EXHIBIT 10.6
Consulting Agreement dated January 1, 2000
with Sherwood LLC
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), made this __ day of
January 2000 is entered into by International Plastics and Equipment Corp. (the
"Company"), and Sherwood LLC (the "Consultant").
INTRODUCTION
The Company desires to retain the services of the Consultant and the
Consultant desires to perform certain services for the Company. In consideration
of the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties agree as follows:
1. SERVICES. The Consultant agrees to perform the consulting, advisory
and related services specified on SCHEDULE A to this Agreement at such times and
in such manner as shall be mutually agreed from time to time by the Company and
the Consultant. The Consultant shall render the services to be provided
hereunder in good faith and with diligence. Although this Agreement does not
require any specific time commitment from the consultant, the Consultant shall
devote such time as is reasonably necessary in order to perform its duties under
this Agreement in a professional manner.
2. TERM. This Agreement shall commence on the date hereof (the
"Commencement Date") and shall continue for so long as the consultant owns at
least 500,000 shares of the Series A Convertible Preferred Stock of the Company
(or an equivalent number of shares of the Common Stock of the Company issued
upon conversion thereof) (such period, as it may be extended by mutual agreement
of the parties, being referred to as the "Consultation Period").
3. COMPENSATION.
3.1 INITIAL CONSULTING FEE The Company shall pay to the
Consultant an initial consulting fee of $75,000 per annum during the
Consultation Period, payable in equal monthly installments on or before the
tenth day of each month.
3.2 ADDITIONAL CONSULTING FEE. In the event at any time during
the Consulting Period the aggregate gross compensation paid by the Company to
Xxxxxxx X. Xxxx, Xx. and Xxxxxx Xxxxxxxx, Xx. is increased above $208,000 per
annum (the "Salary Base"), immediately upon the effectiveness of such increase,
the annual consulting fee payable by the Company to the Consultant shall be
increased by an amount equal to 25% of the amount by which such aggregate gross
compensation exceeds the Salary Base.
3.3 OUT-OF-POCKET EXPENSES. The Company will promptly
reimburse the Consultant for all documented reasonable expenses (including,
without limitation, travel and lodging expenses) incurred by the Consultant in
the performance of services hereunder.
4. COOPERATION. The Consultant shall use its best efforts in the
performance of its obligations under this Agreement. The Company shall provide
such access to its information and property as may be reasonably required in
order to permit the Consultant to perform his
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obligations hereunder. The Consultant's personnel shall cooperate with the
Company's personnel, shall not interfere with the conduct of the Company's
business and shall observe all rules, regulations and security requirements of
the Company concerning the safety of persons and property.
5. PROPRIETARY INFORMATION.
5.1 PROTECTED INFORMATION
(a) The Consultant acknowledges that its
relationship with the Company is one of high trust and confidence and that in
the course of service to the Company the Consultant will have access to and
contact with Proprietary Information. The Consultant agrees that it will not,
during the Consultation Period or at any time thereafter, disclose to others, or
use for its own benefit or the benefit of others except the Company, any
Proprietary Information or Invention.
(b) For purposes of this Agreement, the term
"Proprietary Information" shall mean all information (whether or not patentable
and whether or not copyrightable) owned, possessed or used by the Company,
including, without limitation, any Invention, vendor information, customer
information, apparatus, equipment, trade secret, process, research, report,
technical data, know-how, computer program, software, software documentation,
hardware design, technology, marketing or business plan, forecast, unpublished
financial information, budget, and list that is communicated to, learned of,
developed or otherwise acquired by the Consultant in the course of his service
as a consultant to the Company.
(c) The Consultant's obligations under this Section
5.1 shall not apply to any information that (i) is or becomes known to the
general public under circumstances involving no breach by the Consultant or
others of the terms of this Section 5.1 (ii) is generally disclosed to third
parties by the Company without restriction on such third parties, or (iii) is
approved for release by written authorization of the Board of Directors of the
Company.
(d) Upon termination of this Agreement or at any
other time upon request by the Company, the Consultant shall promptly deliver to
the Company all records, files, memoranda, notes, designs, data, reports, price
lists, customer lists, drawings, plans, computer programs, software, software
documentation, sketches, laboratory and research notebooks and other documents
(and all copies or reproductions of such materials) relating to the business of
the Company.
(e) The Consultant acknowledges that the Company
from time to time may have agreements with other persons, entities or
governmental agencies that impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Consultant agrees to be
bound by all such obligations and restrictions that are known to it and to take
all action necessary to discharge the obligations of the Company under such
agreements.
5.2 NON-COMPETITION. During the term of this Agreement, the
Consultant shall not, without the prior written consent of the Company, for its
own account or on behalf of any other person or entity, directly or indirectly,
either as principal, agent, stockholder, employee, consultant, representative or
in any other capacity, own, manage, operate or control, or be
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concerned, connected or employed by, or otherwise associate in any manner with,
engage in or have a financial interest in any business that engages, as it
primary business, in the manufacture or sale of products directly competitive
with the principal products provided or offered by the Company, except that
nothing contained herein shall preclude the Consultant from purchasing or owning
stock in any such competitive business if such stock is publicly traded.
5.3 REMEDIES. The Consultant acknowledges that any breach of
the provisions of this Section 5 shall result in serious and irreparable injury
to the Company for which the company cannot be adequately compensated by
monetary damages alone. The Consultant agrees, therefore, that, in addition to
any other remedy it may have, the Company shall be entitled to enforce the
specific performance of this Agreement by the Consultant and to seek both
temporary and permanent injunctive relief (to the extent permitted by law)
without the necessity of proving actual damages.
6. TERMINATION FOR CAUSE. The Company shall have the right to terminate
this Agreement for Cause prior to the expiration fo the Consulting Period. The
term "Cause" as used herein shall mean (a) the persistent failure of the
Consultant to perform its duties in accordance with the terms of this Agreement
or the performance of such duties in a grossly negligent manner or (b) a change
in the ownership of the consultant such that Xxxxxx X. Poor, Jr. no longer owns
a majority of the equity interest of the Consultant. In the event the Company
desires to terminate this Agreement for Cause, the Company shall give the
Consultant written notice of its intent to terminate, which notice shall set
forth the reasons for such termination, and this Agreement shall be terminated
14 days after the date on which the Consultant receives such notice unless,
prior to the expiration of such 14-day period, the Consultant has remedied the
situation that gave rise to the Cause for termination. In the event of
termination under this Section 6, the Consultant shall be entitled to receive
the monthly installment of the consulting fee, pro-rated through the effective
date of termination.
7. INDEPENDENT CONTRACTOR STATUS. The Consultant shall perform all
services under this Agreement as an "independent contractor" and neither the
Consultant nor any of the Consultant's personnel shall be an employee or agent
of the Company. The Consultant is not authorized to assume or create any
obligation or responsibility, express or implied, on behalf of, or in the name
of, the Company or to bind the Company in any manner.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
9. AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Consultant.
10. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure to the benefit of, both parties and their respective successors and
assigns, including any corporation with which, or into which, the Company may be
merged or which may succeed to its assets or
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business, provided, however, that the obligations of the Consultant are personal
and shall not be assigned by him.
12. MISCELLANEOUS.
12.1 No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
12.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
12.3 In the event that any provision of this Agreement shall
be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
INTERNATIONAL PLASTICS AND EQUIPMENT CORP.
By: _________________________________
SHERWOOD LLC
By: _________________________________
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