EXHIBIT 10.10
TRANSITION SERVICES AGREEMENT
THIS AGREEMENT, dated as of June 30, 2005 between Spotless Plastics
(USA) Inc., a Delaware corporation ("Spotless") and wholly owned subsidiary
of Spotless Group Limited with an office at 000 Xxxxx Xxxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 ("Spotless Group"), and Windswept Environmental Group, Inc., a
Delaware corporation and wholly owned subsidiary of Spotless Plastics with an
office at 000 Xxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("WEGI").
WITNESSETH:
WHEREAS, Xxxxxx Xxxxxx, an employee of Spotless Plastics, has served
at the request of Spotless Group as the Vice President of Finance and
Administration of WEGI and has provided certain services to WEGI in such
capacity;
WHEREAS, Xx. Xxxxxx has resigned as an officer of WEGI;
WHEREAS, WEGI wishes to arrange with Spotless to obtain the services
of Xx. Xxxxxx, and Spotless wishes to provide such services, all as more fully
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants,
understandings and agreements set forth herein, the parties hereto agree as
follows:
Section 1. Services to be Provided to WEGI.
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(a) Throughout the Transition Period (as defined below), Spotless
shall cause Xx. Xxxxxx to be available to WEGI to perform the following services
(the "Services"):
(i) advice in the areas of administration, accounting, finance
and risk management; and
(ii) assist in preparation and review of periodic Securities and
Exchange Commission (the "SEC") reports by WEGI, including but
not limited to WEGI's Form 8-K's, 10-Q's and WEGI's Form 10-K
for its fiscal year ended June 28, 2005;
(iii) assist in the recruitment and training of a chief financial
officer and controller; and
(iv) monitor and assist in the preparation of all certificates and
other instruments to be delivered by WEGI pursuant to a
post-closing letter agreement dated on or about the date
hereof (the "Letter Agreement") by and between WEGI and Laurus
Master Fund, Ltd. ("Laurus")
1
(b) In rendering the Services, Xx. Xxxxxx shall devote such time and
attention as shall be reasonably required by WEGI consistent with the level
of his historical involvement with WEGI. If Xx. Xxxxxx is not employed by
Spotless at any time during the Transition Period (as defined below), Spotless
shall provide to WEGI comparable services by another sufficiently qualified
person.
Section 2. Compensation.
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(a) In consideration of the Services hereunder, WEGI shall pay to
Spotless an amount equal to $5,000 (five thousand dollars) per month for
each month that Xx. Xxxxxx provides the Services to WEGI, provided that, such
amount will be prorated for any partial month of service to WEGI. In addition,
upon conclusion of the Transition Period (as defined below), WEGI shall pay the
amount of $25,000 (twenty-five thousand dollars) to Xx. Xxxxxx. WEGI shall
reimburse Xx. Xxxxxx or Spotless, as appropriate, for all reasonable
out-of-pocket expenses incurred by Xx. Xxxxxx in rendering the Services.
Reimbursement shall be made immediately after submission by Xx. Xxxxxx or
Spotless of receipts or other documentation evidencing the expense.
(b) Except as otherwise agreed, Spotless shall invoice WEGI on a
monthly basis for the Services to be provided in this Section 2, and payment
shall be due in advance on the first day of each calendar month.
Section 3. Transition Period.
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This Agreement shall commence as of the date hereof, and continue
until six months from the date hereof (the "Transition Period").
Section 4. Independent Contractor Relationship.
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Nothing contained in this Agreement makes the parties hereto
partners or joint venturers. The relationship created hereby is an
independent contractor relationship. Under no circumstances shall Xx. Xxxxxx be
considered an employee of WEGI for any reason or purpose. Xx. Xxxxxx shall have
no authority pursuant to this Agreement to commit WEGI or any of its
subsidiaries or affiliates to any obligation in any manner whatsoever or to use
WEGI's name or enter into any contract or commitment on behalf of WEGI.
Section 5. No Restriction on Xx. Xxxxxx.
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WEGI acknowledges that Xx. Xxxxxx has business interests separate
and apart from it. WEGI agrees that nothing contained herein restricts in any
way Xx. Xxxxxx from engaging in business activities that are unrelated to WEGI,
including business activities on behalf of Spotless.
Section 6. Indemnification.
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(a) WEGI hereby indemnifies and holds Spotless and Xx. Xxxxxx
harmless from and against any losses, liabilities, awards, damages, obligations,
costs or expenses (including reasonable attorney's fees and expenses) relating
to or arising from his provision of Services to WEGI or arising from this
Agreement, other than as a result of Xx. Xxxxxx'x gross negligence or willful
misconduct.
(b) Spotless hereby indemnifies and holds WEGI harmless from and
against any losses, liabilities, awards, damages, obligations, costs or expenses
(including reasonable attorney's fees and expenses) relating to or arising from
this Agreement, other than as a result of WEGI's gross negligence or willful
misconduct.
Section 7. Directors and Officers of WEGI.
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Nothing contained in this Agreement shall be deemed to relieve the
officers and directors of WEGI from the performance of their duties or
limit the exercise of their powers in accordance with WEGI's Certificate of
Incorporation or the laws of the State of Delaware. The Services of Xx. Xxxxxx
which are rendered WEGI under this Agreement shall at all times be in accordance
with the reasonable instructions of WEGI's officers, board of directors and
audit committee and in accordance with all applicable laws.
Section 8. Severability.
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If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any parties. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the fullest extent possible.
Section 9. Miscellaneous.
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This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York without regard to its
conflicts of laws principles (except for N.Y. GEN. OBLIG. LAW ss. 5-1401 and ss.
5-1402). Each party hereto irrevocably and unconditionally consents to the
jurisdiction of the courts of the United States and of the state of New York
located in the County and State of New York in any action to enforce, interpret
or construe any provision of this Agreement. This Agreement constitutes the
entire agreement and understanding between WEGI and Spotless and supersedes all
prior agreements and understandings, oral and written, relating to the
subject matter hereof. This Agreement may not be modified or amended or any term
or provision hereof waived or discharged, except in writing signed by the party
against whom such modification, waiver or discharge is sought to be enforced.
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument. This Agreement may not be assigned. The headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
SPOTLESS PLASTICS (USA) INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President of Operations
WINDSWEPT ENVIRONMENTAL GROUP, INC.
By: /s/ Xxxxxxx X'Xxxxxx
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Name: Xxxxxxx X'Xxxxxx
Title: President
Acknowledged:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
