CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made on March__, 2000 by
and among Thermacell Technologies, Inc., a Florida corporation (the "Company"),
and Xxxx Pidorenko (the "Consultant").
WHEREAS, Company requires the Consultant's consulting services as
described herein; and
WHEREAS, the Company desires to engage the Consultant, and the
Consultant desires to be engaged, to provide consulting services in accordance
with and subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises,
representations, warranties and covenants contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, each intending to be legally bound, hereby
agree as follows:
ARTICLE 1.: CONSULTING SERVICES
1.1. Duties and Responsibilities; Additional Consulting Services. The
Company hereby retains the Consultant to provide consulting services
(collectively, the "Services") to or on behalf of the Company as contemplated in
this Agreement. The scope of such consulting Services shall be as determined and
directed by the Company's Board of Directors (the "Board of Directors"). The
Consultant shall render Services of not less than eighty (80) hours per quarter.
Such Services will consist of management and marketing advisory and
administrative services requested by the Company, utilizing the background and
experience of the Consultant, particularly as it relates to his prior employment
with the Company.
1.2. Term. The term (the "Term") of this Agreement shall commence on the
date hereof and shall continue for a period of five (5) years.
ARTICLE 2.: COMPENSATION
2.1. Consulting Fee. As compensation for the Services, the Company shall
pay the Consultant the following:
(a) A quarterly consulting fee (the "Quarterly Fee") of
$30,000, which shall be paid in cash on or before the
fifth (5th) business day of each quarter-annual
period (a consecutive three month period beginning
March 1, June 1, September 1 or December 1,
respectively), during the first year of the term, and
paid in cash or registered Common Stock of the
Company in each year thereafter; and
(b) 375,000 shares of the Company's $.0001 par value per
share common stock (the "Common Stock"), with the
registration rights set forth in Section 5.1 hereof.
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2.2. Anti-Dilution Protection; Adjustment.
(a) If the Company effects a corporate transaction,
including, without limitation, a merger, acquisition,
private placement or public offering, which would
dilute the percentage of Common Stock to which
Consultant is entitled pursuant to this Agreement,
additional shares of Common Stock shall be issued to
the Consultant as required to maintain his percentage
ownership of Common Stock which existed prior to such
corporate transaction.
(b) The amount and exercise price of securities purchasable
upon the exercise of the Options shall be subject to
adjustment in the event that the Company engages in any
subdivision, reverse split or forward split of its
Common Stock so that the Consultant shall be entitled
to receive the kind and number of Shares of Common
Stock which it would have been entitled to receive had
those transactions not taken place.
2.3 Release of Other Agreements. In consideration for the execution and
delivery of this Agreement by the Company to the Consultant, the Consultant
hereby releases the Company and its officers, directors and employees from any
claims, demands or obligations under all prior agreements between the Company
and the Consultant, including without limitation, that certain Employment
Agreement dated as of April 4, 1996 between the Company and Xxxx Pidorenko.
ARTICLE 3.: EXPENSES & INDEMNIFICATION
3.1. Expenses. The Company shall reimburse the Consultant for all
reasonable travel and client-related expenses incurred by the Consultant in the
course of the discharge of its duties hereunder. All requests for reimbursement
of expenses by the Consultant must be supported by appropriate receipts and
documentation as the Board of Directors may reasonably require. Notwithstanding
any other provision of this Agreement, the Consultant agrees and acknowledges
that any expenses which exceed an aggregate of $1,000 in any one month must be
approved in advance by the Board of Directors to be eligible for reimbursement
hereunder.
3.2. Indemnification. The Company agrees to indemnify and hold Consultant,
its affiliates, control persons, officers, employees and agents (collectively,
the "Indemnified Persons") harmless from and against all losses, claims,
damages, liabilities, costs or expenses (including reasonable attorneys' and
accountants' fees) joint and several arising out of the performance of this
Agreement, whether or not Consultant is a party to such dispute. This indemnity
shall not apply, however, where a court of competent jurisdiction has made a
final determination that Consultant engaged in gross recklessness and willful
misconduct in the performance of its services hereunder which give rise to the
loss, claim, damage, liability, cost or expense sought to be recovered hereunder
(but pending any final determination, the indemnification and reimbursement
provision of this Agreement shall apply the Company shall perform its
obligations hereunder to reimburse Consultant for its expenses).
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ARTICLE 4.: TERMINATION & CONFIDENTIALITY
4.1. Right to Terminate. The Company may immediately terminate this
Agreement if the Consultant is convicted of fraud. The Consultant may terminate
this Agreement upon sixty (60) days written notice to the Company. In the event
of any such termination, such Consultant shall be entitled to receive any
Quarterly Fees earned but unpaid through the date of such notice, together with
any outstanding business expenses reimbursable pursuant to Section 3.1 hereof.
Termination of this Agreement shall not effect Consultant's rights with respect
to the Shares, including without limitation, the registration rights provided in
Section 5.1 hereof, which expressly survive termination of this Agreement.
4.2. Return of the Company's Property. If this Agreement is terminated for
any reason, the Consultant shall promptly return to the Company, postage paid,
any and all equipment, documents (including all copies thereof) and any other
material of any type or nature whatsoever supplied to the Consultant by the
Company. Title to any equipment or material furnished to the Consultant shall
remain in the Company and the Consultant shall have no ownership interest
whatsoever in any of this equipment or material. The Company shall pay all costs
and expenses associated with any such return.
4.3 Confidentiality. Consultant will not disclose to any other person, firm
or corporation, nor use for his own benefits, during or after the term of this
Agreement, any trade secrets or other information designated as confidential by
the Company which is acquired by Consultant in the course of performing services
hereunder. (A trade secret is information not generally known to the trade which
gives the Company and advantage over its competitors. Trade secrets can include,
by way of example, products or services under development, production methods
and processes, sources of supply, customer lists, marketing plans and
information concerning the filing or pendency of patent applications).
4.4 Inventions and Pending Patent Applications. Consultant agrees that all
inventions, designs, improvements, writings and discoveries (collectively,
"Inventions") made during the Term and pertaining to the business conducted by
the Company shall be the exclusive property of the Company. Consultant hereby
transfers and assigns to the Company all right, title and interest in and to the
Inventions, including any and all domestic and foreign patent rights therein and
any renewals thereof. Consultant shall assist the Company in obtaining patents
and copyrights on all Inventions deemed suitable for patent or copyright by the
Company and shall execute all documents and do all things necessary to obtain
letters patent or copyrights, as the case may be, to vest the Company with full
and exclusive title thereto, and to protect the same against infringements by
others.
ARTICLE 5.: REGISTRATION RIGHTS
5.1 Piggyback Registration Rights.
(a) Notice Requirement. If at any time during the period (the
"Registration Rights Period") beginning on the first anniversary
of the date of this Agreement and ending on the fifth anniversary
of this Agreement the Company proposes to register any shares of
Common Stock under the Securities Act of 1933 (as amended) or any
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applicable state securities laws (collectively referred to as the
"Securities Laws") in connection with an offering (an "Offering")
of the Common Stock, the Company shall deliver to the Consultant
notice of its intention to register such shares (the
"Registration Notice") at least thirty (30) days prior to any
filing of a registration statement.
(b) Registration Obligation. If the Consultant delivers written
notice of his intent to exercise his registration rights
hereunder to the Company no later than thirty (30) days after the
Consultant receives the Registration Notice, the Company shall,
subject to the terms and conditions of this Section 5.1, register
under the Securities Laws the number of shares that Consultant
requests by inclusion of such shares in the applicable
registration statement. The Consultant's notice to the Company
shall include the number of shares it intends to register along
with any other information that the Company may request in the
Registration Notice.
(c) Registration Expenses. The Company shall pay all expenses related
to each registration of Shares hereunder.
ARTICLE 6.: MISCELLANEOUS
6.1. Notices. All notices and all other communications provided for in this
Agreement shall be in writing and shall be given by hand delivery or nationally
recognized overnight delivery service, addressed as follows:
If to the Consultant:
Xxxx Pidorenko
0000 Xxxxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxx 00000
If to the Company:
Thermacell Technologies, Inc.
000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: President
or to such other address or addresses as either party may designate by notice
pursuant to this Section 5.1. Any such notice shall be effective upon delivery.
6.2. No Violations of Law; Exclusivity. It is the intent of the parties
hereto that the performance of each party's obligations hereunder not violate
any applicable law or regulation, including, without limitation, the Securities
Exchange Act of 1934, as amended, the regulations promulgated thereunder, as the
laws of any state.
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6.3. Power and Authority. Each party hereto hereby covenants and represents
to the other party that the first party has the full power and authority to
enter into this Agreement, and that entering into this Agreement will not
violate any law, statute, ordinance or contractual provision in any way.
6.4. Authority. The parties hereto acknowledge and agree that this
Agreement does not create a fiduciary relationship between the Consultant and
the Company, that the Consultant shall be an independent contractor with respect
to the Company, and that nothing in this Agreement is intended to constitute or
appoint the Consultant as an agent, legal representative, partner, employee or
servant of the Company for any purpose whatsoever. The Consultant agrees and
acknowledges that the Company shall not in any event assume liability for or be
deemed liable hereunder as a result of any contract, agreement understanding,
debt or obligation entered into by the Consultant on behalf of the Company
without the Company's express prior written consent. As an independent
contractor, the Consultant shall have no right or authority, either expressed or
implied, to assume or create on behalf of the Company any obligation or
responsibility of whatever kind or nature. The authority of the Consultant
hereunder is strictly limited to the performance of the Services as described
herein.
6.5. Waiver, Governing Law, Arbitration. No waiver by any party hereto
at any time of any breach by any party hereto of any condition or provision of
this Agreement shall be deemed a waiver of any subsequent breach of this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida. Any dispute or
controversy which arises hereunder or in connection with the matters contained
in this Agreement shall be conclusively determined by final and binding
arbitration in Broward County, Florida in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in force unless
the parties mutually agree otherwise in writing. The arbitration shall take
place in Broward County, Florida. The determination of the arbitrator or
arbitrators shall be final and binding upon the parties, and judgment upon the
award may be entered in any court having jurisdiction thereof. The arbitrator or
arbitrators shall prepare a written report stating its or their decision and a
reasonably detailed analysis of the factors that led to such decision within
thirty (30) days after the appointment of the final arbitrator to be appointed.
6.6. Validity, Integration, Oral Termination, Modification. The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect. This Agreement contains the final, complete and
exclusive expression of the understandings among the parties regarding the
matters discussed herein and supersedes any prior agreement or representation,
oral or written, by any party. This Agreement cannot be changed or terminated
orally. Any amendment or modification of this Agreement or any provision of it
will be valid and effective only if it is written and signed by or on behalf of
each party to this Agreement.
6.7. Exhibits and Headings. Each exhibit, schedule and document referred to
in this Agreement, attached to it or delivered pursuant to it is an integral
part of it and is incorporated herein by reference. The titles and headings
preceding the text of the sections of this Agreement have been inserted solely
for the convenience of reference and neither constitute a part of this Agreement
nor affect its meaning, interpretation or effect.
6.8. Attorneys' Fees. If any suit or other legal proceeding is brought for
the enforcement of any of the provisions of this Agreement, the parties hereto
agree that the prevailing party or parties shall be entitled to recover from the
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other party or parties, upon final judgment on the merits, reasonable attorneys'
fees, including attorneys' fees for any appeal, and the costs incurred in
bringing such suit or proceeding.
6.9. Continuing Obligations. The expiration or termination of this
Agreement for any reason shall not affect any provisions hereof which are
expressed to remain in full force and effect notwithstanding such termination,
including, without limitation, Sections 2.2, 3.1, 3.2, 4.2, 4.3, 4.4, 5.1, 6.1,
6.2, 6.5 and 6.8.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first above written.
THERMACELL TECHNOLOGIES, INC.
By:
--------------------------------
Name:
Title:
--------------------------------
Xxxx Pidorenko
