INNOPUMP, INC. WITH RICHARD HARRITON
INNOPUMP,
INC. WITH XXXXXXX XXXXXXXX
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DATE:
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April
22, 2005
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COMPANY:
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Innopump,
Inc
000
Xxxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxx, XX 00000
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CONSULTANT:
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Park
Avenue Consulting, LLC. f/s/o Xxxxxxx Xxxxxxxx
Suite
4510
00
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000
|
RECITALS
A.
The
Company is engaged in the business of manufacturing and selling certain licensed
and patented products.
B.
Consultant has considerable experience and ability in Company's
business.
C.
The
Company desires to retain Consultant as an independent contractor to assist
it
from time-to-time in furtherance of its business and Consultant is willing
to
provide such services to the Company on the terms herein contained.
NOW,
THEREFORE, in consideration of the mutual promises and covenants herein
contained, the parties hereto agree as follows:
TERMS
AND CONDITIONS
1.
DEFINITIONS:
1.1. "Confidential
Information":
Is
defined in Paragraph 8 herein.
1.2. "Year
One":
Shall
mean the first year of the term of this Agreement commencing April 22, 2005
and
ending April 21, 2006.
1.3. "Year
Two":
Shall
mean the first year of the term of this Agreement commencing April 22, 2006
and
ending April 21, 2007.
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1.4. "Year
Three":
Shall
mean the first year of the term of this Agreement commencing April 22, 2007
and
ending April 21, 2008.
1.5. "Year
Four":
Shall
mean the first year of the term of this Agreement commencing April 22, 2008
and
ending April 21, 2009.
1.6. "Year
Five":
Shall
mean the first year of the term of this Agreement commencing April 22, 2009
and
ending April 21, 2010.
1.7. "Effective
Date":
January
1, 2002.
1.8. "Year
One Consulting Fee":
Sixty-Five Thousand ($65,000) Dollars payable as stated in subparagraph
5.1.
1.9. "Year
Two Consulting Fee":
Fifty
Thousand ($50,000) Dollars payable as stated in subparagraph 5.2.
1.10. "Year
Three (Four and Five) Consulting Fee":
Fifty
Thousand ($50,000) Dollars payable according to the conditions stated in
subparagraph 5.3 herein.
2.
ENGAGEMENT:
Company
hereby engages Consultant (f/s/o Xxxxxxx Xxxxxxxx) as an independent contractor
to render the services described herein to Company and Consultant accepts the
engagement subject to the terms contained herein.
3.
TERM:
The
"Term" of this Agreement shall begin on the Effective Date and shall continue
until April 21, 2010.
4.
SERVICES:
4.1.
Consultant shall perform the services specified in this Paragraph 4 subject
to
the terms of this Agreement and such other rules and policies as Company may
from time to time direct, so long as same do not increase the obligations of
Consultant hereunder.
4.2.
Consultant shall use his expertise to assist Company in structuring, operating
and growing its business.
4.3.
Consultant shall advise Company on Company's business when requested by Company,
subject to his availability.
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4.3.1.
Company
acknowledges the unique skills of Consultant and the significant demands
on his
time required by other business interests that may or may not be of a
competitive nature with Company. Notwithstanding such limitations, Company
believes the value of the relationship is important to the development of
Company’s interests.
4.3.2.
In
no
event shall Consultant's failure to render services be deemed a breach of
Consultant's obligations hereunder.
5.
CONSULTANT'S
COMPENSATION:
In full
consideration for all services to be rendered by Consultant to Company, Company
agrees to pay and Consultant agrees to accept the following, subject to the
terms of this Agreement. All payments shall be made on the due dates by Check
payable to order of Consultant, or if requested by Consultant by wire transfer
to Consultant's account.
5.1. Year
One Consulting Fee:
Company
shall pay to Consultant the Year One Consulting Fee, $15,000 upon execution
hereof and the balance in four equal quarterly installments on or before June
30, September 30, December 31, and March 30 of Year One.
5.2. Year
Two Consulting Fee:
Company
shall pay to Consultant the Year Two Consulting Fee, in four equal quarterly
installments on or before June 30, September 30, December 31, and March 30
of
Year Two.
5.3. Year
Three (Four and Five) Consulting Fee:
Company
shall pay to Consultant the Year Three Consulting Fee, in four equal quarterly
installments on or before June 30, September 30, December 31, and March 30
of
Year Three (Four and Five, respectively).
5.4. Expenses:
Consultant shall bear all of its expenses including but not limited to
unemployment, disability or health insurance payments and social security,
income tax or other withholdings, deductions or payments which may be required
by Federal, State or Local law with respect to any sums paid to Consultant
hereunder.
5.5. No
Additional Participation:
Consultant acknowledges and agrees that this Consulting Agreement shall not
give
or extend to Consultant any rights with respect to Company's payments to
officers, directors and employees, including contributions by Company to any
deferred compensation plan, bonus plans or fringe benefits not otherwise
specified in this Agreement as payable to Consultant.
6.
DEATH
OR DISABILITY BENEFIT; LIFE INSURANCE:
6.1.
If
Consultant (i.e. Xxxxxxx Xxxxxxxx) dies or is incapacitated during the term
of
this Agreement the compensation provided for herein shall nevertheless be due
and payable to Consultant or his estate, in accordance with the payment schedule
for such amount fixed in Paragraph 5 above.
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6.2.
Company
shall have the right, during the Term hereof, to secure a life insurance policy
(or sequential yearly policies) upon Consultant to protect its
interest.
6.2.1.
Payment
for such policy shall be the sole responsibility of the Company.
6.2.2.
Consultant
shall cooperate fully with Company in forwarding the application for such
policy. Failure of Consultant to so cooperate shall be deemed an Event of
Default under this Agreement.
7.
NONCOMPETE
CLAUSE:
Nothing
herein shall be deemed to prevent or restrict Consultant from continuing to
pursue his own independent activities whether or not same may be deemed
competitive with the services provided to or by Company.
8.
CONFIDENTIAL
INFORMATION:
8.1.
Except
with the prior written consent of Company in each instance or as may be
necessary to allow Consultant to perform his services to Company, Consultant
shall not disclose, use, publish or in any other manner reveal, directly or
indirectly, at any time during or after his employment by Company, any
Confidential Information. The obligation of Consultant under this Paragraph
will
survive the termination of engagement by Company.
8.1.1.
Consultant hereby agrees to disclose promptly to Company all Confidential
Information obtained or created by Consultant during his employment by Company,
which, upon its creation, shall be the sole property of Company.
8.2.
"Confidential Information" as used herein means, without limitation as it shall
cover all such material as standardly defined, all information relating
to:
8.2.1.
the names and business operations, personnel, activities, marketing, advertising
and financial affairs of and other non-public information relating to clients,
former clients and prospective clients of Company; and
8.2.2.
all
operations, systems, services, personnel, financial affairs, advertising and
promotion strategies, techniques, case histories and marketing plans developed
or used by Company in the course of its business.
9.
ASSIGNMENT:
9.1.
The
Company shall not voluntarily or by operation of law assign or otherwise
transfer the obligations incurred on its part pursuant to the terms of this
Agreement without the prior written consent of Consultant. Any attempted
assignment or transfer of its obligation without such consent shall be wholly
void. No assignment or transfer, even with the consent of Consultant, shall
relieve the Company of its obligations incurred pursuant to the terms of this
Agreement.
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9.2.
The
nature of Consultant's services hereunder are personal in nature and Consultant
shall not, without Company's prior written consent, assign or transfer any
of
his obligations hereunder.
9.3.
Subject
to the foregoing this Agreement shall inure to the benefit to each of the
parties, successors, transferees or assigns and shall be binding upon each
of
the parties, successors, transferees or assigns.
10.
DEFAULTS
BY COMPANY:
10.1.
The
occurrence of any one or more of the following events shall constitute a
material default and breach of this Agreement by the Company:
10.1.1.
Any
failure by the Company to make the payments due pursuant to Paragraph 5 herein,
if such failure continues for fifteen (15) days after receipt by the Company
from Consultant or Consultant's authorized representative of written notice
thereof.
10.1.2.
The
making by the Company or any guarantor of the Company's obligations hereunder
of
any general assignment for the benefit of creditors; the filing by or against
them of a petition to have them adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless,
in
the case of a petition filed against them, the same is dismissed within sixty
(60) days);
10.1.3.
The appointment of a trustee or receiver to take possession of substantially
all
of the Company's assets if such possession is not restored to the Company within
thirty (30) days; or the attachment, execution or other judicial seizure of
substantially all of the Company's assets if such seizure is not discharged
within thirty (30) days thereafter.
10.2.
In the
event of a default by the Company as described in this Paragraph 10, then in
addition to any other remedies available to Consultant at law or in equity,
Consultant shall have the immediate option to declare the entire balance of
Consulting Fees to be made by Company pursuant to Paragraph 5 hereof immediately
due and payable, in which event interest shall accrue on such balance from
and
after the due date at the rate of seven (7%) percent per annum. If any payment
due the Consultant hereunder is not made, and if the matter is referred to
an
attorney for collection, the Company agrees to pay all costs of collection
including, without limitation, reasonable attorneys' fees.
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11.
Counsel.
The
Parties acknowledge that they have been represented by and have relied on
counsel of their own choosing in the negotiations and the preparation of this
Agreement and that they read this Agreement, have had its contents fully
explained to them by such counsel and are fully aware of and understand all
of
its terms and legal consequences. It is acknowledged that the Parties, through
their respective counsel, mutually participated in the preparation of this
Agreement, and it is agreed that no provision of this Agreement will be
construed against any of the Parties by virtue of the activities of that party
or their respective attorneys.
12.
Integration.
This
Agreement constitutes a single integrated written agreement expressing the
entire agreement and understanding between the Parties concerning the subject
matter hereof and supersedes and replaces all prior negotiations or proposed
agreements, written or oral.
13.
Express
& Implied Promises.
The
Parties acknowledge that no other party, or any agent or attorney of any other
party, has made any promise, representation or warranty whatsoever, express
or
implied, not contained herein concerning the subject matter hereof, to induce
them to execute this Agreement, and acknowledge that they have not executed
this
instrument in reliance on any such promise, representation or warranty not
contained herein, and further acknowledge that there are no other agreements
or
understandings between the Parties relating to this Agreement that are not
contained herein.
14.
Non-Disclosure.
No
Party to this Agreement or any person acting for or on their behalf, including
their respective attorneys, shall directly or indirectly reveal to any third
party any of the terms or conditions of this Agreement, or any fact or evidence
connected hereto, or release any publicity or make any public statement with
respect thereto, except as may be required by law and or disclosure obligations
arising from the issuance of financing documentation or the exercise of due
diligence rights in connection therewith.
15.
Additional
Documents.
The
Parties agree that they will execute, or cause to be executed, such other
documents as may be necessary to carry out the purposes of this Agreement.
It is
understood that should it develop that there are any mistakes in this Agreement
which would cause the release and discharge of any party to be defective or
less
than complete, or if this Agreement is declared unenforceable by a court or
arbitrator, then the Parties will execute any and all other documents and do
any
and all things necessary to effect full, final and complete release of all
claims or all possible claims in accordance with the provisions set forth in
this Agreement.
16.
Arbitration.
16.1. American
Arbitration Association
- Any
dispute arising out of, in connection with, or in relation to this agreement
or
the making of validity thereof or its interpretation or any breach thereof
shall
be determined and settled by arbitration in New York City by a sole arbitrator
pursuant to the rules and regulations then obtaining of the American Arbitration
Association and any award rendered therein shall be final and conclusive upon
the parties, and a judgment thereon may be entered in the highest court of
the
forum, state or federal, having jurisdiction. The service of any notice,
process, motion or other document in connection with an arbitration award under
this agreement or for the enforcement of an arbitration award hereunder may
be
effectuated by either personal service or by certified or registered mail to
the
respective addresses provided herein.
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16.2. Submission
to Jurisdiction
- By
execution and delivery of this Agreement, the parties each respectively accept,
for itself and its property, generally and unconditionally, the jurisdiction
of
the aforesaid Arbitration Tribunal, Courts and any related Appellate Court,
irrevocably agrees to be bound by any judgment rendered thereby and in
connection with this Agreement, and irrevocably waive any objection either
party
may now or hereafter have as to the venue of any such action or proceeding.
Each
party consents to the service of process in the Arbitration or out of any of
the
aforementioned Courts by mailing copies thereof by certified mail, postage
prepaid, such service to become effective three (3) business days after such
mailing. Nothing herein shall effect either party's right to service of process
in any other manner prescribed by law. Any judicial proceeding by either party
against the other involving, directly or indirectly, any matter, in any way
arising out of, related or connected with this Agreement shall be brought only
in a Court located in the City of New York.
17.
Notices.
17.1.
Any
notice to be given hereunder shall be sent by registered or certified mail,
return receipt requested, or telecopy to a facsimile number provided by the
respective party with a copy sent by regular mail, or by delivering the same
personally to the parties at the addresses first set forth herein. Any party
may
designate a different address by notice so given. Copies of all notices shall
be
sent to the parties as hereto named above and, in addition:
Copies
of
all notices shall be sent to:
Xxxxxxx,
Xxxxxxxxx & Xxxxxxxx, LLP
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxx, Esq.
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17.2.
Any
notice mailed or personally delivered as aforesaid shall be deemed to have
been
given on the date of receipt; telecopies shall be deemed received on the
business day after being sent by telecopy.
18.
Waiver.
This
Agreement may be waived, discharged or modified only by an instrument in writing
signed by the party against whom enforcement of any such waiver, discharge
or
modification is sought.
19.
Modification.
This
Agreement cannot be modified, altered, amended or otherwise changed except
by an
agreement in writing signed by the parties hereto.
19.1.
Severability:
The
provisions of this Agreement are severable. To the extent any provision, portion
or extent of this Agreement is determined to be invalid, illegal or otherwise
unenforceable, then that provision, portion or extent will be limited if
possible and only thereafter severed if necessary. Any such limitation or
severing shall only be to the extent necessary to render the Agreement valid
and
enforceable. The remaining provisions, portions and extent of the Agreement
will
be enforced to give effect to the intention of the parties insofar as
possible.
20.
Counterparts.
This
Agreement may be executed in counterparts, each of which will be considered
an
original and all of which together will constitute one and the same instrument.
Copies delivered by facsimile shall be binding.
21.
New
York Law.
This
Agreement shall be governed by and construed in accordance with the substantive
law of the State of New York without regard to choice of law
principles.
IN
WITNESS HEREOF, the parties have signed this agreement as of the day and year
first set forth above.
| Innopump, Inc. | Park Avenue Consultants, LLC | |
| By | By | |
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