EXHIBIT 10.53
AGREEMENT
---------
THIS CONSULTING AGREEMENT ("AGREEMENT") is made effective as of the 1st
day of October, 2001, by and between TSET, INC., a Nevada corporation (the
"COMPANY") and STEVEN G. MARTIN and JOSHUA B. SCHEINFELD, each a resident of the
State of Illinois (collectively "CONSULTANT").
WHEREAS, the Company is a publicly traded company engaged, through its
wholly owned subsidiary, Kronos Air Technologies, Inc., in the business of the
development and commercialization of a new proprietary air movement and
purification technology known as Kronos(TM) (the "BUSINESS");
WHEREAS, Consultant has unique experience, knowledge and skills in
order to enhance the operation of the Business;
WHEREAS, the Company desires to obtain the benefits of Consultant's
experience and know-how in connection with the operation of the Business, and
accordingly, the Company has offered to engage Consultant to render consulting
and advisory services to the Company on the terms and conditions hereinafter set
forth;
WHEREAS, Consultant desires to accept such engagement upon such terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Consultant agree
as follows:
1. CONSULTING TERMS AND DUTIES. Upon the terms and conditions set forth
herein, the Company hereby retains and engages Consultant as an independent
contractor, and Consultant hereby accepts such retention and engagement as an
independent contractor, and agrees to render such advisory and consulting
services to the Company with respect to matters pertaining to the Business as
shall be specified from time to time by the Company's President and/or such
other officer(s) as the Company's Board of Directors shall designate to have
principal responsibility for the operation of the Business.
2. TERM. The term of this Agreement shall be for 15 months from the
date hereof (the "TERM").
3. SERVICES AND COMPENSATION.
-------------------------
3.1. SERVICES. Consultant shall (i) advise the Company with respect
to operations, executive employment issues, employee staffing, strategy, capital
structure and other matters pertaining to the Business as shall be specified
from time to time by the Company's President and/or such other officer(s) as the
1
Company's Board of Directors shall designate to have principal responsibility
for the operation of the Business and (ii) assist in reviewing and negotiating
material transactions.
3.2. CONSULTING FEES. In consideration for the availability of
Consultant during the term hereunder and the services rendered pursuant to this
Agreement, promptly after the execution of this agreement, the Company will
issue to Consultant as payment 360,000 fully paid and non-assessable shares of
Common Stock of the Company (the "SHARES").3.2.
3.3. REIMBURSEMENT OF EXPENSES. The Company shall reimburse
Consultant for those reasonable and necessary out-of-pocket expenses which have
been approved by the President of the Company prior to their incurrence and
which have been incurred by Consultant in connection with the rendering of
services hereunder. Any reimbursement to be made by the Company pursuant to this
Section shall be made following submission to the Company by Consultant of
reasonable documentation of the expenses incurred.
3.4. REGISTRATION. The Shares issued hereunder shall be promptly
registered under an S-8 Registration Statement. In the event the Shares cannot
be included in an S-8 Registration Statement then Consultant shall be granted
customary piggyback registration rights with respect to the Shares.
4. REPRESENTATIONS, COVENANTS AND WARRANTIES OF CONSULTANT.
-------------------------------------------------------
4.1. AUTHORITY RELATIVE TO THIS AGREEMENT. Consultant has full right
and capacity to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by Consultant, the performance by
Consultant of its obligations hereunder and the consummation by Consultant of
the transactions contemplated by this Agreement have been duly authorized by all
necessary action on the part of Consultant as are necessary to authorize this
Agreement or to consummate the transactions contemplated by this Agreement. This
Agreement has been duly and validly executed and delivered by Consultant and
constitutes the legal, valid and binding obligations of Consultant, enforceable
against Consultant in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws of general application affecting the enforcement of creditors'
rights generally.
4.2. EXECUTION; NO INCONSISTENT AGREEMENTS, ETC. The execution and
delivery of this Agreement by Consultant does not, and the consummation of the
transactions contemplated hereby will not, constitute a breach, violation or a
default under any of the terms, conditions or provisions of (or an act or
omission that would give rise to any right of termination, cancellation or
acceleration under) any material note, bond, mortgage, lease, indenture,
agreement or obligation to which Consultant and/or any affiliate of Consultant
is a party or pursuant to which Consultant and/or any affiliate of Consultant
otherwise receives benefits.
2
5. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE COMPANY.
--------------------------------------------------------
5.1. ORGANIZATION. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of Nevada. The
Company is in good standing in the State of Nevada.
5.2. AUTHORITY RELATIVE TO THIS AGREEMENT. The Company has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
the Company, the performance by the Company of its obligations hereunder and the
consummation by the Company of the transactions contemplated by this Agreement
have been duly authorized by all necessary action on the part of the Company as
are necessary to authorize this Agreement or to consummate the transactions
contemplated by this Agreement. This Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or other similar laws of general
application affecting the enforcement of creditors' rights generally.
5.3. ISSUANCE OF SHARES. The Shares will be, as of the date hereof,
duly and validly authorized and issued, fully paid and non-assessable, and will
be issued to Consultant free of all encumbrances, claims and liens whatsoever.
6 NONDISCLOSURE.
-------------
6.1. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
-----------------------------------------
(a) Consultant recognizes and acknowledges that certain
knowledge and information which it has acquired or developed relating to the
Business, including its pricing and quotation techniques, costs, developments,
activities or products of the Business or the business affairs of any Person
doing business with the Company, such as, but not limited to, customer and
vendor lists, cost and selling and service prices for specific customers,
customers' needs and requirements, and all inventions, ideas, know how,
discoveries, creations, developments, improvements, designs, patents and
processes so acquired (hereinafter collectively referred to as "CONFIDENTIAL
INFORMATION") are the valuable property of the Company and shall be held by
Consultant in confidence and trust for the sole benefit of the Company.
(b) Consultant agrees not to use, disclose, divulge or publish,
without the prior written consent of the Company, at any time during the term
hereof or thereafter for a period of not less than five (5) years following
completion of the Term, any Confidential Information. Provided, however, that
Confidential Information shall not include (a) information which is known to the
public or is generally known within the industry of businesses comparable to the
Business (other than as a result of Consultant's violation of this covenant) or
(b) information which Consultant is required to disclose pursuant to law or
order of a court having jurisdiction over Consultant (provided that Consultant
offers the Company an opportunity to obtain an appropriate protective order or
3
administrative relief against disclosure of such Confidential Information).
6.2. PROPERTY OF THE BUSINESS. All memoranda, notes, lists,
records and other documents or papers (and all copies thereof), including such
items stored in computer memories, or microfiche or by any other means, made or
compiled by or on behalf of Consultant in connection with the rendering by
Consultant of consulting services hereunder, or made available by the Company to
Consultant relating to the Business of the Company, are and shall be the
Company's property and shall be delivered to the Company promptly on the request
of the Company.
6.3. NO HIRING OR SOLICITATION OF EMPLOYEES. Consultant agrees
that during the Term of this Agreement and for a five (5) year period thereafter
Consultant shall not permit any of its affiliates to:
(a) hire any Specified Employee (as defined below), or
(b) directly or indirectly, personally or through others, encourage,
induce, attempt to induce, solicit or attempt to solicit (on Consultant's own
behalf or on behalf of any other Person) any Specified Employee or any other
employee of the Company to leave his or her employment with the Company.
(For purposes of this Section 6.3, "SPECIFIED EMPLOYEE" shall mean any
individual who: (i) is or was an employee of the company on the date of this
Agreement or during the 180-day period ending on the date of this Agreement, and
(ii) remains or becomes an employee of the Company on the date of hits Agreement
or at any time during the Term of this Agreement and for a five (5) year period
thereafter.
6.4. RIGHTS AND REMEDIES UPON BREACH. If Consultant breaches,
or threatens to commit a breach of, any of the provisions of Section 6.1, 6.2 or
6.3 (the "NONDISCLOSURE COVENANTS"), the Company shall have the right and remedy
to have the Nondisclosure Covenants specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or threatened breach of
the Nondisclosure Covenants would cause irreparable injury to the Company and
that money damages would not provide an adequate remedy to the Company.
Accordingly, Consultant agrees that if it breaches or threatens to breach any of
the provisions of the Nondisclosure Covenants it will consent to the issuance of
a temporary and/or permanent injunction by any court of competent jurisdiction
(without the posting of a bond) enjoining Consultant from such breach of the
Nondisclosure Covenants. The Company shall also have any other rights and
remedies available to it under law or in equity.
6.5. SEVERABILITY OF COVENANTS. Consultant acknowledges and
agrees that the Nondisclosure Covenants are reasonable and valid in scope and in
all other respects. If any court determines that any of the Nondisclosure
Covenants, or any part thereof, is invalid or unenforceable, the remainder of
the Nondisclosure Covenants shall not thereby be affected and shall be given
full effect, without regard to the invalid portions.
4
7. MISCELLANEOUS.
-------------
(a) NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission (with a copy also sent by another means herein
provided for), sent by certified, registered or express mail, postage prepaid or
sent by reputable air courier. Any such notice shall be deemed given when so
delivered personally or sent by facsimile transmission (with issuance by the
transmitting machine of a confirmation of successful transmission) or, if
mailed, five days after the date of deposit in the United States mail or, if
sent by courier, two days after the date of deposit with much courier, addressed
as follows:
If to the Company, to: TSET, Inc.
333 South State Street, PMB 111
Lake Oswego, Oregon 97034
Telephone: 978-562-7046
Facsimile: 978-562-9229
Attention: Daniel R. Dwight
If to Consultant, to: Steven G. Martin
222 Merchandise Mart Plaza, Suite 9-112
Chicago, Illinois 60654
Telephone: 312-644-6644
Facsimile: 312-644-6244
Any party may change its address for notice hereunder by notice to the
other party hereto given in accordance herewith.
(b) ASSIGNABILITY. This Agreement shall not be assignable by
either party hereto without the prior written consent of the other party, and
any such purported assignment shall be void AB INITIO.
(c) GOVERNING LAW. The parties agree that this Agreement shall
be construed and governed in accordance with the internal laws of the State of
Illinois without giving effect to principles of conflicts of laws.
(d) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, executors, administrators, successors and permitted assigns.
(e) COUNTERPARTS. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
(f) ENTIRE AGREEMENT. This Agreement represents the entire
agreement and understanding of the parties hereto with respect to the matters
set forth herein. This Agreement supersedes all prior negotiations, discussions,
correspondence, communications, understandings and agreements between parties,
written or oral, relating to the subject matter of this Agreement. This
5
Agreement may be amended, superseded, cancelled, renewed, or extended and the
terms hereof may be waived, only by a written instrument signed by the parties
hereto or, in the case of a waiver, by the party waiving compliance.
(g) WAIVERS. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof. Nor
shall any waiver on the part of any party of any such right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder.
(h) HEADINGS. The headings in this Agreement are inserted for
convenience only and are not to be considered in the interpretation or
construction of the provisions hereof.
(i) DEFINITIONS OF "PERSON". As used herein, the term "PERSON"
shall mean any individual, corporation, partnership, limited liability company,
firm, joint venture, association, joint-stock company, trust, unincorporated
organization, governmental or regulatory body or any political subdivision
thereof.
6
IN WITNESS WHEREOF, the Company and Consultant have signed this
Agreement as of the day and year written above.
COMPANY:
TSET, INC.
By: /s/ Daniel R. Dwight
---------------------------------
Name: Daniel R. Dwight
Its: Chief Executive Officer
CONSULTANT:
/s/ Steven G. Martin
--------------------------------------
Steven G. Martin
/s/ Joshua B. Scheinfeld
--------------------------------------
Joshua B. Scheinfeld
7