EXHIBIT
10.3
CONSULTING
AGREEMENT
This Agreement is made and entered into as of
the 1st day of March, 2008 (the “Effective
Date”), by and between A&C Coatings, LLC
, a Delaware limited liability company, whose address is 225 Two
Oaks Drive, Nicholasville, Kentucky 40356 (hereinafter referred to
as "Company"), and Scott R. Hamann, MD, PhD. Whose address is 221
Creekridge Drive, Nicholasville, Kentucky 40356 (hereinafter
referred to as "Consultant").
WHEREAS,
Company is in the business of, among other things, applying powder
plastic spray coatings that reduce and/or mitigate microbe levels
on surfaces on which the coatings are applied; and
WHEREAS,
Company desires to provide its powder plastic spray coatings to
public facilities (e.g., schools, supermarkets etc) and in
particular healthcare facilities (e.g., hospitals, clinics, doctor
offices, etc): and
WHEREAS, Consultant has represented to the
Company that the Consultant can introduce the Company to public and
healthcare facilities, as well as other health care providers, and
to provide the consulting services more particularly described
below; and
WHEREAS, the Company desires to retain the
services of Consultant to perform the services designated on
Exhibit “A” on the terms and conditions hereinafter
provided.
NOW, THEREFORE,
in consideration of the foregoing, and other good and valuable
considerations, the receipt and sufficiency of which are mutually
acknowledged, the parties agree as follows:
1.
Services . Subject to the terms and
conditions herein, Company hereby retains Consultant to provide the
specific services described on Exhibit “A” attached
hereto and hereby made a part hereof.
2.
Compensation . In consideration of the
services to be provided by Consultant, Company will compensate
Consultant in the manner described on Exhibit “B”
attached hereto and hereby made a part hereof. Compensation by
Company to Consultant will continue throughout the 3-year time
period of this agreement and for a minimum of 2-years thereafter
(i.e., 2-years after scheduled or early termination of initial
3-year consultant agreement).
3.
Covenants, Representations and Warranties of
Consultant . Consultant hereby covenants, represents
and warrants to Company as follows:
|
|
|
Consultant has
the right, power and authority to enter into this Agreement and to
perform all of its obligations hereunder.
|
|
|
|
The execution
of this Agreement by Consultant and the performance of the services
to be provided by Consultant hereunder will not constitute a breach
or default under any other agreement or commitment to which
Consultant may be a party or otherwise bound.
|
|
|
|
Consultant will
provide all services in a professional and timely manner in
compliance with all applicable laws, rules and
regulations.
|
|
|
|
Consultant has
had an opportunity to review the proposed independent contractor
relationship with counsel of Consultant’s choice, and that
Consultant and such counsel are of the opinion that the
relationship created by this Agreement is a bona fide independent
contractor relationship and not one between an employer and
employee.
|
|
|
|
The performance
by Consultant of all of the terms of this Agreement and as an
independent contractor for the Company does not, and will not,
breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by Consultant in confidence or in trust
prior to the date hereof, and Consultant will not disclose to the
Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous
employer or others. Consultant agrees not to enter into any
agreement either written or oral in conflict herewith.
|
|
|
|
Consultant
acknowledges that the Company has a significant interest in
maintaining the confidentiality of certain information disclosed or
to be disclosed to Consultant or to which Consultant will have
access and that the provisions of this Agreement are fair and
reasonable.
|
|
|
|
Consultant will
communicate with Company in the manner preferred by Company (i.e.
via e-mail, telephone, etc.) as specified by Company from time to
time.
|
4.
Term and Termination . Unless sooner
terminated as provided herein, the term of this Agreement shall be
for a period of three years from the Effective Date. Either party
shall have the right to terminate this Agreement in the event of a
material breach by the other party and failure of such breaching
party to cure such breach within 10 days of receipt of written
notice of an alleged breach. Company shall have the right to
terminate the services of Consultant at any time; however, unless
Consultant is in breach of this Agreement, the Company will
continue to pay Consultant the commissions described on Exhibit
“B” for the period and in the manner described on
Exhibit “B”. Furthermore, the Company shall have the
right to terminate this Agreement in the event Consultant does not
introduce any Providers to Client within 24 months of the Effective
Date which result in an order for the Company’s products or
services within 36 months of the Effective Date.
5.
Independent Contractor Relationship . This
Agreement does not constitute a hiring by any party. The parties
hereto are and shall remain independent contractors bound by the
provisions hereof. Company shall not withhold from Consultant any
amounts for taxes or other items. Company shall not make any
premium payments or contributions for any workmen's compensation or
unemployment compensation for Consultant. Consultant will not be
entitled to any of the fringe or supplemental benefits of the
Company. Except as otherwise specifically provided herein,
Consultant shall have no right or authority to bind or obligate
Company in any manner whatsoever.
6.
Indemnification . Consultant hereby agrees
to indemnify and hold harmless Company, its affiliates, and their
respective owners, officers, directors, employees and agents (the
“Indemnified Parties”) from and against any and all
claims, losses, damages, costs, liabilities (including but not
limited to fines, taxes and tax assessments) and expenses
(including but not limited to court costs and attorneys fees
incurred in defending any such claim) arising out of (i) the
performance of Contractor’s services hereunder; or (ii)
breach by Contractor of the covenants, representations and
warranties hereunder.
Company hereby
agrees to indemnify and hold harmless Consultant, from and against
any and all claims, losses, damages, costs, liabilities (including
but not limited to fines, taxes and tax assessments) and expenses
(including but not limited to court costs and attorneys fees
incurred in defending any such claim) arising out of (i) the
performance of Companies products and services hereunder; (ii)
unanticipated harmful effects of Companies products and services to
individuals, groups of individuals and facilities exposed to such
harmful effects; Or (iii) breach by Company of the covenants,
representations and warranties hereunder.
7.
Restrictive Covenants . Consultant
covenants and agrees with Company as follows:
|
|
|
Consultant
shall not, either during the term of this Agreement or for a period
of five (5) years after the termination or expiration of this
Agreement, use for its own benefit, or for the benefit of any other
person or legal entity, or to the detriment of Company, its
successors or assigns, or disclose to any person, firm or
corporation, any secret, private or confidential information,
proprietary knowledge or trade secret of and concerning the
business and affairs of Company which Consultant may have acquired
in the course of, or as incident to its relationship with Company
(whether relating to marketing plans, financial information,
designs, methods, past, present or prospective customers,
associates and employees or otherwise).
|
|
|
|
During the term
of this Agreement and for a period of two (2) years after the
termination or expiration of this Agreement, Consultant will not,
directly or indirectly, as an individual or on behalf of
|
|
