Exhibit 10.18
May 23, 1997
Xx. Xxx Xxxxxxxxx
0000 Xxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00x00
Dear Xx. Xxxxxxxxx:
This consulting agreement ("Agreement") revises, restates and replaces the
original consulting agreement between IDM Environmental Corp. (the "Company")
and you dated April 25, 1996 ("Original Agreement"). The Company is pleased to
present you with the revised Agreement in recognition of your contributions to
the Company and as an incentive to continue to serve the Company.
Inasmuch as you have developed substantial expertise in environmental
contracting and have many contacts among public and private environmental
remediation customers that IDM Environmental Corp. (the "Company") believes
would be useful to the Company, subject to the further provisions hereof, the
Company will retain you and you will serve the Company as a consultant.
1. Duties. During the Term (as hereinafter defined) you agree to consult,
in person and by telephone, with the Company and its employees, agents and
representatives and other persons that the Company reasonably requests that you
meet with.
2. Compensation; Expenses.
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(a) Fee. The Company will compensate you for the services to be
rendered by you hereunder with a monthly fee at the rate of $2,500.00
payable on the first business day of each month.
(b) Stock Option. In addition to your monthly fee, the Company hereby
grants to you an option to purchase from the Company up to thirty thousand
(30,000) shares (the "Option Shares") of the Company's $.00l par value
Common Stock at the price per share set forth below pursuant to the
Company's l995 Stock Option Plan and subject to the terms and conditions
thereof (the "Option"). This grant is subject to the terms and conditions
hereinafter stated. Your options may be purchased, subject to the vesting
schedule set forth herein, at the following prices per share:
Option Shares Price Per Share
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1 to 5,000 $2.00
5,001 to 10,000 $2.50
10,001 to 15,000 $3.00
15,001 to 20,000 $3.50
20,001 to 25,000 $4.00
25,001 to 30,000 $4.50
(i) Vesting Schedule. Upon execution of this Agreement, 5,000 Option
Shares shall vest and be immediately exercisable by you. The balance of the
Option Shares shall vest at the rate of l,000 Option Shares for each one
million dollars in revenue recognized by the Company which is directly
attributable to your efforts.
(ii) Exercise Period. Except as otherwise provided below, you may
exercise your Option Shares to the extent vested from the date of the grant
through the fifth anniversary thereof. The Option Shares may be exercised
in part from time to time or in full but only to the extent vested.
(iii) Payment. You shall pay for the Common Stock underlying your
Option Shares in full at the time you exercise and no shares shall be
issued until such payment has been received.
(iv) Termination of Consulting Relationship. Except as otherwise
expressly provided, this Option may be exercised only while you are engaged
by the Company as a consultant provided, however, (a) if the Company
terminates you with cause or you terminate your engagement without cause,
your Option shall expire immediately, and (b) if the Company terminates you
without cause or you terminate your engagement with cause, then you shall
have the right for one year from the date of termination to exercise the
Option Shares to the extent vested, in whole or in part. If you die while
engaged by the Company, your estate or any person who acquires the right to
exercise this Option by bequest or inheritance or by reason of your death
shall have the right within one year from the date of your death to
exercise the Option Shares to the extent vested, in whole or in part.
(v) Non-Transferability. The Option shall not be transferable other
than by last will and testament or by the laws of descent and distribution.
During your lifetime, the Option shall be exercisable only by you.
(vi) SEC Requirements. The exercise of the Option, the issuance of
shares pursuant to such exercise, and the subsequent transfer of such
shares shall be conditioned upon compliance with the listing requirements
of any securities exchange upon which the stock of the Company may be
listed, the requirements of the Securities Act of l933 and/or the
Securities Exchange Act of l934, and the requirements of applicable state
laws relating to authorization, issuance or sale of securities, and the
Company may take such measures as it deems desirable to secure compliance
with the foregoing.
(vii) Change in Capital Stock. The total number of shares subject to
this Option shall be appropriately adjusted for a change in the outstanding
shares of Common Stock of the Company through recapitalization, stock
split, stock dividend or a change in the corporate structure through merger
or consolidation in which the Company is not the surviving corporation, any
outstanding options hereunder shall terminate, provided that you shall, in
such event, have the right immediately prior to such dissolution,
liquidation, or merger or consolidation in which the Company is not the
surviving corporation, to exercise your Option to the extent vested in
whole or in part. Nothing herein contained shall prevent the assumption of
an option or the substitution thereof of a new option by the surviving
corporation. Such adjustments and the manner of application thereof shall
be determined by the Board of Directors of the Company in its sole
discretion.
(viii) Withholding Tax. The Company may adopt and apply rules that
will ensure that the Company will be able to comply with applicable
provisions of any federal, state or local law relating to the withholding
of tax, including but not limited to the withholding of tax on the amount
includable in your income on the exercise of the Option.
(ix) Right to Terminate Employment; Benefits under Other Plans. The
right of the Company to terminate or change your engagement at any time
with or without cause shall not be restricted by the grant of the Option.
You shall not be deemed to receive compensation or realize earnings for
purposes of determining benefits under any pension, profit sharing, life
insurance, salary continuation or other employee benefit plan as a result
of receiving or exercising the Option.
(c) Expenses. The Company will reimburse you for all extraordinary
travel expenses reasonably incurred in performing your duties hereunder, in
all cases upon the presentation by you of an itemized account satisfactory
to the Company in substantiation of such expenses when claiming
reimbursement.
3. Term. You agree that your engagement as a consultant to the Company
began on March 25, l996 and continues on and through the date hereof; provided
that your engagement may, at any time upon three days' prior written notice, be
terminated by you or by the Company (collectively, the "Term"). Upon
termination, all of your obligations, other than those contained in paragraph 4
of this Agreement, and all of the obligations of the Company under this
Agreement except with respect to fees earned through such date and expenses due
for reimbursement and as otherwise set forth herein shall terminate.
4. Secret or Confidential Information. During the Term and for ten (l0)
years thereafter, you will not directly or indirectly divulge to anyone (other
than the Company's directors and persons designated by its Board of Directors)
or use for your personal benefit, or the benefit of any other person,
confidential or proprietary information of the Company, including, without
limitation, any trade secrets, inventions, discoveries, improvements, devices,
practices, processes, methods or products, whether or not patented or
patentable, as to which at any time during the Term you become aware except that
which (i) shall be generally known to the public or recognized as standard
practice, (ii) becomes available to you on a non-confidential basis from a
source other than the Company, unless disclosed in breach of agreement or
applicable law, (iii) was already known to you on the date of this Agreement, or
(iv) must be disclosed, as determined by the Company on advice of counsel, to
comply with applicable law.
5. Survival. Notwithstanding any termination of this Agreement, you, in
consideration of your consulting hereunder to the date of such termination,
shall remain bound by the provisions of the foregoing paragraph 4.
6. Severability. If any provision of this Agreement including, without
limitation, the provisions of Paragraph 4, or the application thereof to any
person(s) or circumstance(s) shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such provision to other
Person(s) or circumstance(s) shall not be affected thereby; and each such
provisions shall be enforced to the greatest extent permitted by law.
7. Miscellaneous. The provisions of this Agreement may be amended or
modified by and only by a written instrument signed by the parties hereto. This
Agreement shall inure to the benefit of and be binding upon the successors of
the Company, but shall not otherwise be assignable by the Company or you. This
Agreement shall be construed and enforced in accordance with the laws of the
State of New Jersey.
If you agree with the foregoing, please sign the enclosed copy of this
letter and return it to the Company, whereupon this revised Agreement will
become a binding agreement between you and the Company and the Original
Agreement shall immediately terminate and shall no longer be legally binding or
have any force or effect.
Very truly yours,
The foregoing is agreed to as IDM ENVIRONMENTAL CORP.
of the day and year first above
written.
/s/ Xxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Xxx Xxxxxxxxx Xxxx Xxxxxxxx
President
