Exhibit 4.2
CONSULTING AGREEMENT
1. PARTIES
This Agreement is entered into as of September 17, 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
W. Xxxxxx Xxxxxx, an individual residing at 00 Xxxxxxxxxx, Xxxx, Xxx Xxxx 00000
(the "Consultant").
2. 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.
3. 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 accounting, systems, product costing,
manufacturing operations, forecasts and in general the duties
normally attributable to a controller of a commercial company.
Consultant will work with and take guidance and directions from the
President and the Vice-President, Finance of the Company.
3.2. Service provided by Consultant shall be as an independent
contractor.
The term of this Agreement shall be for one year from the date of this
Agreement.
4. COMPENSATION
4.1. In consideration of the consulting services performed hereunder, the
Company agrees to pay Consultant at rate of $40.00 per hour.
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. Expensed 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 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
-1-
Company shall be agreed upon with Consultant in writing.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
-2-
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.
10. 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.
11. 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.
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
W. XXXXXX XXXXXX ROTARY POWER INTERNATIONAL, INC.
/s/ W. Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------------ --------------------------------
W. Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Vice President and Director
-4-
