EXHIBIT 10.4
MANAGEMENT CONSULTING AGREEMENT
THIS MANAGEMENT CONSULTING AGREEMENT ("Agreement") is entered into as
of April 1, 2000 (the "Effective Date"), by and between XX. XXXXXX X. XXXXXX, a
resident of the State of North Carolina (the "Consultant") and DONLAR
CORPORATION, an Illinois corporation (the "Company").
WHEREAS, the Consultant is willing to be retained by the Company, and
the Company is willing to retain the Consultant, to assist the Company as herein
described, in accordance with the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, for good and valuable consideration, including the
mutual promises contained herein, the parties agree as follows:
1. RETENTION OF CONSULTANT. The Company hereby agrees to retain the
Consultant, and the Consultant, and the Consultant agrees to be retained by the
Company, for the purpose of providing such management consulting services to the
Company as shall be requested by the Board of Directors and the Chief Executive
Officer of the Company from time to time; provided, however, that Consultant
shall not be required to spend more than 60 hours over 12 months without his
consent.
2. CONSULTING FEE. In consideration of the services provided by the
Consultant to the Company as described herein, the Company shall pay to the
Consultant a consulting fee equivalent to one percent (1%) of all sales of
products that occur during each year of the term of this Agreement (the
"Consulting Fee"). The Consulting Fee shall be payable annually on or before
April 15th of each year, with the initial payment to be made on or before April
15, 2001 and a final payment on or before April 15, 2010. The Company also will
reimburse Consultant for expenses incurred on the Company's behalf, including,
without limitation, travel, lodging and meals.
3. TERM AND TERMINATION. This Agreement shall commence on the date
hereof and shall end at the close of business on April 15, 2010 (the
"Termination Date"). This Agreement may be terminated by the Company prior to
the Termination Date only for "cause," which shall mean, (i) the commission by
the Consultant of any act of fraud, theft, or embezzlement against the Company,
(ii) the gross negligence of the Consultant resulting in a material adverse
effect on the Company or (iii) conviction of the Consultant for the commission
of any serious act whether or not directed against the Company.
4. INDEMNITY. The Consultant agrees to indemnify and hold the Company
and its officers, directors, members, managers, stockholders, employees,
representatives, agents and affiliates harmless from and against any and all
losses, liabilities, damages, obligations, costs and expenses, including,
without limitation, reasonable attorneys' fees and disbursements, arising out of
(i) any act, omission or misconduct by the Consultant or any of his employees,
agents, affiliates or representatives, or (ii) any breach by the Consultant of,
or default by the Consultant under, this Agreement. The Company agrees to
indemnify and hold the Consultant and his employees, representatives, agents and
affiliates harmless from and against any and all losses, liabilities, damages,
obligations, costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, arising out of (i) any act, omission or
misconduct by the Company or any of its employees, agents, affiliates or
representatives, or (ii) any breach by the Company of, or default by the Company
under, this Agreement.
5. INDEPENDENT RELATIONSHIP; CONFIDENTIALITY. The parties agree that no
joint venture, partnership, agency or other relationship shall be created or
implied by reason of this Agreement. This Agreement and its terms are strictly
confidential and shall not be disclosed to any third party, except as required
by applicable securities laws.
6. NOTICES. All notices, requests, instructions or other communications
to be given hereunder by any party hereto shall be in writing and shall be
deemed to have been given or made on the date of delivery, provided delivery is
actually tendered at the appropriate address, addressed to the persons
identified below (i) in person, or (ii) or by courier service, or (iii) by
facsimile copy (with original copy marked the same day), or (iv) seven (7)
calendar days after deposit in the mail by first class certified mail postage
prepaid, return receipt requested, to the addresses stated in the first
paragraph of this Agreement.
7. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their successors, heirs
and permitted assigns, and shall be binding upon or inure to the benefit of any
entity or person which shall become the successor in interest whether by
acquisition of stock, merger or acquisition of the assets of the Company. This
Agreement may not be assigned by either party without the prior written consent
of the other party.
8. FEES AND EXPENSES OF ENFORCEMENT OF THIS AGREEMENT. The prevailing
party in any suit or action to enforce this Agreement shall be entitled to
recover its court costs and reasonable attorneys' fees.
9. SEVERABILITY. This Agreement shall be deemed as severable and if any
portion hereof shall be held invalid for any reason, the remainder shall not
thereby be invalidated but shall remain in full force and effect.
10. COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which shall be deemed an original and all of
which taken together shall be deemed one and the same instrument.
11. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Illinois.
12. SCOPE OF AGREEMENT. This Agreement is the exclusive agreement
between the Company and the Consultant with respect to its subject matter and as
of it effective date supersedes all prior and contemporaneous agreements,
negotiations, representations and proposals, whether written or oral, related to
its subject matter.
13. MODIFICATIONS AND WAIVERS. This Agreement may not be modified
except by writing signed by authorized representatives of all of the parties
hereto. The failure of any party at any time to require performance by either
party of any provisions hereof shall in no way affect the full right to require
such performance at any time thereafter, nor shall the waiver by either
2
party of a breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision, or as a waiver of the provision itself.
IN WITNESS WHEREOF, the undersigned have executed this Management
Consulting Agreement, effective as of the date first above written.
COMPANY: CONSULTANT:
DONLAR CORPORATION
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------- ---------------------------
Xxxxx X. Xxxxxx, President Xx. Xxxxxx X. Xxxxxx
3
