puredepth_8k-ex0134.htm


    EXHIBIT
10.34

     

    
      


      


       

      CONSULTANCY
AGREEMENT

      


      between

      PureDepth
Incorporated Limited

      and

      Kristin
Bowman

       

       

       

       

       

       

       

       

        
          

        

      

       

      

       

      
        
           

        

        
           

          
            

          

        

        
           

        

         

        
          
            
              	Consultancy
      Agreement	
                       Table of
      Contents

                    


            

             

          

        

         

      

      Consultancy
Agreement

       

      
        
          	
                  1.

                	
                  Services,
      Term and Compensation

                	
                  1

                
	
                  2.

                	
                  Access
      to Company Offices

                	
                  1

                
	
                  3.

                	
                  Expenses

                	
                  1

                
	
                  4.

                	
                  Taxes

                	
                  1

                
	
                  5.

                	
                  Inventions

                	
                  1

                
	
                  6.

                	
                  Confidentiality

                	
                  2

                
	
                  7.

                	
                  Conflicts
      of Interest, Exclusivity and Restraint

                	
                  2

                
	
                  8.

                	
                  Right
      to Injunction

                	
                  3

                
	
                  9.

                	
                  Health
      and Safety

                	
                  4

                
	
                  10.

                	
                  Human
      Rights

                	
                  4

                
	
                  11.

                	
                  Termination

                	
                  4

                
	
                  12.

                	
                  Representation

                	
                  4

                
	
                  13.

                	
                  Governing
      Law

                	
                  4

                
	
                  14.

                	
                  Arbitration

                	
                  4

                
	
                  15.

                	
                  Headings

                	
                  5

                
	
                  16.

                	
                  Waiver

                	
                  5

                
	
                  17.

                	
                  Assignment

                	
                  5

                
	
                  18.

                	
                  Notices

                	
                  5

                
	
                  19.

                	
                  Modification
      or Amendment

                	
                  5

                
	
                  20.

                	
                  Entire
      Understanding

                	
                  5

                
	
                  APPENDIX
      1 - Services and Fees

                	8


        

      

       

      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

      
        Consultancy
Agreement

          
            

          

        

      

       

      Date:           May
2008

      
        


         

        Parties

          
            

          

        

         

      

      
        	
                1.

              	
                PureDepth
      Incorporated Limited (the “Company")

              


      

      
        	
                2.

              	
                Kristin
      Bowman (the “Consultant")

              


      

      
        


         

        Background

          
            

          

        

         

      

      
        	
                A.

              	
                The
      Company has specialist expertise in the area of multi layer visual display
      technology.

              


      

      
        	
                B.

              	
                The
      Company has requested that the Consultant provide consultancy services
      (the “Services”)
      to the Company on the terms set out in this
  Agreement.

              


      

      
        


         

        Agreement

          
            

          

        

         

      

      
        	
                1.

              	
                Services, Term and
      Compensation

              


      

       

      
        	
                1.1

              	
                The
      Consultant will personally provide the Services set out in Appendix 1 to
      this Agreement.

              


      

       

      
        	
                1.2

              	
                The
      Consultant's fees are set out in Appendix 1 to this
    Agreement.

              


      

       

      
        	
                1.3

              	
                This
      Agreement shall be effective from 14 June 2008 and shall continue in full
      force and effect until terminated in accordance with the terms of this
      Agreement.

              


      

       

      
        	
                2.

              	
                Access to Company
      Offices

              


      

       

      
        	
                2.1

              	
                The
      Consultant will have access to the Company’s offices and facilities as
      reasonably required, in order to carry out the
  Services.

              


      

       

      
        	
                3.

              	
                Expenses

              


      

       

      
        	
                3.1

              	
                During
      the term of this Agreement the Consultant shall be reimbursed for all
      approved and reasonable expenses and disbursements incurred in connection
      with the performance of the Services.  Expenses and
      disbursements are to be properly accounted for and detailed GST invoices
      or GST receipts are to be provided to verify the amount of expenses or
      disbursements included within the GST invoice provided by the Consultant
      to the Company for payment of her fees, commissions and
      bonuses.

              


      

       

      
        	
                3.2

              	
                Any
      air travel and hotel bookings will be made on the Consultant's behalf by
      the Company or, if arranged by the Consultant, bookings are to be
      pre-approved by the Company.

              


      

       

      
        	
                4.

              	
                Taxes

              


      

       

      
        	
                4.1

              	
                The
      Consultant is responsible for the payment of any and all taxes and ACC
      levies, for GST registration, and for filing GST
  returns.

              


      

       

      
        	
                5.

              	
                Inventions

              


      

       

      
        	
                5.1

              	
                Any
      and all inventions, discoveries, developments and innovations in relation
      to the Company and any and all business concepts conceived by the
      Consultant during this Agreement relative to the Services shall be the
      exclusive property of the Company.  The Consultant hereby
      assigns all right, title, and interest in the same to the
      Company.

              


      

       

      
        
           

        

        
          
          

          
            

          

        

        
           

        

      

      
        	
                5.2

              	
                Any
      and all inventions, discoveries, developments and innovations conceived by
      the Consultant prior to the term of this Agreement and utilised by the
      Consultant in rendering the Services to the Company are hereby licensed to
      the Company for use in its operations and for an infinite duration. This
      licence is non-exclusive, and may be assigned without the Consultant’s
      prior written approval by the Company to a holding company or a
      wholly-owned subsidiary of the
Company.

              


      

       

      
        	
                6.

              	
                Confidentiality

              


      

       

      
        	
                6.1

              	
                The
      Consultant acknowledges that during the Agreement, she will have access to
      and become acquainted with various trade secrets, inventions, innovations,
      processes, information, records and specifications owned or licensed by
      the Company and/or used by the Company in connection with the operation of
      its business including, without limitation, the Company’s business and
      product processes, methods, customer lists, accounts and procedures (the
      “Confidential
      Information”).

              


      

       

      
        	
                6.2

              	
                The
      Consultant agrees that she will not disclose any Confidential Information,
      directly or indirectly, or use any Confidential Information in any manner,
      either during the term of this Agreement or at any time thereafter, except
      as required to perform the Services for the
  Company.

              


      

       

      
        	
                6.3

              	
                All
      files, records, documents, blueprints, specifications, information,
      letters, notes, media lists, original artwork/creative, programming code,
      notebooks, and similar items relating to the business of the Company (the
      “Company
      Property”), whether prepared by the Consultant or otherwise coming
      into its possession, shall remain the exclusive property of the
      Company.  The Consultant shall not retain any copies of Company
      Property without the Company’s prior written
  permission.

              


      

       

      
        	
                6.4

              	
                Upon
      the termination of this Agreement, or whenever requested by the Company,
      the Consultant shall immediately deliver to the Company all Confidential
      Information and Company Property and other items in her possession or
      under her control.

              


      

       

      
        	
                6.5

              	
                The
      Consultant agrees that she will not disclose the terms of this Agreement
      to any person, without the prior written consent of the Company and shall
      at all times preserve the confidential nature of her relationship with the
      Company.

              


      

       

      
        	
                7.

              	
                Conflicts of Interest,
      Exclusivity and Restraint 

              


      

       

      
        	
                7.1

              	
                The
      Consultant represents that she is free to enter into this Agreement, and
      that this Agreement does not violate the terms of any agreement between
      the Consultant and any third party.  Further, the Consultant, in
      rendering the Services, shall not utilise any invention, discovery,
      development, improvement, innovation or trade secret in which she does not
      have a proprietary interest.

              


      

       

      
        	
                7.2

              	
                The
      Consultant will not enter into or carry on any activity which may conflict
      in any way with the interests of the Company and the Consultant’s
      responsibilities to it.

              


      

       

      
        	
                7.3

              	
                During
      the Agreement and for a period of twelve (12) months following termination
      of the Agreement, the Consultant shall not, directly or indirectly hire,
      solicit, or encourage to leave the Company’s employment, any employee or
      consultant of the Company or hire any such employee or consultant who has
      left the Company’s employment or who has terminated a contractual
      agreement with the Company.

              


      

       

      
        
           

        

        
          2

          
            

          

        

        
           

        

      

      
        	
                7.4

              	
                The
      Consultant will not, without the Company's prior written consent, be
      directly or indirectly involved in any capacity whatsoever in any place in
      New Zealand in the same or a similar business as the business of the
      Company:

              


      

       

      
        	
                 
      

              	
                a.

              	
                during
      the term of this Agreement (whether in regular working hours or
      otherwise); and

              


      

       

      
        	
                 
      

              	
                b.

              	
                for
      twelve months after the date on which this Agreement
  ends.

              


      

       

      
        	
                7.5

              	
                The
      Consultant will not, for twelve (12) months after the date on which this
      Agreement ends, directly or indirectly, on its own behalf or on behalf of
      any other person or firm, canvas or solicit business or accept any
      business from any party who was a customer of the Company during the term
      of this Agreement.

              


      

       

      
        	
                7.6

              	
                For
      the purposes of this no competition
clause:

              


      

       

      
        	
                 
      

              	
                a.

              	
                a
      business the same as or similar to the business of the Company includes
      all types of business conducted by the Company at any time during the term
      of this Agreement; and

              


      

       

      
        	
                 
      

              	
                b.

              	
                a
      “customer” includes any person or firm which was a customer of the Company
      at any time during the term of this Agreement or within the three months
      following the date on which the Agreement
ends.

              


      

       

      
        	
                7.7

              	
                The
      Consultant acknowledges that the restrictive provisions in this no
      competition clause are reasonable and necessary in order to protect and
      maintain the proprietary interests and other legitimate interests of the
      Company's business.

              


      

       

      
        	
                7.8

              	
                The
      Consultant agrees that the fees payable to her pursuant to this Agreement
      represent reasonable and sufficient consideration for the restraints
      contained within this clause.

              


      

       

      
        	
                7.9

              	
                If
      any undertaking in this clause 7
      is held invalid as an unreasonable restraint of trade or for any other
      reason but would have been valid if part of the wording had been deleted
      or the period reduced or the range of activities or area dealt with
      reduced in scope, those undertakings are to apply with such modifications
      as are necessary to make them valid and
  effective.

              


      

       

      
        	
                8.

              	
                Right to
      Injunction

              


      

       

      
        	
                8.1

              	
                The
      parties to this Agreement acknowledge that the Services to be rendered by
      the Consultant pursuant to this Agreement and the rights and privileges
      granted to the Company under this Agreement are of a special, unique,
      unusual, and extraordinary character which gives them a peculiar value,
      the loss of which cannot be reasonably or adequately compensated by
      damages in any action at law, and the breach by the Consultant of any of
      the provisions of this Agreement will cause the Company irreparable injury
      and damage.

              


      

       

      
        	
                8.2

              	
                The
      Consultant expressly agrees that the Company will be entitled to
      injunctive and other equitable relief in the event of, or to prevent, a
      breach of any provision of this Agreement by the
      Consultant.  Resort to such equitable relief, however, will not
      be construed to be a waiver of any other rights or remedies that the
      Company may have for damages or otherwise.  The various rights
      and remedies of the Company under this Agreement or otherwise shall be
      construed to be cumulative, and no one will be exclusive of any other or
      of any right or remedy allowed by
law.

              


      

       

      
        
           

        

        
          3

          
            

          

        

        
           

        

      

       

      
        	
                9.

              	
                Health and
      Safety

              


      

       

      
        	
                9.1

              	
                The
      Consultant will ensure that she complies at all times with the health and
      safety policies of the Company when on the Company
      premises.  The Consultant may be required to sign a declaration
      regarding compliance with these policies, prior to the commencement of
      this Agreement.

              


      

       

      
        	
                10.

              	
                Human
    Rights

              


      

       

      
        
          	
                  10.1

                	
                  The
      Consultant will ensure that she complies at all times with the
      non-discrimination and sexual harassment policies of the
      Company.  The Consultant indemnifies the Company for any
      liability including damages and fines that may arise from a breach of
      these policies by the
Consultant.

                


        

      

       

      
        	
                11.

              	
                Termination

              


      

       

      
        
          	
                  11.1

                	
                  Either
      party may terminate this Agreement at any time by giving  six
      (6) months written notice to the other party.  By giving notice
      of termination under this clause 11.1, the party giving the notice
      confirms that no monies are due and owing to the Consultant under this
      Consultancy Agreement outside of duly reimbursable expenses, which include
      any reasonable expenses arising out of this Agreement in accordance with
      Appendix 1.

                


        

      

       

      
        
          	
                  11.2

                	
                  If
      the Consultant:

                


        

      

       

      
        	
                 
      

              	
                a.

              	
                is
      convicted of any crime or offence;
or

              


      

       

      
        	
                 
      

              	
                b.

              	
                fails
      or refuses to comply with the written policies or reasonable directives of
      the Company; or

              


      

       

      
        	
                 
      

              	
                c.

              	
                otherwise
      materially breaches provisions of this
  Agreement,

              


      

       

      the
Company may terminate this Agreement immediately and without being required to
give prior written notice to the Consultant.

       

      
        	
                12.

              	
                Representation

              


      

       

      
        
          	
                  12.1

                	
                  This
      Agreement shall not render the Consultant an employee, partner, agent of,
      or in a joint venture with the Company for any purpose and the Consultant
      shall not hold out that she is an employee, partner, agent or in joint
      venture with the Company.

                


        

      

       

      
        
          	
                  12.2

                	
                  The
      Company shall not be responsible for, and the Consultant shall have no
      claim against the Company for, withholding taxes with respect to the
      Consultant’s fees.

                


        

      

       

      
        	
                13.

              	
                Governing
      Law

              


      

       

      
        
          	
                  13.1

                	
                  The
      laws of New Zealand shall govern this
Agreement.

                


        

      

       

      
        	
                14.

              	
                Arbitration

              


      

       

      
        
          	
                  14.1

                	
                  If
      any dispute arises over the interpretation of, or the terms of this
      Agreement or any matter arising from it, the parties will try to resolve
      such dispute through negotiation in good
faith.

                


        

      

       

      
        
           

        

        
          4

          
            

          

        

        
           

        

      

      
        
          	
                  14.2

                	
                  Where
      no settlement can be reached through negotiation, the dispute shall be
      submitted to arbitration in New Zealand, conducted in accordance with the
      provisions of the arbitration statutes for the time being in force in New
      Zealand, with any arbitration award being binding upon both
      parties.  The costs of arbitration shall be borne by the
      unsuccessful party.

                


        

      

       

      
        	
                15.

              	
                Headings

              


      

       

      
        
          	
                  15.1

                	
                  Section
      headings are not to be considered a part of this Agreement and are not
      intended to be a full and accurate description of the contents of the
      subsequent clauses.

                


        

      

       

      
        	
                16.

              	
                Waiver

              


      

       

      
        
          	
                  16.1

                	
                  Waiver
      by one party to this Agreement of breach of any provision of this
      Agreement by the other shall not operate or be construed as a continuing
      waiver.

                


        

      

       

      
        	
                17.

              	
                Assignment

              


      

       

      
        
          	
                  17.1

                	
                  The
      Consultant may not, except with the prior written consent of the Company,
      assign any of its rights under this Agreement or delegate the performance
      of any of its Services
hereunder.

                


        

      

       

      
        	
                18.

              	
                Notices

              


      

       

      
        
          	
                  18.1

                	
                  Any
      and all notices, demands, or other communications required or desired to
      be given under this Agreement by either party shall be in writing and
      shall be validly given or made to the other party
  if:

                


        

      

       

      
        	
                 
      

              	
                a.

              	
                personally
      served; or

              


      

       

      
        	
                 
      

              	
                b.

              	
                deposited
      in the mail to the registered office of the party,
  or:

              


      

       

      
        	
                 
      

              	
                i.

              	
                if
      to the Consultant at:

              


      

       

      12 Patey
Street

      Remuera

      Auckland

      


      
        	
                 
      

              	
                ii.

              	
                If
      to the Company:

              


      

       

      c/-
PureDepth, Inc.

      Attention:  Jonathan
McCaman

      255
Shoreline Drive, Suite 610

      Redwood
City, CA 94065

      United
States

       

      
        
          	
                  18.2

                	
                  Any
      party may change its address for purposes of this clause by written
      notice.

                


        

      

       

      
        	
                19.

              	
                Modification or
      Amendment

              


      

       

      
        
          	
                  19.1

                	
                  No
      amendment, change or modification of this Agreement shall be valid unless
      in writing and signed by the
parties.

                


        

      

       

      
        	
                20.

              	
                Entire
      Understanding;
      Option Amendment

              


      

       

      
        
           

        

        
          5

          
            

          

        

        
           

        

      

      
        
          	
                  20.1

                	
                  Aside
      for the Consultant’s arrangements and/or agreements pertaining to her
      stock option to purchase shares of PureDepth, Inc. common
      stock,  as represented by the Stock Option Agreement dated June
      20, 2006 (as amended by the Agreement to Amend the PureDepth, Inc. 2006
      Stock Incentive Plan and Associated Stock Option Agreement dated December
      19, 2006), as further amended hereby as provided in Appendix 2 hereto,
      this Agreement along with the letter agreement dated on or about the date
      hereof between the Consultant and the Company regarding the variation of
      the terms of the Consultant’s employment agreement with the Company
      together constitute the entire understanding and agreement of the
      parties.

                


        

      

       

      


       

      
        
           

        

        
          6

          
            

          

        

        
           

        

      

      
        	
                SIGNED by Kristin
      Bowman:

              
	 	 	 
	 
      	 
      	 
      
	
                Signature

              	 
      	
                Name

              


      

      


      


      


      
        	
                SIGNED by PureDepth Incorporated Limited
      by:

              
	 	 	 
	 
      	 
      	 
      
	
                Director’s
      signature

              	 
      	
                Director’s
      name

              


      

       

      
 

      
        
           

        

        
          7

          
            

          

        

        
           

        

      

      APPENDIX
1

      Services
and Fees

      


       

      
        	
                1.

              	
                Services

              


      

       

      
        	
                1.1

              	
                The
      Services of the Consultant include:

              


      

       

      
        	
                 
      

              	
                a.

              	
                assistance
      to continue to lead (at a high level) PureDepth’s current Asian based
      customer (i.e. Sanyo and Sumsung Visual Display) requirements – i.e. via
      weekly or other conference calls and follow up email communiqués and, if
      reasonably available, in person meetings, in the shorter term (i.e. up to
      3 months) until otherwise advised and
expedient;

              


      

       

      
        	
                 
      

              	
                b.

              	
                assistance
      to continue to lead (at a high level) PureDepth’s other Asian prospects
      (more particularly, Hitachi/NTT, Mitsui Bussan and Toyota Tsusho) via
      email and, if reasonably available, in person meetings, in the shorter
      term (i.e. up to 3 months) until otherwise advised or expedient;
      and

              


      

       

      
        	
                 
      

              	
                c.

              	
                provide
      ongoing general advice and assistance to Jon McCaman and other members of
      PureDepth’s executive management team on all areas of the business as
      required from time to time in the shorter term (i.e. up to 3 months) until
      otherwise advised or expedient.

              


      

       

      
        	
                1.2

              	
                The
      parties estimate that the Consultant will be required to provide Services
      to the Company for approximately 20 hours per calendar
      quarter.

              


      

       

      
        	
                1.3

              	
                The
      Consultant will provide the Services to the Company to the best possible
      standard and ensure that the Services are undertaken, carried out and
      completed in a careful, proper and lawful manner, in compliance with
      industry best practice and any relevant codes of practice and on a timely
      basis.

              


      

       

      
        	
                2.

              	
                Fees

              


      

       

      
        	
                2.1

              	
                The
      Company shall pay to the
Consultant:

              


      

       

      
        	
                2.2

              	
                a
      fee of USD$150 per hour exclusive of New Zealand Goods and Services Tax
      (the “Hourly
      Fee”), for any Services rendered in excess of 20 hours per calendar
      quarter through the end of the Company’s current fiscal year ending
      January 31, 2009 or for any Services rendered after January 31, 2009.The
      Hourly Fee will be paid to the Consultant within 7 days of the Consultant
      presenting a GST invoice for the same to the Company, specifying the
      Services provided and the hours worked.

              


      

       

      


      
        
           

        

        
          8

          
            

          

        

        
           

        

      

       

      APPENDIX
2

      


      1.           Each
of the undersigned hereby acknowledge and agree that Section 4 of the Stock
Option Agreement by and between Kristin Bowman and PureDepth, Inc. (the
“Company”) dated June 20, 2006 (as amended by the Agreement to Amend the
PureDepth, Inc. 2006 Stock Incentive Plan and Associated Stock Option Agreement
dated December 19, 2006) (the “Option Agreement”) is hereby fully amended and
restated (the “Amendment”) as set forth below:

       

      4.  “Term
of Option.  Except as otherwise provided in this Agreement and subject
to the terms of the New Plan, the Option shall be exercisable on or before
March 31, 2011; provided, however, that in the event that Optionee ceases
to serve as a director, officer, employee or consultant of the Company, Optionee
or his or her legal representative shall have until the earlier of (i) 365
days from the date of such termination and (ii) March 31, 2011 to
exercise all or any part of the Option that is vested pursuant to Section 3
of this Agreement.  Upon the expiration of such period, or, if
earlier, upon the expiration date of the Option as set forth above, the Option
shall terminate and become null and void.”

       

      2.           Continuation of Other
Terms.  Except as set forth herein, all other terms and
conditions of the Option Agreement shall remain in full force and
effect.

       

      3.           Tax
Consequences.  The Optionee acknowledges that neither the
Company nor any of its affiliates makes any representation or warranty regarding
the tax consequences of this Amendment.  The Optionee should consult
her own tax, legal and financial advisors regarding the consequences of this
Amendment and any subsequent exercise of the Option.

       

      4.           Applicable
Law.  This Agreement shall be governed by the laws of the State
of Delaware.

       

      5.           Entire
Agreement.  The Option Agreement, as amended by this Amendment,
constitutes the entire understanding and agreement of the parties with respect
to the subject matter thereof.

       

      


       

      
        	
                SIGNED by Kristin
      Bowman:

              
	 
      	 
      	 
      
	 	 	 
	
                Signature

              	 
      	
                Name

              


      

      


      


      


      
        	
                SIGNED by PureDepth, Inc.
      by:

              
	 
	 
      	 
      	 
      
	
                Signature

              	 
      	
                Name

              


      

      
 

       

      9