CONSULTANCY AGREEMENT
EXHIBIT
10.34
between
PureDepth
Incorporated Limited
and
Xxxxxxx
Xxxxxx
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1.
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Services,
Term and Compensation
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1
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2.
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Access
to Company Offices
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1
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3.
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Expenses
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1
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4.
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Taxes
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1
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5.
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Inventions
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1
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6.
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Confidentiality
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2
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7.
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Conflicts
of Interest, Exclusivity and Restraint
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2
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8.
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Right
to Injunction
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3
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9.
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Health
and Safety
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4
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10.
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Human
Rights
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4
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11.
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Termination
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4
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12.
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Representation
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4
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13.
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Governing
Law
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4
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14.
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Arbitration
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4
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15.
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Headings
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5
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16.
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Waiver
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5
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17.
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Assignment
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5
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18.
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Notices
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5
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19.
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Modification
or Amendment
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5
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20.
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Entire
Understanding
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5
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APPENDIX
1 - Services and Fees
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8 | |
Date: May
2008
Parties
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1.
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PureDepth
Incorporated Limited (the “Company")
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2.
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Xxxxxxx
Xxxxxx (the “Consultant")
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Background
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A.
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The
Company has specialist expertise in the area of multi layer visual display
technology.
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B.
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The
Company has requested that the Consultant provide consultancy services
(the “Services”)
to the Company on the terms set out in this
Agreement.
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Agreement
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1.
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Services, Term and
Compensation
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1.1
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The
Consultant will personally provide the Services set out in Appendix 1 to
this Agreement.
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1.2
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The
Consultant's fees are set out in Appendix 1 to this
Agreement.
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1.3
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This
Agreement shall be effective from 14 June 2008 and shall continue in full
force and effect until terminated in accordance with the terms of this
Agreement.
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2.
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Access to Company
Offices
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2.1
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The
Consultant will have access to the Company’s offices and facilities as
reasonably required, in order to carry out the
Services.
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3.
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Expenses
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3.1
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During
the term of this Agreement the Consultant shall be reimbursed for all
approved and reasonable expenses and disbursements incurred in connection
with the performance of the Services. Expenses and
disbursements are to be properly accounted for and detailed GST invoices
or GST receipts are to be provided to verify the amount of expenses or
disbursements included within the GST invoice provided by the Consultant
to the Company for payment of her fees, commissions and
bonuses.
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3.2
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Any
air travel and hotel bookings will be made on the Consultant's behalf by
the Company or, if arranged by the Consultant, bookings are to be
pre-approved by the Company.
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4.
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Taxes
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4.1
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The
Consultant is responsible for the payment of any and all taxes and ACC
levies, for GST registration, and for filing GST
returns.
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5.
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Inventions
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5.1
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Any
and all inventions, discoveries, developments and innovations in relation
to the Company and any and all business concepts conceived by the
Consultant during this Agreement relative to the Services shall be the
exclusive property of the Company. The Consultant hereby
assigns all right, title, and interest in the same to the
Company.
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5.2
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Any
and all inventions, discoveries, developments and innovations conceived by
the Consultant prior to the term of this Agreement and utilised by the
Consultant in rendering the Services to the Company are hereby licensed to
the Company for use in its operations and for an infinite duration. This
licence is non-exclusive, and may be assigned without the Consultant’s
prior written approval by the Company to a holding company or a
wholly-owned subsidiary of the
Company.
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6.
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Confidentiality
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6.1
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The
Consultant acknowledges that during the Agreement, she will have access to
and become acquainted with various trade secrets, inventions, innovations,
processes, information, records and specifications owned or licensed by
the Company and/or used by the Company in connection with the operation of
its business including, without limitation, the Company’s business and
product processes, methods, customer lists, accounts and procedures (the
“Confidential
Information”).
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6.2
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The
Consultant agrees that she will not disclose any Confidential Information,
directly or indirectly, or use any Confidential Information in any manner,
either during the term of this Agreement or at any time thereafter, except
as required to perform the Services for the
Company.
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6.3
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All
files, records, documents, blueprints, specifications, information,
letters, notes, media lists, original artwork/creative, programming code,
notebooks, and similar items relating to the business of the Company (the
“Company
Property”), whether prepared by the Consultant or otherwise coming
into its possession, shall remain the exclusive property of the
Company. The Consultant shall not retain any copies of Company
Property without the Company’s prior written
permission.
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6.4
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Upon
the termination of this Agreement, or whenever requested by the Company,
the Consultant shall immediately deliver to the Company all Confidential
Information and Company Property and other items in her possession or
under her control.
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6.5
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The
Consultant agrees that she will not disclose the terms of this Agreement
to any person, without the prior written consent of the Company and shall
at all times preserve the confidential nature of her relationship with the
Company.
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7.
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Conflicts of Interest,
Exclusivity and Restraint
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7.1
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The
Consultant represents that she is free to enter into this Agreement, and
that this Agreement does not violate the terms of any agreement between
the Consultant and any third party. Further, the Consultant, in
rendering the Services, shall not utilise any invention, discovery,
development, improvement, innovation or trade secret in which she does not
have a proprietary interest.
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7.2
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The
Consultant will not enter into or carry on any activity which may conflict
in any way with the interests of the Company and the Consultant’s
responsibilities to it.
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7.3
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During
the Agreement and for a period of twelve (12) months following termination
of the Agreement, the Consultant shall not, directly or indirectly hire,
solicit, or encourage to leave the Company’s employment, any employee or
consultant of the Company or hire any such employee or consultant who has
left the Company’s employment or who has terminated a contractual
agreement with the Company.
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2
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7.4
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The
Consultant will not, without the Company's prior written consent, be
directly or indirectly involved in any capacity whatsoever in any place in
New Zealand in the same or a similar business as the business of the
Company:
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a.
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during
the term of this Agreement (whether in regular working hours or
otherwise); and
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b.
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for
twelve months after the date on which this Agreement
ends.
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7.5
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The
Consultant will not, for twelve (12) months after the date on which this
Agreement ends, directly or indirectly, on its own behalf or on behalf of
any other person or firm, canvas or solicit business or accept any
business from any party who was a customer of the Company during the term
of this Agreement.
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7.6
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For
the purposes of this no competition
clause:
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a.
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a
business the same as or similar to the business of the Company includes
all types of business conducted by the Company at any time during the term
of this Agreement; and
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b.
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a
“customer” includes any person or firm which was a customer of the Company
at any time during the term of this Agreement or within the three months
following the date on which the Agreement
ends.
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7.7
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The
Consultant acknowledges that the restrictive provisions in this no
competition clause are reasonable and necessary in order to protect and
maintain the proprietary interests and other legitimate interests of the
Company's business.
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7.8
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The
Consultant agrees that the fees payable to her pursuant to this Agreement
represent reasonable and sufficient consideration for the restraints
contained within this clause.
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7.9
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If
any undertaking in this clause 7
is held invalid as an unreasonable restraint of trade or for any other
reason but would have been valid if part of the wording had been deleted
or the period reduced or the range of activities or area dealt with
reduced in scope, those undertakings are to apply with such modifications
as are necessary to make them valid and
effective.
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8.
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Right to
Injunction
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8.1
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The
parties to this Agreement acknowledge that the Services to be rendered by
the Consultant pursuant to this Agreement and the rights and privileges
granted to the Company under this Agreement are of a special, unique,
unusual, and extraordinary character which gives them a peculiar value,
the loss of which cannot be reasonably or adequately compensated by
damages in any action at law, and the breach by the Consultant of any of
the provisions of this Agreement will cause the Company irreparable injury
and damage.
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8.2
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The
Consultant expressly agrees that the Company will be entitled to
injunctive and other equitable relief in the event of, or to prevent, a
breach of any provision of this Agreement by the
Consultant. Resort to such equitable relief, however, will not
be construed to be a waiver of any other rights or remedies that the
Company may have for damages or otherwise. The various rights
and remedies of the Company under this Agreement or otherwise shall be
construed to be cumulative, and no one will be exclusive of any other or
of any right or remedy allowed by
law.
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3
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9.
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Health and
Safety
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9.1
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The
Consultant will ensure that she complies at all times with the health and
safety policies of the Company when on the Company
premises. The Consultant may be required to sign a declaration
regarding compliance with these policies, prior to the commencement of
this Agreement.
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10.
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Human
Rights
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10.1
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The
Consultant will ensure that she complies at all times with the
non-discrimination and sexual harassment policies of the
Company. The Consultant indemnifies the Company for any
liability including damages and fines that may arise from a breach of
these policies by the
Consultant.
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11.
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Termination
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11.1
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Either
party may terminate this Agreement at any time by giving six
(6) months written notice to the other party. By giving notice
of termination under this clause 11.1, the party giving the notice
confirms that no monies are due and owing to the Consultant under this
Consultancy Agreement outside of duly reimbursable expenses, which include
any reasonable expenses arising out of this Agreement in accordance with
Appendix 1.
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11.2
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If
the Consultant:
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a.
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is
convicted of any crime or offence;
or
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b.
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fails
or refuses to comply with the written policies or reasonable directives of
the Company; or
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c.
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otherwise
materially breaches provisions of this
Agreement,
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the
Company may terminate this Agreement immediately and without being required to
give prior written notice to the Consultant.
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12.
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Representation
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12.1
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This
Agreement shall not render the Consultant an employee, partner, agent of,
or in a joint venture with the Company for any purpose and the Consultant
shall not hold out that she is an employee, partner, agent or in joint
venture with the Company.
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12.2
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The
Company shall not be responsible for, and the Consultant shall have no
claim against the Company for, withholding taxes with respect to the
Consultant’s fees.
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13.
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Governing
Law
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13.1
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The
laws of New Zealand shall govern this
Agreement.
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14.
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Arbitration
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14.1
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If
any dispute arises over the interpretation of, or the terms of this
Agreement or any matter arising from it, the parties will try to resolve
such dispute through negotiation in good
faith.
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4
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14.2
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Where
no settlement can be reached through negotiation, the dispute shall be
submitted to arbitration in New Zealand, conducted in accordance with the
provisions of the arbitration statutes for the time being in force in New
Zealand, with any arbitration award being binding upon both
parties. The costs of arbitration shall be borne by the
unsuccessful party.
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15.
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Headings
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15.1
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Section
headings are not to be considered a part of this Agreement and are not
intended to be a full and accurate description of the contents of the
subsequent clauses.
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16.
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Waiver
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16.1
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Waiver
by one party to this Agreement of breach of any provision of this
Agreement by the other shall not operate or be construed as a continuing
waiver.
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17.
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Assignment
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17.1
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The
Consultant may not, except with the prior written consent of the Company,
assign any of its rights under this Agreement or delegate the performance
of any of its Services
hereunder.
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18.
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Notices
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18.1
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Any
and all notices, demands, or other communications required or desired to
be given under this Agreement by either party shall be in writing and
shall be validly given or made to the other party
if:
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a.
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personally
served; or
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b.
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deposited
in the mail to the registered office of the party,
or:
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i.
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if
to the Consultant at:
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00 Xxxxx
Xxxxxx
Xxxxxxx
Xxxxxxxx
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ii.
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If
to the Company:
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c/-
PureDepth, Inc.
Attention: Xxxxxxxx
XxXxxxx
000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, XX 00000
Xxxxxx
Xxxxxx
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18.2
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Any
party may change its address for purposes of this clause by written
notice.
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19.
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Modification or
Amendment
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19.1
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No
amendment, change or modification of this Agreement shall be valid unless
in writing and signed by the
parties.
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20.
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Entire
Understanding;
Option Amendment
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5
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20.1
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Aside
for the Consultant’s arrangements and/or agreements pertaining to her
stock option to purchase shares of PureDepth, Inc. common
stock, as represented by the Stock Option Agreement dated June
20, 2006 (as amended by the Agreement to Amend the PureDepth, Inc. 2006
Stock Incentive Plan and Associated Stock Option Agreement dated December
19, 2006), as further amended hereby as provided in Appendix 2 hereto,
this Agreement along with the letter agreement dated on or about the date
hereof between the Consultant and the Company regarding the variation of
the terms of the Consultant’s employment agreement with the Company
together constitute the entire understanding and agreement of the
parties.
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6
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SIGNED by Xxxxxxx
Xxxxxx:
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||
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Signature
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Name
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SIGNED by PureDepth Incorporated Limited
by:
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Director’s
signature
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Director’s
name
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7
APPENDIX
1
Services
and Fees
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1.
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Services
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1.1
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The
Services of the Consultant include:
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a.
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assistance
to continue to lead (at a high level) PureDepth’s current Asian based
customer (i.e. Sanyo and Sumsung Visual Display) requirements – i.e. via
weekly or other conference calls and follow up email communiqués and, if
reasonably available, in person meetings, in the shorter term (i.e. up to
3 months) until otherwise advised and
expedient;
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b.
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assistance
to continue to lead (at a high level) PureDepth’s other Asian prospects
(more particularly, Hitachi/NTT, Mitsui Xxxxxx and Toyota Tsusho) via
email and, if reasonably available, in person meetings, in the shorter
term (i.e. up to 3 months) until otherwise advised or expedient;
and
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c.
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provide
ongoing general advice and assistance to Xxx XxXxxxx and other members of
PureDepth’s executive management team on all areas of the business as
required from time to time in the shorter term (i.e. up to 3 months) until
otherwise advised or expedient.
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1.2
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The
parties estimate that the Consultant will be required to provide Services
to the Company for approximately 20 hours per calendar
quarter.
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1.3
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The
Consultant will provide the Services to the Company to the best possible
standard and ensure that the Services are undertaken, carried out and
completed in a careful, proper and lawful manner, in compliance with
industry best practice and any relevant codes of practice and on a timely
basis.
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2.
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Fees
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2.1
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The
Company shall pay to the
Consultant:
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2.2
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a
fee of USD$150 per hour exclusive of New Zealand Goods and Services Tax
(the “Hourly
Fee”), for any Services rendered in excess of 20 hours per calendar
quarter through the end of the Company’s current fiscal year ending
January 31, 2009 or for any Services rendered after January 31, 2009.The
Hourly Fee will be paid to the Consultant within 7 days of the Consultant
presenting a GST invoice for the same to the Company, specifying the
Services provided and the hours worked.
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8
APPENDIX
2
1. Each
of the undersigned hereby acknowledge and agree that Section 4 of the Stock
Option Agreement by and between Xxxxxxx Xxxxxx and PureDepth, Inc. (the
“Company”) dated June 20, 2006 (as amended by the Agreement to Amend the
PureDepth, Inc. 2006 Stock Incentive Plan and Associated Stock Option Agreement
dated December 19, 2006) (the “Option Agreement”) is hereby fully amended and
restated (the “Amendment”) as set forth below:
4. “Term
of Option. Except as otherwise provided in this Agreement and subject
to the terms of the New Plan, the Option shall be exercisable on or before
March 31, 2011; provided, however, that in the event that Optionee ceases
to serve as a director, officer, employee or consultant of the Company, Optionee
or his or her legal representative shall have until the earlier of (i) 365
days from the date of such termination and (ii) March 31, 2011 to
exercise all or any part of the Option that is vested pursuant to Section 3
of this Agreement. Upon the expiration of such period, or, if
earlier, upon the expiration date of the Option as set forth above, the Option
shall terminate and become null and void.”
2. Continuation of Other
Terms. Except as set forth herein, all other terms and
conditions of the Option Agreement shall remain in full force and
effect.
3. Tax
Consequences. The Optionee acknowledges that neither the
Company nor any of its affiliates makes any representation or warranty regarding
the tax consequences of this Amendment. The Optionee should consult
her own tax, legal and financial advisors regarding the consequences of this
Amendment and any subsequent exercise of the Option.
4. Applicable
Law. This Agreement shall be governed by the laws of the State
of Delaware.
5. Entire
Agreement. The Option Agreement, as amended by this Amendment,
constitutes the entire understanding and agreement of the parties with respect
to the subject matter thereof.
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SIGNED by Xxxxxxx
Xxxxxx:
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Signature
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Name
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SIGNED by PureDepth, Inc.
by:
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Signature
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Name
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9
