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Exhibit 10.11
NANODYNAMICS, INC.
CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT, effective as of May 1, 2007, is made by
and
between Allan Rothstein, an individual residing at 34 Sousa Drive,
Sands Point,
New York 11050 ("Consultant") and NanoDynamics, Inc., a Delaware
corporation
with its principal place of business at 901 Fuhrmann Boulevard,
Buffalo, New
York 14203 (together with its wholly-owned subsidiaries,
"Nano").
1.
Services. Consultant shall consult with Nano's Chief Executive
Officer
("CEO") and such other members of senior management of Nano as CEO
designates
with regard to various transactions in which Nano may be involved,
such as
product or technology licensing arrangements, research and
development
sponsorships, mergers, acquisitions, joint ventures and any other
transaction
reasonably requested and specifically identified in writing by Nano
(a
"Transaction"). Consultant will advise and assist Nano in the
course of its
negotiation of any Transaction(s) and, if requested by Nano, will
participate
directly in such negotiations. The services to be performed by
Consultant in
accordance with this Agreement are referred to herein as the
"Consulting
Services."
2.
Term. The term of this Agreement shall continue until March 31,
2010
(the "Initial Term") and shall automatically renew for successive
one-year
periods (each, a "Renewal Term") unless written notice of
non-renewal is given
by either party not less than sixty (60) days' prior to the
expiration of the
Initial Term or any Renewal Term, as applicable. As used herein,
"Term" shall
mean the period commencing on the date hereof and ending on the
date this
Agreement terminates in accordance with the provisions of this
paragraph or
paragraph 3 below.
3.
Termination.
a. Consultant may terminate this Agreement upon sixty (60) days'
prior
written notice to Nano.
b. Nano may terminate this Agreement upon (i) the death or
Disability
of Consultant or (ii) for Cause. "Disability" shall mean the
inability or
failure of Consultant to provide Consulting Services for any sixty
(60)
continuous days or for a total of one hundred-twenty (120) days
during any one
year period of the Term. "Cause" shall mean Consultant has been
found by Nano's
Board of Directors (the "Board") to have (i) committed fraud or
gross negligence
in connection with the Consulting Services or otherwise with
respect to the
business and affairs of Nano; (ii) engaged in misconduct with
respect to the
business and affairs of the Company with actual knowledge that such
actions
violate legal directions and instructions of the Board consistent
with this
Agreement; or (iii) been found by a court of competent jurisdiction
to have
committed or plead guilty to an unlawful act whether or not related
to the
business of Nano if the commission of such act has a material
adverse effect
either on (a) Consultant's ability to perform the Consulting
Services or (b)
Nano's reputation and goodwill. Cause shall be found only after
Consultant has
received notice from the Board, has had an opportunity to
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discuss the issues with the Board and has been given a thirty (30)
day period
to cure, where cure is feasible
c. In the event this Agreement is terminated by Nano other than
for
Disability or Cause, Nano shall continue to make the payments
required by
paragraphs 4(a), 4(c) and 4(d) below with respect to the balance of
the Initial
Term or any Renewal Term, as applicable. In the event of
termination because of
Consultant's death, Nano shall continue to make the payments
required by
paragraph 4(a) for the lesser of six (6) months or the balance of
the Initial
Term or any Renewal Term, as applicable.
4.
Compensation and Expenses. In consideration of Consultant's
performance
of the Consulting Services, Term Consultant shall be entitled to
the following:
a. Nano shall pay Consultant a monthly cash fee of $13,500, payable
in
quarterly installments.
b. Nano will reimburse Consultant on a monthly basis for any
reasonable and necessary expenses incurred by Consultant in
connection with the
execution of the Consulting Services, including all travel expenses
incurred to
and from all work sites, business related meal expenses,
administrative
expenses, lodging expenses (if work demands overnight stays) and
other
miscellaneous travel-related expenses (parking and tolls), provided
that
expenditures in excess of $1,000 must be pre-approved by Nano.
c. Nano will continue to make all lease payments for the offices at
98
Cuttermill Road, Suite 370, Great Neck, New York 11021 until the
expiration of
the lease on or about February 28, 2010. During such period, Nano
shall provide
Consultant with use of such space on a basis substantially
equivalent to the use
of such space during the period in which Consultant served as
Nano's Chairman of
the Board.
d. In the event a Transaction with respect to wh
