EXHIBIT 10.3
CONSULTING AGREEMENT
(Fred D. Gibson, Jr.)
This Consulting Agreement (the "Agreement") is made and entered into this
1st day of October, 1999, by and between American Pacific Corporation, a
Delaware corporation having its principal place of business at 3770 Howard
Hughes Parkway, Suite 300, Las Vegas, Nevada 89109 (the "Company"), and Fred D.
Gibson, Jr., an individual residing in Clark County, Nevada (the 'Executive').
RECITALS:
A. The Company, through its subsidiary corporations, is engaged in
the manufacture of specialty chemicals, including Perchlorate chemicals, sodium
azide and Halotron(TM) fire suppression agents, and is engaged in the design and
manufacture of environmental protection products and real estate development.
B. The Executive is currently serving as a director of the Company.
C. The Executive is willing to agree to provide consulting services
to the Company, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and agreements herein
contained, and intending to be legally bound, the Company and the Executive
agree as follows:
1. Provision of Consulting, Services. The Company and the Executive
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agree that, for a term commencing on the Commencement Date and continuing
thereafter throughout the period or periods of time provided in this Agreement,
the Company will retain the Executive as a consultant, and the Executive will
provide consulting services to the Company.
2. Scope of Services. After the Commencement Date the Executive
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shall provide from time to time such consulting services to the Company and its
subsidiary corporations as the Company may request, and that the Executive shall
be willing and able to provide. If, during the term of this Agreement the
Executive is acting as a director of the Company, the Executive's service as a
director shall additionally be governed by the bylaws from time to time in
effect and by the laws of the state of incorporation of the Company. The
Executive shall at all times perform his duties and discharge his
responsibilities under this Agreement diligently and conscientiously, and to the
best of his ability, and shall direct his best
efforts to further and maximize the business and interests of the Company and
its stockholders, in accordance with sound business practices and applicable
laws and regulations.
3. Conflicts of Interest. The Executive agrees that, during the term
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of this Agreement, he shall not act in any advisory or other capacity for any
individual, firm, association or corporation other than the Company and its
subsidiary corporations in matters in any way pertaining to any business or
undertaking in any way similar to or competitive with the business or activities
of the Company and its subsidiary corporations.
4. Commencement and Duration of Consulting Services. The Executive's
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service to the Company as a consultant shall commence on October 1, 1999.
5. Term and Termination of Agreement. This Agreement shall have a
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term of one (1) year and the Executive's service as a consultant hereunder shall
terminate on September 30, 2000, or earlier, upon the first to occur of the
following events:
(a) The death or total and permanent disability of the Executive;
(b) The Company's election to terminate the Executive's service as a
consultant due to the material breach by the Executive of any of the Executive's
covenants under this Agreement, including, but not limited to, those covenants
set forth in Sections 7 through 9 hereof; or
(c) Notice from the Executive that the Executive elects to discontinue
his service as a consultant to the Company.
Upon the occurrence of any of the events set forth in this Section 5, the
Executive shall be entitled to receive all compensation accrued hereunder to the
date of the termination, but shall not be entitled to any additional
compensation or benefits hereunder.
6. Compensation.
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(a) In consideration of the services to be provided by the
Executive pursuant to this Agreement, the Company shall pay to the Executive, at
monthly or more frequent intervals, an annual amount of $120,000.00 for which
the Company shall receive no more than forty hours (40 hrs.) per month of the
Executive's time.
(b) All of the Company's obligations to the Executive hereunder, and
the Executive's right to receive compensation from the Company hereunder, are
hereby expressly made conditional upon the Executive's continued compliance with
all of the Executive's obligations hereunder, including without imitation the
provisions of Sections 2 and 7 through 9 hereof.
Exhibit 10.3 Page 2
7. Noncompetition.
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(a) The Executive shall not at any time during the period of the
Executive's service to the Company as a consultant or for a period of two years
thereafter render any services, directly or indirectly for any Competitor.
(b) The Executive shall not, at any time during the period of the
Executive's service to the Company as a consultant or for a period of two years
thereafter, influence or attempt to influence, either directly or indirectly,
any employee of the Company or of any affiliated entity to leave or terminate
such individual's employment with the Company or with an affiliate of the
Company.
(c) The Executive shall not, at any time during the period of the
Executive's service to the Company as a consultant or for a period of two years
thereafter, influence or attempt to influence, either directly or indirectly,
any customer or client of the Company or of any affiliated entity to discontinue
purchasing or using the products or services of, or to cancel or fail to renew a
contract with, the Company or an affiliate of the Company.
(d) For purposes of this Agreement, the term 'Competitor" shall mean
any individual (including the Executive) or entity that at any time is directly
or indirectly (for example, through an affiliated or controlled individual or
entity) engaged in or about to engage in the manufacture of Perchlorate
chemicals, sodium azide, fire suppression agents competitive with Halotron(TM)
fire suppression agents, or environmental protection products competitive with
those designed or manufactured by the Company and its subsidiaries.
(e) The Executive agrees and acknowledges that the breach by the
Executive of any of the provisions of this Section will cause Company
irreparable damage, that the remedy at law for any such breach could be
inadequate, and that the Company, in addition to any other relief available to
it, shall be entitled to appropriate temporary and permanent injunctive relief
restraining Executive from committing or continuing such breach, without the
necessity of proving actual damages. The Executive agrees to pay all costs and
attorneys' fees incurred by the Company in obtaining such injunctive or other
relief.
8. Confidential Information.
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(a) The Executive shall never, either during the period of the
Executive's service to the Company as a consultant or thereafter, use or employ
for any purpose or disclose to any other individual or entity any Confidential
Information. The Executive acknowledges and agrees that all Confidential
Information is proprietary to the Company, is extremely important to the
Company's business, and that the use by or disclosure of such Confidential
Information to a Competitor could materially and adversely affect the Company,
its business and its customers.
(b) Upon any termination of the period of the Executive's service to
the Company, the Executive shall leave with or return immediately to the Company
any and all
Exhibit 10.3 Page 3
records and any and all compositions, articles, devices and other similar or
related items that disclose or contain any Confidential Information, including
all copies or specimens thereof, whether in the Executive's possession or under
the Executive's control, or whether prepared by the Executive or by others.
(c) For purposes of this Agreement, the term 'Company" shall refer to
the Company and each of its subsidiary corporations, and to any other
corporation or entity that is owned or controlled, directly or indirectly, by
Company or that is under common ownership or control with the Company.
(d) For purposes of this Agreement, the term "Confidential
Information' shall mean information in any form that is not generally known to
the public that relates to the Company's past, present or future operations,
processes, products or services, or to any research, development, manufacture,
purchasing, accounting, engineering, marketing, merchandising, advertising,
selling, leasing, financing or business methods or techniques (including without
limitation customer lists, records of customer services, usages and
requirements, sketches and diagrams of Company or customer facilities and like
and similar information relating to actual or prospective customers) that is or
may be related thereto. All information disclosed to the Executive or to which
the Executive obtains access during any period of the Executive's service to the
Company, whether pursuant to this Agreement or otherwise, or to which the
Executive obtains access by reason of any such service to the Company, that the
Executive has a reasonable basis to believe is or may be Confidential
Information, shall be presumed for purposes of this Agreement to be Confidential
Information.
9. Inventions.
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(a) Immediately upon its discovery or completion, the Executive shall
promptly and fully disclose each Invention in writing to the Company. The
Executive shall make this disclosure regardless of whether an Invention is
discovered, conceived or completed by the Executive alone or jointly with
others, and regardless of whether or not the Invention is discovered, conceived
or completed in furtherance of the Executive's duties in the service of the
Company, whether pursuant to this Agreement or otherwise, and regardless of
whether or not the Invention was discovered, conceived or completed during
normal working hours or on the premises of Company.
(b) The Executive hereby assigns, and agrees to assign, to the Company
all of the Executive's rights in and to all Inventions and in and to any and all
letters patent or copyrights or applications therefor at any time granted or
made, whether in the United States of America or in any foreign nation, upon or
with respect to any Invention.
(c) The Executive shall from time to time execute, acknowledge and
deliver promptly to the Company (without charge to the Company but at the
expense of the Company) such written instruments and documents, and shall take
such other and further action with respect to any Invention, as may be necessary
or desirable in order to enable the Company to
Exhibit 10.3 Page 4
obtain and maintain patents and/or copyrights therein, or to vest the entire
right title and interest thereto in the Company.
(d) The Executive shall not assert any rights under any Inventions as
having been made or acquired by the Executive prior to the commencement of the
Executive's employment by or service to the Company.
(e) For purposes of this Agreement, the term "Inventions" means
discoveries, developments, improvements and ideas (whether or not shown or
described in writing or reduced to practice) and works of authorship (including
computer software), whether or not patentable or copyrightable, (i) that are or
may be related to the manufacture of Perchlorate chemicals, sodium azide, fire
suppression agents competitive with Halotron(TM) fire suppression agents, or
environmental protection products competitive with those designed or
manufactured by the Company and its subsidiaries, or to any research,
development, manufacture, purchasing, accounting, engineering, marketing,
merchandising, advertising, selling, leasing, financing or business methods or
techniques or any improvements to any of the foregoing; (ii) that relate to the
Company's actual or demonstrably anticipated research or development with
respect to any of the foregoing; (iii) that result from any services at any time
performed by the Executive for the Company, whether pursuant to this Agreement
or otherwise; (iv) for which equipment, supplies, facilities or trade secret
information of the Company is used; or (v) that are developed on any Company
time with respect to any activity referred to above.
10. Survival. The Executive's obligations set forth in Sections 7
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through 9 hereof shall survive the expiration or other termination of this
Agreement and the period of the Executive's service to the Company.
11. Notices, Any notice permitted or required to be given pursuant to
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this Agreement shall deemed to have been given when appropriate notice thereof
has been be validly given or served in writing and delivered personally or sent
by registered or certified mail, postage prepaid, to the following address:
If to the Company or to any: American Pacific Corporation
subsidiary corporation 3770 Howard Hughes Parkway, Suite
300 Las Vegas, NV 89109
If to the Executive, to: The Executive's address as set
forth on the signature page to
this Agreement
or to such other addresses as either party may hereafter designate to the other
in writing.
Exhibit 10.3 Page 5
12. Governing Law, This Agreement is made and entered into, and is
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executed and delivered, in Clark County, Nevada, and shall be construed and
enforced in accordance with and shall be governed by the laws of the State of
Nevada.
13. Entire Understanding, This Agreement constitutes the entire
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understanding and agreement between the Company and the Executive with regard to
all matters herein, and there are no other agreements, conditions, or
representations, oral or written, expressed or implied, with regard thereto
other than as referred to herein. This Agreement may be amended only in
writing, signed by both parties hereto.
14. Severability, If any term or provision of this Agreement shall be
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held to be invalid or unenforceable for any reason, such term or provision shall
be ineffective to the extent of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provision has not been
contained herein.
15. Successors, This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective heirs, administrators,
executors, and successors. Neither party may assign any of its rights
hereunder, except that the Company and any subsidiary corporation may assign its
rights and delegate its duties hereunder to any entity that succeeds (whether by
merger, purchase or otherwise) to the assets or business of the Company or any
subsidiary corporation.
16. Consent to Jurisdiction. The Executive agrees that any action or
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proceeding to enforce, or that arises out of, this Agreement may be commenced
and maintained in the district courts of the State of Nevada, or in the United
States District Court for the District of Nevada, and Executive hereby waives
any objection to the jurisdiction of said courts in any litigation arising
hereunder on the basis that such court is an inconvenient forum or otherwise.
17. Attorneys' Fees, In the event that this Agreement is breached by
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either party, the breaching party shall be liable for all costs and attorneys'
fees incurred by the non-breaching party as a result of the breach or in
enforcing the terms of this Agreement.
Exhibit 10.3 Page 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"Company"
AMERICAN PACIFIC CORPORATION, a
Delaware corporation
By /s/ John R. Gibson
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Title CEO
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"Executive"
/s/ Fred D. Gibson, Jr.
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Fred D. Gibson, Jr.
Address: 3204 Plaza de Rafael
Las Vegas, NV 89102
Exhibit 10.3 Page 7