1
EXHIBIT 10.6
XXXXXXXX XXXXXXXXXX KHAN CONSULTING AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 10th day of April, 2000,
between Eco-form International, Inc. (the "Company"), and Xxxxxxxx Xxxxxxxxxx
Khan (the "Consultant")(hereinafter referred to collectively as the "Parties").
WITNESSETH:
WHEREAS, the Consultant is a design firm and the services of the
Consultant, and those design services and knowledge of the Company's design
needs are of great value to the Company; and
WHEREAS, the Company deems it essential that it have the advantage of
the services of the Consultant for a given period;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. The Company hereby appoints the Consultant as the primary
provider of design services to the Company, on the terms and
conditions as set forth in this Agreement
2. The term of initial engagement pursuant to this Agreement
shall be five (5) years commencing on May 1, 2000 and ending
on April 30, 2005 ("Term"), or until such earlier date as may
be specified in a written notice delivered by either the
Company or the Consultant to the other party, in accordance
with Section 6 hereof, or unless the Term is extended by
mutual written agreement.
3. Consultant shall receive the following compensation for his
services during the term of this Agreement as follows:
(a) The Consultant will be paid an initial retainer fee
of Fifteen Thousand Dollars and no cents ($15,000.00
U.S.D.), to be paid upon receipt by the Company of
the second level of equity financing in the amount of
$25 million. The Consultant will be paid a minimum of
Three Thousand Dollars ($3,000.00 U.S.D.) per design
performed at the request of, and as specified by, the
Company. The final amount to be charged by Consultant
for each design project shall be mutually agreed to
in writing and in advance of Consultant beginning his
design work on the project.
4. The Company shall reimburse the Consultant for all reasonable
expenses incurred by him in the performance of such duties
hereunder as may be required by the Company, including, but
not limited to, transportation expense, accommodation,
entertainment, and other expenses incurred in connection with
the business of the Company, on the same basis as such
expenses have been paid in the past by the Company.
(a) Except as otherwise provided herein, the Consultant
agrees to devote in good faith his time and
reasonable best efforts to the services which he is
required to render to the Company hereunder, and
agrees to travel to the extent he and the Chief
Executive Officer deems necessary to perform such
duties.
1
2
5. This Agreement may be terminated as follows:
(a) each of the Parties shall have the option to
terminate this Agreement immediately if the other
Party materially breaches any if its provisions
(b) the Company may terminate this Agreement by giving
fifteen (15) days written notice for failure of
performance, inadequate and/or sub-standard services
performed by Consultant or it's personnel. Within
five (5) days of termination of this Agreement,
Consultant shall submit to the Company an itemized
invoice for any fees for any mutually agreed upon
work done through the termination date under this
Agreement.
(c) by mutual written consent on the terms stated within
the mutual written consent;
(d) by Consultant providing ninety (90) days written
notice to Company; or
(e) by Company providing fifteen (15) days written notice
to Consultant, provided that Consultant shall receive
Eighty Seven Thousand Dollars ($87,000.00 U.S.D.) as
an early termination fee. If there is a change in
control of the Company and the notice provided for in
this Section 6(e) is made within one (1) year from
that change of control, Consultant shall then receive
One Hundred and Sixty Seven Thousand Dollars
($167,000 U.S.D.) as an early termination fee. Said
early termination fees shall not be cumulative.
(i) (As provided by the expiry of the agreement
as per section two) submit to the Company an
itemized invoice for any fees for any
mutually agreed upon work done through the
termination date under this Agreement.
(f) Within five (5) days of termination of this
Agreement, Consultant shall
6. By reason of the special and unique nature of the services
hereunder, it is agreed that neither party hereto may assign
any interest, rights or duties which it or he may have in this
Agreement without the prior written consent of the other
party, except that upon any merger, liquidation, or sale of
all or substantially all of the assets of the Company to
another Company, this Agreement shall inure to the benefit of
and be binding upon the Consultant and the purchasing,
surviving or resulting company or companies in the same manner
and to the same extent as though such company or companies
were the Company.
7. In consideration of the Company's employment of Consultant,
Consultant agrees as follows:
(a) To communicate to Company promptly and fully all
inventions, discoveries, concepts and ideas, whether
patentable or not, including but not limited to
hardware and apparatus, processes and methods,
formulas, computer programs and techniques, as well
as improvements thereof and knowledge related thereto
(hereinafter collectively referred to as
"DEVELOPMENTS"), conceived, completed, or reduced to
practice (whether solely by Consultant or jointly
with others) during the period of Consultant's
employment by Company,
2
3
(i) which are related to the present or
prospective business, work or investigations
of Company, or
(ii) which result from any work Consultant
performs with the use of any equipment,
facilities, materials or personnel of
Company, or
(iii) which result from or are suggested by any
work which Consultant may do for or on
behalf of Company;
(b) To assign, and does hereby assign, to Company or
Company's designee, Consultant's entire right, title
and interest in and to all such DEVELOPMENTS and all
copyrights and mask work rights in such DEVELOPMENTS
and any patent applications filed and patents granted
thereon, including those in foreign countries, both
during Consultant's employment by Company and for one
(1) year after termination of Consultant's employment
if conceived as a result of and if attributed to the
work done during such employment and relates to a
method, substance, machine, article or manufacture or
improvement therein within the scope of the business
of Company; and to execute any patent papers covering
such DEVELOPMENTS as well as any papers that Company
may consider necessary or helpful in obtaining or
maintaining said patents during the prosecution of
patent applications thereon or during the conduct of
any interference, litigation or any other matter in
connection therewith; all expenses incident to the
filing of any such interference, litigation or other
controversy shall be borne by Company;
(c) Except as Company otherwise consents in writing, not
to use (other than for Company) and not to directly
or indirectly publish or otherwise disclose at any
time (except as Consultant's duties to Company may
require) either during or subsequent to Consultant's
employment, any of Company's information or material
which is not generally available to or used by others
or the utility or value of which is not generally
known or recognized as standard practice, whether or
not the underlying detains are in the public domain,
including but not limited to the Company's
inventions, technological developments, "knowhow,"
purchasing, accounting, merchandising, licensing,
client lists and customer information (active,
inactive or prospective), trade secrets, or any
information of the type described herein which
Company obtained from another party and which Company
treats as proprietary or designates as confidential,
whether or not owned or developed by Company
("CONFIDENTIAL INFORMATION"), whether or not the same
was conceived, originated, discovered or developed,
in whole or in part, by Consultant; and
(d) To deliver to Company promptly upon request or on the
date of termination of Consultant's employment all
documents, copies thereof and other materials in
Consultant's possession pertaining to the business of
Company, including, but not limited to, CONFIDENTIAL
INFORMATION, and thereafter to promptly return
documents and copies thereof and other materials in
Consultant's possession pertaining to the business of
Company and originating with Company that come into
Consultant's possession;
8. Both Parties hereby agree that they both wish to resolve
promptly and privately of any differences that may arise
without resorting to the high cost and long delays of
extensive
3
4
court litigation. As such, they agree to resolve their
differences through arbitration pursuant to the Rules of the
American Arbitration Association. Venue and jurisdiction for
said arbitration shall be the County of Detroit, State of
Michigan.
9. This Agreement may be executed in more than one counterpart,
each of which shall constitute one and the same agreement. As
used herein and as required by the context, the singular and
plural shall be deemed to include each other, and each gender
to include all genders.
10. This Agreement constitutes the entire agreement between the
Parties and supersedes all prior negotiations,
representations, understandings, and agreements (oral or
written) related to or concerning the subject matter hereof.
No amendment to, consent provided for, or waiver of any
provision of this Agreement shall be effective unless in
writing and signed by the Parties. This Agreement represents
the full and complete understanding between the Parties with
respect to the subject matter hereof and supersedes all prior
representations and understandings, whether oral or written.
11. Except as stated in Section 6, this Agreement cannot be
changed, modified, released, discharged, abandoned or
otherwise terminated, in whole or in part, except by an
instrument in writing signed by both Parties.
12. Except to the extent that they call for the personal service
of the Consultant, the obligations under this Agreement shall
be binding upon the Parties' heirs, executors, administrators,
or other legal representatives or assigns.
13. Notwithstanding the termination of this Agreement, Sections 8,
9 and 17 shall survive such termination.
14. The waiver by either Party of a breach of any provision of
this Agreement will not operate or be construed as a waiver of
any other or subsequent breach by the other Party.
15. If any part of this Agreement is found invalid or
unenforceable, that part will be amended to achieve as nearly
as possible the same economic effect as the original provision
and the remainder of this Agreement will remain in full force.
16. This Agreement will be governed by and construed in accordance
with the laws of the United States and the State of
California. Venue and jurisdiction shall, at all times, be the
County of Detroit, State of Michigan.
17. The Consultant is an independent contractor, responsible for
compensation of its agents, employees and representatives, as
well as all applicable withholding therefrom and taxes thereon
(including unemployment compensation) and all xxxxxxx'x
compensation insurance. The Parties acknowledge that this does
not create a partnership, joint venture, employment or agency
relationship between Company and Consultant. Consultant shall
not act or represent itself as an agent of Company or in any
way assume or create any obligation on behalf of Company.
18. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by
facsimile, personal delivery or by certified mail, return
receipt requested or by special messenger service with receipt
(for example, Federal Express) to the
4
5
following at the following addresses, as amended when the
Party provides for the change of address in the manner
described in this Section 19 herein:
Xx. Xxxxxx X. Keep, President Xx. Xxxxxxxx Xxxxxxxxxx Khan,
President Design Consultant
Eco-form International, Inc. 000 X. Xxxxxxxxxxx Xxxx
0000 Xxxxxxxxx Xxxxx, Xxxx 00 Xxxxxxxxxx, Xxxxxxxx. 00000
Xxxxxx, Xxxxxxx, Xxxxxx X0X0X0
Facsimile: (000) 000-0000
19. Neither party shall be responsible for or liable for failing
to perform any part of this Agreement or for any delay in
performing under this Agreement, directly or indirectly
resulting from or contributed to by any foreign or domestic
embargoes, seizures, acts of God, insurrections, wars and/or
continuance of war; or the adoption or enactment of any law,
ordinance, regulation, ruling or order directly or indirectly
interfering with the performance under this Agreement; or lack
of the usual means of transportation, fires, floods,
explosion, strikes, earthquakes; or other events or
contingencies beyond its control, either of the foregoing
nature or of any kind.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Consultant has hereunto set his
signature as of the day and year first above written.
Eco-form International, Inc. ("Company") Xxxxxxxx Xxxxxxxxxx Khan ("Consultant")
By: By:
------------------------------------- ---------------------------------------
, Chairman Xxxxxxxx Xxxxxxxxxx Khan, President
-----------------
5
