Exhibit 10.1
CONSULTING AGREEMENT
This
Consulting Agreement, dated as of the 12th day of December,
2007 (this “Agreement”), between James Dandeneau
and PPC Liquidation Corporation (the “Consultant”)
and Putnam Plastics Company LLC, a Connecticut limited
liability company (the “Company”).
W I T N E S S E T H,
WHEREAS,
the Company and the Consultant are parties to an Employment
Agreement, dated as of November 9, 2004 (the “Prior
Agreement”), which was entered into in connection with
the Company’s acquisition of the assets of Putnam
Plastics Corporation (“PPC”).
WHEREAS,
the Consultant was the President and Chief Executive Officer
of PPC prior to the execution and delivery of the Prior
Agreement.
WHEREAS,
the Consultant’s execution and delivery of the Prior
Agreement was a condition precedent to (a) the Company’s
willingness to acquire the assets of PPC and (b) the
willingness of Memry Corporation, a Delaware corporation and
the parent of the Company (the “Parent”), to issue
options to the Consultant to acquire shares of its common
stock to the Consultant pursuant to the Parent’s Amended
and Restated 1997 Long-Term Incentive Plan (the “1997
Plan”).
WHEREAS,
the Consultant resigned as the President of the Company, and
Company desires to retain the Consultant to provide services,
and the Consultant desires to perform such services, pursuant
to the terms below.
NOW,
THEREFORE, in consideration of the premises and of the
covenants and agreements set forth herein, the parties agree
as follows:
1.
Consulting Services .
(a)
The
Company hereby engages the Consultant as an independent
contractor to render services as requested from time to time
by the Company. The services shall consist of technology
services and services as a member of the Board of Directors of
the Parent (the “Services”).
Subject
to the terms of this Agreement, Consultant will render the services
set forth in Project Assignment(s) (Exhibit A). The parties
understand and agree that the Consultant will have the sole
discretion to determine the method and means of performing the
Services, and that the Company has no right to, and will not,
control or determine the method or means of the performance of the
Services.
The Consultant shall provide the Services in a timely and
professional manner and in compliance with the highest current
standards of relevant established industry practice
. The Consultant shall comply with all reasonable instructions
given to the Consultant by the Company in relation to the Services
and shall keep the Company informed of the Consultant’s
activities under this Agreement.
2.
Term .
The Consulting Period
shall commence on the date hereof. The Consulting Period may be
terminated by either party for any reason upon prior written
notice.
3.
Compensation; Expenses .
(a)
In
consideration of the services rendered and to be rendered by
the Consultant, the Company shall pay the Consultant $140.00
per hour, payable monthly in arrears. The Consultant
acknowledges and agrees that the Services do not include
payment for services as a member of the Board of Directors of
the Parent. The compensation payable under this Section 3
compensates him only for those services outlined in Exhibit A
and any other assignments as may be requested from time to
time.
(b)
The Company shall reimburse the Consultant for reasonable
pre-approved out-of-pocket expenses incurred by Consultant in the
course of performing the Services under this Agreement, subject to
the Company’ requirements with respect to reporting and
documentation of such expenses.
4.
Nonsolicitation .
(a)
From
the date hereof through May 8, 2009 (the “Restriction
Period”), the Consultant will not, directly or
indirectly, either for himself or for any other person or
entity (i) solicit (A) any employee of the Company or any
affiliate of the Company to terminate his or her employment
with the Company or such affiliate during his or her
employment with the Company or such affiliate or (B) any
former employee of the Company or an affiliate of the Company
for a period of one year after such individual terminates his
or his employment with the Company or such affiliate, (ii)
solicit any customer or client of the Company or any such
affiliate (or any prospective customer or client of the
Company or such affiliate) as of the date hereof to terminate
its relationship with the Company or such affiliate, or do
business with any third parties, or (iii) take any action that
is reasonably likely to cause injury to the relationships
between the Company or any such affiliate or any of their
respective employees and any lessor, lessee, vendor, supplier,
customer, distributor, employee, consultant or other business
associate of the Company or any such affiliate as such
relationship relates to the Company’s or such
affiliate’s conduct of its business. In the event of
Consultant’s breach of this subsection (b), the
Restriction Period shall be extended by the amount of time
during which the Consultant is in breach.
(b)
If
the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 4 is
invalid or unenforceable, the parties agree that the court
making the determination of invalidity or unenforceability
shall have the power to reduce the scope, duration, or area of
the term or provision, to delete specific words or phrases, or
to replace any invalid or unenforceable term or provision with
a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time
within which the judgment may be appealed.
5.
Covenant Not to Disclose Information .
The Consultant agrees that during the Consulting Period and
thereafter, he will not use or disclose, other than to another
employee of the Company qualified by the Company to receive that
information in the normal course of business, any confidential
information or trade secrets of the Company or any affiliate of the
Company which were made known to him by the Company, its officers
or employees or affiliates, or learned by him while in the
Company’s employ or during the Consulting Period, without the
prior written consent of the Company, and that upon termination of
the Consulting Period for any reason, he will promptly return to
the Company any and all properties, records, figures, calculations,
letters, papers, drawings, schematics or copies thereof or other
confidential information of the Company and its affiliates of any
type or description and he will promptly delete any copies of any
such information from his personal computer, BlackBerry or other
electronic device. It is understood that the term “trade
secrets” as used in this Agreement is deemed to include,
without limitation, lists of the Company’s and its
affiliates’ respective customers, information relating to
their practices, know-how, processes and inventions, and any other
information of whatever nature which gives the Company or any
affiliate an opportunity to obtain an advantage over its
competitors who do not have access to such information. In the
event that the Consultant becomes legally compelled to disclose all
or any portion of any confidential information or trade secrets of
the Company or any affiliate of the Company, the Consultant will
provide the Company with prompt notic
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