Ex-10.53
Financial Consulting Agreement with WMS Financial Planner, Inc.
EXHIBIT 10.53
FINANCIAL CONSULTING AGREEMENT
This Financial Consulting Agreement (the "Agreement") is made and
entered into as of the 1st day March, 2001, by and between WMS Financial
Planners, Inc., a Washington corporation ("Consultant") whose principal place
of business is 0000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx 00000 and
Telegen Corporation, a California corporation ("Telegen") whose principal
place of business is 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000.
RECITALS
A. Consultant engaged in the business of providing financial
consulting services.
X. Xxxxxxx desires to retain Consultant to provide financial
consulting services.
NOW, THEREFORE, in consideration for the mutual promises and
agreements set forth herein and for other good and valuable consideration the
receipt and sufficiency which is hereby acknowledged, the parties agree as
follows:
1. FINANCIAL CONSULTING SERVICES. Telegen hereby retains
Consultant as a financial consultant to Telegen to provide the consulting
services set forth herein, and Consultant hereby accepts and agrees to such
retention. Consultant shall provide to Telegen consulting services as may be
requested by a Telegen from time to time, including the following:
(a) Financial services;
(b) Cash flow management;
(c) Retirement plan and employee benefit plan design, setup
and monitoring;
(d) Capital formation; and
(e) Corporate compensation services.
All of the above are referred to herein as "Financial
Consulting Services". Consultant shall provide to Telegen the Financial
Consulting Services on a best efforts basis. Consultant makes no
representation, warranty or guaranty that as a result of the Financial
Consulting Services rendered to Telegen, Telegen will obtain any specific
result.
2. TIME, MANNER AND PLACE OF PERFORMANCE. Consultant provides
services similar to those provided for herein to other companies. Telegen
agrees that Consultant does not and shall not be required to devote its full
time and efforts to Telegen. Consultant shall devote such time, personnel and
resources to Telegen as is reasonable and necessary in providing the
Financial
Consulting Services to Telegen on a best efforts basis. Consultant shall be
available for advice and counsel to the officers and directors of the Telegen
at such reasonable and convenient times and places as may mutually be agreed
upon.
3. TERM OF THE AGREEMENT. The initial term of this Agreement shall
be for a term of twelve (12) months commencing March 1, 2001 and terminating
February 28, 2002. This Agreement may be terminated prior thereto by either
Consultant or Telegen upon sixty-(60) day's prior written notice.
4. COMPENSATION. Telegen shall compensate the Consultant at the
rate of $125,000 per annum, payable at the rate of $10,417 per month on the
first day of each month commencing March 1, 2001. The parties acknowledge and
agree that the compensation due hereunder is not earned on a "success" or
"contingent fee basis" but rather is earned upon the time expended, the
complexity of the services provided, the experience of the Consultant, and
the value of the services provided, and shall be paid as set forth herein.
5. EXPENSES. Telegen shall reimburse Consultant on demand for
all reasonable expenses and other disbursements including, but not limited to
travel, entertainment, mailing, printing, meeting arrangements and postage
incurred by Consultant on behalf of Telegen in connection with the performance
of the Financial Consulting Services pursuant to this Agreement. Consultant
shall take all actions necessary to maintain the tax deductibility of any such
expenses and disbursements by Telegen. All expenses and disbursements shall
require Telegen's prior approval and documentation as reasonably requested by
Telegen.
6. RESTRICTIONS ON TRADING.
(a) Consultant and its agents, representatives, officers,
directors and employees (collectively, "Affiliates") acknowledge that Telegen
has disclosed to it that (I) Telegen has registered shares of its common
stock with the Securities and Exchange Commission ("Commission") pursuant to
the Securities Act of 1933, as amended (the "Act"), (ii) Telegen is required
to file reports with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and (iii) during the course of the
parties' discussions, Consultant's performance of the Financial Consulting
Services, and/or Telegen's disclosure of confidential information or trade
secrets to Consultant, Consultant will or may receive material, non-public
information regarding Telegen.
(b) Consultant and its Affiliates shall not engage, directly or
indirectly, in any trading or trading related activities in respect of any
equity securities or securities exercisable or convertible into equity
securities of Telegen until such time that Consultant is no in possession of
any material, non-public information regarding Telegen.
(c) Consultant and its Affiliates shall be subjected to and
shall fully comply with any other restrictions reasonably imposed by Telegen
or its counsel with respect to trading or trading related activities in
respect of any equity securities or securities exercisable or convertible
into equity securities of Telegen.
7. COMPLIANCE WITH LAWS.
(a) Consultant represents, warrants, and covenants that
Consultant and its Affiliates are (and at all times during the term of this
Agreement shall be (i) duly licensed and registered and otherwise qualified
professionals in good standing under the Legal Requirements (as that term is
defined herein) of each jurisdiction, and (ii) associated with and/or members
in good standing with all agencies, commissions, bodies, and other applicable
associations (collectively, "Agencies") and under the Legal Requirements in
such jurisdictions, as required in order to perform the Financial Consulting
Services.
(b) The performance of the Financial Consulting Services
hereunder by Consultant or its Affiliates (i) do not and will not contravene
conflict with, or result in a violation of, or give any governmental agency
or body or any other person or entity the right to challenge any of the
transactions contemplated hereby or to exercise any remedy or obtain any
relief under, any federal, state, local, municipal, foreign, international,
multinational, or other administrative order, constitution, law, ordinance,
principle of common law, regulation, rule statute, or treaty (collectively,
"Legal Requirement"); (ii) do not and will not require Consultant or its
Affiliates to be registered, licensed, or otherwise qualified in any capacity
or associated with or a member of any Agency other than that which such
person is currently or then registered, licensed or otherwise qualified or
with which it is associated or of which it is a member: and (iii) do not and
will not make any exemption from the registration requirements of the Act, or
any state or foreign law, regulation or rule applicable to the registration
of securities, in each case as amended and in effect from time to time during
the term of this Agreement, unavailable to Telegen or cause Telegen not to be
eligible to avail itself thereof for any reason whatsoever, or give any
purchaser of Telegen's securities any right of rescission of similar right of
cancellation and refund.
8. DISCLOSURE OF INFORMATION.
(a) Consultant acknowledges that Telegen has disclosed and/or
may disclose to Consultant certain confidential information. Consultant shall
use the confidential information solely in connection with its performance of
the Financial Consulting Services herein, and shall keep the confidential
information confidential, and shall not disclose any of the confidential
information in any manner whatsoever except as authorized by a written
agreement or written consent of Telegen. Consultant shall hold in confidence
and not reproduce, distribute, transmit or transfer, directly or indirectly,
in any form, by any means, or for any purpose other that as expressly agreed
in writing, the confidential information or any portion thereof communicated,
discussed, delivered or made available by Telegen to or received by
Consultant. Notwithstanding the foregoing, Consultant may only disclose the
confidential information to Affiliates with a need to know such information,
provided each such Affiliate is obligated in writing to comply with the terms
and conditions of this Section 8 or otherwise be subject to a
company-standard nondisclosure agreement on terms no less restrictive than as
set forth herein. Consultant shall be responsible for any breach of this
Agreement by each such Affiliate.
(b) The foregoing obligations shall not apply if and to the
extent that: (i) consultant establishes that the information communicated was
already know to it, without obligation
to keep it confidential, at the time of its receipt from Telegen:(ii)
Consultant establishes that the information communicated was independently
developed by it without use or reference to any confidential information;
(iii) Consultant establishes that the information communicated was received
by such party in good faith from third party lawfully in possession thereof
and having no obligation to keep such information confidential; or (iv)
consultant establishes that the information communicated was publicly known
at the 6time of its receipt or has become publicly known other that by a
breach of this Agreement or other action by Consultant.
(c) Consultant shall no be liable for disclosure of
confidential information if made in response to a valid order of a court or
authorized agency of government; provided that at least ten (10) days notice
first be given to Telegen so a protective order may besought by Telegen.
(d) Consultant acknowledges that the remedies at law for breach
of any covenant contained in this Section may be inadequate, and that Telegen
shall be entitled to injunctive relief for any breach of this Section.
Nothing contained herein shall be construed, as limiting Telegen's right to
any other remedies at law, including the recovery of damages for breach of
this Agreement.
9. NATURE OF THE RELATIONSHIP. Nothing in this Agreement shall
render any party a general partner of the other. Except as set forth in this
Agreement, neither party is nor shall be a general agent for the other and
neither party is given authority to act on behalf of the other. Consultant is
retained by Telegen in an independent capacity and except as set forth in
this Agreement, Consultant shall not enter into any agreement or incur any
obligations on behalf of Telegen.
10. CONFLICTS OF INTEREST.
(a) This Agreement in non-exclusive. Consultant shall be free
to perform services for other companies and persons. Consultant will use its
best efforts to avoid conflicts of interest and will not represent companies
engaged in Telegen or any of its subsidiaries or controlled companies. In the
event that Consultant believes a conflict of interest has arisen which may
affect the performance of Financial Consulting Services for Telegen,
Consultant may promptly notify Telegen of such conflict. Upon receiving such
notice, Telegen may terminate this Agreement. Failure to terminate this
Agreement within thirty (30) days of notification of any conflict of interest
shall constitute Telegen's ongoing consent to Consultant continuing
activities, which may be in conflict with Telegen.
(b) The parties hereto acknowledge that Consultant is
controlled by Xxxxxxx X. Xxxxxx XX, who is also an officer and director of
Telegen. The parties further acknowledge and agree that this Agreement will
not be enforceable against Telegen unless it is approved and ratified by a
majority of the then disinterested members of Telegen's Board of Directors.
11. TERMINATION. Notwithstanding Section 3 of this Agreement, this
Agreement may be terminated (i) upon five (5) days prior written notice to
Telegen by Consultant if Telegen fails to timely pay any compensation or
expense reimbursement to Consultant when due; (ii) by either party upon five
(5) days prior written notice to the other party if such other party commits
or allows a
material breach of this Agreement and fails to cure after thirty (30) days
prior notice thereof; (iii) immediately by either party if the other party
requests such party to perform acts or services in violation of any law,
rule, regulation, policy or order of any federal or state regulatory agency;
(iv) immediately by either party if the other party engages in conduct in
violation of any law, including rules, regulations, orders and policies of
any federal or state regulatory agency. In the event of termination by
Consultant pursuant to the provisions of this Section 11, all compensation
received by Consultant from Telegen will be deemed fully earned and Telegen
shall pay to consultant any compensation due and owing as of the date of
termination.
12. NOTICES. Any notices required or given under this Agreement
shall be sufficient and if in writing and delivered via facsimile
transmission to the telephone numbers set forth below or if sent by
registered or certified mail, return receipt requested to the addresses set
forth below:
If to: Consultant
WMS Financial Planners, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Fax Number: (000) 000-0000
Attention: VP Administration
If to: Telegen
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000.
Fax Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, CEO
13. ASSIGNMENT. Neither party to this Agreement may assign its
rights or obligations hereunder without the prior written consent of the
other party to this Agreement.
14. APPLICABLE LAW. This Agreement shall be interpreted and
construed in accordance with and pursuant to the laws of the state of
California.
15. SEVERABILITY. The provisions contained herein are severable and
in the event any of them shall be held invalid, the Agreement shall be
interpreted as if such invalid provision were not contained herein.
16. WAVER. Except as specifically provided in this Agreement, the
waiver of any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of any
party.
17. ENTIRE AGREEMENT. This entire Agreement constitutes and embodies
the entire understanding and agreement of the parties hereto and supercedes
and replaces all prior understandings, agreements and negotiations of the
parties. This Agreement may not be modified except in writing and signed by
all parties hereto.
18. BINDING EFFECT. This Agreement shall be binding and effective
upon the parties and its successors and permitted assigns.
19. COUNTERPARTS. This Agreement may be executed in counterparts
each of which shall constitute and deemed an original both of which shall
taken together constitute one and the same document.
20. CONTINUING OBLIGATIONS. Section 6,7,8, and 14, and all other
Sections which by their terms and conditions survive the termination or
expiration of this Agreement, shall survive indefinitely the termination or
expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement on the day and year first above written.
"Consultant"
WMS Financial Planners, Inc.
By: /s/ XXXXXXX XXXXXX
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Its: Vice President of Administration
"Telegen"
Telegen Corporation
By: /s/ XXXXXXX X XXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxx,
Chief Executive Officer
