used in relation therewith; or (ii) results from tasks assigned to Consultant
by the DynEco or any of its affiliates; or (iii) results from the use of
premises or personal property (whether tangible or intangible) owned, leased or
contracted for by DynEco or any of its affiliates, then all such Inventions and
the benefits thereof are and shall immediately become the sole and absolute
property of DynEco or its affiliates, as the case may be, and their respective
assigns, as works made for hire. Consultant hereby agrees that it shall promptly
disclose to DynEco (or any persons designated by it) each such Invention.
Consultant hereby assigns all rights (including, but not limited to, rights to
any inventions, patentable subject matter, copyrights and trademarks) he may
have or may acquire in the Inventions and all benefits and/or rights resulting
therefore to DynEco and its assigns without further compensation and shall
communicate, without cost or delay, and without disclosing to others the same,
all available information relating thereto (with all necessary plans and models)
to DynEco.
(b) Consultant hereby agrees to, during the term of this
Agreement and at any time thereafter, at the request and cost of DynEco,
promptly sign, execute, make and do all such deeds, documents, acts and things
as DynEco and its duly authorized officers may reasonably require: (i) to apply
for, obtain, register and vest in the name of DynEco or its affiliates, alone
(unless DynEco otherwise directs), patents, copyrights, trademarks or other
analogous protection in any country throughout the world relating to an
Invention and when so obtained or vested to renew and restore the same; and (ii)
to defend any judicial, opposition or other proceedings in respect of such
applications and any judicial, opposition or other proceedings, petitions or
applications for revocation of any such patent, copyright, trademark or other
analogous protection.
(c) If DynEco or its affiliates are unable, after reasonable
effort, to secure Consultant's signature on any application for patent,
copyright, trademark or other analogous registration or other documents
regarding any legal protection relating to an Invention, whether because of
Consultant's physical or mental incapacity or by any other reason whatsoever,
Consultant hereby irrevocably designates and appoints DynEco and its duly
authorized officers and agents as his agent and attorney-in-fact, to act for and
in his behalf and stead to execute and file any such application or applications
or other documents and to do all other lawfully permitted acts to further the
5
prosecution and issuance of patent, copyright or trademark registrations or any
other legal protection thereon with the same legal force and effect as if
executed by Consultant.
9. Several Covenants. Consultant undertakes that during the term of
this Agreement and for a period of 24 months thereafter it will not, directly or
indirectly (whether as a sole proprietor, partner, stockholder, director,
officer, employee or in any other capacity as principal or agent), do any of the
following:
(a) hire, or attempt to hire for employment, any person who is
or was an employee of DynEco or any of its affiliates within the twelve month
period prior to the date of termination of this Agreement, or attempt to
influence any such person to terminate its employment by DynEco or any such
affiliate; or
(b) in any other manner interfere with, disrupt or attempt to
disrupt the relationship, contractual or otherwise, between DynEco and its
affiliates, on the one hand, and any of their respective employees, on the other
hand, or disparage the business or reputation of DynEco or its affiliates to any
such persons.
(c) solicit, service or accept any actual or prospective
accounts, clients or customers from DynEco or its affiliates who were such at
any time during the term of this Agreement;
(d) influence or attempt, directly or indirectly to influence
any of the accounts, customers or clients referred to in Subsection 9(c) to
transfer their business or patronage from DynEco or any of its affiliates to any
other person or company engaged in a similar business;
(e) assist any person or company soliciting, servicing or
accepting any of the accounts, customers or clients referred to in Subsection
9(c); or
(f) in any other manner interfere with, disrupt or attempt to
disrupt the relationship, contractual or otherwise, between DynEco or any of its
affiliates, on the one hand, and any of the customers or clients referred to in
Subsection 9(c), on the other hand, or any other person, or disparage the
business or reputation of DynEco or any of its affiliates to any such person.
10. Blue-Pencil. If any court of competent jurisdiction shall at any
time deem the term of any of the covenants and undertakings of Consultant under
Sections 7, 8 and 9 herein too lengthy, the other provisions of those Sections
7, 8 and 9 shall nevertheless stand, the period of restriction shall be deemed
to be the longest period permissible by law under the circumstances. The court
in each case shall reduce the period of restriction to permissible duration.
11. Remedies. Without intending to limit the remedies available to
DynEco and its affiliates, Consultant agrees that a breach of any of the
covenants contained in
6
Sections 7, 8 and/or 9 may result in material and irreparable injury to DynEco
or its affiliates for which there is no adequate remedy at law, that it will not
be possible to measure damages for such injuries precisely and that, in the
event of such a breach or threat thereof, DynEco and its affiliates shall be
entitled to seek a temporary restraining order or a preliminary or permanent
injunction, or both, without bond or other security, restraining Consultant from
engaging in activities prohibited by Sections 7, 8 and/or 9 or such other relief
as may be required specifically to enforce any of the covenants in such
sections. Such injunctive relief in any court shall be available to DynEco and
its affiliates in lieu of, or prior to or pending determination in, any other
proceeding.
12. Representations and Covenants of Consultant.
(a) Consultant hereby represents and warrants to DynEco that
(i) Consultant has the full, complete and entire right and authority to enter
into this Agreement, (ii) the execution of this Agreement by Consultant and the
performance of Consultant's Services hereunder will not violate, or be a breach
of, any agreement, law or commitment or responsibility of any kind with a former
employer, client, or any other person or entity (whether government-owned or
otherwise), (iii) Consultant will not use in the performance of his
responsibilities under this Agreement any confidential or proprietary
information or trade secrets of any other person or entity, (iv) Consultant has
not entered into and will not enter into any agreement (whether oral or written)
in conflict with this Agreement, and (v) Consultant will promptly advise the
DynEco of any potential conflict of interest that may arise during his service
as a consultant to DynEco, and will withdraw from any activity upon request when
DynEco, in its sole discretion, deems such withdrawal necessary or desirable to
avoid any potential conflict of interest.
(b) Consultant has and will continue to truthfully disclose to
DynEco the following matters, whether occurring at any time preceding the date
of this Agreement or at any time during the term of this Agreement: (i) any
criminal complaint, indictment or criminal proceeding in which Consultant or any
of its managers or members is named as a defendant; (ii) any allegation,
investigation, or proceeding, whether administrative, civil or criminal, against
Consultant or nay of its managers or members by any licensing authority or
industry association; and (iii) any allegation, investigation or proceeding,
whether administrative, civil, or criminal, against Consultant or any of its
managers or members for violating professional ethics or standards, or engaging
in illegal, immoral or other misconduct (of any nature or degree), relating to
the Business of DynEco.
13. Termination. Either party may terminate this Agreement in the event
that the other party defaults fails to perform any of its material obligations
under this Agreement, or defaults in any of its material obligations under this
Agreement, and such failure or default continues uncured for a period of thirty
(30) days following written notice from the non-defaulting party; provided,
however, that DynEco may terminate this Agreement immediately upon notice to
Consultant in the event that Consultant defaults under any of its obligations
under Section 7,8 and 9 of this Agreement.
14. Notices. Unless otherwise specifically provided herein, all
notices, requests, demands and other communications hereunder shall be in
writing and shall be
7
deemed to have been duly given if delivered by hand or mailed, certified or
registered mail, return receipt requested, with postage prepaid at the following
addresses, and/or to such other addresses and/or persons which either party may
designate by like notice:
(a) if to Consultant, to:
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Managing Member
(b) if to DynEco, to:
000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, CEO
15. Independent Contractor. The relationship of Consultant to DynEco
shall be that of an independent contractor. Nothing herein shall create an
employment relationship between the parties, or a joint venture. Each party
shall pay the taxes attributable to it, including those, if any, arising by
reason of execution of this Agreement. Neither party shall be responsible for
the taxes of the other. Subject to the terms and conditions of this Agreement,
neither party shall operate under the direct or indirect supervision of the
other. Moreover, neither party shall attempt, or have the right, to bind the
other party to any agreement, understanding or contract with any third party.
The compensation, benefits, taxes, insurance and all other aspects of the
relationship between Consultant and its employees and/or agents shall be the
sole responsibility of Consultant, and DynEco shall have no responsibility
therefore.
16. Additional Provisions.
(a) This Agreement shall inure to the benefit of, and be
binding upon, DynEco and Consultant and their respective successors and assigns.
Consultant shall not assign or delegate the performance of any of its rights
and/or obligations under this Agreement without the prior written consent of
DynEco and any attempted assignment in violation of this Agreement shall be null
and void.
(b) This Agreement constitutes the entire Agreement,
representation and understanding of the parties hereto with respect to the
subject matter hereof, and no amendment or modification hereof shall be valid or
binding unless made in writing and signed by the parties hereto.
(c) No waiver of any provision of this Agreement shall be
valid unless the same is in writing and signed by the party against whom it is
sought to be enforced. No waiver of any default or breach of this Agreement
shall be deemed a continuing waiver or a waiver of any other breach or default.
8
(d) If any provision of this Agreement is invalid or
unenforceable in any jurisdiction such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability, but the
foregoing shall not render invalid or unenforceable in such jurisdiction the
remainder of this Agreement or the remainder of such provision or affect the
validity or unenforceability of any provision of this Agreement in any other
jurisdiction.
(e) This Agreement shall be governed by, and construed in
accordance with the internal laws of the State of Florida without regard to
principles of conflicts of law. In the event of any dispute with respect to the
meaning of this Agreement or the rights or obligations of the parties hereto,
all of such disputes shall be exclusively resolved in the United States District
Court for the Southern or Middle District of Florida or, if such Court does not
have subject matter jurisdiction thereof, in any court of general jurisdiction
in Palm Beach or Brevard County, State of Florida. Each of the parties waives
any right to object to the jurisdiction, the venue of either of such Courts, or
to claim either Court is an inconvenient forum.
(f) Consultant acknowledges that prior to the execution of
this Agreement it had full opportunity to consult with its own independent
attorneys and advisors as deemed appropriate and Consultant fully understands
the nature and scope of its rights and obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be executed on the date first above written.
DYNECO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx, Ph.D.
Title: President and CEO
MBN CONSULTING, LLC
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Member
9
