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Exhibit 10.46
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
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The undersigned, XXXXXX HOLDING CO. (PA), INC., a Pennsylvania
corporation, ("WHPA"), with offices at 00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, hereby agrees with you as follows:
1. Position and Responsibilities
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a. You shall serve as a Consultant for WHPA and/or any of its
subsidiaries (the "Company") and shall perform the duties
customarily associated with such capacity from time to time
and at such place or places as the Company's Board of
Directors shall designate as appropriate and necessary in
areas including, but in no way limited to, (i) mentoring and
counseling, sales, technology and trade association
representation, strategic planning, administrative consulting,
succession counseling, shareholder relations, compensation
consulting, etc., (ii) representing the company to customers
and outside organizations, including participation in
community activities, trade groups, associations, etc., (iii)
representing the company to outside shareholders as an
ambassador of goodwill and by conducting/participating in
communication meetings by geographic location, and (iv)
performing such other duties and activities as may be
reasonably requested by the Company during the term of this
Agreement. You shall be an independent contractor and not an
employee or agent of the Company. You have no authority to
bind the Company in any way or represent the Company, except
as provided herein.
b. You will, to the best of your ability, devote your best
efforts to the performance of your duties hereunder and the
business and affairs of the Company for such time as is
mutually agreed to by you and the Company; provided, however,
that it is agreed that such duties shall require at least
three months of service annually. You shall continue to be
available to the Company on a part-time basis to assist in any
necessary transition for a period of ninety (90) days
following the termination or expiration of this Agreement for
any reason whatsoever.
c. You will duly, punctually and faithfully perform and observe
any and all rules and regulations which the Company may now or
shall hereafter establish generally for its employees or
consultants governing the conduct of its business.
2. Term of Agreement
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a. The term of this Agreement shall be for a period of one (1)
year, commencing January 1, 2000 and ending December 31, 2000,
unless extended or terminated prior thereto as provided herein
or as mutually agreed by the parties hereto in writing. This
Agreement shall automatically renew for successive one (1)
year periods unless either party provides written notice to
the other, thirty (30) days prior to the expiration of the
then current period, of such party's intention to terminate
this Agreement at the end of the then current period
b. Notwithstanding the foregoing, the Company may terminate this
Agreement and the consulting relationship at any time upon
sixty (60) days prior written notice to you. Upon termination
of this Agreement for any reason, all obligations of the
Company hereunder shall cease, except with respect to amounts
and obligations accrued to you. As noted in Section 7 below,
your confidentiality and non-competition obligations under
Sections 5 and 6 shall survive the termination of this
Agreement.
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3. Compensation and Expenses
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You shall be compensated at the rate of One Hundred Fifty Thousand
Dollars ($150,000.00) per year, which shall be payable in equal monthly
installments. The Company shall file a Form 1099 with the Internal
Revenue Service with respect to the compensation paid during the term
of this Agreement. You shall be responsible to pay any applicable taxes
(both Federal and State).
The Company shall reimburse you promptly for all reasonable and
ordinary business and out-of-pocket expenses incurred by you in
connection with the performance of your duties hereunder, as approved
by the Company, including meals, travel, personal automobile and
miscellaneous expenses, provided the expenses are incurred in
furtherance of the Company's business and at the request of the
Company. You agree to keep accurate and complete records of the
aforesaid expenses as may be requested by the Company and to account to
the Company for the expenses prior to reimbursement by signing an
expense report and providing substantiating receipts.
The Company agrees to maintain for your use in the performance of your
duties hereunder appropriate office facilities in Greenville, PA and
provide support staff to assist you.
4. Outside Activities During Consulting Agreement
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You hereby agree that you will work exclusively for the Company on the
matters set forth in Section 1(a) and that you will not, directly or
indirectly, engage in any activities or become in any way affiliated
with (whether as an employee, consultant, officer, partner or
stockholder) any entity, which is in competition or in conflict with
the business or affairs of the Company.
5. Proprietary Information
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In order to protect the interests of the Company, you shall maintain in
strict confidence and use only in connection with your performance of
your duties hereunder all proprietary and sensitive information
(whether or not designated as confidential) of the Company which is in
your possession (whether received prior to or in connection with this
Agreement) or which is developed by you in the course of performing
your duties hereunder. This obligation shall not extend to information
which is or becomes generally available to the public through no fault
of yours or anything which may be received by you from another source
without restriction on its disclosure.
If, during or as a result of your performance of your duties hereunder,
you make an invention, improvement, idea or work relating to the
subject matter of your duties under this Agreement, you hereby agree to
promptly disclose the same to the Company and it shall be the Company's
property. You agree to execute any applications for patents, trademarks
or copyrights thereon which the Company sees fit to have prepared,
together with an assignment to the Company of your entire interest in
such invention, improvement, idea or work and such applications. You
also agree to take all other reasonable actions as the Company may deem
necessary to assist the Company in obtaining such patents, trademarks
or copyrights.
6. Non-Competition.
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a. During the term of this Agreement and for a period following
the termination or expiration of this Agreement, for whatever
reason, equal to two (2) years, you will not, without the
Company's
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prior written consent, directly or indirectly engage in
activities similar or reasonably related to those in which you
shall have engaged hereunder for, nor render services similar
or reasonably related to those which you shall have rendered
hereunder to, any person or entity whether now existing or
hereafter established which directly competes with (or
proposes or plans to directly compete with) the Company
("Direct Competitor") in any line of business engaged in or
under development by the Company.
b. No provision of this Agreement shall be construed to preclude
you from performing the same services which the Company hereby
retains you to perform for any person or entity which is not a
Direct Competitor of the Company upon the expiration or
termination of your consulting relationship with the Company
(or any post-agreement consultation) so long as you do not
thereby violate any term of this Agreement.
7. Remedies
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Your obligations under the provisions of Sections 5 and 6 of this
Agreement (as modified by Section 9, if applicable) shall survive the
expiration or termination of your consulting relationship (whether
through your resignation or otherwise) with the Company. You
acknowledge that a remedy at law for any breach or threatened breach by
you of the provisions of Sections 5 or 6 hereof would be inadequate and
you therefore agree that the Company shall be entitled to injunctive
relief in case of any such breach or threatened breach.
8. Assignment
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This Agreement and the rights and obligations of the parties hereto
shall bind and inure to the benefit of any successor or successors of
the Company by reorganization, merger or consolidation (including any
subsidiary, affiliate, or related entity of the Company) and any
assignee of all or substantially all of its business and properties.
Neither this Agreement nor any rights, obligations, or benefits
hereunder may be assigned by you without the prior written consent of
the Company.
9. Interpretation
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IT IS THE INTENT OF THE PARTIES THAT in case any one or more of the
provisions contained in this Agreement shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other
provisions of this Agreement, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been
contained herein. MOREOVER, IT IS THE INTENT OF THE PARTIES THAT in
case any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it, so as to be enforceable to the
maximum extent compatible with applicable law.
10. Notices
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Any notice which the Company is required to or may desire to give you
shall be given by registered or certified mail, return receipt
requested, addressed to you at your address of record with the Company,
or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the
Company hereunder shall be given by registered or certified mail,
return receipt requested, addressed to Xxxx X. Xxxxxx, Esq., Secretary
and General Counsel, Xxxxxx Holding Co. (PA), Inc., 00 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
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11. Waivers
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No waiver of any right under this Agreement shall be deemed effective
unless contained in a writing signed by the party charged with such
waiver, and no waiver of any right arising from any breach or failure
to perform shall be deemed to be a waiver of any preceding breach or of
any future such right or of any other right arising under this
Agreement.
12. Complete Agreement; Amendments
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The foregoing constitutes the entire agreement of the parties with
respect to the subject matter hereof, superseding any previous oral or
written communications, representations, understandings, discussions,
or agreements with the Company or any officer or representative
thereof. Any amendment or modification to this Agreement or waiver
shall be effective only if evidenced by a written instrument executed
by the parties hereto.
13. Headings
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The headings of the Sections hereof are inserted for convenience only
and shall not be deemed to constitute a part hereof nor to affect the
meaning of this Agreement.
14. Counterparts
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This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original and all of which shall together
constitute one agreement.
15. Governing Law
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This Agreement shall be governed by and construed under the laws of the
Commonwealth of Pennsylvania.
If you are in agreement with the foregoing, please sign your name below
to both originals of this Agreement and retain one (1) of the accompanying
counterparts for your records.
Very truly yours,
XXXXXX HOLDING CO. (PA), INC.
By:
Title: ___________________________
ACCEPTED AND AGREED:
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Xxxxxx X. Xxxxxx
