Exhibit 10.41
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of January 1, 2003, by and between PLANET POLYMER TECHNOLOGIES, INC., a
California corporation (the "Company"), and XXXXXXX XXXXXXX ("Consultant") with
respect to the following facts:
RECITALS
A. The Company desires to retain Consultant to assist the Company
with its SEC reporting obligations for the year ended December 31, 2002, annual
meeting for 2003 and the finalization of the sale and licensing agreements,
between the Company and Agway (collectively, the "Services").
B. Consultant is willing and desires to provide the Services to
the Company upon the terms, covenants and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties agree as follows:
1. Term of Service. The Company hereby retains Consultant for a
period of three (3) months beginning as of January 1, 2003, and continuing until
March 31, 2003, unless further extended or sooner terminated as provided in
Section 5 below (the "Term"). Any extended term shall be "at will" and may be
terminated at any time with or without cause by either party. Consultant shall
perform the Services pursuant to this Agreement upon request by the Company, and
at times mutually agreed upon by the Company and Consultant.
2. Services to Be Provided. Consultant agrees to provide the
Services to the Company as the Company may request. All services provided by
Consultant for the Company are performed pursuant to the terms and conditions of
this Agreement. The Company may retain Consultant on additional projects on
which the Company may require assistance from Consultant ("Additional Services")
with prior written authorization from the Company's Board of Directors (the
"Board").
3. Resignation. Effective as of January 31, 2003, Consultant
agrees to resign as a Director and the Chief Executive Officer and Chief
Financial Officer of the Company. Consultant agrees to reasonably cooperate with
the Company to issue a joint press release to announce his resignation.
4. Nonstatutory Stock Options. Upon the complete execution of
this Agreement, the Company shall issue to Consultant nonstatutory stock options
to purchase 25,000 shares of the Company's common stock (the "NSO's") under the
Company's 2000 Stock Incentive Plan. The strike price of the NSO's shall be the
price of the Company's common stock on January 31, 2003.
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The NSO's shall be for a term of ten (10) years and vest on March 31, 2003, upon
Consultant's satisfactory provision of the Services to the Company as shall be
determined by the Board.
5. Fees. During the Term, the Company shall pay or provide to
Consultant the following fees:
a. Consulting Fees. While this Agreement is in effect,
the Company shall pay Consultant $100 per hour for the Services, not to exceed
$25,000 in the aggregate (the "Limit"). Unless otherwise agreed to by the
Company in writing, Consultant shall provide the Services until completion
irregardless if the Limit has already been reached and paid to Consultant. Such
consulting fees shall be paid monthly at the beginning of each month, provided
Company has cash reasonably available to make such payment. Any fees not paid
each month will accrue and be paid when cash of the Company is reasonably
available.
b. Expense Reimbursement. The Company shall promptly
reimburse Consultant for expenses reasonably incurred in the course of carrying
out the Services upon Consultant's submission of a detailed expense report to
the Company, provided the nature and scope of such expense has been approved in
advance by the Board or President of the Company.
c. Additional Fees. In addition to the consulting fees
payable hereunder, the Company shall pay Consultant an additional $100 per hour
for any Additional Services performed by Consultant for the Company.
6. Xxxx COmmissions.
x. Xxxx Payments. Upon the Company's receipt of payments
from Xxxx Industries LLC ("Xxxx") in accordance with a certain Purchase and Sale
Agreement dated December 21, 2001, by and between Xxxx and the Company, as
amended (the "Xxxx Agreement"), including, without limitation, royalty payments
from Xxxx, Consultant shall receive commissions in amounts as set forth in the
First Amendment to Executive Agreement dated October 17, 2000, by and between
the Company and Consultant.
b. MIM Sales Upon Xxxx Default. In the event that Xxxx
completely defaults under the Xxxx Agreement and the Company recovers the assets
subject to, and sold under, the Xxxx Agreement (the "MIM Assets"), and the
Company resells the MIM Assets, Consultant shall only receive commissions if
Company retains consultant to assist Company in such sale. Prior to hiring any
third party to offer and resell the MIM Assets, Company shall offer Consultant
the right of first refusal to represent the Company on the offer and sale of the
MIM Assets on similar terms and conditions as applied to the Xxxx Agreement.
7. No Other Benefits. Unless otherwise approved by the Board,
Consultant shall receive no other benefits from the Company, other than the
Company's payment of premiums on medical insurance for Consultant up to and
including January 31, 2003.
8. Independent Contractor; Withholding. Consultant will at all
times be an independent contractor, and as such will not have authority to bind
the Company. Consultant will not act as
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an agent nor shall he be deemed to be an employee of the Company for the
purposes of any employee benefit program, unemployment benefits, or otherwise.
Consultant recognizes that no amount will be withheld from any compensation for
payment of any federal, state, or local taxes and that Consultant has sole
responsibility to pay such taxes, if any, and file such returns as shall be
required by applicable laws and regulations. Consultant shall not enter into any
agreements or incur any obligations on behalf of the Company.
9. Termination and Extension. The Term shall be sooner terminated
or further extended under the following circumstances:
a. Termination for Cause. The Company shall be entitled,
with or without prior notice, to terminate this Agreement for cause, in which
case no consulting fees or other fees (other than such fees that have already
been earned by Consultant) shall be payable to Consultant after such
termination. "Cause" means Consultant's (i) gross negligence in the performance
or non-performance of any material duties to the Company; (ii) commission of any
material criminal act or fraud or of any act that affects adversely the
reputation of the Company; (iii) habitual neglect of its duties that it is
required to perform under this Agreement; (iv) dishonesty; or (v) gross
misconduct. Such termination shall not prejudice any other remedy under law or
equity of the Company and the failure of the Company to terminate Consultant
when cause exists shall not constitute the waiver of the Company's right to
terminate this Agreement at a later time. Termination under this section shall
be considered "for cause" for purposes of this Agreement.
b. Extension of Term. The Term may be further extended
with the express authorization of the Company's Board of Directors and
Consultant. Any extended term may be terminated at any time at the will of the
Board of Directors, with or without cause.
10. Indemnification. In the event any person or entity who is not
a party to this Agreement makes any claim or demand, or brings any legal action,
arbitration, or other proceedings against Consultant relating solely to
Consultant's provision of the Services, the Company hereby agrees to indemnify
and hold Consultant harmless from all such third party claims, or claims by the
Company for indemnity regarding such third party claims, and all damages,
expenses, losses, liability, or attorneys' fees which Consultant may incur
therefrom (hereinafter collectively referred to as "liability"), except
liability which results from Consultant's negligence or Consultant's intentional
torts.
11. General Release. Except as expressly provided in this
Agreement, Consultant and the Company will and hereby do release each other and
their respective directors, officers, Consultants, agents, owners, successors or
assigns, and any related or subsidiary corporations (the "Released Parties")
from all claims, demands, warranties, debts, obligations, liabilities, costs,
expenses, rights of action, wages, vacation payments, commissions, overtime
payments, judgments, orders or liabilities of any kind of character whatsoever,
whether known or unknown, suspected or unsuspected, related to Consultant's
employment with the Company, arising before the date of this Agreement. Without
limiting the generality of the foregoing release, Consultant agrees to waive any
right to recover based on state or federal age, sex, disability, physical or
mental handicap, sexual orientation, medical condition, mental handicap or other
anti-discrimination laws, including, without limitation, Title VII, The Age
Discrimination in
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Employment Act, The Americans with Disabilities Act, and The California Fair
Employment as well as the Older Workers Benefit Protection Act and Housing Act,
all as amended, whether such claim be based upon an action filed by Consultant
or by a governmental agency. The foregoing release is not intended to and does
not release Consultant from any liability arising out of or in connection with
any illegal acts committed by Consultant.
12. Civil Code Waiver. Each party expressly waives and
relinquishes all rights and benefits afforded by Section 1542 of the Civil Code
of the State of California, and does so understanding and acknowledging the
significance of this specific waiver of Section 1542. Section 1542 of the Civil
Code of the State of California states as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which, if known by him must have
materially affected his settlement with the debtor.
Thus, notwithstanding the provisions of Section 1542 and except as
expressly provided in this Agreement, and for the purpose of implementing a full
and complete release and discharge of the Released Parties, each party expressly
acknowledges that this Agreement is intended to include in its effect, without
limitation, all claims that any party does not know or suspect to exist in the
other party's favor at the time of execution of this Agreement, and this
Agreement contemplates the extinguishment of any of these claims.
13. Confidential Information. Consultant acknowledges that during
Consultant's employment and the Term of this Agreement, Consultant had and will
have access to and became acquainted with the Company's confidential and
proprietary information, including but not limited to the Company's products and
services, confidential information regarding its customers and other
compilations of information and records. In consideration of the covenants made
by the Company herein, Consultant agrees that he shall not directly or
indirectly disclose or otherwise use the confidential and proprietary
information of the Company.
14. Relationship of the Parties. Nothing contained herein shall be
construed to place the parties in the relationship of employer/employee,
partners, or joint venturers. Except as otherwise provided in this Agreement,
the Company shall have no power to obligate or bind Consultant in any manner
whatsoever. Consultant shall have no power to obligate or bind Company in any
manner whatsoever, other than as provided by this Agreement.
15. Benefit and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors.
The rights of the Company and Consultant hereunder may not be assigned without
the prior written consent of the other party.
16. Severability. Should any provision of this Agreement or
application thereof be declared invalid, void or unenforceable for any reason,
the validity and binding effect of the remaining portions shall not be affected
and the remaining portions of this Agreement shall remain in full force and
effect as if this Agreement had been executed with the invalid, void or
unenforceable provision eliminated. To this end, the provisions of this
Agreement are severable.
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17. Governing Law. Except to the extent governed by the laws of
the United States, this Agreement is to be governed and construed under the
internal laws of the State of California and that venue shall be proper for all
purposes in San Diego County, California.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be the same document. Such counterparts may be executed and delivered in
person or via facsimile.
19. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or be liable for any alleged
representation, promise, inducement, or statement not set forth herein.
20. Modification. This Agreement may not be modified, amended,
superseded, or cancelled, and none of the terms, covenants, representations,
warranties or conditions hereof may be waived, without a written instrument
executed by the party or parties to be bound by any such modification,
amendment, supersession, cancellation, or waiver.
21. Arbitration. Except as otherwise provided by law, any
controversy or claim arising out of or relating to this Agreement, the
relationship created hereby, the breach or termination thereof, or otherwise,
shall be settled by arbitration in San Diego County, California in accordance
with the Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. BY AGREEING TO ARBITRATION UNDER THIS PARAGRAPH, BOTH
CONSULTANT AND THE COMPANY UNDERSTAND THAT THEY ARE AGREEING TO HAVE ANY DISPUTE
RELATING TO THIS AGREEMENT DECIDED BY A NEUTRAL ARBITRATOR, AND AS TO THOSE
DISPUTES DECIDED BY THE NEUTRAL ARBITRATOR, CONSULTANT AND THE COMPANY ARE
GIVING UP THEIR RIGHT TO A JURY OR COURT TRIAL AND, IN ADDITION, CONSULTANT AND
THE COMPANY WAIVE ANY RIGHT TO SEEK PUNITIVE DAMAGES.
22. Attorneys' Fees and Costs. In any arbitration or other action,
the prevailing party shall be entitled to recover from the losing party its
reasonable costs and actual attorneys' fees. The "prevailing party" means the
party determined by the arbitrator to have most nearly prevailed, even if such
party did not prevail in all matters, and not necessarily the one in whose favor
a judgment is rendered.
23. Waivers; Cumulative Remedies. The failure of any party to
exercise any of its rights hereunder or to enforce any of the terms or
conditions of this Agreement on any occasion shall not constitute or be deemed a
waiver of that party's rights thereafter to exercise any rights hereunder or to
enforce any and every term and condition of this Agreement. Any remedies
provided for herein are cumulative, and not in substitution for any other remedy
any party may have at law or in equity. No delay on the part of any party in
exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof.
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24. Representation. The parties hereto acknowledge each has read
this Agreement, that each fully understands its rights, privileges and duties
under this Agreement, and that each enters into this Agreement freely and
voluntarily. Consultant further acknowledges he has had the opportunity to
consult with an attorney of his choice who is completely independent of and in
no way connected with the Company, to explain the terms of this Agreement and
the consequences of signing it.
25. Headings. All paragraph headings herein are inserted for
convenience only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
26. Further Assurances. The parties agree that, from time to time
hereafter, and upon request, each of them will execute, acknowledge and deliver
such documents and other instruments and shall perform such acts and deeds as
may be reasonably required or desirable to effectuate the transactions
contemplated by this Agreement or to otherwise carry out the terms and
conditions of this Agreement.
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SIGNATURE PAGE
TO
CONSULTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be executed as of the date first set forth above.
CONSULTANT:
__________________________________
Xxxxxxx X. Xxxxxxx
THE COMPANY:
PLANET POLYMER TECHNOLOGIES, INC.
By:_______________________________
X. Xxx Xxxxx
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