Exhibit 6.10
FORM OF
CONFIDENTIALITY AGREEMENT
To: iQ Power Technology Inc. ("iQ Canada") ("iQ")
Dear Sirs:
Re: Confidential Information
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WHEREAS:
A. The Undersigned is privy to the Confidential Information (as defined herein)
and has knowledge about the Confidential Information;
B. The Undersigned has acquired shares of iQ Canada (the "Shares") pursuant to a
share exchange agreement dated August 25, 1998 (the "Share Exchange Agreement")
between the Undersigned, iQ Canada, iQ Battery Research and Development GmbH
("iQ Germany") (collectively, iQ Canada and iQ Germany are defined herein as
"iQ") and other shareholders of iQ Germany pursuant to which iQ Canada obtained
ownership of the Confidential Information; and
C. The Undersigned has agreed with iQ Canada to enter into an agreement to
protect the confidentiality of the Confidential Information;
NOW THEREFORE in consideration of the Shares and the payment of $1 by iQ Canada
to the Undersigned, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
1.00 COVENANT NOT TO COMPETE
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1.01 For the purpose of this agreement, "iQ's Business" shall mean the design,
development, manufacture, distribution and marketing of batteries and related
technologies and products in connection with the transportation industry.
1.02 In consideration for the Shares issued to him under the Share Exchange
Agreement, the Undersigned agrees that he will not directly or indirectly
compete with iQ for a period of five (5) years from the date hereof. The said
covenant not to compete shall include all geographical areas in which iQ is
actively marketing or developing products or operates directly or indirectly
through a subsidiary or associated company having common control or ownership
during the term of this Agreement and shall prohibit the following activities:
a. the design, development, manufacture, production, sale, marketing,
solicitation or acceptance of orders with regard to any product, concept,
or business line which is directly competitive with any aspect of iQ's
Business as conducted as of the termination date, whether or not using any
confidential information; and
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b. having anywhere in the world where iQ is actively marketing products or
services during the term of this agreement, any business dealings or
contacts except those which demonstrably do not relate to or compete with
the business or interest of iQ; and
c. being an employee, employer, officer, director, partner, consultant,
trustee or shareholder of more than five percent of the outstanding common
stock of any person or entity that does any of the activities referred to
in the preceding paragraphs (a) and (b).
The Undersigned may, on a case-by-case basis, provide iQ with a written proposal
for an Invention which the Undersigned desires to develop and potentially
commercialize in contravention of this Section. In each instance, upon receiving
the Undersigned's written proposal, iQ shall have no more than 180 days to
evaluate and decide whether it desires to grant or deny the Undersigned an
exception to the non-compete contained herein. Any failure by iQ to respond in
writing to the Undersigned's proposal within such 180-day period shall be deemed
to be a consent to allow the Undersigned to proceed to develop and/or
commercialize the Invention described in such proposal without the involvement
of iQ. Otherwise, iQ shall indicate in writing to the Undersigned within such
180-day period whether it shall consent to such proposal, such consent not to be
unreasonably withheld. Should iQ withhold its consent, it may elect at its sole
discretion to enter into negotiations with the Undersigned with respect to the
development and/or potential commercialization of the subject Invention. Such
negotiations shall be in good faith but are not subject to being completed
during the 180-day evaluation period. Any failure by the parties to complete
such good faith negotiations shall be deemed a withholding of iQ's consent
hereunder. The Undersigned shall submit a copy of all proposals hereunder to a
patent attorney designated by iQ.
2.00 OWNERSHIP OF TECHNOLOGY; CONFIDENTIALITY
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2.01 Confidential Information
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The Undersigned recognizes and acknowledges that prior to or during the term of
this agreement, he might have or have had access to certain information not
generally known to the public, relating to the products, sales or business of iQ
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 Undersigned recognizes and
acknowledges that this Confidential Information constitutes a valuable, special
and unique asset of iQ. The Undersigned acknowledges and agrees that all such
Confidential Information is and shall remain the exclusive property of iQ. The
Undersigned further recognizes, acknowledges and agrees that, to enable iQ to
perform services for its customers or its clients, such customers or clients may
furnish or have furnished to iQ Confidential Information concerning their
business affairs, property, methods of operation or other data, that the
goodwill afforded to iQ depends on the iQ and its employees preserving the
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confidentiality of such information, and that such information shall be treated
as Confidential Information of iQ for all purposes under this Agreement.
2.02 Non-Disclosure
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The Undersigned agrees that, except with the prior consent of iQ, the
Undersigned will not at any time during the term of this agreement, use or
disclose to any person for any purpose any Confidential Information, or permit
any person to use, examine and/or make copies of any documents, files, data or
other information sources which contain or are derived from Confidential
Information, whether prepared by the Undersigned or otherwise coming into the
Undersigned's possession or control without the prior written permission of iQ.
The Undersigned's obligations under subsections 2.01 and 2.02 are indefinite in
term and shall survive the termination of this Agreement.
2.03 Work Product and Copyrights
---------------------------------
The Undersigned agrees that all right, title and interest in and to the
materials resulting from past, current or future work performed for iQ and all
copies thereof, including works in progress, in whatever media, (the "Work"),
will be and remain in iQ upon their creation. The Undersigned will ▇▇▇▇ all Work
with iQ's copyright or other proprietary notice as directed by iQ. The
Undersigned further agrees:
a. To the extent that any portion of the Work constitutes a work protectable
under the copyright laws of the United States, Canada or the Federal
Republic of Germany (the "Copyright Law"), that all such Work will be
considered a "work made for hire" as such term is used and defined in the
Copyright Law and that iQ will be considered the "author" of such portion
of the Work and the sole and exclusive owner throughout the world of
copyright therein; and
b. If any portion of the Work does not qualify as a "work made for hire" as
such term is used and defined in the Copyright Law, that the Undersigned
hereby assigns and agrees to assign to iQ, without further consideration,
all right, title and interest in and to such Work or in any such portion
thereof and any copyright therein and further agrees to execute and deliver
to iQ, upon request, appropriate assignments of such Work and copyright
therein and such other documents and instruments as iQ may request to fully
and completely assign such Work and copyright therein to iQ, its successors
or nominees, and that the Undersigned hereby appoints iQ as
attorney-in-fact to execute and deliver any such documents on the
Undersigned's behalf in the event the Undersigned should fail or refuse to
do so within a reasonable period following iQ's request.
2.04 Inventions and Patents
----------------------------
For purposes of this Agreement, "Inventions" includes, without limitation,
information, inventions, contributions, improvements, ideas,discoveries, or
works, whether patentable or not, and whether or not conceived or made during
work hours. The Undersigned agrees that all Inventions conceived or made by the
Undersigned belong to iQ, provided they grow out of the Undersigned's work with
iQ or are related in some manner to iQ's Business, including, without
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limitation, research and product development, and projected business of iQ or
its affiliated companies. Accordingly, the Undersigned will:
a. Make adequate written records of such Inventions, which records will be
iQ's property;
b. Assign to iQ, at its request, any rights the Undersigned may have to such
Inventions for the Federal Republic of Germany, the U.S., Canada, and all
other countries;
c. Waive and agree not to assert any moral rights the Undersigned may have or
acquire in any Inventions and agree to provide written waivers from time to
time as requested by iQ; and
d. Assist iQ (at iQ's expense) in obtaining and maintaining patents or
copyright registrations with respect to such Inventions.
The Undersigned understands and agrees that iQ or its designee will determine,
in its sole and absolute discretion, whether an application for patent will be
filed on any Invention that is the exclusive property of iQ, as set forth above,
and whether such an application will be abandoned prior to issuance of a patent.
The Undersigned further agrees that the Undersigned will promptly disclose in
writing to iQ during the term of this agreement and for one (1) year thereafter,
all Inventions whether developed during the term of this agreement or thereafter
(whether or not iQ has rights in such Inventions) so that the Undersigned's
rights and iQ's rights in such Inventions can be determined. The Undersigned
represents and warrants that the Undersigned has no Inventions, software,
writings or other works of authorship useful to iQ in the normal course of iQ's
Business, which were conceived, made or written prior to the date of this
Agreement and which are excluded from the operation of this Agreement.
2.05 Possession
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The Undersigned agrees that upon request by iQ, the Undersigned shall turn over
to iQ all Confidential Information in the Undersigned's possession or under his
control, or which is related in any manner to the iQ's Business activities or
research and development efforts, whether or not such materials are in the
Undersigned's possession as of the date of this Agreement.
3.00 SAVING PROVISION
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3.01 iQ and the Undersigned agree and stipulate that the agreements and
covenants contained in the preceding Sections 1.00 and 2.00, 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 Confidential Information, goodwill and other protectable
interests, in light of all of the facts and circumstances of the relationship
between the Undersigned and iQ. In the event a court of competent jurisdiction
should decline to enforce any provision of the preceding paragraphs, such
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paragraphs shall be deemed to be modified to restrict the Undersigned's
competition with the iQ to the maximum extent, in both time and geography, which
the court shall find enforceable.
4.00 INJUNCTIVE RELIEF
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4.01 The Undersigned acknowledges that disclosure of any Confidential
Information or breach or threatened breach of any of the non-competition and
non-disclosure covenants or other agreements contained herein would give rise to
irreparable injury to iQ or clients of iQ which injury would be inadequately
compensable in money damages. Accordingly, iQ or where appropriate, a client of
iQ, 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. The
Undersigned further acknowledges, agrees and stipulates that the Undersigned's
experience and capabilities are such that the Undersigned can obtain employment
in business activities which are of a different and non-competing nature with
the business activities of iQ and that the enforcement of a remedy hereunder by
way of injunction shall not prevent the Undersigned from earning a reasonable
livelihood. The Undersigned further acknowledges and agrees that the covenants
contained herein are necessary for the protection of iQ's legitimate business
interests and are reasonable in scope and content.
5.00 GENERAL
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5.01 This Agreement and all matters arising hereunder will be governed by and
construed in accordance with the laws of the Province of British Columbia, and
the laws of Canada 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 Province of British Columbia exclusively, and
to the Supreme Court of Canada if need be, and, by execution and delivery of
this Agreement, each party hereby irrevocably submits and attorns to such
jurisdiction.
5.02 The Undersigned authorizes iQ to reveal the terms of this Agreement if it
is required so under any governmental laws applicable to iQ.
5.03 The Undersigned represents and warrants to iQ that the Undersigned is free
to enter into this Agreement and has no commitment, arrangement or understanding
to or with any party that restrains or is in conflict with the Undersigned's
performance of the covenants, services and duties provided for in this
Agreement.
5.04 During the term of this Agreement, this Agreement and the mutual duties
between the Undersigned and iQ under this Agreement may not be assigned by
either party without the written consent of the other.
5.05 This Agreement is binding upon the Undersigned and permitted assigns and on
iQ, its successors and assigns.
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5.06 Any notice required or permitted to be given hereunder are sufficient if in
writing and delivered by hand, by facsimile or by registered or certified mail,
to a party.
5.07 If any provision of this Agreement or compliance by any of the parties with
any provision of this Agreement constitutes a violation of any law, or is or
becomes unenforceable or void, then such provision, to the extent only that it
is in violation of law, unenforceable or void, shall be deemed modified to the
extent necessary so that it is no longer in violation of law, unenforceable or
void, and such provision will be enforced to the fullest extent permitted by
law. If such modification is not possible, said provision, to the extent that it
is in violation of law, unenforceable or void, shall be deemed severable from
the remaining provisions of this Agreement, which provisions will remain binding
on the parties.
5.08 No failure on the part of either party to exercise, and no delay in
exercising, any right or remedy hereunder will operate as a waiver thereof; nor
will any single or partial waiver of a breach of any provision of this Agreement
operate or be construe as a waiver of any subsequent breach; nor will any single
or partial exercise of any right or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy granted
hereby or by law.
5.09 This instrument contains the entire agreement of the parties hereto and
supersedes all prior agreements, representations, warranties, statements,
promises, information, arrangements and understandings, whether oral or written,
express or implied, with respect to the subject matter hereof. This Agreement
may be changed only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
5.10 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 actual reasonable
solicitor's fees and disbursements.
5.11 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.
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5.12 All references to money in this Agreement shall be to money in lawful money
of the United States of America.
Dated effective August 25, 1998.
Yours truly,
Undersigned:
____________________________________
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The above-noted terms and conditions are hereto agreed to by iQ effective August
25, 1998.
iQ POWER TECHNOLOGY INC.
Per: ____________________________________