EXHIBIT 10.10
MANAGEMENT CONSULTING AGREEMENT
THIS MANAGEMENT CONSULTING AGREEMENT, dated as of this __ day of
January, 1996 by and between MERCURY WASTE SOLUTIONS, INC. (the "Company") and
BANKERS AMERICAN CAPITAL CORPORATION (the "Consultant").
WHEREAS, the Company is in the business of recycling high intensity
lamps and distilling/retorting mercury, and is also engaged in the business of
selling and distributing lamp processing equipment; and
WHEREAS, Company has requested that Consultant provide Company with
management, operational, tax planning and other consulting and administrative
services;
WHEREAS, Company and Consultant desire to enter into this Agreement
with respect to the management and consulting services to be provided by
Consultant to Company, upon the terms herein specified.
NOW, THEREFORE, in consideration of the foregoing, 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. Appointment. The Company hereby appoints Consultant to render
services to the Company relating to the management of the businesses and
operations of the Company, as well as providing tax planning, and other
administrative services as requested by the Company from time to time during the
term of this Agreement, as herein contemplated.
2. Services to be Provided. Subject to such guidelines and limitations
as the Board of Directors of the 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 the Company with respect to the
businesses and properties of the 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 the Company. In addition,
Consultant shall provide such other tax planning, accounting, and administrative
services as Company requests from time to time.
3. Conflicts of Interest. The Company acknowledges that Consultant
shall devote as much time to the management of the Company and its businesses
and properties as Consultant may deem to be necessary under the circumstances.
The Company understands and agrees, however, that, Consultant may engage in
other businesses.
4. Exculpation. Consultant shall be exculpated from liability in
connection with the acceptance, performance or nonperformance of its duties
hereunder to the same extent that directors or officers of a corporation are
entitled to elimination of personal liability under Minnesota law other than for
gross negligence or willful misconduct. Consultant shall incur no liability with
respect to any action taken by it in reliance upon any notice, direction,
instruction, consent, statement or other paper or document provided to it by the
Company, or any of its authorized representatives. In all matters or questions
arising under this Agreement which Consultant, in its sole discretion and at its
own expense, may seek and rely on the advice of counsel, and such advice and
reliance is made and taken in good faith based on such advice, Consultant shall
not be liable to any party, including the Company, or its successors and
assigns, for its actions so taken, whether or not such actions may constitute
gross negligence or willful misconduct.
5. Indemnification of Consultant.
A. The Company agrees to indemnify and hold harmless Consultant from
and in respect of any and all claims, suits, actions, proceedings
(formal or informal), investigations, judgments, deficiencies,
damages, settlements, liabilities, and legal and other expenses
(including legal fees and expenses of counsel chosen by Consultant)
as and when incurred arising out of, in connection with or based
upon Consultant's performance of any of its duties under this
Agreement.
B. Consultant shall give the Company prompt notice of any claim
asserted or threatened against Consultant on the basis of which
Consultant intends to seek indemnification from the Company as
herein permitted; however, the obligations of the Company under this
Section 5 shall not be conditioned upon receipt of such notice.
C. Expenses incurred by Consultant in connection with any action,
suit, proceeding, or appeal thereof, described in Section 5(a)
above, shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding within 20 day
following receipt of a notice from Consultant specifying the amount
of such expenses actually incurred by Consultant in connection with
such action, suit, or proceeding.
D. The indemnification agreement provided for in this Section 5
shall survive the termination of this Agreement.
E. Notwithstanding any other provision of this Section 5 to the
contrary, the Company shall not be liable to indemnify Consultant in
connection with any claim against Consultant (i) if a court of
competent jurisdiction has rendered a final decision that
indemnification relating to the claim would be unlawful; (ii) if a
final decision by a court of competent jurisdiction shall adjudge
the conduct of Consultant to have been taken not in good faith or
not in a manner reasonably believed to be in or not opposed to the
best interests of the Company; and (iii) if the claim is based upon
Consultant deriving an unlawful benefit and a court of competent
jurisdiction adjudges that such benefit was unlawful in a final
decision.
6. Fees. For services to be performed under this Management Consulting
Agreement, the Company shall pay to Consultant a fee in the amount of $10,000,
determined without regard to the income of the Company, payable monthly in
advance on the first day of each month.
7. Status of Parties. In the performance of its services under this
Agreement, Consultant shall be and is an independent contractor; provided,
however, in the event that Consultant acts on behalf of the Company with respect
to third parties, Consultant shall be deemed to do so as an agent of the Company
on behalf of the Company. Based on the foregoing, Consultant shall not and will
not incur contractual or other liability solely because or as a result of its
status as a party hereto. The relationship between Consultant and the Company is
and shall solely be contractual.
8. Successors and Assigns. This Agreement shall be binding on the
parties hereto, their successors and assigns; provided, however, that this
Agreement may not be assigned by either party without the consent of Board of
Directors of the Company.
9. Term. This Agreement and the performance of Consultant's services
pursuant hereto shall be for a term of three (3) years from the date hereof, and
shall terminate on January 4, 2000, unless extended by a writing executed by
both parties.
10. 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, and
all actions or claims under this Agreement shall be properly venued only in the
County of Hennepin, State of Minnesota.
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 ____________________________________
Its
CONSULTANT: BANKERS AMERICAN CAPITAL
CORPORATION
By ____________________________________
Its