AGREEMENT
FOR INDEPENDENT CONTRACTOR SERVICES
This
Agreement for independent contractor/consulting services (the “Agreement”),
dated and effective October 1, 2005, is entered into by and between FiberMark,
Inc., a corporation with its principal place of business at 161 Wellington
Road,
Brattleboro, VT 05302 (the “Company”), and A. Duncan Middleton, an individual
residing at 15 Crestview Drive, South Deerfield, MA 03173 (the “Independent
Contractor” or “Consultant”).
WHEREAS,
the
Company desires to contract with the Consultant to perform services for the
Company, as more particularly described herein; and
WHEREAS,
the
Consultant is in the business of providing such services and has agreed to
provide such services pursuant to the terms and conditions set forth in this
Agreement;
NOW,
THEREFORE
in
consideration of the mutual covenants and promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged by the parties hereto, the parties agree as follows:
1. Job
To
Be Performed. The Consultant will consult with and advise the Company on
matters of and/or perform services relating to the strategic and organizational
changes, including those associated with activities related to “Plan B” (the
“Services”) as requested by the Company, and agreed to by the Consultant. The
Consultant also agrees to provide the Company with related services that
may be
reasonably requested from time to time by the Company. The Consultant agrees
to
use his/her best efforts in the performance of his/her obligations under
this
Agreement. The Consultant shall cooperate with the Company’s personnel, shall
not interfere with the conduct of the Company’s business and shall observe all
rules, regulations and security requirements of the Company.
2. The
Consultant. It is the express intention of the parties hereto that the
Consultant is an independent contractor and not an employee, agent, joint
venturer or partner of the Company for any purposes whatsoever. The Consultant
shall not be entitled to any benefits that the Company may make available
to
employees from time to time unless specifically provided by the Company
in its
sole discretion and as due consideration in this Agreement. The Consultant
shall
be solely responsible for all state and federal income taxes, unemployment
insurance and social security taxes and for maintaining adequate workers’
compensation insurance coverage for himself/herself.
(a) Performance
of Services. The Consultant shall have the right to control and determine
the time, place, methods, manner and means of performing the Services.
In
performing the Services, the amount of time devoted by the Consultant on
any
given day will be entirely within the Consultant’s control, and the Company will
rely on the Consultant to put in the number of hours necessary to fulfill
the
requirements of the Agreement. The Consultant will provide all equipment
and
supplies required to perform the Services. The Consultant is not required
to
submit regular reports to the Company or to attend regular meetings at
the
Company. Upon reasonable notice, the Consultant shall meet with representatives
of the Company at a location to be designated by the parties, and provide
appropriate project status updates as necessary.
(b) Final
Results. In the performance of the Services, the Consultant has the
authority to control and direct the performance of the details of the Services,
the Company being interested only in the results obtained. However, the
Services
contemplated herein must meet the Company’s standards and approval and shall be
subject to the Company’s general right of inspection and supervision to secure
their satisfactory completion.
(c) Issues
of Exclusivity. As an independent contractor, the Consultant retains the
right to contract with other companies or entities for his/her consulting
services without restriction at his/her own discretion. Likewise, the Company
retains a reciprocal right to contract with other companies and/or individuals
for consulting services without restriction. The parties herein agree that
for
the term of this Agreement, the parties will work exclusively with each
other.
Further, when either party wishes to work outside of this exclusive Agreement,
they will inform the other party by written communication, providing at
least
sixty (60) days notice.
3. Compensation.
For the full and proper performance of this Agreement, the Company agrees
to pay
the Consultant the sum of Twelve Thousand and Five Hundred Dollars ($12,500)
per
month, payable at a time or times to be agreed upon by the parties. In
the event
that the Consultant works more than the basic ten (10) days per month,
the
Company agrees to pay the Consultant the sum of One Thousand Two Hundred
and
Fifty Dollars ($1,250.00) per day for each applicable day beyond the basic
ten
(10) days per month, payable at a time or times to be agreed upon by the
parties.
4. Expenses.
The Consultant shall be responsible for all expenses incurred by the Consultant
in connection with, or related to, the performance of his/her services
under
this Agreement. However, the Company will reimburse the Consultant for
reasonable travel- and business-related expenses incurred while working
under
the auspices of this Agreement.
5. Indemnification.
The Company, by its execution of this agreement, agrees for itself, its
successors and assigns to hold the Consultant, its successors and assigns
harmless from any and all claims for damages with respect to errors and
omissions resulting from any legitimate activities performed within the
boundaries of this Agreement.
6. No
Promotion. The Consultant agrees that he will not without the written
consent of the Company in each instance (i) use in advertising, publicity
or
otherwise the name of the Company, or any affiliate
of the Company, or any director, officer or employee of the Company, nor
any
trade name, trademark, trade device, service mark, symbol or any abbreviation,
contraction or simulation thereof owned by the Company or its affiliates,
or
(ii) represent, directly or indirectly, that any product or any service
provided
by the Consultant has been approved or endorsed by the Company.
7. Confidential
and Proprietary Information.
(a)
The
Consultant acknowledges that his/her relationship with the Company is one
of
high trust and confidence in that during his/her service to the Company,
he/she
will have access to and contact with confidential and proprietary information,
including but not limited to business plans, methods and practices of doing
business, financial information and terms and conditions of current contractual
relations with customers and/or suppliers and customer and supplier lists.
The
Consultant will not disclose any confidential and proprietary information
to
others outside the Company or use the same for any purpose unrelated to
the
business of the Company.
(b) Any
and
all materials furnished to the Consultant by the Company or relating to
the
business of the Company shall be returned to the Company at the conclusion
of
the term of the agreement or upon termination of the agreement, whichever
occurs
first.
(c) Any
and
all patents applied for and/or received shall be the property of the Company,
and shall be considered and secured as confidential information.
8. Term
of Agreement. This Agreement shall commence on October 1, 2005, and continue
in effect for a period of twelve (12) months, ending on September 30, 2006,
unless extended/renewed or terminated by either party as set forth below.
It is
understood that the Consultant will be available for work up to ten (10)
days
per month, or up to one hundred and twenty (120) days per twelve (12) month
period.
9. Extension/Renewal
of Agreement. This Agreement may be extended or renewed only by a written
instrument executed by both the Company and the Consultant.
10.
Termination
of Agreement. This Agreement may be terminated in the following manner: (a)
At any time upon the mutual written consent of the parties hereto; (b)
If one
party has materially breached this Agreement, upon forty-eight (48) hours’ prior
written notice delivered to the breaching party; and (c) By either party,
without cause, upon sixty (60) days’ written notice.
Material
breach shall be
generally understood to include, but is not strictly limited to the following:
(i) an act or acts of dishonesty or fraud on the part of the Consultant;
(ii) a
willful refusal by the Consultant to perform the duties or responsibilities
under this Agreement; (iii) the Consultant’s conviction of a felony or any crime
involving moral turpitude; and (iv) habitual neglect or
insubordination.
In
the event that the Company
terminates this Agreement under item (c) above, the Consultant shall be
entitled
to a lump sum termination payment of $150,000 less all payments made and
moneys
owed under the terms of this Agreement for services rendered prior to the
date
of termination.
11. Amendment
of Agreement. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Consultant.
12. Non-Waiver.
No delay or omission by either party in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver
or
consent given by either party on any one occasion shall be effective only
in
that instance and shall not be construed as a bar or waiver of any right
on any
other occasion.
13. Evidence
of Federal Tax Return Filing. The Consultant agrees to furnish to the
Company, within ten (10) business days of any request, evidence that the
income
received from the Company for the Consultant duties was reported consistent
with
the reporting requirements of an independent contractor. The Company shall
file
Form 1099 to report the compensation paid to the Consultant.
14. Non-Assignability
of Contract. This Agreement is personal to the Consultant and he/she shall
not have the right to assign any of his/her rights or delegate any of his/her
duties without express written consent of the Company. Any non-consented-to
assignment or delegation, whether express or implied or by operation of
law,
shall be void and shall constitute a breach and a default by the
Consultant.
15. Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Vermont. The parties agree that jurisdiction and
venue
for any suit pertaining to this agreement shall be in the state and/or
federal
courts with appropriate jurisdiction.
16. Litigation
Expenses. The prevailing party in any litigation arising out of any dispute
between the Company and the Consultant shall be entitled to reasonable
attorneys’ fees and costs.
17. Warranties.
The Consultant will assume sole responsibility for his compliance with
applicable federal and state laws and regulations, and shall rely exclusively
upon his own determination, or that of his legal advisers, that the performance
of services and the receipt of fees hereunder comply with such laws and
regulations.
18. Complete
Agreement. This Agreement contains the entire understanding between the
parties and supersedes, replaces and takes precedence over any prior
understanding or oral or written agreement between the parties respecting
the
subject matter of this Agreement. There are no representations, agreements,
arrangements, nor understandings, oral or written, between the parties
hereto
relating to the subject matter of this Agreement, which are not fully expressed
herein. The execution of a Confidentiality, Non-Competition and Non-Solicitation
Agreement created as a supplement to this Agreement is a required condition
to
the participation in this Agreement.
19. Severability.
In the event any provision of this Agreement shall be held invalid, the
same
shall not invalidate or otherwise affect in any respect any other term
or terms
of this Agreement, which term or terms shall remain in full force and
effect.
20. Counterparts.
This Agreement may be executed in two (2) signed counterparts, each of
which
shall constitute an original, but all of which taken together shall constitute
one and the same instrument.
This
Agreement is executed and entered into by the parties identified
below:
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FOR
THE COMPANY:
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/Alex
Kwader/
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Alex
Kwader
Chairman
and Chief Executive Officer
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Date
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THE
CONSULTANT:
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/A.
Duncan Middleton/
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A.
Duncan Middleton
Consultant
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Date
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CONFIDENTIALITY,
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
(As
a
Supplement to an Agreement for Independent Contractor
Services)
This
Supplemental Agreement (the “Supplement”) is made, this 1st day
of
October,
2005,
by and between FIBERMARK,
INC.,
a
Delaware corporation (hereinafter referred to collectively with its subsidiaries
as the “Company”), and A.
Duncan Middleton
(the
“Independent Contractor” or “Consultant”).
WHEREAS,
as a condition of the Consultant’s participation in an Agreement for Independent
Contractor Services with the Company, the Consultant is required to agree
to the
covenants contained herein; and
WHEREAS,
the Consultant seeks to participate an Agreement for Independent Contractor
Services and, in consideration of such participation and the mutual benefits
provided thereunder, agrees to the covenants contained herein; and,
NOW,
THEREFORE, in consideration of the Consultant’s participation in the Agreement
for Independent Contractor Services, the Consultant and the Company agree
as
follows:
Proprietary
and Confidential Information.
(a) The
Consultant agrees that all information, whether or not in writing, of a private,
secret or confidential nature concerning the Company’s business, business
relationships or financial affairs (collectively, “Proprietary Information”) is
and shall be the exclusive property of the Company. By way of illustration,
but
not limitation, Proprietary Information may include discoveries, inventions,
products, product improvements, product enhancements, processes, methods,
techniques, formulas, compositions, compounds, negotiation strategies and
positions, projects, developments, plans (including business and marketing
plans), research data, clinical data, financial data (including sales costs,
profits, pricing methods), personnel data, computer programs (including software
used pursuant to a license agreement), customer and supplier lists, and contacts
at or knowledge of customers or prospective customers of the Company. The
Consultant will not disclose any Proprietary Information to any person or
entity
other than employees of the Company or use the same for any purposes (other
than
in the performance of his/her duties as an Independent Contractor for the
Company) without written approval by a properly authorized executive officer
of
the Company, either during or after his/her Consultancy with the Company,
unless
and until such Proprietary Information has become public knowledge without
fault
by the Consultant.
(b) The
Consultant agrees that all files, documents, letters, memoranda, reports,
records, data, sketches, drawings, models, laboratory notebooks, program
listings, computer equipment or devices, computer programs or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by the Consultant or others, which shall come into his/her
custody or possession, shall be and are the exclusive property of the Company
to
be used by the Consultant only in the performance of his/her duties for the
Company and shall not be copied or removed from the Company premises except
in
the pursuit of the business of the Company. All such materials or copies
thereof
and all tangible property of the Company in the custody or possession of
the
Consultant shall be delivered to the Company, upon the earlier of (i) a request
by the Company or (ii) termination of his/her Agreement for Independent
Contractor Services. After such delivery, the Consultant shall not retain
any
such materials or copies thereof or any such tangible property.
(c) The
Consultant agrees that his/her obligation not to disclose or to use information
and materials of the types set forth in paragraphs (a) and (b) above, and
his/her obligation to return materials and tangible property, set forth in
paragraph (b) above, also extends to such types of information, materials
and
tangible property of customers of the Company or suppliers to the Company
or
other third parties who may have disclosed or entrusted the same to the Company
or to the Consultant.
Non-Competition
and Non-Solicitation.
Upon
the commencement of an Agreement for Independent Contractor Services between
the
Consultant and the Company, and for a period equal to two (2) years following
such commencement, the Consultant will not directly or indirectly:
(d) Engage
or
assist others in engaging in any business or enterprise (whether as owner,
partner, officer, director, employee, consultant, investor, lender or otherwise,
except as the holder of not more than 1% of the outstanding stock of a
publicly-held company) that is competitive with the Company’s Business, as
defined below, including but not limited to any business or enterprise that
develops, manufactures, markets, licenses, sells or provides any product
or
service that competes with any product or service developed, manufactured,
marketed, licensed, sold or provided, or planned to be developed, manufactured,
marketed, licensed, sold or provided by the Company prior to or while the
Consultant provided services under an Agreement for Independent Contractor
Services with the Company; or
(e) Either
alone or in association with others, solicit, divert or take away, or attempt
to
divert or take away, the business or patronage of any of the clients, customers,
or business partners of the Company which were contacted, solicited, or served
by the Company during the twelve (12) month period prior to the commencement
of
an Agreement for Independent Contractor Services or during such Agreement
;
or
(f) Either
alone or in association with others (i) solicit or induce any employee of
the
Company to leave the employ of the Company, or (ii) solicit for employment,
hire
or engage as an independent contractor, any person who was employed or engaged
as an independent contractor by the Company at any time during the twelve
(12)
month period prior to the commencement of an Agreement for Independent
Contractor Services or during such Agreement; provided,
that
this clause (ii) shall not apply to the solicitation, hiring or engagement
of
any individual whose employment or other engagement with the Company has
been
terminated by the Company for a period of six months or longer.
Notwithstanding
the foregoing, Section 2 shall not preclude the Consultant from becoming
an
employee of, or from otherwise providing services to, a separate division
or
operating unit of a multi-divisional business or enterprise (a “Division”) if:
(i) the Division by which the Consultant is employed, or to which the Consultant
provides services, is not competitive with the Company’s Business (within the
meaning of Section 2(a)), (ii) the Consultant does not provide services,
directly or indirectly, to any other division or operating unit of such
multi-divisional business or enterprise which is competitive with the Company’s
Business (within the meaning of Section 2(a)) (individually, a “Competitive
Division” and collectively, the “Competitive Divisions”) and (iii) the
Competitive Divisions, in the aggregate, accounted for less than one-third
of
the multi-divisional business or enterprises’ consolidated revenues for the
fiscal year, and each subsequent quarterly period, prior to the Consultant’s
commencement of employment with the Division.
For
the
Purposes of this Supplement, the term “Company’s Business” shall include the
manufacture, marketing and sale of specialty fiber-based products to individuals
or entities.
Extension.
If the
Consultant violates the provisions of Section 2, the Consultant shall continue
to be bound by the restrictions set forth in Section 2 until a period of
two (2)
years has expired without any violation of such provisions.
Remedies.
The
restrictions contained in this Supplement are necessary for the protection
of
the business and goodwill of the Company and are considered by the Consultant
to
be reasonable for such purpose. The Consultant agrees that any breach of
this
Supplement is likely to cause the Company substantial and irrevocable damage
that is difficult to measure. Therefore, in the event of any such breach
or
threatened breach, the Consultant agrees that the Company, in addition to
such
other remedies which may be available, shall have the right to obtain an
injunction from a court restraining such a breach or threatened breach and
the
right to specific performance of the provisions of this Supplement and the
Consultant hereby waives the adequacy of a remedy at law as a defense to
such
relief.
Forfeiture
of Payment for Consultant Services.
Notwithstanding the two (2) year limitation set forth in Section 2 above,
if, at
any time after the commencement of an Agreement for Independent Contractor
Services with the Company, the Company determines in good faith that the
Consultant has breached his/her obligations pursuant to either Section 1
or 2 of
this Supplement, the Company shall not be required to continue making further
payments to the Consultant pursuant to the Agreement for Independent Contractor
Services and all such payments shall be forfeited by the Consultant. The
Company
shall also have the right, in its sole and absolute discretion, to recoup
by any
lawful means any previous payments for consultant services made to the
Consultant. Nothing in this section shall act to limit the Company’s rights to
seek all appropriate remedies for a violation of this Supplement.
Acknowledgement.
The
Consultant acknowledges that he/she has access to the Company’s Proprietary
Information, as defined above. The Consultant further acknowledges that he/she
has a working knowledge of how to use such information and the restrictions
contained herein are reasonably tailored to protect the Company’s legitimate
interests in protecting its Proprietary Information, as well as its
relationships with its customers and employees.
Obligations
to Third Parties.
The
Consultant acknowledges and represents that this Supplement and the Consultant’s
engagement with the Company will not violate any continuing obligation the
Consultant has to any former employer or other third party.
Disclosure
of this Supplement.
The
Consultant hereby authorizes the Company to notify others, including but
not
limited to customers of the Company and any of the Consultant’s future employers
or prospective business associates, of the terms and existence of this
Supplement and the Consultant’s continuing obligations to the Company
hereunder.
Successors
and Assigns.
This
Supplement shall be binding upon and inure to the benefit of both parties
and
their respective successors and assigns, including any corporation with which,
or into which, the Company may be merged or which may succeed to the Company’s
assets or business, provided, however, that the obligations of the Consultant
are personal and shall not be assigned by him or her.
Interpretation.
If any
restriction set forth in Sections 1 or 2 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period
of
time or over too great a range of activities or in too broad a geographic
area,
it shall be interpreted to extend only over the maximum period of time, range
of
activities or geographic area as to which it may be enforceable.
Severability.
In case
any provision of this Supplement shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
Waivers.
No
delay or omission by the Company in exercising any right under this Supplement
will operate as a waiver of that or any other right. A waiver or consent
given
by the Company on any one occasion is effective only in that instance and
will
not be construed as a bar to or waiver of any right on any other
occasion.
Governing
Law.
This
Supplement shall be governed by and construed in accordance with the laws
of the
State of Vermont (without reference to the conflicts of laws provisions
thereof). Any action, suit, or other legal proceeding which is commenced
to
resolve any matter arising under or relating to any provision of this Supplement
shall be commenced only in a court of the State of Vermont (or, if appropriate,
a federal court located within Vermont), and the Company and the Consultant
each
consents to the jurisdiction of such a court.
Amendment.
This
Supplement may be amended or modified only by a written instrument executed
by
both the Company and the Consultant.
Captions.
The
captions of the sections of this Supplement are for convenience of reference
only and in no way define, limit or affect the scope or substance of any
section
of this Supplement.
THE
CONSULTANT ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS SUPPLEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS
SUPPLEMENT.
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For
FiberMark, Inc.:
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By
the Consultant:
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/Alex
Kwader/
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/A.
Duncan Middleton/
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Alex
Kwader
Chairman
and Chief Executive
Officer
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A.
Duncan Middleton
Consultant
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Date
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Date
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