Exhibit 6.64
FINANCIAL PUBLIC RELATIONS ADVISER CONSULTING AGREEMENT
Between: XXXXX XXXXXXXXX
(the "Consultant")
At: Xxxxxxxxxxxxxxx 00
00000 Xxxxxxxx, Xxxxxxx
Facsimile: 000-00-000 8321764
And: IQ POWER TECHNOLOGY INC.
(the "Company")
At: c/o Erlenhof Park, Xxxxxxxxxxx Xxxxxxx 0,
X-00000 Xxxxxxxxxxxx, Xxxxxxx
Facsimile: 011-4989-614483-40
IN CONSIDERATION of the mutual promises and covenants and the terms and
conditions set out in sections 1.00 through 9.00 attached, the Company hereby
offers and the Consultant hereby accepts engagement with the Company upon the
terms and conditions set forth herein:
Position: Financial Public Relations Adviser for Germany.
Services: Services to be provided shall relate generally to the
position of the Consultant and shall include those items and
be provided in the manner described in Schedule A.
Term of Agreement: This Agreement shall have an initial term of 12 months and
be deemed to have commenced on August 1, 2002,
notwithstanding the date of execution.
Compensation: As consideration for the Services of the Consultant
hereunder, the Company shall pay the Consultant a fee of EUR
5,000 per month, of which:
a. EUR 2,000 is due on the first business day of each
calendar month, and
b. EUR 3,000 shall accrue and be payable quarterly on the
last business day of each 3-month period during the
term of this Agreement through the issue of 16,900
common shares of the Company (the "Shares') at a deemed
issue price per share of US $0.52 (EUR 0.532188 @ US$1
to EUR 1.02344 as of August 1, 2002).
Expense The Company shall also pay the Consultant an expense
Reimbursement: reimbursement of up to EUR 3,000 per month as more
particularly described in paragraph A.4.a of Schedule A by
the payment of EUR 1,000 and the issue of that number of
common shares of the Company (the "Shares') determined by
dividing the EUR amount paid by the Consultant to other
consultants in excess of EUR 1,000 on account of expenses
incurred on behalf of the Company (to a maximum of EUR 3,000
per month and as supported by appropriate receipts and
vouchers indicating the specific business purpose for each
such expenditure) by the EUR equivalent of the deemed issue
price per share stipulated in paragraph b above. The expense
reimbursement shall accrue and be payable quarterly on the
last business day of each 3 month period during the term of
this Agreement.
Executed and delivered by and on Executed and delivered by the Consultant
behalf of the Company effective effective September 28, 2002.
September 28, 2002.
IQ POWER TECHNOLOGY INC.
Per: /s/ Xxxxx X. Xxxxx /s/ Xxxxx Xxxxxxxxx
------------------ -------------------
Xxxxx Xxxxx, President XXXXX XXXXXXXXX
CONSULTING AGREEMENT
TERMS AND CONDITIONS
1.00 Representations, Warranties, and Covenants of the Consultant
-----------------------------------------------------------------
1.01 The Consultant represents and warrants to, and covenants with, the Company,
as follows:
a. the Consultant has the ability, experience and skills necessary to carry
out its obligations under this Agreement;
b. the Consultant and its officer, employees, agents and consultants shall
comply with all securities laws and regulations applicable to the Company
or the Consultant, and all policies, rules and requirements of any exchange
or quotation system on which the shares of the Company trade;
c. the Consultant shall, and shall cause its officers, employees, agents and
co-consultants to, act at all times in the best interests of the Company;
d. the Consultant, upon notice from the Company, will cease all Services for
the period directed by the Company without effect on the payment of
compensation due hereunder unless this Agreement is terminated in
connection with the request to cease Services;
e. the Consultant will not distribute or disseminate any information
concerning the Company in any form or medium, unless such information has
been provided to the Consultant by the Company for distribution or
dissemination, or the Company has reviewed and approved such information
prior to its distribution of dissemination by the Consultant; and
f. the Consultant will not engage in any transaction involving the offer or
sale of securities of the Company, and will not solicit or encourage any
other party to engage in any transaction involving the offer or sale of
securities of the Company, at any time that the Consultant is in possession
of material non-public information concerning the Company.
2.00 Position
-------------
2.01 The Consultant shall provide the Services indicated on the first page
hereof and in such capacity, shall carry out the duties and responsibilities
commensurate with that position as such duties are more specifically defined
from time to time during the term of this Agreement by the Board of Directors of
the Company.
2.02 In providing its services hereunder, the Consultant shall report to and
take directions from the Chief Executive Officer or Chief Financial Officer of
the Corporation, subject to overriding directions from the Board of Directors of
the Company.
3.00 Terms; Termination of Engagement
-------------------------------------
3.01 The term of engagement pursuant to this Agreement shall be for the term
stated on the first page hereof and thereafter engagement shall continue on a
monthly basis until terminated by the Company or the Consultant. Either party
may terminate the Consultant's engagement as follows:
a. the Consultant may terminate his services at any time and for any reason
upon one month's written notice to the Company;
b. the Company may terminate the Consultant's services at will. If the Company
terminates the Consultant's engagement without cause, the Consultant's
compensation and benefits shall continue for at least one month;
c. the Company may terminate the Consultant's services for cause after
reasonable notice of any non-performance has been given by the Company to
the Consultant and a reasonable opportunity has been afforded to the
Consultant to remedy any instance of non-performance. For purposes of the
preceding sentence, "cause" shall include but not be limited to:
i. fraud,
ii. conviction or confession of an indictable offense,
iii. destruction or theft of the Company's property,
Consulting Agreement
Page 3
iv. misconduct materially injurious to the Company, or
v. any breach or threatened breach of this Agreement.
3.02 If the Consultant's engagement is terminated:
a. subject to paragraph 3.01.b, no further compensation coming due under this
Agreement after the date of termination shall be payable by the Company;
and
b. the Consultant shall continue to be bound by the terms of section 6.00 of
this Agreement.
4.00 Compensation
-----------------
4.01 During the term of this Agreement, the Consultant shall be paid in
accordance with the compensation provisions on the first page hereof. This
compensation may be increased from time to time subject to the approval of the
Board of Directors of the Company and, where required, any regulatory body
having jurisdiction.
4.02 The Consultant represents and warrants to the Company that:
a. the Consultant is aware that the Shares have not been qualified under a
Securities Act or Exchange Act (an "Act") or any regulations or rules
thereunder (the "Rules") for distribution to the public, that the issuance
of the Shares pursuant to this Agreement is to be by way of private
placement exempted from the registration requirements of any Act and from
the prospectus requirements of any Act under an exemption to be determined
by the Company, and that the Consultant is restricted from using most of
the civil remedies available under such Acts and the Rules thereto and may
not receive information that would be otherwise available to him under such
Acts and the Rules in connection with his purchase of the Shares;
b. the Consultant is acquiring the Shares as principal and no other person,
firm or corporation will have a beneficial interest in the Shares;
c. the Shares are being acquired for investment purposes only and not with a
view to resale or distribution;
d. the Consultant is not a control person of the Company as defined in any
securities act applicable to the issue of the Shares and the acquisition of
the Shares will not result in the Consultant owning 20% or more of the
issued and outstanding shares of the Company or becoming a control person;
e. the Consultant is not acquiring the Shares as a result of any material
information about the affairs of the Company that has not been publicly
disclosed, save knowledge of this particular transaction;
f. the Consultant is not a resident of Canada and this Agreement is not
subject to the securities laws of any province or territory in Canada;
g. the Consultant is not a "U.S. Person" (the definition of which includes,
but is not limited to, an individual resident in the United States and an
estate or trust of which any executor or administrator or trustee,
respectively, is a U.S. Person and any partnership or corporation organized
or incorporated under the laws of the United States);
h. the Consultant was outside the United States at the time of execution and
delivery of this subscription agreement;
i. no offers to sell the Shares were made by any person to the Consultant
while the Consultant was in the United States;
j. the Shares are not being acquired directly or indirectly, for the account
or benefit of a U.S. Person or a person in the United States and the
Consultant does not have any agreement or understanding (either written or
oral) with any U.S. Person respecting:
i. the transfer or assignment of any rights or interest in any of the
Shares,
ii the division of profits, losses, fees, commissions, or any financial
stake in connection with this subscription, or
iii. the voting of the common shares;
k. the Consultant and the Company agree that the Company may not permit the
transfer of the Shares unless such transfer is made in accordance with
Regulation S under the 1933 Act;
l. the Consultant acknowledges that the Shares have not been registered under
the United States Securities Act of 1933 (the "1933 Act"), and may not be
offered or sold in the United States, and the Consultant undertakes and
agrees that it will not offer or sell the Shares during the 40-day period
following the date of issue (the "Distribution Compliance Period"). After
such 40-day Distribution Compliance Period, the Consultant
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Page 4
undertakes and agrees to sell such Shares only outside the United States in
a transaction meeting the requirements of Regulation S under the 1933 Act.
The Consultant understands that the Corporation has no obligation or
present intention of filing a registration statement under the 1933 Act in
respect of the Shares;
m. the Consultant agrees not to engage in hedging transactions with regard to
the Shares prior to the expiration of the 40-day Distribution Compliance
Period; and the Consultant acknowledges and agrees with the Corporation
that the Corporation shall refuse to register any transfer of the Shares
not made in accordance with the provisions of Regulation S, pursuant to
registration under the Securities Act, or pursuant to an available
exemption from registration under the 1933 Act; and
n. the Consultant will not sell any Shares issued to it in pursuance of this
Agreement for a minimum period of 3 months following issue.
5.00 Non-circumvention of Consultant
------------------------------------
5.01 In and for valuable consideration, the Company agrees that:
a. the Consultant may introduce the Company (whether written, oral, data, or
otherwise made by the Consultant) to opportunities (the "Opportunities"),
including, without limitation, existing or potential investors, lenders,
borrowers, trusts, corporations, and unincorporated business entities;
b. the identity of the Opportunities, and all other information concerning the
Opportunities (including, without limitation, all mailing information,
telephone and facsimile numbers, email addresses, and other contact
information) introduced hereunder are the property of the Consultant and
shall be treated as confidential information;
c. it shall not use such information except in the context of joint venture
with the Consultant, and never without the Consultant's prior written
approval;
d. neither it, nor its employees, affiliates and assigns shall enter into, or
otherwise arrange (either for itself or any other person of entity) any
business relations, contact any person of an Opportunity, either directly
or indirectly, or any of its affiliates, or accept any compensation or
advantage in relation to an Opportunity except as directed through the
Consultant, without the prior written approval of the Consultant.
The Consultant is relying on the Company to assent to these terms and the intent
of the Company to be bound by the terms as evidenced by the Company's execution
of this Agreement. Without the assent of the Company to these terms, the
Consultant would not introduce any Opportunity or disclose any confidential
information in pursuance of this Agreement.
6.00 Ownership of Technology; Confidentiality
---------------------------------------------
6.01 The Consultant recognizes and acknowledges that during the course of his
engagement, he will have access to certain information not generally known to
the public, relating to the products, sales or business of the Company which may
include, without limitation, software, literature, data, programs, customer
contact lists, sources of supply, prospects or projections, manufacturing
techniques, processes, formulas, research or experimental work, work in process,
trade secrets or any other proprietary or confidential matter (collectively, the
"Confidential Information"). The Consultant recognizes and acknowledges that
this Confidential Information constitutes a valuable, special and unique asset
of the Company, access to and knowledge of which are essential to the
performance of the Consultant's duties. The Consultant acknowledges and agrees
that all such Confidential Information, including without limitation that which
the Consultant conceives or develops, either alone or with others, at any time
during his engagement by the Company, is and shall remain the exclusive property
of the Company. The Consultant further recognizes, acknowledges and agrees that,
to enable the Company to perform services for its customers or its clients, such
customers or clients may furnish to the Company or the Consultant Confidential
Information concerning their business affairs, property, methods of operation or
other data, that the goodwill afforded to the Company depends on the Company and
its employees preserving the confidentiality of such information, and that such
information shall be treated as Confidential Information of the Company for all
purposes under this Agreement.
6.02 The Consultant agrees that, except as directed by the Company, the
Consultant will not at any time, whether during or after his engagement with the
Company, use or disclose to any person for any purpose other than for the
benefit of the Company any Confidential Information, or permit any person to
use, examine and/or make copies of
Consulting Agreement
Page 5
any documents, files, data or other information sources which contain or are
derived from Confidential Information, whether prepared by the Consultant or
otherwise coming into the Company's possession or control without the prior
written permission of the Company.
6.03 The Consultant agrees that upon request by the Company and in any event
upon termination of engagement, the Consultant shall turn over to the Company
(or provide proof of destruction of) all Confidential Information in the
Consultant's possession or under his control which was created pursuant to, is
connected with or derived from the Consultant's services to the Company, or
which is related in any manner to the Company's business activities or research
and development efforts, whether or not such materials are in the Consultant's
possession as of the date of this Agreement.
7.00 Saving Provision
---------------------
7.01 The Company and the Consultant agree and stipulate that the agreements and
covenants contained in the preceding sections 5.00 and 6.00, including the scope
of the restricted activities described therein and the duration and geographic
extent of such restrictions, are fair and reasonably necessary for the
protection of the parties and the information described, goodwill and other
protectable interests, in light of all of the facts and circumstances of the
relationship between the Consultant and the Company. In the event a court of
competent jurisdiction should decline to enforce any provision of the preceding
paragraphs, such paragraphs shall be deemed to be modified to restrict them to
the maximum extent, in both time and geography, which the court shall find
enforceable.
8.00 Injunctive Relief
----------------------
8.01 Each party acknowledges that a breach or threatened breach of any of the
covenants or other agreements contained herein would give rise to irreparable
injury to the party relying on such covenant or other agreement which injury
would be inadequately compensable in money damages. Accordingly, such party or
where appropriate, a client of such party, may seek and obtain an injunctive
relief from the breach or threatened breach of any provision, requirement or
covenant of this Agreement, in addition to and not in limitation of any other
legal remedies which may be available.
8.02 The parties acknowledge and agree that the covenants contained herein are
necessary for the protection of the parties' respective legitimate business
interests and are reasonable in scope and content.
9.00 General
------------
9.01 This Agreement and all matters arising hereunder will be governed by and
construed in accordance with the laws of the State of Washington, and the laws
of the United States applicable therein, and all disputes and claims, whether
for specific performance, injunction, declaration or otherwise howsoever both at
law and in equity, arising out of or in any way connected with this Agreement
will be referred to the courts of the State of Washington exclusively, and, by
execution and delivery of this Agreement, each party hereby irrevocably submits
and attorns to such jurisdiction.
9.02 In the event it becomes necessary to enforce this Agreement through legal
action, whether or not a suit is actually commenced, the party which obtains
substantial success in a legal action shall be entitled to his or actual
reasonable solicitor's fees and disbursements.
9.03 Any reference in this Agreement in the masculine gender shall include the
feminine and neuter genders, and vice versa, as appropriate. Any reference in
this Agreement in the singular shall mean the plural and vice versa, as
appropriate.
9.04 There is no verbal or other agreement that may modify or affect this
Agreement.
9.05 All dollars expressed in this Agreement are United States dollars.
9.06 This Agreement shall be considered and construed as a single instrument and
the failure to perform any of the terms and conditions in this Agreement shall
constitute a violation or breach of the entire instrument or Agreement and shall
constitute the basis for cancellation or termination.
9.07 The parties hereto agree to do or cause to be done all acts or things
necessary to implement and carry into effect the provisions and intent of this
Agreement.
Consulting Agreement
Page 6
9.08 All notices, requests, demands and other communications which are required
to be or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered in person or transmitted by e-mail
or other telecommunication facility or on receipt after dispatch by certified or
registered first class mail, postage prepaid to the party to whom the same is so
given or made to its address noted on the first page.
9.09 This Agreement, including all Schedules attached hereto, constitutes the
entire agreement and supersedes all prior agreements and understandings, oral
and written, between the parties hereto with respect to the subject matter
hereof and may not be amended, modified or terminated unless in a written
instrument executed by the party or parties sought to be bound.
9.10 This Agreement may be executed in any number of counterparts, each of which
when executed, shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument and a facsimile copy of this
Agreement executed by a party hereto in counterpart or otherwise will be deemed
to be a valid and binding Agreement and accepted as an original of the Agreement
until such time as each of the parties has an originally executed Agreement in
its possession.
9.11 Nothing herein shall be construed as creating a relationship of
employer-employee, partners, joint ventures or other such or similar
relationship between the parties hereto.
9.12 The Company acknowledges and agrees that a great deal of time, cooperation,
diligence and disclosure is necessary in order for the Consultant to perform its
duties as contemplated herein. The Company acknowledges and agrees that no
representation or warranty concerning the successful outcome of any proposal or
recommendation is or can be made. The Company acknowledges and understands that
this is especially true when approval of any governmental or regulatory
authority or agency is needed in order for the Company to effect a proposed
course of business which includes the possible intervention and institution by
any governmental or regulatory authority or agency of any proceedings into the
activities of the Company or its principals.
All statements of the Consultant concerning any and all matters contemplated
herein are statements of opinion only. All statements released to the public
will require the approval of the Company. The Company shall supply the
Consultant with copies of any statements transmitted directly to public by the
Company. The Company shall provide full cooperation, and turnaround of requested
approvals or required copies.
9.13 The Company acknowledges and agrees that no representations or warranty has
been made by the Consultant, associates, affiliates or any other person as to
the successful outcome of any media, financial plan, private or public financing
or other business plans put forth by the Consultant, its affiliates or
associates. The Company further acknowledges and agrees that the Consultant, its
affiliates and/or associates have not, and will not act or be considered to act
as a finder, underwriter, broker, dealer or promoter of any of the Company's
securities, either in private or public transactions. The Company represents and
warrants that all payments and authorizations under this Agreement constitute
compensation for services performed or to be performed and do not constitute an
offer, payment, promise or authorization for payment to the Consultant, or its
affiliates and/or associates to act as a finder, underwriter, broker, dealer or
promoter of any of the Company's securities.
9.14 Upon the occurrence of any event of default, and any time thereafter, the
parties shall have all the rights and remedies provided in this Agreement, and
any other writing executed by the parties, and as may be provided and allowed in
law. Neither party shall be deemed to have waived any of its rights and remedies
unless such waiver is in writing and signed by the parties hereto. A waiver of a
breach of any provision of the Agreement shall not operate or be construed as a
waiver of any subsequent breach. No delay or omission on the part of a party in
exercising any right shall operate as a waiver of that right or any other right.
9.15 Controversy or claim arising out of or relating to this contract, or the
breach thereof, which is not amicably settled between the parties, shall be
settled by American Arbitration Association, with hearings to take place in
Seattle, Washington, and the parties agree that an award may include an award of
all the compensation due as a result of business conducted pursuant to this
Agreement, plus all court costs, attorney fees, and other charges and damages
deemed fair by the Arbitrator(s).
9.16 All arbitration shall be by three arbitrators, one of who shall be
appointed by the Company, one by the Consultant, and the third selected jointly
by the other two arbitrators. The arbitrators shall be familiar with or have
Consulting Agreement
Page 7
expertise in investor public relations situations or whatever services the
transaction in question is dealing with. The determination of the majority of
arbitrators shall be binding upon the parties, and the award may be entered in
any Court of competent jurisdiction. Arbitration shall be held in Seattle,
Washington.
9.17 If any provision of the Agreement is held to be invalid, illegal, or
unenforceable, then only that portion is void and shall not affect or impair, in
any way, the validity, legality, or enforceability of the remainder of this
Agreement.
SCHEDULE A
Services of the Consultant: During the term of the Agreement the Consultant
shall use its best efforts to effect Investor Relations services for the German
market and to further provide the Company with such regular customary financial
consulting advice, management consulting and recruiting as is reasonably
requested by the Company consistent with the foregoing
A. Consultant's duties may include, but will not necessarily be limited to,
providing recommendations concerning the following financial and related
matters:
1. Conducting due diligence of Company business and financial background;
2. Conducting a 2 day visit of the Company's subsidiary in Unterhaching each
week - The Company will provide the Consultant a work place in
Unterhaching;
3. Forming a strategy and thorough time line in order to set certain dates as
milestones by when certain milestones should be achieved;
4. Introducing the Company to institutional investors;
a. The Consultant will be responsible for any payments to other consultants to
achieve better contacts to institutional investors, these payments should
never fall below a minimum of EUR 3000 each month. The Company will reduce
the monthly allowance payment to the Consultant by the amount the actual
payments to other consultants by the Consultants is less than EUR 3000 in
any given month.
5. Introducing the Company to business opportunities;
6. Developing a media plan, including;
a. cooperating in the drafting of news/press releases, and
b. cooperating in the drafting and being responsible for disseminating
information (e.g. Investor Fact Sheet) to interested investors;
7. Implementing an internet plan.
a. researching and monitoring internet boards/discussion groups etc., and
b. hosting Company with analyst reports;
8. Identifying private and institutional shareholders that may be legally
contacted;
9. Disseminating information about the Company to the investment community;
10. Organizing a Telephone Service, including:
a. a dedicated phone and fax line,
b. answering of phone calls, faxes and mailings on Company's behalf,
c. building a data-base of all persons and institutions inquiring
regarding the company, and
d. sending out information brochures/mailings upon request (w/o packing
and postage);
11. Rendering advice and assistance in connection with the preparation of
annual and interim reports and press releases;
12. Preparing trade fair promotion; and
13. Introducing clients, customers or other business opportunities with a view
to generating sales of goods or services by the Company.
B. The Consultant will be pleased to perform additional or other services at
Company's request, however, unless otherwise instructed, Consultant is not
being retained to consult Company with any other matters.
