Exhibit 10.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated June 30, 2004,
is made by and between Xxx Xxxxx ("Consultant"), whose address is 00 Xxxxx Xxxx
Xxxx, Xxxxx Xxx, X.X. XXX 0X0, Xxxxxx and Power Technology, Inc. ("Company")
collectively, the "Parties"), This Agreement supersedes and replaces any prior
Agreements in place between the Parties.
WHEREAS, Company is a corporation and desires to further develop its
business and customers;
WHEREAS, Xxx Xxxxx wishes to resign as CEO of the Company effective June
30, 2004 to pursue other interests and to simultaneously become a Consultant to
the Company, and as the former CEO of the Company, Consultant has extensive
background in the area of the Company's general business including but not
limited to, SEC matters and filings, pending litigation, historical
documentation, records, outside accounting and legal personnel, identification,
and past hiring, and general knowledge of the Company's past operations; and
WHEREAS, Company desires to engage Consultant to provide information,
evaluation and consulting services to Company in Consultant's area of knowledge
and expertise on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant provides
to Company, the Parties agree as follows;
1. SERVICES OF CONSULTANT
Consultant agrees to perform for Company all necessary services required
in providing general business strategic consulting and management advisory
services for Company as previously stated. The services to be provided by
Consultant will not be in connection with the offer or sale of securities in a
capital-raising transaction, and will not directly or indirectly promote or
maintain a market for Company's securities. Xxx Xxxxx will primarily provide the
services in conjunction with the Company's CEO, Board members, or outside
professionals. The Consultant shall provide all necessary services to support
the Company's current litigation and the smooth transition of all records and
knowledge, contacts and any other items necessary for the operation of the
Company.
2. CONSIDERATION
Company agrees to pay Consultant, as its fee and as consideration for
services provided $5,000 per month paid monthly in advance. These payments will
be made in cash for a period of six months, commencing with the July 1, 2004
payment which has already been made by the Company,
3. EXPENSES
Company agrees to reimburse Consultant for all reasonable out of pocket
expenses previously agreed to in advance by Company.
1.
4. CONFIDENTIALITY
Each Party agrees that during the course of this Agreement, information
that is confidential or of a proprietary nature may be disclosed to the other
party, including, but not limited to, product and business plans, software,
technical processes and formulas, source codes, product designs, sales, costs
and other unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
NO DISCLOSURE. During the Term and at all times thereafter, Consultant shall not
disclose or USE in any manner, directly or indirectly, and shall use
Consultant's best efforts and shall take all reasonable precautions to prevent
the disclosure of, any such Uncle secrets or other Confidential Information
learned by Consultant in connection with his services under this Agreement or
learned by Consultant while an employee of the Company.
OWNERSHIP OF INFORMATION. Such Confidential Information is and shall remain the
sole and exclusive property and proprietary information of Company or Company's
customers, as the case may be, and is disclosed in confidence by Company or
permitted to be acquired from such customers in reliance on Consultant's
agreement to maintain such Confidential Information in confidence and not to use
or disclose such Confidential Information to any other person except in
furtherance of Company's Business.
RETURN OF MATERIAL. Upon the expiration or earlier termination of this Agreement
for any reason, Consultant shall immediately turn over to Company all documents,
disks or other magnetic media, or other material in Consultant's possession or
under Consultant's control that (i) may contain or be derived from Creations or
Confidential Information, or (ii) are connected with or derived from
Consultant's services to Company. Consultant shall not retain any Confidential
Information in any form (e.g., computer hard drive, microfilm, etc.) upon the
expiration or earlier termination of this Agreement.
5. LATE PAYMENT
Company shall pay to Consultant all fees no later than 30 days of the
due date. Failure of Company to finally pay any FEES within 30 days after the
applicable due date shall be deemed a material breach of this Agreement,
justifying suspension of the performance of the "Services" provided by
Consultant, will be sufficient cause for immediate termination of this Agreement
by Consultant. Any such suspension will in no way relieve Company from payment
of fees, and, in the event of collection enforcement, Company shall be liable
for any costs associated with such collection, including, but not limited to,
legal costs, attorneys' fees, courts costs, and collection agency fees.
2.
6. INDEMNIFICATION
(a) COMPANY
Company agrees to indemnify, defend, and hold harmless Consultant, its
directors, officers, employees, attorneys, and agents, and to defend any action
brought against said parties with aspect to any and all claims, demands, causes
of action, debts or liabilities, including reasonable attorneys' fees, arising
out of work performed under this Agreement, including breach of Company of this
Agreement, unless caused by the actions of Consultant or pervious actions as CEO
of the Company,
(b) CONSULTANT
Consultant agrees to indemnify, defend, and shall hold harmless Company,
its directors, officers, employees, attorneys, and agents, and defend any action
brought against same with respect to any claim, demand, CAUSE OF ACTION, debt or
liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the negligence or willful misconduct of Consultant,
including breach by Consultant of the Agreement. This shall include any previous
actions by the Consultant in his prior capacity as CEO of the Company. As
additional consideration for the execution of this Agreement, Consultant
specifically releases and discharges Company from any prior liabilities
whatsoever owed to or created by CEO.
(c) NOTICE
In claiming any indemnification hereunder, the indemnified party shall
promptly provide the indemnifying party with written notice of any claim, which
the indemnified party believes fells within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld,
7. LIMITATION OF LIABILITY
From the date of this Agreement forward, unless Consultant is found to
be grossly negligent acting in his capacity as Consultant, Consultant shall have
no liability with respect to Consultant's obligations under this Agreement for
consequential, exemplary, special, incidental, or punitive damages.
8. TERMINATION AND RENEWAL
(a) TERM
This Agreement shall become effective on the date appearing next to the
signatures below and terminate six months thereafter, and may be renewed by the
Company in six month periods as required by the Company.
3.
(b) TERMINATION
Either Party may terminate this Agreement if the other party materially
breaches any of its representations, warranties or obligations under this
Agreement. Except as may be otherwise provided in this Agreement, such breach by
either party will result in the other party being responsible to reimburse the
non-defaulting party for all costs incurred directly as a result of the breach
of this Agreement, and shall be subject to such damages as may be allowed by law
including all attorneys' fees and costs of enforcing this Agreement.
(c) TERMINATION AND PAYMENT
Upon any termination or expiration of this Agreement, Company shall pay
all unpaid and outstanding fees through the effective date of termination or
expiration of this Agreement. Upon such termination, Consultant shall provide
and deliver to Company any and all OUTSTANDING services due through the
effective termination date of this Agreement. Consultant shall have no right to
terminate this Agreement other than for non payment of Compensation.
9. SHARE LOCK UP AGREEMENT.
Consultant agrees that without the express written permission of the
Board of Directors of lower Technology, Inc., no shares of common stock of
Company owned by Consultant may be sold during the first six months of this
Agreement, Commencing one year from the date of expiration of the initial term
of this Agreement, during each six month period, Consultant shall be limited to
selling no more than 500,000 shares of his Company common stock without the
express written consent of the Board of Directors of Company. Consultant's
shares shall bear a restrictive legend with this restriction on the back of each
share certificate owned as of the date of this Agreement.
10. ARBITRATION
The parties agree that all disputes or questions or disputes arising in
connection with this Agreement and/or the Consultant's prior employment with the
Company shall be settled by three arbitrators pursuant to the rules of the
American Arbitration Association in the City of Las Vegas, Nevada, and the award
of the arbitrators shall be final, non-appealable, conclusive and enforceable in
a court of competent jurisdiction; PROVIDED, HOWEVER, notwithstanding the
foregoing, in no event shall any dispute, claim or disagreement arising under
Sections 4 of this Agreement that requires injunctive or other equitable relief
be requited to be submitted to arbitration pursuant to this provision or
otherwise.
11. MISCELLANEOUS
(a) INDEPENDENT CONTRACTOR
This Agreement establishes an "independent contractor" relationship
between Consultant and Company.
4.
(b) RIGHTS CUMULATIVE; WAIVERS
The rights of each of the Parties under this Agreement are cumulative.
The rights of each of-the Parties hereunder shall not be capable of being waived
or varied OTHER THAN by an express waiver or variation in writing. Any failure
to exercise or any delay IN exercising any of such RIGHTS shall not operate as a
waiver or variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way preclude such party from exercising any
such right or constitute a suspension or any variation of any such right.
(c) BENEFIT; SUCCESSORS BOUND
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their heirs,
executors, administrators, representatives, successors, and permitted assigns,
(d) ENTIRE AGREEMENT
This Agreement contains the entire Agreement between the Parties with
respect to the subject matter hereof. There are no promises, Agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement.
(e) ASSIGNMENT
Neither this Agreement nor any other benefit to accrue hereunder shall
be assigned or transferred by either Party, either in whole or in part, without
the written consent of the other party, and any purported assignment in
violation hereof shall be void. The sole exception of this provision shall be
right of the Consultant to assign this contract to any entity that is majority
owned by the Consultant.
(f) AMENDMENT
Only an instrument in writing executed by all the Parties hereto may
amend this Agreement.
(g) SEVERABILITY
Each part of this Agreement is intended to be severable. In the event
that any provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall be
severed or modified to the extent necessary to render it enforceable and as so
severed or modified, this Agreement shall Continue hi full force and effect.
5.
(h) SECTION HEADING
The Section headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or INTERPRETATION of this Agreement.
(i) CONSTRUCTION
Unless the context otherwise requires, when used herein, the singular
shall be deemed to include the plural, the plural shall be deemed to include
each of the singular, and pronouns of one or no gender shall be deemed to
include the equivalent pronoun of the other or no gender.
(j) FURTHER ASSURANCES
In addition to THE instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to make, execute
and deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(k) NOTICES
Any notice which is required or desired under this Agreement shall be
given in writing and may be sent by personal delivery or by mail (either a.
United States mail, postage prepaid, or le. Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
TO COMPANY:
Power Technology, Inc.
00 Xxxxx Xxxx Xxxx
X.X. XXX 0XX, Xxxxxx
000-000-0000
TO CONSULTANT:
Xxx Xxxxx
00 Xxxxx Xxxx Xxxx
X.X. XXX 0XX, Xxxxxx
000-000-0000
(l) GOVERNING LAW
This Agreement shall be governed- by the interpreted in accordance with
the laws of the State of Nevada without reference to its conflicts of laws rules
or principles. Each of the parties consents to the exclusive jurisdiction of the
federal courts of the State of Nevada in connection with any dispute arising
6.
under this Agreement and hereby waives, to the maximum extent permitted by law,
any objection, including any objection based on FORUM NON COVENIENS, to the
bringing of any such proceeding in such jurisdictions.
(m) CONSENTS
The person signing this Agreement on behalf of each parry hereby
represents and warrants that he has THE NECESSARY power, consent and authority
to execute and deliver this Agreement on behalf of such party.
(n) SURVIVAL OF PROVISIONS
The provision(s) contained in this Agreement shall survive the
termination of this Agreement for one year from date of termination.
(o) EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same Agreement.
WITNESS WHEREOF, the Parties have caused this Agreement to be executed
and have AGREED to and accepted the terms herein on the date written above.
POWER TECHNOLOGY, INC.
Xxxxxxx X. Xxxxxx
--------------------------
BY: XXXXXXX X. XXXXXX
ITS: President July 6, 2004
[Consultant]
/S/ Xxx Xxxxx
--------------------------
BY: Xxx Xxxxx
7.
