ENGAGEMENT AGREEMENT
This Engagement Agreement (this "Agreement") is made and entered into
as of the 24th day of March 1995, by and between New Image Industries, Inc.,
a Delaware corporation (the "Company"), and Xxxxxx Xxxxxxx & Co.
("Xxxxxx-Xxxxxxx").
1. ENGAGEMENT. On the terms set forth below, the Company has engaged
Xxxxxx-Xxxxxxx for the purpose of providing general investment banking
advice, management consultation and assistance to the Company with respect to
the management of the Company's operations, the selection and retention of
senior management and an analysis of its financial and operational affairs.
In the context of its general investment banking advice and management
consulting assistance, Xxxxxx-Xxxxxxx will, at mutually agreeable times and
consistent with Xxxxxx-Xxxxxxx'x obligations to others, make available Xxxxxx
X. Xxxxxx as Chairman of the Board of Directors of the Company and as interim
Chief Executive Officer. The Company and Xxxxxx-Xxxxxxx acknowledge and agree
that Xx. Xxxxxx'x services will be provided hereunder on a part-time and not
a full-time basis. While serving in such capacities, Xx. Xxxxxx shall have
the duties and responsibilities customarily vested with a chief executive
officer of the Company. Xx. Xxxxxx will not be separately compensated by the
Company for such services. Xxxxxx-Xxxxxxx shall devote such amount of time
and effort and will make such independent investigations in providing advice
and assistance to the Company pursuant to this engagement as Xxxxxx-Xxxxxxx
deems reasonable and appropriate, and Xxxxxx-Xxxxxxx agrees to apply its
professional knowledge and skill to all assignments subject to this letter
agreement. Xxxxxx-Xxxxxxx'x engagement hereunder shall not extend to advice
and assistance in connection with any financing or merger or acquisition
transaction. Any such services in such regard shall be subject to a separate
agreement among the parties. In connection with its engagement hereunder,
Xxxxxx-Xxxxxxx shall be authorized to retain legal counsel, accountants,
consultants and financial advisors which it determines are reasonably
necessary to perform its duties hereunder, and the costs associated therewith
shall be reimbursed by the Company under Section 4 below.
2. TERM OF ENGAGEMENT. Xxxxxx-Xxxxxxx'x engagement pursuant to this
Agreement shall commence on the date set forth above and shall be terminable
by either Xxxxxx-Xxxxxxx or the Company at any time.
3. CASH COMPENSATION. During the term hereof, Xxxxxx-Xxxxxxx shall be
paid a monthly fee of $12,000 per month.
4. REIMBURSEMENT. Xxxxxx-Xxxxxxx shall be entitled to reimbursement from
the Company for the reasonable costs and expenses incurred in connection with
the performance of the duties and obligations provided for in this Agreement.
Reimbursement shall be paid upon prompt presentation of expense statements or
vouchers and such other supporting information as the Company may from time
to time require.
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EXHIBIT: 10.15
5. WARRANTS. Concurrently with the execution of this Agreement, and as
additional consideration for the services to be rendered hereunder, the
Company has granted to Xxxxxx-Xxxxxxx warrants to purchase up to 275,000
shares of the Company's Common Stock at a per share exercise price equal to
the closing price of the Company's Common Stock on Wednesday, March 22, 1995
(the date the parties reached an agreement in principal to enter into this
engagement). Of the Warrants, warrants to purchase 125,000 shares shall be
fully vested and exercisable on the date hereof and warrants to purchase the
remaining 150,000 of such shares shall vest and become exercisable in 12
equal monthly installments commencing on the date hereof. The Warrants shall
have a term of five years from the date hereof.
6. SCOPE OF ENGAGEMENT. This letter of agreement does not require
Xxxxxx-Xxxxxxx to render any written opinions or to provide other written
analysis as to any matter with respect to which the Company may seek its
advice. Xxxxxx-Xxxxxxx does not assume any responsibility for the accuracy,
completeness or fairness of the information and data supplied to it by the
Company or its representatives. The Company understands that in order for
Xxxxxx-Xxxxxxx properly to advise the Company, Xxxxxx-Xxxxxxx must be
provided with all material information relating to the Company, its business
condition (financial or otherwise) and prospects, and the Company represents,
warrants and agrees that all data and other written and oral information
supplied to Xxxxxx-Xxxxxxx by the Company and its representatives will be
true, correct and complete in all material respects, and will not contain
any untrue statements of material fact or omit to state a material fact
necessary to make the information supplied to Xxxxxx-Xxxxxxx not misleading.
The Board of Directors and the Company will separately be advised by
legal counsel as to all legal matters with respect to the Company and
Xxxxxx-Xxxxxxx will assume no responsibility to render any legal services
hereunder. Further, the Company understands and agrees that it is solely
responsible for its compliance with its duties and obligations under
applicable federal and state securities laws and neither Xxxxxx-Xxxxxxx nor
any of its officers, directors, employees, agents or representatives
(including but not limited to Xxxxxx Xxxxxx) assumes any responsibility in
connection with this engagement with respect to such matters.
7. INDEMNIFICATION. The Company hereby agrees to indemnify
Xxxxxx-Xxxxxxx and Xxxxxx X. Xxxxxx, and the partners, employees, and agents
of Xxxxxx Xxxxxxx & Co. (collectively and individually referred to as
"Xxxxxx-Xxxxxxx") and to hold Xxxxxx-Xxxxxxx harmless against and from any
and all losses, claims, damages, or liabilities, joint or several, to which
Xxxxxx-Xxxxxxx may become subject in connection with this agreement or any
transaction or services contemplated hereby, under any of the federal
securities laws or under any other statute, common law or otherwise. The
Company agrees to reimburse Xxxxxx-Xxxxxxx for any legal or other expenses
(including the cost of any investigation and preparation) incurred by
Xxxxxx-Xxxxxxx arising out of or in connection with any action or claim
whether or not resulting in any liability. Notwithstanding the foregoing, the
Company shall not be liable to the extent that any loss, claim damage or
liability is found in a final judgment by a court of competent jurisdiction
to have resulted from the willful wrongdoing of Xxxxxx-Xxxxxxx for its own
pecuniary benefit. Promptly after receipt by Xxxxxx-Xxxxxxx of notice of the
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commencement of any action in respect of which indemnity may be sought
against the Company, Xxxxxx-Xxxxxxx will notify the Company in writing. The
Company shall be entitled to participate at its own expense in the defense of
any such action and, if the Company so elects within a reasonable time after
receipt of such notice, shall assumed the defense of any such action, such
defense to be conducted by counsel chosen by the Company and reasonably
acceptable to Xxxxxx-Xxxxxxx. If the defendants in any such action include
both the Company and Xxxxxx-Xxxxxxx, and Xxxxxx-Xxxxxxx has been advised in
writing by its counsel that it is undesirable for the same counsel to
represent both the Company and Xxxxxx-Xxxxxxx, Xxxxxx-Xxxxxxx shall have the
right to employ its own counsel in such action, which counsel shall be
reasonably acceptable to the Company, and, in such event, the fees and
expenses of such counsel shall be borne by the Company. The Company shall not
without the prior written consent of Xxxxxx-Xxxxxxx settle any pending or
threatened proceeding in respect of which Xxxxxx-Xxxxxxx is or could have
been a party and indemnity could have been sought hereunder, unless such
settlement includes an unconditional release of Xxxxxx-Xxxxxxx from all
liability arising out of such proceeding. Except as provided in the preceding
sentence, the Company shall have the sole control over the defense or
settlement of any action or proceeding which is subject to this
indemnification and Xxxxxx-Xxxxxxx agrees to cooperate with the Company in
connection therewith.
8. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
(collectively, "Notices") given pursuant to this Agreement shall be in
writing, and shall be delivered by personal service or by United States first
class, registered or certified mail (return receipt requested), postage
prepaid, addressed to the party at the address set forth below:
If to Company:
New Image Industries, Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Board of Directors
If to Xxxxxx-Xxxxxxx:
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxx & Co.,
Xxxxx Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000,
Xxx Xxxxxxxxx, XX 00000
Any Notice shall be deemed duly given when received by the addressee thereof,
provided that any Notice sent by registered or certified mail shall be deemed
to have been duly given three
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days from date of deposit in the United States mails, unless sooner received.
Either party may from time to time change its address for further Notices
hereunder by giving notice to the other party in the manner prescribed in
this section.
(b) ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No
representations, oral or otherwise, express or implied, other than those
contained in this Agreement have been relied upon by any party to this
Agreement.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THEREOF.
(d) CAPTIONS. The various captions of this Agreement are for
reference only and shall not be considered or referred to in resolving
questions of interpretation of this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(f) SUCCESSORS AND ASSIGNS. This Agreement and all obligations and
benefits of Xxxxxx-Xxxxxxx and the Company hereunder shall bind and inure to
the benefit of Xxxxxx-Xxxxxxx and the Company, their respective affiliates,
and their respective successors and assigns. Conversely, no assignment of
this Agreement, of any of the rights and/or duties hereunder by any party
hereto shall be valid without the prior written consent of the other party.
(g) AMENDMENTS AND WAIVERS. No amendment or waiver of any term or
provision of this Agreement shall be effective unless made in writing. Any
written amendment or waiver shall be effective only in the instance given
and then only with respect to the specific term or provision (or portion
thereof) of this Agreement to which it expressly relates, and shall not be
deemed or construed to constitute a waiver of any other term or provision (or
portion thereof) waived in any other instance.
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In witness whereof, the parties have executed this Agreement as of the
date first set forth above.
Company: Xxxxxx Xxxxxxx & Co.
New Image Industries, Inc.
By: /s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxx
President Its: G.P.
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