1
EXHIBIT 10.27
CONSULTING/MARKETING SERVICES AGREEMENT
Agreement No. _________
THIS AGREEMENT is made and entered into as of the 1st day of September,
1997 by and between Xxx X. Xxxxxx, Inc. ("Weston" or the "Company"), a
Pennsylvania corporation having its principal offices at 0 Xxxxxx Xxx, Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000 and Armitage Associates L.C. ("AALC") whose
principal address is 0000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000.
WHEREAS, Weston is in the business of providing environmental engineering
and consulting services to private industry and governmental clients; and
WHEREAS, AALC is in the business of providing consulting and marketing
services to business organizations with respect to international marketing,
international operations and international strategic planning and is, by reason
of its knowledge, education and expertise in those subjects, capable of
performing the services described herein; and
WHEREAS, Weston desires, and AALC has agreed, that AALC provide certain
services as set forth hereinafter to the Company.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, and other good and valuable consideration, the parties agree
as follows:
ARTICLE I. SCOPE OF CONSULTING SERVICES.
1. THE SERVICES. Subject to the terms and conditions of this Agreement,
AALC shall provide strategic, operational and marketing advice and assistance
to the international operations of Weston and its subsidiaries. Such advice
and assistance shall include strategic focus consultation and business
development activities designed to xxxxxx the growth of Weston's international
business. These services are referred to in this Agreement as the "Services".
2. AUTHORIZED WESTON REPRESENTATIVE. In performing the Services, AALC
shall report to the President of Weston International Holdings, Inc. (the
"Weston Representative") or such other person as Weston shall designate. All
Services performed
1
2
by AALC shall be at the direction of the Weston Representative, who will be
responsible for tasking and approving all activities undertaken by AALC on
Weston's behalf. AALC shall prepare such written reports and documentation
relating to the Services as may be requested by the Weston Representative.
3. AUTHORIZED AALC REPRESENTATIVE. Xxxxxxx X. Xxxxxx, or such other
person as AALC may designate, shall serve as the authorized representative of
AALC in connection with this Agreement.
ARTICLE II. TERM; TERMINATION.
The initial term ("Initial Term") of this Agreement shall be for a twelve
(12) month period commencing September 1, 1997 and ending August 31, 1998,
provided, however, that either party may terminate this agreement, for any
reason, upon 30 days prior written notice to the other party. In the absence
of such termination, the term of this Agreement may be extended for successive
month-to-month periods after August 31, 1998, upon the mutual agreement of the
parties. Each monthly extension of the term shall be evidenced by a writing
executed by the parties. In the event of termination, AALC shall be paid for
any services rendered before termination, percentage compensation earned and
approved expenses incurred before the termination. The provisions of Articles
V, VI, VIII and XIII shall survive the expiration or any termination of this
Agreement.
ARTICLE III. COMPENSATION.
1. FEES. Weston shall pay AALC, upon submission of a monthly invoice,
fees for services in accordance with the attached "Fee Schedule and Account
Data," which is an organic part of this Agreement. This fee schedule
represents a reduced hourly and daily rate for services from AALC's normal
schedule of fees. Both parties will attempt to keep the 12 month cost of
services at no more than $40,000.00 per annum, which annual amount will not be
exceeded without the prior written approval of the Weston Representative.
Quarterly reviews of the service compensation levels and performance of AALC
will be conducted by the Weston Representative.
2. PERCENTAGE COMPENSATION. Weston further agrees to compensate AALC a
percentage of the "receipted net revenue", as defined below, from projects
generated for Weston through the efforts of AALC ("percentage compensation"),
calculated annually for a period of 5 years from the initial contract date,
including renewals or extensions which occur within that 5 year period, in
accordance with the following schedule:
2
3
Receipted Annual Net Revenue Percentage
---------------------------- ----------
$0-$999,999.00 5%
$1 million-$5 million 4%
Above $5 million 3%
AALC agrees to reduce the percentage compensation to be paid by Weston by
the amount of the total fees paid by Weston under Article III (1) above for that
same annual period. As used in this Agreement, "receipted net revenue" shall
mean net revenues recorded by Weston during a calendar year and billed and
collected by Weston within 120 days of the end of such calendar year.
3. EXPENSES. All local expenses, to include local travel incurred in
the performance of its services, will be borne by AALC. Travel outside the
greater Washington D.C. metropolitan area (for purposes of this Agreement,
travel to and from West Chester, PA only will be considered local travel) will
be reimbursed by Weston in accordance with the attached "Fee Schedule and
Account Data." Prior notification of Weston and approval by Weston are required
for any expenses which will be reimbursed by Weston. Such expenses will be
billed on the monthly invoice.
ARTICLE IV. INVOICING AND PAYMENT.
1. INVOICES. AALC shall submit invoices for completed services in a form
acceptable to Weston within ten (10) days following the end of each month in
which AALC provides the Services. Invoices shall include the following detail:
a. This Agreement number, AALC's name, dates of service, and number of
hours worked each day.
b. A detailed list of expenses in a format reasonably acceptable to Weston,
together with copies of original documentation of such expenses.
3
4
Original invoices shall be submitted, together with one copy, to the
Weston Representative who shall approve such invoice upon reasonable
satisfaction that the Services have been satisfactorily performed.
2. PAYMENT. Payment shall be issued to AALC within 30 days after
receipt and approval of each invoice. Weston shall have no obligation to
reimburse AALC for any expenses incurred, or any services performed, in
violation of any law, Weston Business Ethics Policy or in contravention of this
Agreement.
ARTICLE V. WORK PRODUCT.
1. OWNERSHIP OF WORK PRODUCT. All information, including, but not limited
to, all designs, processes, manuals, reports, computer data and related
information, first produced by AALC for Weston in performing the Services shall
be the sole property of Weston. All such information shall be considered
proprietary information and shall be retained and used solely in accordance
with the provisions of this Agreement. To the extent any such information
comprises work susceptible to protection under applicable copyright laws, AALC
agrees that such work shall be deemed "work made for hire" hereunder. In the
event that such work is determined not to be "work made for hire," this
Agreement shall operate as an irrevocable assignment by AALC to Weston of the
copyright in the work, including all right, title and interest therein, in
perpetuity.
2. INVENTIONS AND PATENTS. All inventions, improvements and discoveries,
whether patentable or not, first conceived, developed or reduced to practice by
AALC, either alone or with others, in the course of the performance of the
Services, or as a consequence of AALC's receipt of information hereunder, shall
be the sole property of Weston. All such inventions, improvements and
discoveries shall be promptly disclosed to Weston in writing. At Weston's
request and expense, AALC agrees to (i) assist Weston in making application for
patents on such inventions, improvement and discoveries in the United States
and any foreign countries (ii) assign all such applications to Weston or
its designee without further charges, (iii) assist Weston in the prosecution of
any patent applications and the enforcement of any resulting patents and (iv)
execute any and all documents necessary for the accomplishment of the
foregoing.
4
5
ARTICLE VI. CONFIDENTIALITY.
1. PROPRIETARY INFORMATION. All information received by AALC in the course
of performing the Services, other than information publicly available or
publicly disclosed shall be deemed "Proprietary Information." AALC shall
receive and retain all Proprietary Information in confidence and shall not
disclose such information to any person without the express written
authorization of Weston; provided, however, that AALC may disclose such
information to experts, retained by AALC in connection with performance of the
Services, who have agreed in writing to abide by the provisions of Article VI
of this Agreement. AALC shall use Proprietary Information solely for the
purpose of performing its obligations hereunder and for no other purpose. Upon
termination of this Agreement, AALC shall promptly return all Proprietary
Information to Weston, and will, if requested by Weston, execute a certificate
warranting that all Proprietary Information has been returned to Weston in
accordance with this Agreement.
2. NON-SOLICITATION OF EMPLOYEES. AALC shall not, directly or indirectly,
from the date of this Agreement until two (2) years after termination of this
Agreement, solicit, hire or otherwise induce any Weston employee to leave the
employment of Weston; nor shall AALC induce any Weston employee to become an
employee of, or otherwise become associated with, any company or business other
than Weston, without the written approval of Weston. This paragraph shall
apply to inducement, hiring or solicitation of any Weston employee regardless
of position.
3. NON-SOLICITATION OF CLIENTS. AALC will not, directly or indirectly,
from the date of this Agreement until two (2) years after termination of this
Agreement, solicit the trade or patronage, in competition with Weston, of any
Weston clients or of any prospective clients with whom Weston has pending
proposals. This restriction shall only apply to clients or prospective clients
with whom AALC had direct or indirect contact during the pendency of this
Agreement.
ARTICLE VII. CONFLICTS OF INTEREST
1. REPRESENTATION CONCERNING CONFLICTS. AALC hereby warrants and
represents that to the best of its knowledge and belief there are no relevant
facts or circumstances which could give rise to an actual or potential conflict
of interest under this Agreement, and that AALC has disclosed to Weston all
information having any relevance to an actual or potential conflict of
interest. AALC will not enter into any arrangements with any other
5
6
person or entity for purposes that directly conflict with AALC's undertakings
on behalf of Weston. Ambassador Xxxxxxx Xxxxxxxx'x interest in AALC has been
disclosed to Weston's Board of Directors, the disinterested members of which
have approved Weston's engagement of AALC under this Agreement.
2. DISCLOSURE. AALC agrees that if an actual or potential conflict of
interest is discovered after execution of this Agreement, AALC will make full
disclosure to Weston in writing. This disclosure shall include a description
of actions which AALC has taken or proposes to take to avoid, mitigate or
neutralize the actual or potential conflict, and all actions taken for such
purposes shall be in consultation with Weston.
3. COMMUNICATIONS WITH GOVERNMENTAL OFFICIALS. In performing the
Services, AALC will not engage in any lobbying activities with the United
States Government, or conduct activities that would require it to register in
the United States as an agent of any foreign principal. In performing the
Services, AALC shall not communicate with any officer, representative,
employee, elected official or agency of the government of any country or any
subdivision thereof on behalf of Weston without having first obtained the
written consent of the Weston Representative.
4. GOVERNMENT EMPLOYMENT. If AALC or any person performing work for AALC
hereunder has been a United States government employee within the past three
(3) years, AALC agrees to furnish Weston all relevant information regarding any
potential conflict of interest.
ARTICLE VIII. RECORDS RETENTION.
AALC shall retain all records documenting amounts invoiced to Weston under
this Agreement in legible form for a period of five (5) years from date of
final payment hereunder. AALC agrees that all transactions in connection with
Weston business shall be accurately reflected in its books and records. AALC
authorizes Weston to inspect and audit these records during business hours upon
prior notice to AALC. Except for documentation of amounts invoiced to Weston
described above, upon the termination or expiration of this Agreement, AALC
shall immediately deliver to Weston all documents relating in any way to the
performance of the Services.
ARTICLE IX. TAXES.
6
7
AALC shall have sole responsibility for payment of all Federal, state (unless
it provides Weston with a Non-taxable Transaction Certificate), local and other
sales, use, income and all employment and other taxes applicable to the fees
paid to AALC hereunder. AALC agrees to indemnify and hold Weston harmless from
and against any and all claims and liability relating to such taxes.
ARTICLE X. INDEPENDENT CONTRACTOR.
For all purposes in performing its services, AALC shall be deemed to be an
independent contractor and as such, employees of AALC who perform the Services
shall not be entitled to any benefits applicable to the employees of Weston.
AALC declares that it is engaged in an independent business, that similar
services are provided for other clients from time to time, and Weston is not
AALC's sole and only client. AALC's authority to bind or speak for Weston shall
be limited by Weston's By-Laws and applicable law, and further limited and
defined by the authority granted by the Authorized Weston Representative and
the Board of Directors from time to time.
ARTICLE XI. INSURANCE.
AALC shall maintain insurance at its own expense for services performed
hereunder. Such insurance shall include, but not be limited to, Comprehensive
General Liability ($300,000 Minimum), Professional Liability - Errors and
Omissions ($300,000) and Automobile Liability (Bodily Injury and Property
Damage/$300,000 Minimum each). Certificates of insurance shall be provided to
Weston promptly upon request.
ARTICLE XII. WARRANTY.
AALC warrants and represents that: (a) it possesses the expertise,
capability, equipment and personnel to properly and professionally perform the
services; (b) to the extent it is required to do so, it is properly and legally
licensed to perform the services; (c) it shall at all times in the performance
of such services comply with all applicable laws, ordinances and regulations;
(d) it shall perform all services in a good, professional, efficient and
non-negligent manner; and (e) it does not, as of the date of this Agreement,
and during the period of performance under this Agreement, shall not represent
any competitor of Weston without first fully disclosing to Weston in writing
the scope of work and the name of such competitor and obtaining Weston's
written consent in advance of such representation.
7
8
ARTICLE XIII. INDEMNIFICATION.
AALC agrees to indemnify and hold harmless Weston, its officers,
directors, agents and employees for any loss, including reasonable and actual
attorney's fees, costs or damages that Weston may incur as a result of the
negligent acts or omissions of the AALC or the AALC's employees or agents.
Neither party shall be liable to the other for incidental, indirect or
consequential damages, except where such damages arise out of the gross
negligence or willful misconduct of the other party.
ARTICLE XIV. ASSIGNMENT.
This Agreement may not be assigned by AALC, either in whole or in part,
without the prior written consent of Weston. Any attempted or purported
assignment shall be null and void and without force and effect.
ARTICLE XV. DISPUTES.
In the event that a dispute should arise between the parties concerning
fees or payments, services performed or any other alleged breach of this
Agreement by either party, all aspects of such dispute shall be submitted to
binding arbitration in the Commonwealth of Virginia by a single arbitrator in
accordance with the rules of the American Arbitration Association.
ARTICLE XVI. SEVERABILITY.
Any provision or part of this Agreement held to be void or unenforceable
under any law or by any court shall be deemed stricken, and all remaining
provisions shall continue to be valid and binding upon the parties. The
parties or the Arbitrator may reform or replace such stricken provision or part
thereof with a valid and enforceable provision which expresses the intent of
the stricken provision.
ARTICLE XVII. GOVERNING LAW.
All matters arising under and relating to the application and
interpretation of this Agreement and to the relationship of AALC and Weston
will be governed by the laws of the Commonwealth of Virginia, notwithstanding
its choice of law rules.
8
9
ARTICLE XVIII. ENTIRE AGREEMENT. This Agreement constitutes the sole and
exclusive agreement of the parties hereto and supersedes any prior
understandings or written or oral agreements between the parties. This
Agreement may be modified, altered or amended only by a writing signed by the
Authorized Representative of each party.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
caused this Agreement to be executed by their duly authorized representatives.
XXXXXXXX XXX X. XXXXXX, INC.
ASSOCIATES L.C.
BY: /s/ BY: /s/
--------------------------- ---------------------------
NAME: Xxxxxxx X. Xxxxxx NAME: Xxxxxxx X. Xxxxxxxxx
TITLE: Partner TITLE: President
9
10
FEE SCHEDULE AND ACCOUNT DATA
For purposes of the Agreement with Xxx X. Xxxxxx, Inc. only, Armitage
Associates rates are as follows:
Hourly rates:
** Partners/Senior Associates/Associates $125 (plus expenses)
Daily rates:
** Partners/Senior Associates/Associates $900 (plus expenses)
Travel/activities outside of the Washington, D.C. metropolitan area:
** Travel, whether accompanying a client or unaccompanied, is billed at
the hourly or daily rate (whichever is less) if work is performed on behalf of
the client enroute.
** For assignments involving lodging outside of the Washington, D.C. area,
the client will provide for round-trip business-class travel and expenses as
well as work charges at the discounted daily rate. Expenses (hotel, meals,
laundry, gratuities, telephone, cable, facsimile, hotel business facilities,
taxi, rental cars, parking, express delivery postage, etc.), if incurred in
pursuit of the client's interests, are fully reimbursable. If anticipated
travel costs are substantial a partial advance may be requested.
Payments to Armitage Associates L.C. should be made directly or
transferred as follows:
** NationsBank of Virginia, N.A., 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000
** The bank's routing (ABA) number is 000000000
** The account is under the name Armitage Associates L.C.
** The account number is 00000000
10
