Exhibit 10.4
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CONSULTING AGREEMENT
AGREEMENT, dated as of March 11, 1997, by and between
Xxxxxxx Xxxxxx ("Consultant") and TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
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WHEREAS, the Company wishes to retain the Consultant,
and the Consultant wishes to serve the Company, as a consultant
with respect to the Company's business;
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:
1. General.
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(a) The Company hereby retains the Consultant, and
the Consultant hereby agrees to serve the Company, as a
consultant in connection with the Company's business and the
business of any subsidiary of the Company that the Board of
Directors of the Company shall reasonably designate. The
Consultant may be asked to provide such advice as the Board of
Directors may from time to time reasonably request.
(b) The Consultant agrees that, during the term of
this Agreement, the Consultant shall devote sufficient time and
effort on behalf of the Company as shall be necessary to effect
the intents and purposes of this Agreement. The Consultant will,
at all times, faithfully and to the best of the Consultant's
experience and abilities, perform all duties that may be required
of the Consultant pursuant to the terms of this Agreement. The
Company expressly acknowledges and agrees that the Consultant's
efforts shall be on a "best-efforts" basis and the Consultant has
not, cannot and does not, guarantee that the Consultant's efforts
will have any impact on the Company's business.
(c) The Consultant agrees that the Consultant, in his
capacity pursuant to this Agreement, is not the agent of the
Company and has no power or authority to bind the Company to any
agreement, transaction or other commitment. The Company has the
sole right, in the exercise of its business judgment and
discretion, to approve or disapprove of any agreement,
transaction or commitment introduced by the Consultant.
2. Term. The term of this Agreement shall commence
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on the date hereof and shall continue until October 31, 1997, and
shall be automatically renewed for successive one-year terms
thereafter, unless at least 30 days prior to the then scheduled
termination date, either party shall give written notice to the
other party of the non-renewal hereof.
3. Compensation; Expenses.
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(a) For the initial term of this Agreement, the
Company shall cause to be issued to the Consultant options to
acquire 30,000 shares of the Company's Common Stock, par value
$0.0001 per share, pursuant to the Company's Consultants Stock
Incentive Plan (the "Plan"), subject to the vesting requirements
and other conditions set forth in the Plan. For terms subsequent
to the initial term of this Agreement, the Board of Directors
shall determine such number of options as shall be awarded to the
Consultant with respect to such subsequent term in accordance
with the services to be performed by the Consultant for such
subsequent term.
(b) At least 45 days prior to the expiration of the
term of this Agreement (including any renewal thereof), the
Consultant shall notify the Company in writing if the Consultant
does not wish to be compensated through the receipt of stock
options, and thereafter, the Board of Directors of the Company
shall determine, at least 30 days prior to the then expiration of
the term of this Agreement, a level of cash compensation to be
paid to the Consultant for his services hereunder. Upon receipt
of such determination from the Company, the Consultant may either
accept or decline such offer of compensation, and in the event of
his decline of such offer of cash compensation, this Agreement
shall terminate on the next scheduled expiration date.
(c) The Company shall reimburse the Consultant for all
reasonable out-of-pocket expenses incurred by the Consultant in
the performance of his duties hereunder. The Consultant shall
provide the Company with reasonable documentary detail of the
incurrence of such expenses. The Consultant shall not incur any
such expenses in excess of $1,000 without the prior approval of
an officer of the Company.
4. Non-Exclusive Services; Confidentiality.
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(a) The Company understands that the Consultant is
currently providing certain advisory consulting services to other
individuals and companies and agrees that the Consultant is not
prevented or barred from rendering such services to such other
entities, subject to paragraph (b) hereof. In addition, the
Consultant understands and agrees that the Company shall not be
prevented or barred from retaining other persons or entities to
provide services of the same or similar nature as those provided
by the Consultant.
(b) The Consultant acknowledges that during the term
of this Agreement, the Consultant shall have access to
information, materials and/or processes confidential and
proprietary to the Company and the Consultant and its employees,
agents, attorneys and accountants shall at all times during the
term of this Agreement and thereafter, maintain the secrecy and
confidentiality of all such information, materials and/or
processes acquired or revealed to them under, pursuant or in
connection with this Agreement, except as to such information
which enters the public domain other than through the actions or
omissions of the Consultant, pursuant to requests from
governmental authorities with applicable jurisdiction, or
pursuant to judicial subpoena. Upon termination of this
Agreement, the Consultant will promptly return to the Company all
non-public, proprietary information of the Company, and all
copies thereof.
5. Governing Law. This Agreement shall in all
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respects be governed by and construed under the laws of the State
of New York applicable to agreements made and fully to be
performed in such state, without giving effect to conflicts of
law principles.
6. Entire Agreement. This Agreement sets forth the
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entire understanding of the parties hereto with respect to its
subject matter, merges and supersedes all prior and
contemporaneous understandings with respect to its subject matter
and may not be waived or modified, in whole or in part, except by
a writing signed by each of the parties thereto. No waiver of
any provision of this Agreement in any instance shall be deemed
to be a waiver of the same or any other provision in any other
instance.
7. Construction. Headings contained in this
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Agreement are for convenience only and shall not be used in the
interpretation of this Agreement. As used herein, the singular
includes the plural and the masculine, feminine and neuter gender
each includes the others where the context so indicates.
8. Successors and Assigns. This Agreement shall be
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binding upon, enforceable against, and inure to the benefit of,
the Company and the Consultant and their respective heirs,
personal representatives, executors, administrators, successors
and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person. The rights, duties and
obligations of the Consultant hereunder may not be assigned.
9. Severability. If any provision of this Agreement
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is held to be invalid or unenforceable by a court of competent
jurisdiction, this Agreement shall be interpreted and enforceable
as if such provision were severed or limited, but only to the
extent necessary to render such provision and this Agreement
enforceable.
10. Notice. All communications, notices, requests,
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consents or demands given under this Agreement shall be in
writing and shall be deemed to have been duly given when
delivered to, sent by facsimile or by recognized overnight
courier to, or mailed by prepaid registered or certified mail
addressed to, the party for whom intended, as follows, or to such
other address as may be furnished by such party by notice in the
manner provided herein:
If to Consultant:
Xx. Xxxxxxx Xxxxxx
00 Xxxxx xxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
If to the Company:
Touchstone Applied Science Associates, Inc.
X.X. Xxx 000
Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
11. Counterparts. This Agreement may be executed in
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two or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Agreement as of the date first set forth above.
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
President
