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EXHIBIT 10.13
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into
as of April 24, 1996, by and between Cynthia S. Goodwin ("Consultant") and NPF
Company, a Delaware corporation (the "Company"). The Company and Consultant
are sometimes collectively referred to herein as the "Parties" and individually
as a "Party".
WHEREAS, Consultant has been an employee and officer of
Universal Cork, Inc., an Ohio corporation ("Universal"), and as such, possesses
special knowledge, abilities and experience regarding the business of
Universal. The Company and the stockholders of Universal are parties to a
Stock Purchase Agreement, dated April 24, 1996 (the "Purchase Agreement"),
whereby the Company shall purchase all of the issued and outstanding shares of
Universal's capital stock. Upon consummation of the transactions contemplated
by the Purchase Agreement, Universal shall become a wholly-owned subsidiary of
the Company. The Company desires to obtain the services of Consultant to
consult with and perform services as an independent contractor for the Company
with respect to its businesses, and Consultant desires to provide services to
the Company upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Consulting Services. The Company hereby engages
Consultant as an independent contractor, and not as an employee, to render
consulting services to the Company as hereinafter provided, and Consultant
hereby accepts such engagement, for a period commencing on the Closing Date (as
defined in the Purchase Agreement) and terminating on the first anniversary of
the Closing (the "Consulting Period"). Consultant shall not have any authority
to bind or act on behalf of the Company. During the Consulting Period,
Consultant shall render such consulting services to the Company in connection
with the Company's business as the Company from time to time requests and which
shall be consistent with Consultant's past services for Universal, which
services shall require Consultant's full business time and attention; provided
that after such time as the Company relocates substantially all of Universal's
operations to its manufacturing facility in Greenwood, Mississippi, Consultant
shall not be required to perform such services for more than one week out of
every month; and provided further that Consultant shall not be required to
perform such services for more than 18 weeks during the Consulting Period.
2. Compensation; Reimbursement. As long as Consultant
continues to comply with the provisions of Sections 3 and 4 below, in
consideration of Consultant's consulting services set forth in paragraph 1
above, the Company shall pay to Consultant $2,917 on the first day of each of
the twelve months following the Closing Date. Consultant shall not be entitled
to any fringe benefits or perquisites from the Company. The Company shall
reimburse Consultant for reasonable
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expenses for (w) air travel between Cleveland, Ohio and Greenwood, Mississippi
(coach class, excursion rates where applicable), (x) lodging at the Hampton Inn
in Greenwood, Mississippi, (y) meals, local travel, transportation and car
rental fees while is Mississippi and (z) local travel to and from, and parking
fees at, the airport in Cleveland, Ohio in each case incurred by Consultant in
the course of performing the duties specified in this Agreement, subject to the
Company's policies with respect to reporting and documentation of such
expenses. The Company's obligation to make payments to Consultant pursuant to
this Section 2 shall not be affected by the death or permanent disability of
Consultant.
3. Confidential Information. Consultant acknowledges
that the information, observations and data relating to the business of
Universal and the Company which Consultant has obtained as an employee and
officer of Universal or which Consultant shall obtain during the course of
Consultant's association with the Company and its subsidiaries and Consultant's
performance under this Agreement are the property of the Company and its
subsidiaries. Consultant agrees that Consultant shall not use for Consultant's
own purposes or disclose to any third party any of such information,
observations or data without the prior written consent of the President of the
Company (the "President"), unless and to the extent that the aforementioned
matters become generally known to and available for use by the public other
than as a result of Consultant's acts or omissions. Consultant shall deliver
to the Company at the end of the Consulting Period, or at any other time the
Company may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documentation (and copies thereof)
relating to the business of Universal or the Company and its subsidiaries which
Consultant may then possess or have under Consultant's control.
4. Inventions and Patents. Consultant acknowledges that
all inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports and all similar or related information (whether
patentable or not) which relate to the actual business, research and
development (pending or undertaken by the Company during, or prior to, the
Consulting Period, and of which Consultant has actual knowledge) or existing
products or services of the Company and its subsidiaries and which are
conceived, developed or made by Consultant during the Consulting Period ("Work
Product") belong to the Company. Consultant shall promptly disclose such Work
Product to the President and perform all actions reasonably requested by the
President (whether during or after the Consulting Period) to establish and
confirm such ownership (including, without limitation, assignments, powers of
attorney and other instruments).
5. Tax Returns. Consultant shall file all tax returns
and reports required to be filed by him on the basis that Consultant is an
independent contractor, rather than an employee, as defined in Treasury
Regulation Section 31.3121(d)-1(c)(2).
6. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Company and its affiliates,
successors and assigns and shall be binding upon and inure to the benefit of
Consultant and Consultant's legal representatives and assigns; provided that in
no event shall Consultant's obligations to perform future services for the
Company be delegated or transferred by Consultant without the prior written
consent of the Company (which consent may be withheld in the Company's sole
discretion). The Company may assign or transfer its rights
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hereunder to any of its affiliates or to a successor corporation in the event
of merger, consolidation or transfer or sale of all or substantially all of the
assets of Universal or the Company.
7. Modification or Waiver. No amendment, modification
or waiver of this Agreement shall be binding or effective for any purpose
unless it is made in a writing signed by the Party against which enforcement of
such amendment, modification or waiver is sought. No course of dealing between
the Parties to this Agreement shall be deemed to affect or to modify, amend or
discharge any provision or term of this Agreement. No delay on the part of the
Company or Consultant in the exercise of any of their respective rights or
remedies shall operate as a waiver thereof, and no single or partial exercise
by the Company or Consultant of any such right or remedy shall preclude other
or further exercises thereof. A waiver of right or remedy on any one occasion
shall not be construed as a bar to or waiver of any such right or remedy on any
other occasion.
8. Governing Law. All issues and questions concerning
the construction, validity, enforcement and interpretation of this Agreement
shall be governed by, and construed in accordance with, the laws of the State
of Mississippi, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Mississippi or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Mississippi.
9. Severability. Whenever possible each provision and
term of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision or term of this Agreement
shall be held to be prohibited by or invalid under such applicable law, then
such provision or term shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term or the remaining provisions
or terms of this Agreement.
10. No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the Parties hereto to
express their mutual intent, and no rule of strict construction shall be
applied against any Party.
11. Consultant's Representations. Consultant represents
and warrants to the Company that (i) Consultant's execution, delivery and
performance of this Agreement does not and shall not conflict with, or result
in the breach of or violation of, any other agreement, instrument, order,
judgment or decree to which Consultant is a party or by which Consultant is
bound, (ii) Consultant is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or
entity and (iii) upon the execution and delivery of this Agreement, this
Agreement shall be the valid and binding obligation of Consultant, enforceable
in accordance with its terms.
12. Notice. Any notice required or permitted hereunder
shall be given in writing and shall be deemed effectively given upon personal
delivery or one day after being sent by Federal Express or other reputable
overnight carrier or five days after being sent by certified or registered mail
addressed to the other Party hereto at such Party's address shown below:
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If to the Company:
NPF Company
1500 Commerce Street
Greenwood, MS 38930
Attn: M. Wesley Jordan, Jr.
If to Consultant:
Cynthia S. Goodwin
14508 South Industrial Avenue
Maple Heights, OH 44137
or at such other address as such Party may designate by written notice to the
other Party.
13. Captions. The captions used in this Agreement are
for convenience of reference only and do not constitute a part of this
Agreement and shall not be deemed to limit, characterize or in any way affect
any provision of this Agreement, and all provisions of this Agreement shall be
enforced and construed as if no caption had been used in this Agreement.
14. Counterparts. This Agreement may be executed in
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same instrument.
15. Indemnification. The Company agrees to indemnify,
defend and hold Consultant, Consultant's heirs, representatives and assigns
(collectively referred to in this section 15 as "Consultant") harmless from and
against any and all claims, demands, causes of action, suits, judgments,
settlements, liabilities, losses, damages and expenses (including reasonable
attorney's fees and court costs) ("Losses") that may be sustained or suffered
by Consultant resulting from or relating to (i) acts or omissions of the
Company, its employees, agents or independent contractors, (ii) injury or
death, or property damage suffered by third parties resulting from defective
Company products, transportation of the Company's products or sustained by an
employee of the Company, or (iii) infringement of property rights of third
parties; provided that the Company will not indemnify, defend or hold
Consultant harmless from or against any Losses resulting from or relating to
acts or omissions of Consultant. This provision will survive the termination
of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this
Consulting Agreement as of the date first above written.
NPF COMPANY
By:_________________________
Its:________________________
____________________________
CYNTHIA S. GOODWIN