Exhibit 10.15
CONSULTATION AND INDEPENDENT CONTRACTOR AGREEMENT
made and effective this lst day of December, 1999, between Xx. Xxxxxx
Xxxxxx ("Xxxxxx") and Adherent Technologies, Inc. ("Adherent"), a New Mexico
corporation owned and controlled by Xxxxxx, with their mailing address is 0000
Xxxxxx xxx Xxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000 (Xxxxxx and Adherent are
hereinafter referred to collectively as the "Consultants") and Titan
Technologies, Inc. (the "Company"), a New Mexico corporation with its mailing
address at 0000 Xxxxxxxxxx Xxxx, X.X., Xxxxxxxxxxx, Xxx Xxxxxx 00000.
1. Services Rendered.
The Company hereby retains the Consultants, and the Consultants hereby
accept such work and hereby agree to remain the scientific, technical, or
engineering consultants or advisors to the Company on the terms and subject to
the conditions hereinafter set forth.
2. Term and Option to Renew.
This agreement (the "Agreement") shall be effective for a term
commencing as of the date hereof and terminating as provided in Section 5,
below.
3. Duties.
(a) During the term of this Agreement, the Consultants shall: (i) aid
and assist in the design, development, implementation and construction of
applications of the Company's recycling technology (the "Technology"); (ii) be
available for personal consultation with the officers, directors and/or
employees of the Company at the offices of the Company, or at such other
mutually agreed upon place during the normal business hours for reasonable
periods subject to reasonable advance notice and mutually convenient scheduling;
(iii) be available for consultation by telephone with the principal financial,
sales and/or operating officer(s) of the Company during normal business hours;
(iv) be available for personal consultation with prospective Company customers;
and (v) perform such other lawful scientific, technical, or engineering and
other similar consulting or advisory services relating to such aspects of the
Company, as the Company may reasonably request consistent within the provisions
of this Agreement. The Consultants shall not be required to devote any minimum
number of hours during any given period to the performance of his duties
hereunder.
(b) It is hereby expressly agreed, understood and accepted that from
time to time during the term of this Agreement when the Consultant(s) furnishes
advice and consultation to the Company, the same shall, when the President of
the Company so requests, be reduced to writing in the form of memorandum (the
"Memorandum"); and copies thereof shall be sent to the Company, to the attention
of the President and may be sent to prospective customers of the Company. The
requirements of this Sub-Paragraph 3(b) shall be applicable regardless of
whether or not the Company agrees with, intends to or actually follows and/or in
any way implements the advice and conclusions of the Consultant as expressed in
the Memorandum.
4. Compensation.
As compensation for the Consultant's service, and subject to compliance
with the other provisions of this Agreement, the Company hereby agrees: (a) to
sell Xxxxxx 1,000,000 shares of the Company's common stock for a price of $0.01
per share, and when issued such shares shall be restricted against resale or
distribution except as permitted by the Securities Act of 1933, as amended, and
the certificate representing such shares shall be stamped with a legend noting
the restriction; (b) to share with Consultants on the basis of fifty percent
(50%) being retained by the Company and fifty percent (50%) being paid by the
Company to the Consultants of the net proceeds received by the Company as income
resulting from the sale and/or licensing or product, plant, technology or
otherwise of its technology related to feedstocks other than those for tires,
and including composites, electronics, plastics and automotive scrap; and, (c)
to pay the Consultants a sum of money derived from the revenue from tires
computed as follows:
Five percent (5%) of the first $2,000,000 of net revenue; Three percent
(3%) of net revenue of $2,000,000 to $5,000,000; Two percent (2%) of
net revenue of $5,000,000 to $10,000,000; One percent (1%) of all net
revenue in excess of $10,000,000.
In addition, the Company shall reimburse Consultants for all prior
approved, in writing, out-of-pocket disbursements (other than automobile
expenses) incurred by the Consultant on the Company's behalf.
The Consultants are granted hereby the right to seek whatever grants or
other financial assistance available to them for the purpose of developing the
Company's Technology, and such moneys, when received by the Consultants shall be
expended as Consultants deem appropriate and without accounting to the Company,
however, all advances, if any, made to or for the use of the Technology shall be
and remain the property of the Company. Termination.
The Company shall have the right to terminate this Agreement at any
time for cause and may otherwise during the term hereof terminate this agreement
on 30 days advance written notice to the Consultant; and the Consultants shall
have a similar right. In the event of termination for any reason, the
Consultants nevertheless agree to be bound by the confidentiality and
non-compete provisions of this Agreement. All rights to compensation of the
Consultants under the terms of this Agreement shall, in the case of termination
for cause terminate immediately upon the giving of notice of termination for
cause, and if terminated otherwise than for cause, such compensation shall cease
upon the second anniversary date of the termination of this Agreement as to all
revenue derived from the Technology as it relates to tires, but Consultants
shall have an ongoing right to receive fifty percent of all revenue derived from
the Technology as it relates to feedstocks other than those for tires, including
composites, electronics, plastics and automotive scrap.
6. Representations and Warranties.
In order to implement the operation of this Agreement, the parties
hereby represent, warrant, agree and consent as follows:
(a) The execution, delivery and performance of this Agreement, in the
time and manner herein specified, will not conflict with, result in a breach of,
or constitute a default under any existing agreement, indenture, or other
instrument to which either the Company or the Consultants is a party of by any
of them may be bound or affected;
(b) Both the Company and Consultants have MI legal authority to enter
into this Agreement and to perform the same in the time and manner contemplated;
(c) The Consultants and his or its representatives have had access to
such records of the Company as he and/or they wish to examine and are relying
and entering into this Agreement upon his/their own independent findings and
upon no representations, statements or warranties or any obligations to make any
representations of the Company;
(d) The Consultants have not relied upon or been induced by any
statements, representations or warranties (whether expressed, implied in fact or
implied by law) of any kind, nature or description, concerning the Company's
chances of becoming publicly owned, profitable or otherwise, made by the
Company, its agents, servants or employees other than those expressly and
clearly set forth in this Agreement and has entered into this Agreement of his
own free will and volition; and
(e) Each and every representation, assertion and statement made by the
Consultants in the resume furnished to the Company and concerning the
Consultants' training, background and experience is true and correct and does
not omit to state any material fact.
7. Confidential Data.
(a) The Consultants shall not divulge to others, any secret,
confidential or proprietary information, knowledge, or data concerning or
pertaining to the business and affairs of the Company, obtained by them as a
result of their prior or contemporary services, unless authorized in writing, by
the Company.
(b) The Consultants shall not be required in the performance of their
duties to divulge to the Company or any officer, director, agent or employee of
the Company, any secret, confidential or proprietary information, knowledge, or
data concerning any other person, firm or entity (including, but not limited to,
any such persons, firm or entity which may be a competitor or potential
competitor of the Company) which the Consultants may have or be able to obtain.
(e) The Consultants shall not use the Company's name for promotional
purposes either directly or indirectly in any advertisement or news release
without prior written approval of the Company. The Consultants may, however,
list the Company on a resume without such consent.
8. Ownership.
All ideas, marketing systems, computer programs or methods, formulae,
inventions, discoveries, improvements, secrets or processes whether or not
patentable or copyrightable, made or developed by the Consultants during the
term of this Agreement or within one year after its expiration or termination
and relating to the Technology of the Company, shall be the exclusive property
of and owned by the Company, whether or not any claim of the Consultant to
compensation under Paragraph 4 hereof has been or will be satisfied, and the
Consultant agrees to assign all rights to the Company and provide the Company at
its request and expense, such instruments and evidence as it may reasonably
request to perfect, enforce and maintain the Company's rights to such property.
At the conclusion of his consulting relationship with the Company as provided
herein, the Consultant shall forthwith surrender to the Company all prototypes,
computer programs and related matters, letters, brochures, agreements and
documents of every character relating to the business affairs and properties of
the Company and then in his possession and shall not, without the Company's
prior written consent, retain or disclose any copies thereof Solely by virtue of
his execution hereof, the Consultant specifically agrees and consents to the
Company's enforcement of its rights hereunder by injunctive relief.
Consultant, by execution of this Agreement, further agrees to assist
and cooperate fully with Company in effecting, perfecting, and evidencing their
ownership thereof and rights therein and in any enforcement, validity, or
interference proceeding or action.
8. Consultant's Status.
The Consultants shall be, and be deemed to be, independent contractors
in the performance of their duties hereunder, any law of any jurisdiction to the
contrary notwithstanding. The Consultants shall not, by reason of this Agreement
or the performance of their duties hereunder, be, or be deemed to be employees,
agents, partners, co-venturers or controlling persons of the Company; and the
Consultants shall have no power to enter into any agreement on behalf of or
otherwise bind the Company. The Consultants shall not have, or be deemed to
have, any fiduciary obligations or duties to the Company and shall be free to
pursue, conduct and carry on for their own account (or for the account of
others) such activities, employments, ventures, businesses and other pursuits as
the Consultants in their sole, absolute and unfettered discretion, may elect;
provided, however, that the same are not violative of the confidentiality or
non-compete provisions of this Agreement. 9. Competition.
(a) Consultants acknowledge that the Company's technology is being
marketed on a world wide basis and that any competition by Consultants with the
Company at any place on the earth would have severe and adverse financial impact
on the Company, Therefore, during the term of this Agreement, or upon the
termination of his consulting relationship, whichever event shall occur later,
and for a period of twenty-four (24) consecutive months thereafter, the
Consultants shall not, without the prior express written consent of the
Company's Board of Directors, engage (either as an employee, consultant, agent,
proprietor, officer, director, partner or stockholder of any corporatior4 firm
or business) in the manufacture and marketing of the Company's recycling
technology or any advancements made thereon by Consultants through any their
independent efforts (including any other entity controlled by Xxxxxx or
Adherent) or its related components and/or devices or in competition with the
Company, or threatening to be in competition with the Company within any
jurisdiction in which the Company is engaged in such operations or any
jurisdiction in which the Company has informed the Consultants, in writing, that
the Company reasonably intends to engage. Solely by virtue of his execution
hereof, the Consultants specifically agree and consent to the Company's
enforcement of its rights hereunder by injunctive relief.
(b) The Consultants further covenant that during the stated term of
this Agreement and for the twenty-four (24) month period thereafter, he will not
solicit any clients or customers, known by him to be clients or customers of the
Company, for competitive businesses. Solely by virtue of his execution hereof,
the Consultants specifically agree and consent to the Company's enforcement of
its rights hereunder by injunctive relief 10. Assignments.
This Agreement is binding upon and shall inure to the benefit of the
parties hereto and, as the case may be, they're respective officers, directors,
employees, consultants, advisers, heirs, representatives, executors,
administrators, successors and assigns. Notwithstanding the foregoing, neither
party shall assign or transfer any rights or obligations hereunder without the
prior written consent of the other(s), except that: the Company may assign or
transfer this Agreement to the Company to a successor corporation in the event
of a merger, consolidation, or transfer or sale of all or substantially all of
the assets of the Company, provided that no such further assignment shall
relieve the Company from liability for the obligations assumed by it hereunder;
and the Consultants may assign or transfer this Agreement to any firm which is
an affiliate of the Consultants, provided that no such assignment shall relieve
the Consultants from liability for his obligations hereunder. 11. Additional
Instruments.
Each of the parties shall from time to time, at the request of the
others, execute, acknowledge and deliver to the other party any and all further
instruments that may be reasonably required to give full effect and force to the
provisions of this Agreement.
12. Entire Agreement.
Each of the parties hereby covenants that this Agreement is intended to
and does contain and embody herein all of the understandings and agreements,
both written and oral, of the parties hereby with respect to the subject matter
of this Agreement, and that there exists no oral agreement or understanding,
express or implied liability, whereby the absolute, final and unconditional
character and nature of the said Agreement shall be in any way invalidated,
empowered or affected. There are no representations or warranties other than
those set forth herein.
13. Laws of the State of New Mexico.
This Agreement shall be governed by and interpreted under and construed
in all respects in accordance with the laws of the State of New Mexico,
irrespective of the place of domicile or residence of either party. In the event
of controversy arising out of the interpretation, construction, performance or
breach of this Agreement, the parties hereby agree and consent to the
jurisdiction and venue of the Second District of the State of New Mexico,
Bernalillo County; or the United States District Court for the District of New
Mexico, and further agree and consent that personal service or process in any
such action or proceeding outside of the State of New Mexico shall be tantamount
to service in person within Bernalillo County, New Mexico and shall confer
personal jurisdiction upon either said Courts.
14. Originals.
This Agreement shall be executed in counterparts each of which so
executed shall be deemed an original and constituted one and the same agreement.
15. Address of Parties.
Each party shall at all times keep the other informed of its principal
place of business if different from that stated herein, and shall promptly
notify the other of any changes, giving the address of the new principal place
of business or residence.
16. Notices.
All notices that are required to be or may be sent pursuant to the
provisions of this Agreement shall be sent by certified mail return receipt
requested, to each of the parties at the address appearing herein, and shall
count from the date of mailing.
17. Modification and Waiver.
A modification or waiver of any of the provisions of this Agreement
shall be effective only if made in writing and executed with the same formality
as this Agreement. The failure of any party to insist upon strict performance of
any of the provisions of this Agreement shall not be construed as a waiver of
any subsequent default of the same of similar nature or of any other nature or
kind.
If the foregoing correctly sets forth our understanding, please
indicate your consent and agreement thereto by signing the enclosed copy of this
letter in the indicate space and returning the same to the undersigned.
TITAN TECHNOLOGIES, INC.
By: Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
ADHERENT TECHNOLOGIES, INC.
By: Xxxxxx Xxxxxx, President
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Xxxxxx Xxxxxx, President
Xx. Xxxxxx Xxxxxx
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Xx. Xxxxxx Xxxxxx
