EXHIBIT 10.1
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated
April__________________15th,____ 2004, is made by and between ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("Consultant"), whose address is ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Power Technology, Inc. ("Company"), having its
principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
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, Consultant has extensive background in the area of business
consulting, development, outside accounting and legal personnel, identification,
and hiring, and management advisory services; 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 more specifically set forth in Exhibits A and B
attached hereto. 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. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will primarily provide the
services in conjunction with technical professional who will act only under his
direct supervision. The Consultant shall provide sixteen hours of consulting
monthly. There shall be no credit or carrying over of unused hours from month to
month.
2. CONSIDERATION
o Company agrees to pay Consultant, as its fee and as
consideration for services provided $5,000 per month paid
quarterly in advance. These payments will be made in cash for
a period of 12 months, or at the option of consultant, paid in
shares of the Company's common stock if publicly traded at the
lower of $.01 per share or 1/2 the closing price on the date
immediately prior to Consultant's election to be paid in
stock.
o The Company grants Consultant warrants for the right to
purchase up to 5,000,000 shares of the common stock of the
Company at $.01 per share upon demand for two years from the
date of this Agreement.
o Consultant will not own more than 4.9% of the Company at any
time, unless mutually agreed by Consultant and Company. The
Company shall not take any steps that would cause Consultant
to ever own more than 4.9% of common shares outstanding
without Consultant's specific prior written permission.
All the shares and underlying the options or warrants rights under this
Agreement will be registered upon demand by Consultant on a Form S-8
Registration Statement or such other form as appropriate to the requirements of
the exchange under which the Company's stock is trading and filed with and
declared effective (if required) by the U.S. Securities and Exchange Commission.
The underlying shares, upon issuance, shall be issued in the name of the
Consultant.
3. EXPENSES
Company agrees to reimburse Consultant for all reasonable out of pocket
expenses previously agreed in advance by Company.
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.
5. LATE PAYMENT
Company shall pay to Consultant all fees within 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 respect 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.
(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.
(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 falls 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
Unless Consultant is found to be grossly negligent Consultant shall
have no liability with respect to Consultant's obligations under this Agreement
or otherwise for consequential, exemplary, special, incidental, or punitive
damages even if Consultant has been advised of the possibility of such damages.
IN any event, the liability of Consultant to Company for any reason and upon any
cause of action, regardless of the form in which the legal or equitable action
may be brought, including, without limitation, any action in tort or contract,
shall not exceed 100% of the cash value of the monthly fee paid by Company to
Consultant for the specific service provided that is in question. The value of
any options or warrants granted under this Agreement are specifically excluded
from the cash value paid under the terms of this agreement,
3
8. TERMINATION AND RENEWAL
(a) TERM
This Agreement shall become effective on the date appearing next to the
signatures below and terminate two years thereafter.
(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
Consultant shall have the right to terminate this agreement with 90
days notice during its term. 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.
9. MISCELLANEOUS
(a) INDEPENDENT CONTRACTOR
This Agreement establishes an "independent contractor" relationship
between Consultant and Company.
(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.
4
(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 in full force and effect.
(h) SECTION HEADINGS
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 e h
of the singular,
5
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 b. 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,
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
TO CONSULTANT:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(1) GOVERNING LAW
This Agreement shall be governed by the interpreted in accordance with
the laws of the State of Texas 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 Texas in connection with, any dispute arising
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.
6
(m) CONSENTS
The person signing this Agreement on behalf of each party 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.
IN 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.
/s/ ▇▇▇ ▇ ▇▇▇▇▇
------------------------------------
BY: ▇▇▇ ▇ ▇▇▇▇▇, President
ITS: President
[Consultant]
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
BY: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
7
EXHIBIT A
SERVICES
I. Consultant shall perform the following services pursuant to the terms
of this Agreement:
(A) General management strategic consulting services, including but not
limited:. to:
(1) advising on corporate structure;
(2) advising on marketing; and
(3) Developing strategic alliances.
(4) Implementation of financial systems, structures and
controls
(5) Retaining Internet traffic engineering services to
increase sales and brand identity as shown on the
attached Exhibit B
(6) Retaining of appropriate legal and accounting
personnel for the Company
(B) Consulting on matters of the board of directors of the Company,
including but not limited to:
(1) assisting the board of directors in developing
policies and procedures; and
(2) assisting the board of directors of the Company in
mergers, acquisitions, and other business
combinations.
The above services will be further defined and delineated by the
Company's board of directors from time to time as necessary. However, Consultant
shall not perform any services directly in connection with the offer or sale of
Company securities, financings, or any services in connection with securities or
which directly or indirectly promote or maintain a market for Company's
securities. Any such services must be provided by others under a separate
Agreement with separate compensation.
8
EXHIBIT B
INTERNET TRAFFIC ENGINEERING SERVICES TO
INCREASE SALES AND BRAND IDENTITY
---------------------------------------------------------
SUMMARY: Traffic Engineering increases sales and public awareness of companies
and their web sites. Services combine PROVEN INTERNET SALES TECHNIQUES with
BRANDING IDENTITY, DEVELOPMENT AND CORPORATE SALES COMMUNICATIONS PROGRAMS.
We identify your Internet audience and develop a sales message that they will
respond to. Your message is built into your web site along with structure and
functionality that drives visitors THROUGH THE SITE to take action.
Then we build numerous "e-highways" that drive traffic to your site. This is
accomplished by customizing proven e-commerce sales techniques to work for your
Company.
Applying web search methods that deliver your message and increase web site
traffic increases sales results, Effectiveness is- enhanced with direct
distribution to targeted sources that are interested in what you do. Our
programs generate exposure featuring your Company, your team, your products and
the solutions you provide.
Traffic Engineering builds roads that drive customers to your site. These roads
and the traffic they produce remain in place, benefiting your Company long after
our services are completed.
WEB SITE ENHANCEMENT SERVICES
-----------------------------
1) Perform effectiveness analysis and review of Company sites:
2) Present options to enhance site structure, layout and content in order
to develop an effective web site designed to present the Company,
create action, generate sales and produce increased public awareness
3) Provide and incorporate new pages and content as needed to enhance site
image, functionality and effectiveness. New pages to be developed
include (but are not limited to); Corporate Profile, Growth Plan,
Management and News
CUSTOMER IDENTIFICATION, BRANDING AND
-------------------------------------
SALES MESSAGE PRESENTATION SERVICES
-----------------------------------
1) Identify the Company's potential Internet audience including; new
customers to reach, main sales base, solutions offered, funding
sources, effective sales message, possible Joint Venture avenues
9
2) Develop branding identity, sales messages and strategies to reach
identified Internet audiences
SEARCH ENGINE OPTIMIZATiON SERVICES
-----------------------------------
FOR TOP RANKINGS ON GOOGLE AND YAHOO
------------------------------------
1) Perform market research to determine "Key Words" that customers will
use to find the Company
2) Multiply top key word rankings by inserting specially designed sets of
META tag code into all of the Company's site page
3) Advise on site PAGE structure designed to maximize search engine
placements
4) Submit site pages to Major Search Engines and selected specialty Search
Engines
5) Obtain top Search Engine rankings
6) Maintain top positions by monitoring, adjusting and conducting
re-submission programs
BRAND DEVELOPMENT AND SALES INFORMATION SERVICES
------------------------------------------------
1) Produce Media Coverage Featuring Your Products, Solutions, Management
Team and Corporate Growth Plan
2) Utilize proven media editor and writer contact programs to locate,
communicate and produce free, independent media coverage.
POP UNDER SALES AND BRANDING CAMPAIGN TO
----------------------------------------
REACH 1,000,000 PLUS NEW PROSPECTS
----------------------------------
1) Build attention grabbing gateway pages that lead viewers into the
Company's web sites
2) Conduct "Pop-Under" advertisement program featuring gateway pages
3) Monitor and track results to select optimum gateway page
4) Continue running "Pop Under" advertisement campaign using top gateway
page
5) Conduct advertisement program to reach ▇.▇▇▇.▇▇▇ plus new, unique
visitors and prospective customers
10