Exhibit 10.6
Consulting Agreement
This Agreement (hereinafter “Agreement”) is made and entered into as of September 5, 2023 (the “Effective Date”) by and between Aspen Aerogels, Inc., a Delaware corporation, its affiliates, successors or assigns (together the “Company”), and the undersigned, Kelley Conte (“Consultant”), with the principal place of residence at 19 Causeway Street, Hudson, MA 01749, in consideration of the compensation, now and hereafter paid to Consultant by Company under this Agreement. The Company and Consultant have also entered into a Separation and Release Agreement and General Release dated September 5, 2023 (the “Separation Agreement”) to which this Agreement is attached as Exhibit A.
For the purposes of this Agreement, the term “Business of the Company” means, any and all of: (i) the development, manufacture, commercial exploitation, marketing, licensing and sales of aerogels and related products and services; or (ii) any primary or substantial work responsibilities carried out by Consultant on behalf of the Company; or (iii) actual or demonstrably anticipated research or development of the Company. The parties agree that the “Business of the Company” is national and international in scope.
such as in response to a lawfully issued subpoena or court order, Consultant shall first provide the Company advance notice of his intention to make such disclosure so that the Company can take appropriate steps to protect its Confidential Information from disclosure. Consultant further understands that the trade secrets or know-how of the Company also constitute Confidential Information and must be kept in the strictest confidence and may never be used or disclosed by Consultant other than as provided in this Section 2(a).
the purposes of this paragraph, Inventions shall not include inventions that Consultant develops entirely on Consultant’s own time without using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either (i) relate at the time of conception or reduction to practice of the invention to the Business of the Company, or (ii) result from any work performed by Consultant for the Company. Consultant further acknowledges that all original works of authorship which are made by Consultant (solely or jointly with others) within the scope of and during the term of this Agreement with the Company and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. To the extent applicable law treats any such original works of authorship as not a work made for hire, Consultant hereby assigns as described above, to the Company, or its designee, all of Consultant’s right, title, and interest in such works to the Company. Consultant understands and agrees that the decision whether or not to commercialize or market any invention developed by Consultant solely or jointly with others is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to Consultant as a result of the Company’s efforts to commercialize or market any such invention.
registrations covering Inventions or original works of authorship assigned to the Company as above, then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as its agent and attorney in fact, to act for and in its behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by Consultant.
of any government-owned or government-controlled company; political party; political party official; or anyone, whether a private person or otherwise, acting in an official capacity on behalf of any of the above or of any government entity. Consultant acknowledges receipt of the current copy of Aspen’s Code of Business Conduct and Ethics (“Code of Conduct”) available at http://ir.aerogel.com/investors/governance/default.aspx; understands how the Code of Conduct applies to the Consultant and agrees to strictly comply with the Code of Conduct.
FURTHER UNDERSTANDS THAT CONSULTANT HAS BEEN OFFERED TO PROVIDE THE SERVICES BY THE COMPANY IN CONSIDERATION OF ITS PROMISE TO ARBITRATE CLAIMS.
(10) days’ written notice to Company. All the terms of this Agreement that by their nature are intended to survive the termination of this Agreement shall survive such termination. For the purposes of this Agreement, “Cause” means: (i) willful misconduct, dishonesty, fraud or breach of fiduciary duty to the Company; (ii) deliberate disregard of the lawful rules or policies of the Company, failure to perform the Services, or material breach of an agreement with the Company, which results in direct harm to the Company; (iii) the unauthorized disclosure of any trade secret or confidential information of the Company; (iv) the commission of an act which constitutes unfair competition with the Company or which induces any customer or supplier to breach a contract with the Company; (v) the indictment of Consultant for any felony involving deceit, dishonesty or fraud, or any criminal conduct by the Consultant that would reasonably be expected to result in material injury or reputational harm to the Company; or (vi) the Consultant’s revocation of the Separation Agreement. For purposes hereof, whether or not the Consultant has committed an act or omission of the type referred to in subparagraphs (i) through (vi) above will be determined by the Company in its reasonable, good faith discretion, based upon the facts known to the Company at the relevant time.
CONSULTANT |
| COMPANY | ||
Kelley Conte |
| Aspen Aerogels, Inc. | ||
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By: | /s/ Kelley Conte |
| By: | /s/ Donald Young |
Name: | Kelley Conte |
| Name: | Donald Young |
Date: | August 21, 2023 |
| Date: | August 20, 2023 |
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Schedule A – Statement of Work
This Statement of Work dated September 5, 2023 describes Services to be performed by Consultant for Aspen Aerogels, Inc. (the “Company”) and is issued pursuant to the Consulting Agreement dated September 5, 2023 (the “Agreement”). This Statement of Work may be extended or modified only by a written agreement of both Company and Consultant.
Consultant to provide Services to the Company in connection with Company’s operations as reasonably requested by the Company from time to time during the term of the Statement of Work, including:
Consultant will perform the Services free of the direction and control of the Company, but consistent with the objectives and deadlines set by the Company.
Consultant agrees to promptly advise the Company in case of any potential conflict between Consultant’s Services to be provided under this Statement of Work and Consultant’s other engagement or employment with third parties.
Subject to the right of Consultant to terminate this Statement of Work earlier for no or any reason under Section 13 of the Agreement and the Company’s right to terminate this Statement of Work for Cause, the Services pursuant to the Statement of Work shall begin September 5, 2023 and end on March 31, 2024 (the “Initial Term”). Thereafter, the Initial Term may be extended upon the mutual written consent of the Company and Consultant (the Initial Term and any such extensions, the “Term”).
In connection with Consultant’s Services pursuant to this Statement of Work, as Compensation for her Services, Company agrees that, subject to and conditioned upon the Consultant not revoking the Separation Agreement:
with their terms and continue to vest in accordance with their terms as per the applicable grant documents during the Term;
For the avoidance of doubt, Consultant’s right to receive any and all of the benefits set forth in clauses (i), (ii), (iii) and (iv) of the preceding sentence shall be forfeited and shall not be provided by the Company if the Consultant revokes the Separation Agreement. For the further avoidance of doubt, all then-unvested RSUs and Options shall be forfeited and not vest in the event that either party terminates this Statement of Work and the Consulting Agreement, in accordance with the terms hereof.
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