EXHIBIT 10.10
CONSULTING AGREEMENT
(DR. JOHN J. MOORE)
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2007 CONSULTING AND ADVISORY AGREEMENT
THIS CONSULTING AGREEMENT ("2007 Agreement"), made effective as of the
29th day of January 2007, is entered into by and between Xsunx,
Inc., a Colorado
corporation
("Company"), and Dr.
John J. Moore, an individual ("Consultant").
The Company and Consultant are sometimes herein referred to individually as a
"party" and collectively as the "parties".
R E C I T A L S
WHEREAS, Consultant
has developed an expertise in the areas of
metallurgical and material engineering, physical (PVD) and chemical (CVD)
vapor
deposition of thin
films and coatings;
synthesis and processing of advanced
ceramic, intermetallic
and composite materials using plasma and combustion
synthesis techniques;
synthesis, processing and properties of biomaterials; and
powder metallurgy processing of advanced materials, photovoltaics
and electronic
materials, and
thin-film amorphous
silicon structures and other technology
related to amorphous
silicon and related alloys which is of interest to the
Company;
WHEREAS,
Consultant
currently holds
the positions of Trustees'
Professor and Head of Department of Metallurgical and Materials Engineering at
the Colorado School of
Mines in Golden
Colorado ("CSM"),
and Director of
the
interdisciplinary
graduate program in
Materials Science and Director of the
Advanced Coatings and Surface Engineering Laboratory, ACSEL, at CSM. Consultant
is engaged in research
in other related
fields and shall also
continue to be
employed by CSM; and
WHEREAS, the Company
desires to obtain the
services of Consultant and
Consultant desires to provide the Company with consultancy and
advisory services
as contemplated pursuant to the terms and conditions contained
herein; and
WHEREAS,
the undersigned
parties desire to formalize such consultancy
relationship;
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements contained
herein, and other good and valuable
consideration,
the
receipt and
sufficiency of which are hereby acknowledged, the parties to this
Agreement agree as follows:
1.
Definitions
1.1 "XsunX
Field of Use" means the business of developing and
commercializing
semi-transparent and
opaque solar cells and photovoltaic
technologies, solar cell panels, and methods of manufacture.
1.2 "Business
of XsunX" means the business of developing,
manufacturing, and
marketing semi-transparent and opaque solar cells and
photovoltaic technologies, solar cell panels, and methods of
manufacture.
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2. Engagement of
Services. The parties
had previously entered
into a
Consulting and
Advisory Agreement dated March 8, 2005 which the parties
now
whish to terminate and replace with the 2007 Agreement set forth herein. All
compensation
pertaining to the
March 2005
agreement shall to be considered
earned as of the
effective date of this Agreement. In furtherance of the
termination of the previous agreement and replacement
with this 2007
Agreement
the Company hereby
engages Consultant as
an independent
contractor to provide
consulting and advisory services as set forth herein.
All such consulting and
services shall be
performed in accordance with the terms and conditions
contained herein.
Consultant
shall report to the
Chairman of the
Scientific
Advisory Board, or in his absence, the Chief Executive Officer of the Company.
Consultant hereby
accepts such
engagement in
accordance
with such terms
and
conditions.
3. Services of Consultant. Consultant shall provide consultancy and
advisory services as a
member of the XsunX Scientific Advisory Board under the
title of Chairman of the Scientific Advisory Board. Notwithstanding the
foregoing title
Consultant shall remain an independent contractor. Consultant
shall provide such services incident thereto as may be necessary
from time to
time which services
shall include, without
limitation,
providing the
Company
with his best efforts
in chairing the advisory board and providing technical
expertise in
advising the Company in the areas of
research & development,
process development,
planning, third party technical and resource requirements,
analysis of research and development data, and the management of
intellectual
assets pertaining
to the Business of XsunX and the XsunX Field of Use.
Consultant is not a
corporate officer or director of XsunX and will not be
represented as such.
3.1. Consultant
shall provide such
other related
services as may be
requested of
Consultant
by the Company and as
are not inconsistent
with the
provisions of this
Agreement. Consultant
agrees to devote
Consultant's
best
efforts, skills, and
technical expertise to
the business of the Company, to do
Consultant's utmost to
further enhance and develop the interests and welfare of
the Company, and to
devote necessary time
and attention to the business of the
Company, while recognizing Consultant's duties to CSM.
3.2. Consultant
shall truthfully and accurately
make, maintain and
preserve all
records and reports that the Company may, from time to time,
request or require, and shall fully account for all money,
records, equipment,
materials or other
property belonging to
the Company of which
Consultant may
have custody and shall pay over and deliver same promptly whenever and however
Consultant may be directed to do so.
3.3. Consultant
shall make available to the Company any and all
information of which
Consultant has knowledge that is relevant to the Company's
business, but is
not otherwise prohibited from disclosing, and make all
suggestions and recommendations which Consultant believes will be
of benefit to
the Company.
3.4. Consultant
shall, at his own cost, prepare for and attend such
meetings as may be reasonably requested by the Company, provided,
however, that
the Company shall pay for the reasonable travel and lodging costs
incurred by
Consultant in regard to the foregoing. In addition to incidental
communication
of data, questions,
and progress
updates provided to
Consultant via email for
comment by Consultant,
the Company may request at least one teleconference
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review meeting
per month and one
meeting requiring
attendance
per calendar
quarter for the purpose of planning, analysis, and collaborative
discussion of
the development matters referenced hereinabove, and the conformance or
variance
of the foregoing to or with the Business of XsunX.
4. Duty to CSM. The
parties recognize
that Consultant is and shall
remain employed by CSM, and that as an employee of CSM,
Consultant shall
devote
time and effort to the
business of CSM.
Notwithstanding the
same, Consultant
shall conform
Consultants' conduct
to the fiduciary duties of confidentiality
and loyalty owed to the Company. In that regard, Consultant shall inform the
Company at the earliest opportunity at such time as Consultant
may perceive a
potential conflict of
interest with regard
to Consultant's
duties to CSM and
Consultant's duties to
the Company.
Consultant shall not make any unauthorized
disclosure of the
confidential
information of CSM to
the Company.
Consultant
shall not make any unauthorized disclosure of the confidential information of
the Company
to CSM (or any other party not permitted to receive such
information).
5.
Compensation. For and
in consideration of the performance by Consultant
of the services,
terms, conditions,
covenants and promises herein recited, the
Company agrees and
promises to pay to Consultant at the times and in the manner
herein stated and as set forth below:
5.1. As the principal
consideration of the services to be performed by
Consultant hereunder during the term of this Agreement, Consultant
shall receive
from the Company One Thousand Five Hundred Dollars ($1,500) monthly
beginning in
February, and an
initial grant of a
Consultancy and
Advisory Warrant for
the
purchase of up to One
Hundred and Fifty
Thousand (150,000) shares of common
voting stock of the
Company. Such
warrant will vest in accordance with the
vesting provisions set
for within an appropriate warrant agreement ("Warrant
Instrument"). Except as may otherwise be set forth herein, the cash
compensation
and warrant
grant shall constitute the sole compensation of Consultant
hereunder. Such compensation may sometimes be herein referred to as
Consultant's
"Base Compensation".
5.2. The Company shall reimburse Consultant, from time to time, upon
Consultant's
submission of expense account and supporting documents on Company
approved format,
and as required by the Internal Revenue Service, for all
reasonable out of town
travel, and other
ordinary, reasonable and necessary
business expenses
incurred by Consultant
as part of and in connection with the
direct performance of duties specified herein.
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6.
Relationship of the Parties
6.1 Legal Status. Consultant shall be an independent contractor of
the
Company in accordance
with the provisions
of Sections
2750.5 and 3353 of
the
California Labor Code, or any other corresponding provision of the Colorado or
Canadian Statutes,
and not an
employee, agent, or partner. It is expressly
declared that
such independent contractor status is bona fide and not a
subterfuge to avoid
employee status. This Agreement shall not create an
employer-employee
relationship and shall not constitute a hiring of such nature
by either party.
6.2. Items Furnished to Consultant. Unless expressly agreed in
writing
otherwise by the parties, the Company shall not provide any
telephone equipment
or services,
office equipment, stationery, secretarial or office support
services or other items or services for the benefit of Consultant. Consultant
shall, at its own
expense, provide and make arrangement for all equipment,
stationery, secretarial and office support services.
6.3. Consent of
Company. Consultant
shall have no right or authority
at any time to make any contract or binding promise of any nature on behalf
of
the Company, whether
oral or written, without the express prior written consent
of the Company.
6.4. Manner of
Performing
Services. Consultant shall retain all
discretion and
judgment in regard to
the manner and means of carrying out its
duties hereunder subject, however, to the reasonable requests of the Company.
Consultant shall have
the right to control and discretion as to the manner of
performance of its services hereunder in that the result of the
work and not the
means by which it is
accomplished shall be
the primary
factor for which the
parties have bargained
hereunder in accordance with Sections 2750.5 and 3353 of
the California
Labor Code or any
corresponding
provision in the Colorado or
Canadian Statutes.
Consultant's
obligations
for performance of services
hereunder shall be
limited to the completion of the consultation and services
described above in
accordance with the Business of XsunX and the XsunX Field of
Use. Consultant shall have no obligation to work any particular
hours or days or
any particular
number of hours or
days. The Company shall have no right to
control or direct the details, manner or means by which
Consultant accomplishes
the results of the services performed hereunder.
6.5. Payment of Taxes.
Consultant
shall be responsible
for and pay
Consultant's own
self-employment taxes,
estimated tax
liabilities,
business
equipment or personal
property taxes and
other similar
obligations,
whether
federal, state or
local. The Company
shall not pay or withhold any FICA, SDI,
federal or state
income tax or unemployment insurance or tax or any other
amounts because
the relationship of the parties hereto is not that of
employer-employee, but
that of independent contractor. Consultant shall be
solely responsible for the payment of all taxes, withholdings and other amounts
due in regard to Consultant's own employees.
6.6.
Employees
of Consultant.
Consultant may subcontract with and/
or employ such parties
upon such terms and conditions as it may deem proper
