Exhibit 10.31
CONSULTING SERVICES AGREEMENT
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This agreement made and entered into and effective as of the 1st day of
January 2002, by and among ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called "Consultant" and Catalytica
Energy Systems Inc, located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇:
WITNESETH:
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WHEREAS, Catalytica Energy Systems Inc. (collectively referred to herein as
the "Clients", are desirous of retaining Consultant on the terms and conditions,
and for the consideration hereinafter set forth; and
WHEREAS, Consultant is desirous of providing consulting services to the
Clients on such terms and conditions and for such consideration;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties do hereby agree as follows:
(1) Term: This agreement will commence on January 1, 2002 and shall extend
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through December 31, 2002 (the "Term"). The Term of this Agreement may
be extended by the written agreement of the parties.
(2) Position and Services:
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A. When requested by the Clients, Consultant will consult with
senior officers of the Clients regarding the development and
implementation of an integrated strategic business plan and
regarding such other matters concerning the Clients' business and
operations as they may request from time to time during the term
of this Agreement.
The services to be provided by Consultant pursuant to paragraph A
of this Agreement are personal to Consultant and may not be
assigned By Consultant.
(3) Compensation and Benefits:
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A. During the Term of this Agreement, Consultant shall be paid a fee
of Twenty Five Thousand Dollars ($25,000.) to be paid on a
quarterly basis at $6250.00 per quarter (i.e.; March, June,
September, December.
B. Company shall pay Consultant for all reasonable travel and
transportation expenses, actually incurred by Consultant in
performance of services
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requested by the Clients under this Agreement, as authorized and
approved in writing by the Chairman or the President of the
Company.
(4) Confidentiality of Clients' Business: Consultant acknowledges that
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Clients' business is highly competitive and that Clients' books,
records and documents, Clients' technical information concerning their
products, equipment, services, and processes, procurement procedures
and pricing techniques, the names of and other information (such as
credit and financial data) concerning Clients' customers and business
affiliates, all comprise confidential business information and trade
secrets of the Clients which are valuable, special, and unique
proprietary assets of the Clients. Consultant further acknowledges
that protection of Clients' confidential business information and
trade secrets against unauthorized disclosure and use is of critical
importance to the Clients in maintaining their competitive position.
Accordingly, Consultant hereby agrees that consultant will not, at any
time during or after the Term of this Agreement, make any unauthorized
disclosure of any confidential business information or trade secrets
of the Clients, or make any use thereof, except for the benefit of,
and on behalf of, the Clients. However, Consultant's obligation under
this Section 4 shall not extend to information which is or becomes
part of the public domain or is available to the public by publication
or otherwise than through the Consultant, nor to information given
through testimony under oath that may be required by a court of law or
pursuant to law. The provisions of this Section 4 shall survive the
termination of this Agreement.
(5) Conflict of Interest: Consultant agrees to use Consultant's best
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efforts, skill and abilities so long as Consultant's services are
retained hereunder to promote the best interest of the Clients and
their business. As part of the consideration for the compensation to
be paid to Consultant hereunder, and as an additional incentive for
the Clients to enter into this Agreement, the Clients and Consultant
agree to the noncompetitive provisions of this Section (5). During the
Term of this Agreement, Consultant agrees that, unless prior written
approval of the Chairman of Company, or other officer of Company
designated by the Chairman, is obtained, Consultant will not directly
or indirectly for Consultant or for others;
(i) Conduct, advise, counsel, or otherwise assist any competitor,
customer or supplier of the Clients or any affiliate which, in
any manner, would have, or is likely to have, an adverse effect
upon the Clients or any affiliate;
(ii) Consult, advise, counsel, or otherwise assist any Federal or
State regulatory agency on any matter or in a regulatory
proceeding which, in any manner, would have, or is likely to
have, an adverse effect upon the Clients or any affiliate;
Consultant understands that the foregoing restrictions may limit
Consultants ability to engage in a business similar to Clients'
business during the period
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provided for above, but acknowledges that Consultant will receive
sufficiently high remuneration and other benefits from the Clients
hereunder to justify such restriction. The Clients shall be entitled
to enforce the provisions of this Section (5) by resorting to
appropriate legal and equitable action.
(6) Indemnification:
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A. Consultant hereby indemnifies and agrees to protect, defend, and
hold harmless the Clients, their directors, officers, and
employees from and against all claims, suits, demands, damages,
losses, costs and expenses brought by any person firm, or
corporation for (i) injuries to or the death of Consultant, or
employees and agents of the Consultant, or damage to or loss of
property of Consultant, or employees and agents of Consultant
arising from or in connection with Consultant's performance of
services under this Agreement, including the sole or contributory
negligence of the Clients, and (ii) injuries to or the death of
third parties, or damage to or loss of property of third parties
arising from or in accordance with Consultant's gross negligence
or willful misconduct.
B. The Clients hereby indemnify and agree to protect, defend, and
hold harmless Consultant, Consultant's agents and employees from
and against all claims, suits, demands, damages, losses, costs
and expenses brought by any person, firm, or corporation for
injuries to or the death of any employees of the Clients, or
damage to or loss of property of the Clients arising from
Clients' negligence, including the contributory negligence of
Consultant.
(7) Independent Contractor:
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A. The parties hereto agree that the services rendered by Consultant
in the fulfillment of the terms and obligations of this Agreement
shall be as an independent contractor and not as an employee, and
with respect thereto, Consultant is not entitled to the benefits
provided by Clients to their employees including, but not limited
to, group insurance and participation in Client's employee
benefit and pension plans.
B. Consultant shall be responsible for payment of all taxes
including Federal, State, and local taxes arising out of
Consultant's activities in accordance with this contract,
including by way of illustration but not limitation, Federal and
State income tax, Social Security tax, Unemployment Insurance
taxes, and any other taxes or business license fees as required.
(8) Notices: Except as otherwise provided in this Agreement, all notices
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required or permitted by the terms hereof shall be sent by Certified
Mail to following address if sent to the Clients, then to:
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Catalytica Energy Systems, Inc.
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▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
and if sent to Consultant, to Consultant's address set forth at the
beginning of this Agreement.
(9) Entire Agreement; Modifications: This Agreement constitutes the entire
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agreement of the parties with regard to the subject matter hereof,
supercedes any and all prior agreements with respect to Consultant's
engagement by Company and contains all of the covenants, promises,
representations, warranties and agreements between the parties with
respect to Consultant's engagement hereunder. Each party to this
Agreement acknowledges that no representation, inducement, promise or
agreement, oral or written, has been made by any party, which is not
embodied herein, and that no agreement, statement, or promise relating
the engagement of Consultant hereunder, which is not contained in this
Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing and signed by
each of the parties.
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. Kitchen
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Name: ▇▇▇▇▇ ▇. Kitchen
Title: President & CEO
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