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EXHIBIT 10.26
CONSULTING SERVICES AGREEMENT
AGREEMENT NO. CG - 97 - WSTN2
THIS AGREEMENT is made and entered into as of the 12th day of June, 1997 by and
between Xxx X. Xxxxxx, Inc. ("Weston" or the "Company"), a Pennsylvania
corporation having its principal offices at 0 Xxxxxx Xxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx 00000 and The Coventry Group, L.L.P., a Virginia limited liability
partnership ("Consultant") having its principal offices at 0000 Xxxxxxxx Xxxx,
Xxxxxxxxxx Xxxxxxxx 00000.
WHEREAS, Weston is in the business of providing environmental engineering and
consulting services to private industry and governmental clients; and
WHEREAS, Consultant is in the business of providing organizational and
strategic consulting services, and is, by reason of its knowledge, education
and expertise capable of performing the services described herein; and
WHEREAS, Weston has determined that certain of Consultant's services as
described herein will be beneficial to its organizational and strategic
objectives.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, and other good and valuable consideration, the parties agree
as follows:
ARTICLE I. SCOPE OF CONSULTING SERVICES.
1. TRANSITION SUPPORT. Consultant shall provide coordination, organization and
information gathering and analysis services (the "Professional Transition
Services") to Weston. The objective of this support is to assist the Company to
structure and focus its external and internal operations in order to create a
competitive market position and to increase share value. The Professional
Transition Services shall be provided at such times and in such manner as shall
be mutually agreed by the parties and shall be conducted so as to ensure an
effective transition for the Company's new Board of Directors and executive
management. The Professional Transition Services shall include communications
support in order to keep all stakeholders in Weston fully informed in the
period following the transition to the new Board of Directors. Such services
shall also include operations support. The Professional Transition Services
shall be performed at Xxxxxx'x Xxxx
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Xxxxxxx, Xxxxxxxxxxxx corporate campus and such other locations as shall be
directed by Weston. The areas specifically addressed by this task shall include
the following:
o FINANCIAL OVERSIGHT. Consultant shall continue to provide specialists
and auditors, and shall conduct such due diligence as shall be necessary
to fully inform the Company's executive management and Board of
Directors regarding the financial affairs of the Company.
o DAYS SALES OUTSTANDING RECOMMENDATIONS. Consultant shall provide
recommendations to the Company's executive management to reduce the
number of days sales outstanding at Weston. The objective of this task
is to improve operational efficiency and effectiveness within the
organization
o MANAGEMENT REPORTING. Consultant shall conduct a review, provide
guidance, and produce recommendations that will assist the Company in
implementing effective management reporting functions.
o PERFORMANCE MEASURES. Consultant shall review and prepare
recommendations for establishing an effective system of performance
measures within the Company.
o SALARY ADMINISTRATION. Consultant shall prepare an analysis of Weston's
salary administration practices and provide recommendations that will
assist the Company in establishing more effective base salary and
incentive/reward programs that will position the company more
competitively in the marketplace.
o COMPENSATION DESIGN. Consultant shall provide as required
recommendations for compensation design to assist Weston in the design of
new programs to maximize operational effectiveness and efficiency.
o FEDERAL COSTING SURVEY AND DESIGN. The parties recognize that Weston
derives over 50% of its revenues from federal government contracts.
Consultant shall study and provide assistance and recommendations, as
required to help ensure that changes in organization and compensation do
not adversely affect cost recovery for federal contracts. The objective
of Consultant's analysis and recommendations in this task is to assist
with Weston profitability and organizational efficiency.
DELIVERABLE: PROFESSIONAL TRANSITION SERVICES.
ESTIMATED PRICE: $130,000.00.
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2. EXECUTIVE MANAGEMENT AND BOARD OF DIRECTORS SUPPORT. Consultant shall
provide the Company's executive management and Board of Directors with support
in operations, communications, external relations and related areas. As part
of this task, Consultant shall provide coordination, organization and
facilitation services for executive management and the Board of Directors.
Such services shall include, as necessary, strategic review and analysis of
the Company's current operations in order to assemble, analyze and prepare
recommendations for consideration by the Company's new Board of Directors.
All information shall be gathered by Consultant in accordance with the
Company's current policy and in cooperation with the Company's existing chain
of authority. Consultant's tasks shall also include the following.
o PROVISION OF EXECUTIVE SEARCH SERVICES. This task is to result in the
identification of a new "Executive Team" (Chief Executive Officer, Chief
Financial Officer and Chief Operating Officer).
o REVIEW OF THE COMPANY'S COMMUNICATIONS FUNCTIONS. This task shall
include a review of Weston's communications functions, and providing the
Company with communication and marketing support, media strategy,
material development and placement.
o BUSINESS DEVELOPMENT PRACTICES REVIEW AND RECOMMENDATIONS. Consultant
shall review the Company's existing business development strategies and
practices and provide recommendations and opportunities in order to
enable the Company to achieve improved results in this area. In addition
to the coordination of the above tasks, Consultant shall prepare a report
setting forth the status of, and its recommendations concerning, each
such matter.
DELIVERABLE: EXECUTIVE MANAGEMENT SUPPORT.
ESTIMATED PRICE: $101,000.00.
3. FUNDING OPTION IDENTIFICATION AND ASSISTANCE. Consultant shall assist the
Company in the identification of venture funding options in order to enable the
Company to secure additional capital and thereby achieve the objective of
gaining market share. The principal deliverable of this task shall be the
identification of ready sources of capital for consideration by the Company and
providing such guidance and facilitation services as shall be necessary to
enable the Company to obtain such capital.
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DELIVERABLE: IDENTIFICATION OF, AND ASSISTANCE IN OBTAINING CAPITAL FUNDING.
ESTIMATED PRICE: $40,000.00
4. INTERNATIONAL OPERATIONS AND BUSINESS DEVELOPMENT ASSISTANCE. In order to
assist Weston in penetrating strategically targeted international markets and
gaining an increased presence and share in those markets, Consultant shall
provide stakeholder management and other services directed to this objective.
This task shall include assisting Weston to develop and implement international
market strategies consistent with, and in ways that will enhance the value of
Weston's overall strategic priorities.
DELIVERABLE: INTERNATIONAL OPERATIONS AND BUSINESS DEVELOPMENT ASSISTANCE.
ESTIMATED PRICE: $24,000.00.
5. TIME COMMITMENT. In rendering the services set forth in this Agreement,
Consultant shall commit such time and resources as shall be necessary to
accomplish the specified deliverables
6. AUTHORIZED WESTON REPRESENTATIVE. Consultant shall report to Xxxxxxx X.
Xxxxxxxxx (the "Xxxxxx Representative") or such other person, as Weston shall
designate. All services performed by Consultant shall be at the direction of
the Weston Representative.
7. AUTHORIZED CONSULTANT REPRESENTATIVE. The Consultant Representative shall be
Xxxxxx Xxxxx. All work hereunder shall be performed by the persons listed in
Schedule "A" at the hourly rates set forth therein, or such other persons
designated by the Consultant Representative, subject to Weston's prior
approval.
ARTICLE II. TERM; TERMINATION.
The term of this Agreement shall be for the period commencing May 24, 1997 and
ending August 31, 1997. Thereafter the term may be extended from month-to-month
by written agreement executed by the parties. This Agreement may be terminated
by either party upon giving thirty (30) days' written notice to the other.
Weston may terminate this Agreement at any time if Consultant breaches this
Agreement or is unable to perform hereunder. In such event, Consultant's fee
shall be pro-rated, based on the percentage of each deliverable completed and
delivered. The provisions of Articles V, VI, VIII and XIII shall survive the
expiration or any termination of this Agreement.
ARTICLE III. CONSULTING FEE.
1. CONSULTING FEE. Weston shall pay Consultant a consulting fee in a total
amount not to exceed $295,000.00. The Consulting Fee shall be determined by
multiplying the number of hours spent by Consultant in performing the tasks set
forth in Article I hereinabove by Consultant's applicable hourly rate as well
as the provision of "fixed price" deliverables noted in the scope.
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2. EXPENSES. In the event Consultant is required to travel in connection with
the performance of its services hereunder, Weston shall reimburse Consultant
for such expenses incurred for travel and related food and lodging as are
incurred at the request of, or with the prior approval of Weston. Reimbursement
of such expenses shall be made in accordance with applicable Weston polices,
and on the same basis as though Consultant were an employee of Weston. In
consideration for the fees and reimbursement paid by Weston hereunder,
Consultant hereby releases Weston from any and all claims for fees and/or
expenses incurred by Consultant prior to the commencement of the term hereof.
ARTICLE IV. INVOICING AND PAYMENT.
1. INVOICES. Consultant shall submit invoices for completed services in a form
acceptable to Weston within ten (10) days following the end of each month in
which it provides its services. Invoices shall include the following detail:
a. This Agreement number, dates of service, number of hours worked,
identification of person(s) performing services, description of deliverables
completed and computation of consulting fee earned to date.
b. A detailed list of expenses in a format reasonably acceptable to
Weston, together with copies of original documentation of such expenses.
Original invoices shall be submitted together with one copy to the Weston
Representative who shall approve such invoice upon reasonable satisfaction that
the services and deliverables described therein have been satisfactorily
completed.
2. PAYMENT. Payment shall be issued to Consultant within 30 days after receipt
and approval of Consultant's invoices. Weston shall have no obligation to
reimburse Consultant for any expenses incurred, or any services performed, in
violation of any law, Weston Business Ethics Policy or in contravention of this
Agreement.
ARTICLE V. WORK PRODUCT.
1. OWNERSHIP OF WORK PRODUCT. All information, including, but not limited to,
all designs, processes, manuals, reports, computer data and related
information, first produced by Consultant for Weston in performing its services
hereunder shall be the sole property of Weston. All such information shall be
considered proprietary information and shall be retained and used solely in
accordance with the provisions of this Agreement. To the extent any such
information comprises work susceptible to protection under applicable copyright
laws, Consultant agrees that such work shall be deemed "work made for hire"
hereunder. In the
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event that such work is determined not to be "work made for hire", this
Agreement shall operate as an irrevocable assignment by Consultant to Weston of
the copyright in the work, including all right, title and interest therein, in
perpetuity.
2. INVENTIONS AND PATENTS. All inventions, improvements and discoveries,
whether patentable or not, first conceived, developed or reduced to practice by
Consultant, either alone or with others, in the course of the performance of
the services hereunder, or as a consequence of Consultant's receipt of
information hereunder, shall be the sole property of Weston. All such
inventions, improvements and discoveries shall be promptly disclosed to Weston
in writing. At Weston's request and expense, Consultant agrees to (i) assist
Weston in making application for patents on such inventions, improvement and
discoveries in the United States and any foreign countries (ii) assign all such
applications to Weston or its designee without further charges, (iii) assist
Weston in the prosecution of any patent applications and the enforcement of any
resulting patents and (iv) execute any and all documents necessary for the
accomplishment of the foregoing.
ARTICLE VI. CONFIDENTIALITY.
1. PROPRIETARY INFORMATION. All information received by Consultant in the
course of performing its services, other than information publicly available or
publicly disclosed shall be deemed "Proprietary Information." Consultant shall
receive and retain all Proprietary Information in confidence and shall not
disclose such information to any person without the express written
authorization of Weston. Consultant shall use Proprietary Information solely
for the purpose of performing its obligations hereunder and for no other
purpose. Upon termination of this Agreement, Consultant shall promptly return
all Proprietary Information to Weston, and will, if requested by Weston,
execute a certificate warranting that all Proprietary Information has been
returned to Weston in accordance with this Agreement. Consultant shall cause
all persons identified on Schedule A requiring access to the Proprietary
Information in the course of Consultant's performance hereunder, to agree to
the confidentiality requirements of this Article VI.
2. RELATIONSHIP WITH WESTON. Consultant may not represent that it is associated
with Weston for any marketing, commercial or promotional purposes without the
prior written permission of Weston.
3. PROHIBITION OF CERTAIN ACTIVITIES.
a. Non-Solicitation of Employees. Consultant shall not, directly or
indirectly, from the date of this Agreement until two (2) years after
termination or expiration of this Agreement, solicit, hire or otherwise induce
any Weston employee to leave the employment of Weston; nor shall
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Consultant induce any Weston employee to become an employee of, or otherwise
become associated with, any company or business other than Weston. This
paragraph shall apply to inducement, hiring or solicitation of any Weston
employee regardless of position.
b. Non-Solicitation of Clients. Consultant shall not, directly or
indirectly, from the date of this Agreement until two (2) years after
termination or expiration of this Agreement, solicit the trade or patronage, in
competition with Weston, of any Weston clients or of any prospective clients
with whom Weston has pending proposals. This restriction shall only apply to
clients or prospective clients with whom Consultant had direct or indirect
contact during the pendency of this Agreement.
ARTICLE VII. CONFLICTS OF INTEREST
1.REPRESENTATION CONCERNING CONFLICTS. Consultant hereby warrants and
represents that to the best of its knowledge and belief there are no relevant
facts or circumstances which could give rise to an actual or potential conflict
of interest under this Agreement, and that Consultant has disclosed to Weston
all information having any relevance to an actual or potential conflict of
interest.
2. DISCLOSURE. Consultant agrees that if an actual or potential conflict of
interest is discovered after execution of this Agreement, Consultant will make
full disclosure to Weston in writing. This disclosure shall include a
description of actions which Consultant has taken or proposes to take to avoid,
mitigate or neutralize the actual or potential conflict, and all actions taken
for such purposes shall be in consultation with Weston.
3. COMMUNICATIONS WITH GOVERNMENTAL OFFICIALS. In performing these Services,
Consultant shall not communicate with any officer, representative, employee,
elected official or agency of the government of any country or any subdivision
thereof on behalf of Weston without having first obtained Weston's written
consent thereto.
4. GOVERNMENT EMPLOYMENT. If Consultant or any person working for Consultant in
the performance of this Agreement has been a United States government employee
within the past five years, Consultant agrees to furnish Weston all relevant
information regarding any potential conflict of interest.
ARTICLE VIII. RECORDS RETENTION.
Consultant shall retain all records related to this Agreement in legible form
for a period of five (5) years from date of final payment hereunder. Consultant
authorizes Weston to inspect and audit these records during business hours upon
prior notice to Consultant.
ARTICLE IX. TAXES.
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Consultant shall have sole responsibility for payment of all Federal, state
(unless it provides Weston with a Non-taxable Transaction Certificate), local
and other sales, use, income and all employment and other taxes applicable to
the fees paid to Consultant hereunder. Consultant agrees to indemnify and hold
Weston harmless from and against any and all claims and liability relating to
such taxes.
ARTICLE X. INDEPENDENT CONTRACTOR.
For all purposes in performing its services, Consultant shall be deemed to be
an independent contractor and as such, shall not be entitled to any benefits
applicable to the employees of Weston. The Consultant declares that it is
engaged in an independent business, that similar services are provided for
other clients, and Weston is not Consultant's sole and only client. Consultant
shall in no manner be deemed to be an agent or representative of Weston.
Consultant shall have no authority to bind or speak for Weston except as Weston
may grant specific written authority to Consultant to do so from time to time.
ARTICLE XI. INSURANCE.
Consultant shall maintain insurance at its own expense for services performed
hereunder. Such insurance shall include, but not be limited to, Comprehensive
General Liability ($300,000 Minimum), Professional Liability - Errors and
Omissions ($300,000) and Automobile Liability (Bodily Injury and Property
Damage/$300,000 Minimum each). Certificates of insurance shall be provided to
Weston immediately upon request.
ARTICLE XII. WARRANTY.
Consultant warrants and represents that: (a) it possesses the expertise,
capability, equipment and personnel to properly and professionally perform the
services; (b) to the extent it is required to do so, it is properly and legally
licensed to perform the services; (c) it shall at all times in the performance
of such services comply with all applicable laws, ordinances and regulations;
(d) it shall perform all services in a good, workmanlike, professional,
efficient and non-negligent manner; and (e) it does not, as of the date of this
Agreement, and during the period of performance under this Agreement, shall not
represent any competitor of Weston without first fully disclosing to Weston in
writing the scope of work and the name of such competitor.
ARTICLE XIII. INDEMNIFICATION.
Consultant agrees to indemnify and hold harmless Weston, its officers,
directors, agents and employees for any loss, including reasonable and actual
attorney's fees, costs or damages that Weston may incur as a result of the
negligent acts or omissions of the Consultant or the Consultant's employees or
agents.
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Neither party shall be liable to the other for incidental, indirect or
consequential damages, except where such damages arise out of the gross
negligence or willful misconduct of the other party.
ARTICLE XIV. ASSIGNMENT.
This Agreement may not be assigned by Consultant, either in whole or in part,
without the prior written consent of Weston. Any attempted assignment shall be
null and void and without force and effect.
ARTICLE XV. DISPUTES.
Any dispute arising under this Agreement not settled by agreement of the
parties, including disputes arising as a result of termination, shall be
decided by litigation in a court of competent jurisdiction. Pending any
decision, appeal, suit, or claim pursuant to this Article, Consultant shall
proceed diligently with the performance of the work authorized under this
Agreement.
ARTICLE XVI. SEVERABILITY.
Any provision or part of this Agreement held to be void or unenforceable under
any law or by- any court shall be deemed stricken, and all remaining provisions
shall continue to be valid and binding upon the parties The parties may reform
or replace such stricken provision or part thereof with a valid and enforceable
provision which expresses the intent of the stricken provision
ARTICLE XVII. GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania, exclusive of the choice of law rules
thereof, as if wholly to be performed therein
ARTICLE XVIII. ENTIRE AGREEMENT.
This Agreement constitutes the sole and exclusive agreement of the parties
hereto and supersedes any and all prior understandings or written or oral
agreements between the parties with respect to the subject matter hereof.
Provided, however, nothing herein shall be deemed to modify or amend the terms
of, or either party's obligations under, the Consulting Services Agreement
between the parties dated May 23, 1997, identified as "Agreement No CG - 97 -
WSTN1"
This Agreement may be amended only by a writing signed by the Authorized
Representative of each party
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives
THE COVENTRY GROUP, L.L.P.
(CONSULTANT) BY:
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NAME: XXXXXX XXXXX XXX X. XXXXXX, INC.
TITLE: PRINCIPAL
DATE: ______________________ BY: ____________________
NAME: XXXXXXX X. XXXXXXXXX
TITLE: CHIEF FINANCIAL OFFICER
DATE: ____________________
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SCHEDULE A
PERSONS PERFORMING THE SERVICES AND HOURLY RATES
NAME HOURLY RATE
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Xxx Xxxxxxxx $300.00
Xxxxxxx Xxxxxxxx $300.00
Xxxxxxx Xxxxx $100.00
X. Xxxxxx $250.00
X. Xxxxx $300.00
X. Xxxxxx $350.00
X. Xxxxxx (*reduced rate) $100.00
X. Xxxxx (*blended) $100.00
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