EXHIBIT D CONSULTING AGREEMENT
EXHIBIT
D
THIS
CONSULTING
AGREEMENT (this "Agreement"), effective as of June 29, 2007 (the
"Effective Date"), is made by and between MCC, Inc., its
successors or assigns (the "Company"), and Nova-Van,
LLC, a Pennsylvania limited liability company (the
"Consultant"). The Company and the Consultant are collectively
referred to as the “Parties”.
RECITALS
A. The
Company desires to retain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, who is an employee of Consultant,
to
render services, and Consultant desires to render, through its employee,
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, such services to the Company, upon the terms and conditions contained
herein.
B. The
Executive Committee of the Company (the "Executive Committee") has
authorized the consulting services as provided for in this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the
covenants contained herein, the above recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Parties hereto agree as follows:
ARTICLE
I
DUTIES
1.01 Duties. The
Company hereby hires Consultant as a consultant, to provide through its
employee, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, his associations, contacts, relationships,
affiliations, connections, experience, know how, expertise, advice and knowledge
in the automotive, military and commercial coatings industries (“Consulting
Services”) and Consultant hereby accepts the engagement to provide the
Consulting Services upon the terms and conditions contained
herein. Consultant shall exercise the authority, assume the assigned
duties and responsibilities and carry out the Consulting Services to the
Company
as specified by the Executive Committee from time to time during the Term
(as
defined below). Without the prior written agreement of the Company,
which may be refused for any reason or no reason, Consultant will render
the
Consulting Services solely through the personal services of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
1.02 Minimum
Time Commitment. While Consultant shall generally determine the
time and circumstances in which it renders the Consulting Services consistent
with the terms of this Agreement, Consultant shall be available to the Company
to render Consulting Services for a minimum number of hours per weeks, as
follows:
(a) During
the first 30 days following the Effective Date – 40 hours per week.
(b) During
the second 30 day period following the Effective Date – 30 hours per
week.
(c) During
the third 30 day period following the Effective Date – 20 hours per
week.
(d) Following
the third 30 day period following the Effective Date and continuing through
the
end of the Term – 8 hours per week.
Should
Consultant provide the Consulting Services of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for more
than
the required number of days within any weekly period, the excess days shall
be
credited toward the minimum requirement for the following
week. Consultant and the Company shall establish procedures
reasonably acceptable to both to monitor the Consulting Services
rendered.
1.03 Independent
Contractor. Consultant acknowledges that Consultant’s retention
does not confer upon Consultant any ownership interest in or personal claim
upon
any license, right or product of the Company, nor does this Agreement confer
any
employment right on Consultant. Consultant agrees that in performing
its duties under this Agreement, it shall be operating as an independent
contractor as that term is defined in United States Treasury Department
regulations and United States Internal Revenue Service rulings and
interpretations. Nothing contained herein shall in any way constitute
any association, partnership, employer/employee relationship, or joint venture
between the Parties hereto, or be construed to be evidence of the intention
of
the Parties to establish any such relationship. Neither Party shall
have any right, power or authority to make any representation nor to assume
or
create any obligation, whether express or implied, on behalf of the other,
or to
bind the other Party in any manner whatsoever. Both of the Parties
agree, respectively, that they shall not hold themselves out in any manner
that
would be contrary to the terms of this Section 1.03.
ARTICLE
II
TERM
OF
AGREEMENT
Term. The
term of this Agreement shall commence on the Effective Date and shall terminate
at 11:59 p.m. Mountain Standard Time on December 31, 2009 (the "Contract
Term") unless sooner terminated hereunder. The Contract Term
shall be extended for successive one-year periods (such period to be called
a
“Renewal Period” and together with the Contract Term, the “Term”)
unless notice is given by one of the Parties at least sixty (60) days before
the
end of any Term.
ARTICLE
III
COMPENSATION
During
the Term thereto, the Company shall pay, or cause to be paid to Consultant,
the
following:
3.01 Annual
Base Consulting Fee. Subject to the terms and conditions of this
Agreement, Consultant shall be paid an annual base consulting fee ("Annual
Base Consulting Fee") as set forth in Addendum A of this
Agreement.
3.02 Performance
Bonuses. Subject to the terms and conditions of this Agreement,
Consultant shall be paid performance bonuses (“Performance Bonuses”) as
set forth in Addendum A of this Agreement.
3.03 Annual
Performance Review. On a basis no less frequently than annually
during the Term, the Executive Committee and the Consultant shall review
the
performance of the Consulting Services as described in Article I
hereof. As a result of such review, the Executive Committee and the
Consultant may agree to modify or alter the specific assignments or duties
which
constitute the Consulting Services.
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3.04 Automobile
Purchase. At the request of Consultant, before August 31, 2007,
the Company shall purchase an automobile of Consultant’s choosing for
Consultant’s sole ownership and exclusive use; provided that the Company shall
not be required to spend more than $70,000 in connection with such
purchase. Alternatively, the Company will pay Consultant $70,000 for
its use in purchasing an automobile of its choosing.
3.05 2007
Bonus. Prior to August 31, 2007, the Company shall pay Consultant
a bonus in the amount of $130,000 (the “2007 Bonus”); provided that at
the request of the Consultant the Company will allocate a portion of the
2007
Bonus to employees of the Company in amounts as determined in the sole
discretion of the Consultant.
ARTICLE
IV
OTHER
BENEFITS
4.01 Office
and Support. During the Term and as determined by the Executive
Committee, Consultant shall be entitled to reasonable office space, furnishings
and other equipment to support its consulting for and on behalf of the Company,
whether at the Company or the home office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as discussed
in
Article I, above, all of which shall be reasonably adequate for the performance
of his duties.
4.02 Work
Schedule. Consultant shall manage its work and efforts required
to accomplish the Consulting Services in consultation and coordination with
the
Executive Committee.
ARTICLE
V
RESTRICTIVE
COVENANTS
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5.01
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Definitions.
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“Confidential
Information” means all past, present and future confidential and/or
proprietary information belonging to the Company or any affiliate of the
Company, whether developed by Consultant or by other Company employees,
consultants, agents or any other third party, whether in writing, electronic
format or otherwise, including but not limited to, all Intellectual Property
as
set forth in Section 3.9 of the Stock Purchase Agreement between the Company,
nCoat, Inc., Consultant and others of even date, as owned by or licensed
to or
by the Company, all chemical or biological technology, materials, ingredients,
measurements, dimensions, formulations, formulas, processes, knowledge, know
how, software, applets, content, flow charts, algorithms, functionality,
design
and technical specifications, copyrights, trade marks, registration marks,
trade
secrets, patents and patent pendings, user and application interfaces and
the
structure, sequence and organization thereof, research, development,
technologies, processes, and business information including without limitation
business plans, marketing plans, techniques, strategies and materials, customer
information, customer lists, customer identities, customer development plans,
customer pre-production approval documents, customer documentation of parts
and
processes, suppliers, vendors, business acquisition or disposition plans,
new
personnel employment plans, financial budgets and forecasts, projections,
financial operations or information, investors, sales estimates, internal
performance results relating to the past, present or future business activities
of the other Party, the negotiations towards or the existence of each agreement
or instrument between or among the parties hereto and the contents, terms
and
conditions contained therein, the receipt of any Confidential Information,
and
any notes, memoranda, summaries, analyses, compilations and other writings
relating to any of the foregoing or based thereon prepared by Consultant
and any
other information marked as confidential or which reasonably should be
understood to be confidential or proprietary, whether or not so
marked. Consultant agrees that there shall be a presumption that all
information received from the Company or any affiliate of the Company is
Confidential and Proprietary Information, and that it is his obligation to
seek
acknowledgement from the Company of any information which Consultant may
wish to
exclude from being treated as Confidential Information. The Company shall
be
provided a reasonable time following any identification by Consultant of
information he wishes to exclude within which to reassert that such information
is Confidential Information and/or to seek judicial intervention to confirm
same. However, Confidential Information does not include information that
Consultant can show has become available for unrestricted public use, without
breach of this or any other agreement.
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“Consultant
Inventions” means all inventions, technology, products, formulations, ideas,
processes, trade secrets, materials, and Confidential Information, whether
or
not published, patented, copyrighted, registered, or suitable therefor, and
all
intellectual property rights therein, that are made, developed, written,
conceived, or first reduced to practice by Consultant in part or in whole,
whether alone or with others, during the Term, to the extent they relate
to the
Company’s past, present, future, or anticipated business, research, development,
or trade, or are developed using the Company’s time, equipment, or
materials.
“Prospective
Customer” means any company, supplier, vendor, investor or third party to
whom the Company is attempting to market, trade, lease, license or sell or
has
sold goods, products or services to in the past or with whom the Company
has had
contact, directly or indirectly, during the Term for the purpose of marketing
or
offering its products, services or goods.
5.02 Obligations
of Confidentiality. In the course of my consulting term with the
Company, Consultant may receive Confidential Information, which shall remain
the
sole property of the Company. Consultant agrees that, except as
appropriate in connection with the Company’s business, Consultant shall not at
any time, during or after the Term, (i) disclose Confidential Information
to any
person or (ii) use any Confidential Information for the direct or indirect
benefit of any person or entity other than the Company, except as the Company
may otherwise consent or direct in writing. Consultant shall use
reasonable and diligent efforts to maintain the proprietary nature, security
and
confidentiality of all Confidential Information. Consultant shall
also keep confidential any information provided by any client or other third
party to the Company under obligation of confidentiality. Consultant
shall promptly notify the Company if he becomes aware of any misuse or wrongful
disclosure of Confidential Information by any person. All obligations
of confidentiality shall continue for as long as is permitted under applicable
law.
5.03 Obligations
re Consultant Inventions. Consultant acknowledges and agrees that
all Consultant Inventions are the sole and exclusive property of the Company,
and hereby assigns to the Company any copyrights, patent rights, trade secrets,
and other rights that Consultant may have therein. Consultant agrees
to promptly disclose the existence, use, and manner of operation of any
Consultant Inventions to the Company. Consultant agrees to take all
actions reasonably requested by the Company, both during and after the Term,
to
assign to the Company and to establish (including, without limitation, assisting
in obtaining or registering copyrights, patents, trademarks or similar property
rights and executing assignments to the Company), perfect, exercise, or protect
the Company’s rights in any Consultant Inventions or title
thereto. If the Company is unable, because of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇’▇
mental or physical incapacity, geographic distance, or for any other reason,
as
determined by the Company, to obtain his approval or signature on any document
necessary or useful to claim, secure, extend, protect, or enforce any right
in
intellectual property to which the Company has a reasonable claim, then
Consultant hereby appoints the Company and its duly authorized officers as
its
agent and attorney-in-fact to act for its and in its place and stead for
the
purpose of accomplishing such act with the same legal force and effect as
if
executed by Consultant.
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5.04 No
Competitive Use of Materials. During the Term and for a period of
two (2) years thereafter, Consultant shall not (a) give, sell, trade or use
any
materials or ideas from Consultant Inventions or Confidential Information
in any
manner that would compete with, or pose a threat of competition to, the Company
or (b) give, sell, trade or use technology, software, designs, specifications,
formulations, processes, equipment or other components of any Consultant
Inventions, whether or not a threat of competition is posed, without the
express, written consent of the Company.
5.05 No
Unrelated Business with Customers. During the Term, unless the
Company agrees in advance in writing, Consultant shall not contact or initiate
discussions, directly or indirectly, with any customer or Prospective Customer
of the Company to attempt to sell such customer or Prospective Customer any
goods, product or service other than the Company’s goods, products or
services.
5.06 Return
of Information. Upon the Company’s request or at the end of the
Term, Consultant shall immediately return and deliver all Consultant Inventions,
Confidential Information and all other property of the Company to the Company,
whether in written, electronic or any other form, including all copies of
such
information in its possession or control.
5.07 Scope
of
Restrictions. Consultant acknowledges and agrees that the
restrictions of Sections 5.02 through 5.06 are reasonable under the
circumstances and represent the least restriction on Consultant’s future
consulting opportunities that are consistent with the protection of the
Company’s good will and Confidential Information, that these restrictions do not
prevent ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ from earning a livelihood without violating the
terms
of this Agreement, and that the Company has a legitimate business purpose
in
requiring Consultant to abide by these covenants. If any restriction
or term herein is found to be unreasonable or invalid by a court of competent
jurisdiction, then such court shall reduce or modify such term to the minimum
extent necessary to make it reasonable, valid, and enforceable, protecting
both
Consultant and the Company. If such term cannot be so reduced or
modified, it shall be severed and all other terms and restrictions of this
Agreement shall remain in full force and effect and shall be interpreted
in such
a way as to give maximum validity and enforceability to this
Agreement. If Consultant violates these restrictive covenants, then
their time limitations shall be extended for a period of time equal to the
time
during which such breach occurs. Sections 5.02 through 5.06 are
intended to be construed as a series of separate covenants, one for each
city,
county, or geographic area in which the Company does or intends or attempts
to
do business. Except for geographic coverage, each such separate
covenant shall be deemed identical in terms.
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5.08 No
Conflicts. Consultant hereby covenants, represents, and warrants
that (i) it is not now subject to, and will not enter into, any employment,
consulting, or other agreement or arrangement that may conflict with the
performance by it of any of its obligations to the Company (under this Agreement
or otherwise); and (ii) it has not, and will not, use or disclose Confidential
Information of any other former employer or any other person or entity to
which
it has any duty of confidentiality.
ARTICLE
VI
TERMINATION
6.01 Termination
of Agreement. This Agreement may be terminated at any time during
the Term by mutual agreement of the parties, or as otherwise provided in
this
Article.
6.02 Termination
for Cause. The Company may terminate this Agreement for Cause
without prior written notice of such termination. For purposes of
this Agreement, "Cause" for termination shall mean:
(a) the
willful failure or refusal to carry out the reasonable directions of the
Executive Committee, which directions are consistent with Consultant’s duties as
set forth under this Agreement, other than a failure resulting from ▇▇▇▇▇▇▇
Novakoiv’s complete or partial incapacity due to physical or mental illness or
impairment;
(b) a
conviction of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for a violation of a state or federal criminal
law involving the commission of a felony;
(c) a
willful act by Consultant that constitutes gross negligence in the performance
of its duties under this Agreement. No act or failure to act by
Consultant shall be considered "willful" unless committed without good faith
and
without a reasonable belief that the act or omission was in the Company's
best
interest;
(d) a
material breach of the terms of this Agreement, which breach has not been
cured
by Consultant within fifteen (15) days of written notice of said breach by
the
Company;
(e) unethical
business practices in connection with the Company’s business, including, but not
limited to, embezzlement, disparagement or unauthorized disclosure of
Confidential Information; or
(f) confirmed
and validated failure of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of any Company mandated drug
test.
Upon
termination for Cause, Consultant shall not be entitled to payment of any
compensation other than salary and benefits under this Agreement earned up
to
the date of such termination.
6.03 Termination
Due to Death. In the event of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇’▇ death within
six months from the date thereof, (i) the Company shall pay one-half (1/2)
of
the Annual Base Consulting Fee to Consultant in six (6) equal monthly payments
following the date of his death, (ii) Consultant shall be paid by the Company
the earned New Accounts and Qualified Accounts Performance Bonus, if any,
up to
date of death of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and (iii) Consultant shall be paid by
the
Company the Performance Bonus for Qualified Accounts for a period of twelve
(12)
months following the date of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇’▇ death.
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6.04 Voluntary
Termination. At any time after the first twelve (12) month period
following the Effective Date, Consultant may unilaterally terminate this
Agreement by giving the Company 60 days prior written notice. Upon
such voluntary termination by Consultant, Consultant shall be entitled to
(i)
payment of any compensation, Performance Bonuses and benefits under this
Agreement earned up to the date of such termination and (ii) Performance
Bonus
for Qualified Accounts for a period of twelve (12) months following the date
of
such termination.
ARTICLE
VII
MISCELLANEOUS
7.01 Assignment,
Successors. This Agreement may not be assigned by Consultant
without the prior written consent of the Company. This Agreement shall be
binding upon, and inure to the benefit of, Consultant and his estate and
the
Company and any assignee of or successor to the Company.
7.02 Nonalienation
of Benefits. Benefits, if any, payable under this Agreement shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy
of any
kind, either voluntary or involuntary, prior to actually being received by
Consultant, and any such attempt to dispose of any right to benefits payable
hereunder shall be void.
7.03 Severability. If
all or any part of this Agreement is declared by any court or governmental
authority to be unlawful or invalid, such unlawfulness or invalidity shall
not
serve to invalidate any portion of this Agreement not declared to be unlawful
or
invalid. Any paragraph or part of a paragraph so declared to be unlawful
or
invalid shall, if possible, be construed in a manner that will give effect
to
the terms of such paragraph or part of a paragraph to the fullest extent
possible while remaining lawful and valid.
7.04 Amendment
and Waiver. This Agreement shall not be altered, amended, or
modified except by written instrument executed by the Company and
Consultant. A waiver of any term, covenant, agreement, or condition
contained in this Agreement shall not be deemed a waiver of any other term,
covenant, agreement, or condition, and any waiver of any other term, covenant,
agreement, or condition, and any waiver of any default in any such term,
covenant, agreement, or condition shall not be deemed a waiver of any later
default thereof or of any other term, covenant, agreement, or
condition.
7.05 Notices. All
notices hereunder shall be sufficiently given for all purposes hereunder
if in
writing and delivered personally, sent by documented overnight delivery service
or, to the extent receipt is confirmed, telecopy, facsimile or other electronic
transmission service to the appropriate address or number as set forth
below. Notices to the Parties shall be addressed to:
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If
to the Company:
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▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇.▇.
▇▇▇
▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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with
a copy to:
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Durham
▇▇▇▇▇ & ▇▇▇▇▇▇▇
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▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇▇▇▇▇, Esq.
Facsimile
No.: 801-415-3500
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If
to Consultant:
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Nova-Van,
LLC
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Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Either
Party may from time to time designate a new address by notice given in
accordance with this Section. Such notice shall be deemed to be given
when received if delivered personally, or two (2) business days after the
date
mailed if sent certified or registered mail, return receipt requested, or
one
(1) day after deposited with a nationally recognized overnight courier service
in time for next day delivery, provided such next day is not a Saturday,
Sunday
or holiday. Any notice of any change of address shall be given in the
manner set forth above. Whenever the giving of notice is required,
the giving of such notice may be waived in writing by the party entitled
to
receive such notice.
7.06 Counterpart
Originals. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
7.07 Entire
Agreement. This Agreement forms the entire agreement between the
parties hereto with respect to any severance payment and with respect to
the
subject matter contained in the Agreement.
7.08 Applicable
Law. The provisions of this Agreement shall be interpreted and construed
in
accordance with the laws of the State of Delaware, without regard to its
choice
of law principles.
7.09 Effect
on Other Agreements. This Agreement shall supersede all prior
agreements, promises, and representations regarding employment by the Company
and severance or other payments contingent upon termination of
employment.
7.10 Extension
or Renegotiation. The parties hereto agree that at any time prior
to the expiration of this Agreement, they may extend or renegotiate this
Agreement upon mutually agreeable terms and conditions.
IN
WITNESS WHEREOF the parties have executed this Consulting Agreement on the
date
first written above.
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By:
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/s/
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Name:
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_______________________________
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Title:
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_______________________________
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Date:
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_______________________________
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NOVA-VAN,
LLC
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By:
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/s/
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Name:
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_______________________________
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Title:
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_______________________________
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Date:
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_______________________________
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Agreed
and Accepted:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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By:
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/s/
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Signature:
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_______________________________
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Print:
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_______________________________
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Date:
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_______________________________
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