CONSULTING AGREEMENT
Exhibit
10.1
This
CONSULTING AGREEMENT ("Agreement") is entered into as of the 1st day of
November,
2006, between Synthetech, Inc., an Oregon corporation ("Company"), and M.
“Xxxxxx” Xxxxxxxxxxx ("Consultant").
1.3
Compensation. For services performed by Consultant, Company shall pay to
Consultant
the amounts set forth on Exhibit A.
1.4
Expenses. Subject to Exhibit A, Company shall reimburse Consultant for
reasonable and documented expenses incurred by Consultant. The Company will
reimburse consultant within ten (10) business days via ACH transfer or check
in
favor of the Consultant after
submission of a complete expense reporting. Expense reports are to be submitted
no less than monthly, within five business days following the end of the
month.
Any
incentive payments shall be determined and made at such times as set forth
on
Exhibit A.
1.8
Office, Equipment and Supplies. Consultant shall perform all services under
this
Agreement
from Consultant's own offices. Consultant shall provide its own office space,
furniture, equipment, computers, software, telephones, fax machines, internet
access, communications lines, office supplies, stationery, and other materials.
Company shall not provide Consultant with any office space, furniture,
equipment, computers, telephones, fax
machines,
software, telephone lines, internet access, office supplies, stationery, or
other materials.
The
parties intend to be independent contractors. Neither party shall be deemed
an
agent or partner of the other party. Consultant shall be solely responsible
for
the compensation of its employees and all related withholding taxes, workers
compensation insurance, unemployment insurance and related claims and other
obligations pertaining to Consultant's employees and independent contractors.
Consultant acknowledges and agrees that (a) Consultant is not an employee of
Company, (b) Consultant has no right to receive employee benefits from Company,
and (c) Consultant is solely responsible for all self-employment taxes,
withholding taxes, and other taxes applicable to the performance of services
by
Consultant and the receipt of compensation by Consultant pursuant to this
Agreement.
4.1
Assignment. Consultant hereby assigns to Company all right, title and interest
in and
to
(i) any and all reports, summaries, software, documentation, manuals,
photographs, illustrations, graphics, and other works of authorship, ideas,
inventions, processes, designs, trademarks, technology, information, and
materials created, written or developed by Consultant in the course of
performing services for Company, (collectively referred to herein as "Works");
and (ii) all intellectual property rights associated with such Works, including,
without limitation, patents, patent rights, copyrights, trademark rights, trade
secret rights, trade dress rights, and all rights to use, execute, reproduce,
display, distribute copies of, modify and prepare derivative works based on
copyrightable Works. The "Works" assigned to Company include (a) all work
in-progress, intermediate versions and partial versions of any of the Works
described above, (b) all notes, outlines, flow charts and other interim works,
and (c) all derivative works based upon any Works. All copyrightable Works
created by Consultant in connection with the performance of services for Company
shall be deemed to be, or shall be treated as, works for hire for purposes
of
vesting in Company all copyrights in such Works. Consultant shall treat all
information pertaining to the Works as Confidential Information of Company
pursuant to Section 3 of this Agreement.
5.1
Company hereby represents, warrants, and covenants that:
(a)
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Company
has full authority to enter this Agreement, and the person signing
on
behalf of Company is authorized to sign on Company’s behalf;
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(b)
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Upon
execution and delivery of this Agreement by Company, this Agreement
shall
be the legal, valid, and binding obligation of Company, enforceable
against it in accordance with the terms hereof;
and
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(c)
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Company
is the owner, or has the right to use, reproduce, and distribute
all
materials and information (including the Confidential Information),
provided by Company to Consultant for use in connection with the
Services
to be provided by Consultant pursuant to this
Agreement.
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(d)
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Company
will provide such technical, material, production, logistics, sales,
marketing, administrative, and other support as it determines in its
discretion to be necessary and required to allow the Consultant to
timely perform Consultant's obligations under this Agreement., including
but not limited to those specifically noted in Section 1.1 and
corresponding Exhibit A, Section 1.
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6.1 |
Each
party agrees to defend and indemnify the other party, its directors,
officers, members, managers, employees, and agents against any claim,
demand, suit, debt, liability, or costs, including reasonable attorney's
fees (“Losses”), arising out of or related to: (i) a breach of the
indemnifying party's warranties, representations, and undertakings
in this
Agreement; or (ii) the gross negligence or willful misconduct of
the
indemnifying party.
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6.2 |
The
party claiming indemnification pursuant to Section 6.1 shall notify
the
other party promptly of the claim. The indemnified party may, at
its own
expense, assist in the defense if it so chooses, provided that the
indemnifying party controls the defense and all negotiations relative
to
any settlement and further provided that any settlement intended
to bind
the indemnified party is not final without the indemnified party's
consent, which shall not be unreasonably withheld or
delayed.
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7.5
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Oregon.
7.9
Insurance. Consultant shall at all times during the term of this Agreement,
at
Consultant's
expense, maintain adequate insurance coverage.
7.10
Notices. Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed effectively served (i) if delivered personally,
upon
receipt by the other party; (ii) if sent by prepaid courier service, prepaid,
on
the date the
courier represents that delivery will occur,
(iii)
if sent by certified
or registered mail, postage paid with return receipt requested,
five
(5) days of it being sent; or (iv) if sent by facsimile or other similar means
of electronic communication (with confirmed receipt), upon receipt of
transmission notice by the sender. Any notice required or permitted to be given
hereunder shall be addressed as follows:
If
to the Company
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Attn:
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Xxxx
Xxxxx, VP & CFO
Synthetech,
Inc
0000
Xxxxxxxxxx Xxx
XX
Xxx 000
Xxxxxx,
XX 00000
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If
to the Consultant
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Attn:
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M.
‘Xxxxxx’ Sreenivasan
0000
XX Xxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000-0000
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Or
to
such person or address as each party shall furnish in writing in accordance
with
this section.
7.11 Injunctive
Relief.
Consultant acknowledges that Company may not have an adequate remedy at law
in
the event of any breach or threatened breach by Consultant of this Agreement
pertaining to Company's Confidential Information and intellectual property,
and
that Company or its customers or suppliers may suffer irreparable injury as
a
result. In the event of any such breach or threatened breach, Consultant hereby
consents to the granting of injunctive relief without the posting by Company
of
any bond or other security.
7.12 Attorneys'
Fees and Court Costs.
If any
suit or action arising out of or related to this Agreement is brought by any
party, the prevailing party shall be entitled to recover the costs and fees
(including, without limitation, reasonable attorneys' fees, the fees and costs
of experts and consultants, copying, courier and telecommunication costs, and
deposition costs and all other costs of discovery) incurred by such party in
such suit or action, including, without limitation, any post-trial or appellate
proceeding.
Synthetech,
Inc.
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By:/s/Xxxxxx
X. Xxxxx
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Xxxxxx
X. Xxxxx
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Title:
Chairman
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M.
“Xxxxxx” Sreenivasan
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By:
/s/ X. Xxxxxxxxxxx
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X.
Xxxxxxxxxxx
Consultant
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EXHIBIT
A
- Consulting Agreement
Description
of Services, Compensation and Other Matters
Consultant
to perform following services on behalf of Synthetech (Company):
Synthetech
is engaging (Consultant) as a Business Development Consultant for 12 days per
quarter. Services
provided by the Consultant will be based on mutually agreed upon assignments
as
determined by the Chairman in consultation with the President. These assignments
may include but are not limited to the following: support on global business
development, technology alliances, Asia sourcing partnerships, assistance at
trade shows and continuing on SOCMA’s Informex Committee. Company
reserves the right to elect, in its sole discretion, to pursue or decline any
opportunity developed or presented by Consultant.
2)
Monthly Payments:
Company
will pay Consultant $5,000 every monthly period for 4 (four) days of work.
This
payment includes all costs associated with maintaining and operating a home
office. Payments will begin monthly with the first payment on November 30,
2007
for work performed from November 1, 2006 through November 30, 2006. However,
in
the event of termination of this agreement after the initial one year term,
all
remaining amounts accrued would be payable in a lump sum no later than January
31, 2008. Monthly payments shall be prorated for any partial month’s work under
this Agreement. If Consultant works more than (four) days in a monthly period
Consultant will be paid at a rate of $1250 per each additional day worked.
Such
additional work needs to be pre-approved by the Chairman.
In
addition to the above monthly payments, consultant may be eligible for the
incentive payments as determined in the sole discretion of the Compensation
Committee in consultation with the Chairman. Any Incentive Compensation shall
be
made on a quarterly basis (commencing November 1, 2007) within [30] days
following the end of the applicable quarter.
Normal
travel expenses in excess of $1,000 per month require the pre-approval of the
Chairman.
5)
The
primary Company contacts for Consultant in performing the services under this
agreement are:
Overall
Coordination
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Xxxxxx
X. Xxxxx, Chairman
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Alternate
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Xxxx
Xxxx- President & COO
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Business
Development
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Xxxxx
Xxxxxxxx, Director - Sales & Marketing
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Operations
/ R&D
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Xxxx
Xxxxx, VP - Operations
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Finance
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Xxxx
Xxxxx, VP - Finance
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Accepted
by:
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For:
Synthetech, Inc.
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For
M. “Xxxxxx” Xxxxxxxxxxx
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Date:
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Date:
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By:
/s/ Xxxxxx X. Xxxxx
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By:
/s/ X. Xxxxxxxxxxx
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Xxxxxx
X. Xxxxx
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X.
Xxxxxxxxxxx
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Title:
Chairman
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Title:
Consultant
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