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EXHIBIT 10.28
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of September,
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 IPAC, Inc., a Virginia corporation
("Consultant") having its principal offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxxxxx, 0000x.
WHEREAS, Weston is in the business of providing environmental engineering
and consulting services to private industry and government 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 organization 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. FINANCIAL SUPPORT. Continuation of the financial support provided under
Agreement No. CG-97-WSTN-2 to include:
- Merger and Acquisitions
- Performance Measures
- Management Reporting
- Quick Project
- General Financial Consulting to Senior Management
2. WESTON FUND. Assist Weston in developing external financing vehicles to
enhance competitive entry into new market areas.
3. INTERNATIONAL PROJECT FINANCE. Assist Weston in identifying, winning and
financing major international projects with particular emphasis in Saudi Arabia,
Korea and Panama.
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4. SOURCES OF CAPITAL. Acquaint IPAC's private sources of capital with
Weston's capabilities and strategy in connection with items 2 and 3 above.
5. BOARD OF DIRECTORS SUPPORT. Assist Weston in recruiting outside
directors.
6. 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.
7. AUTHORIZED WESTON REPRESENTATIVE. Consultant shall report to Xxxxxxx X.
Xxxxxxxxx ( the "Weston representative") or such other person, as Weston
shall designate. All services performed by Consultant shall be at the
direction of the Weston Representative.
8. AUTHORIZED CONSULTANT REPRESENTATIVE. The Consultant Representative shall
be Xxxxxx X. Xxxxxxxx, Xx. 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 September 1, 1997
and ending December 31, 1997. Thereafter the term may be extended from
month-to-month by written agreement executed by 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 based on hours charged through the date of termination. 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 $200,000.00 plus out of pocket expenses such as local
travel, entertainment, postage and telephone. The Consultant 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.
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
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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 following the end of each month in which it
provides its services. Invoices shall include the following detail:
a. This Agreement number, a description of the services provided and
computation of the consulting fee earned for the month.
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,
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Consultant agrees that such work shall be deemed "work made for hire"
hereunder. In the 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 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
obligation 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.
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3. PROHIBITION OF CERTAIN ACTIVITIES.
a. Non-Solicitation of Employees. Consultant shall not, directly
or indirectly, from the date of this Agreement until (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 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. Consultants shall not, directly
or indirectly, from the date 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.
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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.
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, uses, 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 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) and Automobile Liability (Bodily Injury
and Property Damage/$300,000 Minimum each). Certificate of insurance shall be
provided to Weston immediately upon request.
ARTICLE XII. WARRANTY.
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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, ordinance 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.
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 intent of the stricken provision.
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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.
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.
IPAC, INC. XXX X. XXXXXX, INC.
(CONSULTANT) (WESTON)
BY: S/_____________________ BY: S/_____________________
NAME: X.X. XXXXXXXX, XX. NAME: Xxxxxxx X. Xxxxxxxxx
TITLE: VICE PRESIDENT TITLE: Chief Financial Officer
DATE: DATE:
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SCHEDULE A
PERSONS PERFORMING THE SERVICES AND HOURLY RATES
NAME HOURLY RATE
Xxxxx Xxxxx $350.00
H. Xxxxx Xxxxx $300.00
Xxxxxx Xxxxxxxx $300.00
Xxxxx Xxxxxx $250.00
Xxx Xxxxxxxx $250.00
Xxxxxx Xxxxxx $200.00
Research Associate $100.00
Administrative Support $65.00
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