EXHIBIT 10.15
MANAGEMENT CONSULTING AGREEMENT
THIS AGREEMENT ("Agreement") is made effective as of the 1st day of
January, 2002 by and between MERCURY WASTE SOLUTIONS, INC. ("Company") and U.S.
ENVIRONMENTAL, INC. (the "Consultant").
WHEREAS, Company is in the business of recycling fluorescent lamps and
distilling/retorting mercury; and
WHEREAS, Company has requested that Consultant provide Company with
management, operational, and general business consulting services (collectively,
the "Services"); and
WHEREAS, Company and Consultant desire to enter into this Agreement
with respect to the Services to be provided by Consultant to Company, upon the
terms herein specified;
NOW, THEREFORE, in consideration of the foregoing, which are hereby
made a part of this Agreement, of the mutual promises of the parties hereto and
of other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties agree as follows:
1. Services.
(a) Company hereby appoints Consultant to render and
Consultant agrees to perform on behalf of Company, the Services, as well as
provide general business services as requested by Company from time to time
during the term of this Agreement, as herein contemplated. All Services
performed by Consultant shall be performed by ▇▇▇▇ ▇▇▇▇▇▇.
(b) Subject to such guidelines and limitations as the Board of
Directors of Company may from time to time impose, during the term of this
Agreement, Consultant shall have the authority to administer, manage, and
consult with the officers of Company with respect to the businesses and
properties of Company, and Consultant, generally, shall render such services as
may be required in connection with the supervision and administration of the
businesses and properties of Company. In addition, Consultant shall provide such
other general business services as Company requests from time to time.
(c) Company acknowledges that Consultant shall devote as much
time to the management of Company and its businesses and properties as
Consultant may deem to be necessary under the circumstances, however, the
Consultant shall devote no less forty (40) hours per week to the consulting
services for Company in addition to any time the Consultant may be required to
deliver to Company under any other Agreement. Company understands and agrees,
however, that, Consultant may engage in other non-competitive businesses.
(d) For the Services to be performed under this Agreement,
Company shall pay to Consultant a monthly fee in the amount of Ten Thousand
Dollars ($10,000.00), payable monthly in advance on the first day of each month.
(e) By June 30, 2003, Consultant shall have recruited and the
Company shall have hired an individual, acceptable to the Company in its sole
discretion, to replace Consultant and ▇▇▇▇ ▇▇▇▇▇▇ and perform the Services for
the Company as an employee of the Company. Consultant shall work with the
Company in such recruitment process and keep the Company informed as to
Consultant's progress. Consultant shall fully train and provide knowledge
transfer to such individual by the end of the term of this Agreement such that
the Services of Consultant are no longer necessary or desirable by Company.
2. Indemnification and Release. Consultant shall indemnify and hold
Company and its subsidiaries, parents and other affiliated entities, and their
shareholders, directors, employees and agents (collectively, the "Affiliates")
harmless from and against any and all liabilities, losses, damages, claims,
costs, causes of action and expenses, including but not limited to the costs of
defense and attorneys' fees, suffered, paid or incurred by any of the
Affiliates, whether or not suit is filed, arising out of, resulting from or
connected with, in whole or in part, the performance or breach of this
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Agreement by Consultant. Consultant hereby releases the Affiliates from all
claims and liability arising out of, resulting from or connected with, in whole
or in part, this Agreement and the Services, including but not limited to
liability for any injuries of Consultant or its employees.
3. Non-Disclosure of Confidential Information.
(a) Non-Disclosure. Consultant covenants and agrees that both
during the term of this Agreement and forever following termination of this
Agreement, Confidential Information (as hereinafter defined) will not be
communicated or disclosed by him (directly or indirectly) to any person or
entity, including but not limited to, the press, professionals, corporations,
partnerships or the public, nor will Consultant make use of, divulge or
otherwise disclose, directly or indirectly, Confidential Information except in
the performance of his services as directed by Company. Consultant further
agrees to never use such information for Consultant's benefit or the benefit of
any other person, firm, corporation or entity, directly or indirectly.
Consultant agrees to take reasonable security measures to prevent accidental
disclosure and industrial espionage. Consultant further covenants and agrees
that he or she will faithfully abide by all rules and regulations established by
Company for insuring the confidentiality of the foregoing information and data.
(b) Confidential Information. Confidential Information means
any information or compilations of information that derives independent economic
value from not being generally known or readily ascertainable by proper means.
Confidential Information includes, but is not limited to, the existence and
terms of this Agreement, the Services, shareholder information of any Affiliate,
trade secrets, customer lists, supplier lists, manufacturing processes, sales
techniques, marketing plans, products, services, product development plans,
marketing information, financial information, management systems and procedures,
and the results of research and development whether complete or in process,
whether the foregoing is written, oral or in any other form. Confidential
Information includes information from, about or related to any and all
Affiliates.
(c) Documents and Tangible Items. All documents and tangible
items which contain or deal in any manner with Confidential Information shall
remain the exclusive property of Company along with all copies, recordings,
abstracts, notes or reproductions of the documents and tangible items or the
information they contain. Upon termination of this Agreement, Consultant will
return to Company any and all written or other recorded forms of the foregoing
information and data, and will take with him, no documents, writings, recordings
or reproduction in any form which may have been entrusted to him during the term
of this Agreement or to which he had access or possession.
(d) Continuation of Obligation. The obligations of this
Section shall survive the termination of this Agreement and continue until the
information at issue is no longer confidential and becomes generally publicly
known, other than as a direct or indirect result of the breach of this Agreement
by Consultant or a breach of a confidentiality obligation owed to Company by any
other person or entity.
4. Inventions or Discoveries. Consultant acknowledges that inventions
or other discoveries may be developed, conceived or otherwise made by Consultant
during the term of this Agreement. Consultant agrees that all such inventions or
other discoveries shall be the exclusive property of Company. With respect to
all such inventions or other discoveries, Consultant agrees to:
(a) Keep accurate, complete and timely records, which shall be
Company's property and be retained on Company's premises; and
(b) Promptly and fully disclose and describe all such
inventions or other discoveries to Company; and
(c) Assign (and Consultant does hereby assign) to Company all
of Consultant's rights to these inventions or other discoveries, and to
application for letters patent or copyrights in all countries and to letters
patent or copyrights granted upon these inventions or other discoveries in all
countries; and
(d) To do such other acts as may be necessary in the
reasonable opinion of Company to preserve property rights to these inventions or
other discoveries against forfeiture, abandonment or loss and to obtain and
maintain
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letters patent or copyrights and to vest the entire right and title thereto
exclusively in Company.
The obligations of this Section shall continue beyond the termination
of this Agreement with respect to inventions or other discoveries conceived or
otherwise developed during the term of this Agreement and shall be binding upon
assigns, executors, administrators and other legal representatives.
5. Works for Hire. Whether or not acceptable as delivered, Consultant
acknowledges and agrees that all drafts, versions, research material and other
tangible expression of every kind and nature relating to the Services, as well
as any other work performed for Company by Consultant (the "Materials"), have
been specifically commissioned by Company and shall be considered "works for
hire" as defined in the Copyright Act of 1976, as amended (the "Act"), granting
Company full ownership of such Materials and all rights comprised therein.
Should any aspect of the Materials not fall within the definition of a "work for
hire" as set forth in the Act, Consultant hereby assign to Company full
ownership of the copyright to such Materials and all rights comprised therein.
Company's rights in and to the Materials include, but are not limited to: (a)
the exclusive right to copy, reproduce, manufacture, market, publish,
distribute, sell, and use the Materials and (b) the exclusive right to prepare,
copy, reproduce, manufacture, market, publish, distribute, sell, and use any and
all derivative works based upon the Materials. Consultant also agrees to deliver
all such Materials to Company promptly upon request and to execute any documents
that Company deems reasonably necessary, desirable or helpful to evidence,
maintain, protect or enforce Company's rights under this Agreement. The
provisions of this paragraph shall survive the termination of this Agreement.
▇▇▇▇ ▇▇▇▇▇▇ has executed an agreement with Consultant assigning all of his
rights in any work product to Consultant.
6. Consultant Relationship. It is understood and agreed that Consultant
shall be acting only in the capacity of an independent contractor insofar as
this Agreement is concerned, and not as a partner, co-venturer, agent, employee,
franchisee or representative of Company. As such, the payments made by Company
to Consultant are only for the acceptable performance of the Services. Company
is interested only in the results obtained under this Agreement; the manner and
means of Consultant's performance is within Consultant's sole control and
discretion, as Company, by this Agreement, is only purchasing Consultant's
accurate results in connection with the performance of the Services. Consultant
shall be solely liable for all remuneration, compensation, or other payments
which may be due to employees of Consultant, and Company shall have no
obligation with respect to any employees of Consultant. Consultant is
responsible for federal, state and local taxes, FICA and FUTA payments,
licenses, permits and registration charges, expenses of maintenance, insurance
and other expenses incidental to Consultant's business.
7. Term. This Agreement and the performance of Consultant's services
pursuant hereto shall be for a term of two (2) years from the date hereof, and
shall terminate on December 31, 2003, unless extended by a writing executed by
both parties.
8. Miscellaneous.
(a) Reasonableness of Agreement. Consultant agrees that the
provisions of this Agreement are reasonable. Notwithstanding the foregoing, if
any of the covenants shall be held to be invalid or unenforceable, the remaining
parts thereof shall continue to be valid and enforceable as though the invalid
and unenforceable parts have not been included therein. In the event that a
court of competent jurisdiction determines that one or more of the provisions or
portions of the provisions contained in this Agreement is over broad or over
reaching, such provision or portion thereof shall be deemed modified to the
extent necessary to make it enforceable to the maximum extent allowed by law. If
any provision herein is not enforceable as written, the parties hereto agree
that such court shall reform the provision to provide the maximum restriction
enforceable against Consultant and that the provision, as reformed, shall be
enforceable.
(b) Injunctive Relief. The parties to this Agreement agree
that violation of this Agreement by Consultant would confer irreparable harm on
Company which irreparable harm may not be compensable entirely with the monetary
damages. The parties agree that injunctive relief is an appropriate remedy. Such
relief shall be in addition to other remedies at law.
(c) Accounting for Profits. Consultant agrees that the
violation of this Agreement, in addition to other remedies, shall entitle
Company to an accounting and repayment of all profits or remunerations which
Consultant directly
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or indirectly has realized and/or may realize or any other entity has realized
or may realize in connection with the Consultant's breach of the provisions of
this Agreement.
(d) Enforceability/Construction. The headings of this
Agreement are for purposes of convenience only, and shall not affect the
interpretation of any of its provisions. This Agreement constitutes the entire
Agreement between the parties. No modification or waiver is effective unless in
writing. If any legal action or any arbitration or other proceeding is brought
for the enforcement of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and other costs. This Agreement shall be
governed by the laws of the State of Minnesota. The parties hereto consent to
the jurisdiction of the Courts of Hennepin County, Minnesota, and agree that its
jurisdiction shall be exclusive.
(e) Assignment. The rights and obligations of Consultant under
this Agreement shall not be assignable without the prior written consent of
Company. Any attempted assignment in violation of this Agreement shall be void
and of no effect. Subject to the foregoing, his Agreement shall be binding on
the parties hereto, their successors and assigns.
(f) Waiver. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provision of this Agreement, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver of any provision of this Agreement
shall be binding on the parties hereto unless it is executed in writing by the
party making the waiver.
(g) Governing Law. All questions concerning the validity,
operation, interpretation, and construction of this Agreement shall be governed
by and determined in accordance with the internal laws of the State of
Minnesota, other than its choice of law provisions.
IN WITNESS WHEREOF, the parties have caused this Management Consulting
Agreement to be duly executed as of the date first written above.
COMPANY: MERCURY WASTE SOLUTIONS, INC.
By \s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer
CONSULTANT: U.S. ENVIRONMENTAL, INC.
By \s\ ▇▇▇▇ ▇▇▇▇▇▇
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Its President
By signing below, ▇▇▇▇ ▇▇▇▇▇▇ agrees to the terms of this Agreement and
agrees to be bound by and subject to all provisions applicable to "Consultant."
\s\ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
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