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Exhibit 10.10
CONSULTING AGREEMENT
This Consulting Agreement (the "AGREEMENT") is made and entered into
this 31st day of December 1999, and effective as of the 1st day of January 2000
(the "Effective Date") by and between ADVANCED LIGHTING TECHNOLOGIES, INC., an
Ohio corporation and its successors and assigns ("ADLT") and XXXXX X. XXXX (the
"CONSULTANT").
WHEREAS, ADLT is a public company which is engaged in the
business of developing and manufacturing various lighting products and systems;
and
WHEREAS, the Consultant has had extensive experience as an
executive officer of ADLT and other industrial companies as well as an extensive
accounting background; and is able to assist ADLT in various on-going projects.
NOW THEREFORE, the parties hereto, for valid consideration,
the sufficiency of which is hereby acknowledged, agree as follows:
1. TERM. This Agreement shall commence on the Effective Date
hereof and shall, unless earlier terminated pursuant to Section 6, hereof,
terminate on June 30, 2004 (the "TERM").
2. SERVICES BY CONSULTANT. Consultant hereby acknowledges and
agrees that he shall devote his best efforts and diligently perform the projects
assigned by ADLT's Management (as defined below) to him and accepted by him in
writing pursuant to the terms of this Agreement.
(a) Consultant shall execute and perform various specific
assignments for ADLT from time to time as determined by its Chairman, Xxxxx
Xxxxxxx ("Management"), and such other assignments as may be reasonably
requested. Such assignments shall include but not be limited to the following:
(i) act as the litigation coordinator between ADLT and its
counsel regarding the pending shareholders' class action
lawsuits; and
(ii) act as advisor for simplification of ADLT's corporate and
business structure.
(b) After July 1, 2000, in the event ADLT's Management
proposes that Consultant execute and perform substantial and significant special
assignments which are beyond the scope of this Agreement, Consultant shall be
paid on a per project basis for such special assignments, which amount shall be
determined upon agreement of Management and Consultant.
(c) Consultant shall execute and perform his duties as a
director of ADLT outside the scope of this Agreement. ADLT and Consultant agree
that Consultant shall serve the remainder of his current term as a director of
ADLT. In addition, Management and ADLT through its Board of Directors, nominate
Consultant to a new three-year term ending at ADLT's annual meeting for
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2003. Consultant shall receive the standard compensation and reimbursements of
non-employee directors for such duties, including grants of stock options of
20,000 shares of ADLT common stock which options shall vest 5,000 per year
beginning upon the effective date of this Agreement and continuing annually
through the duration of his Class II directorship.
3. COMPENSATION; CERTAIN ADDITIONAL BENEFITS.
(a) During the Term of this Agreement, ADLT shall pay to
Consultant, for the services rendered by Consultant hereunder and the
non-compete agreement contained in Section 5 below, Ninety Three Thousand
Dollars ($93,000.00) from the Effective Date through June 30, 2000, payable on
January 1, 2000; thereafter, at the rate of $93,000 per year from July 1, 2000
until June 30, 2004, payable in equal monthly installments.
(b) In addition to the compensation to be paid to the
Consultant as set forth in Section 3(a) above, ADLT agrees to provide the
Consultant with the following benefits during the Term of this Agreement:
(i) Payment of Social Security self insurance tax (including
medicare) on or with respect to amounts payable to Consultant
in connection with this Agreement;
(ii) All health, medical and dental insurance coverage
(including dependent) shall continue through June 30, 2004,
including an annual physical examination;
(iii) The use of an office, a computer and computer support,
and secretarial services, as needed, and home phone and fax
services;
(iv) Payment of disability insurance premiums on behalf of
Consultant for the Term of this Agreement.
(v) The addition of Consultant's participation in ADLT's stock
option plan as is currently in effect and as amended during
the term of this Agreement, provided that such participation
by Consultant will not adversely affect the qualification of
such plan under any applicable laws, regulations or rules; and
(vi) Reimbursement for customary and reasonable out-of-pocket
expenses incurred by Consultant in connection with his
services provided under this Agreement.
4. CONFIDENTIALITY.
(a) Commencing upon the execution of this Agreement,
Consultant shall not disclose, divulge, discuss, copy or otherwise use or suffer
to be used any confidential and secret information with regard to the business,
operations, customer lists, properties, accounts, books and
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records, data, operating results, sales, know-how, techniques for sales,
marketing, products, customers, agreements with customers, suppliers, costs and
financial data, memoranda, methods, devices, equipment, processes, procedures,
formulas, pricing and other similar corporate properties of ADLT or its
subsidiaries (collectively "Trade Secrets"). Consultant hereby recognizes and
agrees that the Trade Secrets are valuable, special and unique assets of ADLT's
business and that the disclosure or improper use of such Trade Secrets shall
cause serious and irreparable injury to ADLT, unless and until such information
is in or shall enter the public domain; provided, however, that if the same is
in or shall enter the public domain as the result of Consultant's act, then
Consultant shall continue to keep such Trade Secrets secret and confidential.
(b) On or before the end of the Term of this Agreement,
Consultant shall return any and all documents containing any Trade Secrets to
ADLT.
(c) Consultant shall not disclose the contents and substance
of this Agreement to any natural person or legal entity except that Consultant
is permitted to disclose the terms of this Agreement to members of Consultant's
immediate family, and his financial, legal and tax-planning advisors, as
necessary. In the event that Consultant reveals the material terms of this
Agreement to members of his immediate family, and/or to his advisors, said
person or person shall be instructed that this is a private settlement and that
the terms of this Agreement may not be revealed to any other person for any
reason whatsoever during the term of this Agreement. As a matter of course,
Consultant may disclose the terms of this Agreement in response to any inquiry
by the Internal Revenue Service or other taxing authority.
(d) Consultant agrees that he will not contact any employee or
representatives of ADLT regarding this Agreement, nor discuss its content or the
events regarding the termination of his employment. In the event ADLT determines
that Consultant has violated this provision of non-contact, all contracts with
and offers of ADLT of benefits beyond the date of termination shall be
terminated or withdrawn.
(e) Consultant acknowledges that he has signed and delivered
to ADLT a confidentiality agreement, and that Consultant shall continue to abide
by the terms and conditions of such confidentiality agreement.
(f) The obligations of Consultant under this Section shall
survive the termination of this Agreement.
5. NON-COMPETITION AND RELATED MATTERS
(a) NON-COMPETITION. Consultant agrees that during the Term of
this Agreement, he will not render services within the continent of North
America, directly or indirectly, individually or collectively, own, manage,
operate, join or control, or participate in the ownership, management, operation
or control of, or act as an employee, agent or consultant to, any Conflicting
Organization.
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(b) ACKNOWLEDGMENT OF REASONABLENESS AND SEVERABILITY.
Consultant acknowledges and agrees that the type and periods of restrictions
imposed in this Agreement are fair and reasonable, and that such restrictions
are intended solely to protect the legitimate interest of ADLT, rather than to
prevent Consultant from earning a livelihood. Consultant recognizes that ADLT
competes with other organizations in the business of designing, marketing and
manufacturing metal halide lamps and any other work as may have been required or
defined by the Board of Directors, and that his access to Confidential
Information and other proprietary information could be used to the detriment of
ADLT. In the event that any restriction set forth in this Agreement is
determined to be overly broad with respect to scope, time or geographic
coverage, Consultant agrees that such a restriction or restrictions should be
modified and narrowed, either by a court or by, so as to preserve and protect
the legitimate interests of ADLT as described in this Agreement, and without
negating or impairing any other restrictions or agreements set forth herein.
(c) DEFINITIONS. The following capitalized terms shall
have the meanings ascribed to them below:
(i) "BUSINESS" shall mean the primary business of
ADLT which is the design, manufacture and marketing
of metal halide fixtures, lamps and components
thereto.
(ii) "CONFIDENTIAL INFORMATION" shall mean
information in any form, which is generally not known
to the public, and/or is proprietary to ADLT,
including without limitation trade secret information
about the Business, and also including information
relating to research, development, manufacture,
purchasing, accounting, engineering (in any form,
including software designs), marketing,
merchandising, selling, leasing, servicing, finance
and business systems and techniques and information
used by the ADLT or received by ADLT on a
confidential basis from any third party, and customer
lists. All information disclosed to Consultant, or to
which Consultant has access, whether originated by
Consultant or by others, during the period of his
relationship with ADLT, which Consultant on a
reasonable basis believe to be Confidential
Information, or which is treated by ADLT as being
Confidential Information, shall be presumed to be
Confidential Information.
(iii) "CONFLICTING BUSINESS" shall mean any business,
process, system or service of any person or
organization other than ADLT, in existence or under
development, which is the same as or similar to or
competes with, or has a usage allied to, the business
or any process, system or service concerning the
Business (in either sales or non-sales capacity), or
about which Consultant acquires Confidential
Information.
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(iv) "CONFLICTING ORGANIZATION" shall mean any person
or organization which is engaged in or about to
become engaged in, research on or development,
marketing, leasing, selling or servicing of a
Conflicting Business.
6. TERMINATION.
(a) This Agreement shall terminate upon the earlier of (i) a
material breach by either party, provided, however, that Consultant's failure to
accept a project pursuant to Section 2 above shall not be considered a breach,
and provided, further, that the non-breaching party has allowed at least 30 days
after notice of such breach for the breaching party to cure, or (ii) expiration
of the Term.
(b) Upon termination hereof, and other than as set forth in
Section 3(b)(vii) herein above, all obligations of ADLT to the Consultant
hereunder shall cease.
7. MISCELLANEOUS.
(a) Neither party hereto shall assign any of its rights or
delegate any of its duties hereunder without the express prior written consent
of the other party, except that a change in ownership of ADLT shall not be
deemed to be an assignment.
(b) This Agreement is binding on each of the parties hereto,
including each party's heirs, successors and assigns.
(c) This Agreement shall be governed by the laws of the State
of Ohio.
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(d) All notices shall be served by being sent by facsimile
transmission or posted by first class mail to the address of the party set out
below or to such other address as either party may notify to the other in
writing from time to time.
WITNESS the due execution hereof as of the day and year first above
written.
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Its: Chairman, Chief Executive Officer
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Address: 00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
/s/ XXXXX X. XXXX
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XXXXX X. XXXX, Individually
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
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