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EXHIBIT 4(c)
XXXX X. XXXXX
00 XX 0XX XXXXXX
XXXXXX XXXXX, XXXXXXX 00000
Xxxxx 0, 0000
Xxxxxxx Tool Company,
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx, President
Gentlemen:
I am writing to confirm the terms of our agreement regarding my purchase of
shares of the common stock, no par value (the "Common Stock") of Riviera Tool
Company (the "Company") and warrants to purchase shares of Common Stock, and my
payment of the purchase price therefor by my prior rendition of the services
described in this Consulting Agreement and Plan of Compensation.
1. I hereby subscribe for (a) 15,000 shares of Common Stock (the "Shares"),
(b) a three year warrant to purchase 15,000 shares of Common Stock at an
exercise price of $10.50 per share (the "$10.50 Warrants"); and (c) a three
year warrant to purchase 15,000 shares of Common Stock at an exercise price of
$14.00 per share (the "$14.00 Warrants" which, together with the $10.50
Warrants, are hereinafter collectively referred to as the "Warrants"). I agree
to pay the sum of $97,500 in consideration for the issuance of the Shares to
me, and I agree to pay the sum of $2,500 in consideration for the issuance of
the Warrants to me.
2. You hereby acknowledge that I have paid the aggregate amount of such
sums, i.e., $100,000 (the "Purchase Price"), by my prior rendition to you of
corporate advisory services, including general business and financial analysis,
having an aggregate value equal to the purchase price.
It is expressly understood that (a) the services I heretofore provided
hereunder specifically excluded any activities involving any effort by the
Company to raise capital; and (b) in the event that the Company may call upon
me in the future to render assistance to it with respect to any transaction to
raise capital undertaken by it, the compensation to be paid to me in connection
therewith shall be the subject of a separate agreement which the Company and I
will enter into at the appropriate time.
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Riviera Tool Company
March 4, 1997
Page 2
3. It is further expressly understood that: (a) at the time of delivery of the
Shares to me (which such delivery shall take place not later than 30 days from
the date hereof), and (b) upon my full payment of the exercise price due and
owing with respect to any of the Warrants that I may timely exercise, at the
time of delivery of the shares of Common Stock underlying the Warrants (the
"Warrant Shares") to me, such Shares and Warrant Shares shall be fully paid,
non-assessable, and freely tradable under US and applicable state securities
laws. I represent to the Company, as follows:
(i) I am acquiring the Shares and the Warrants solely for my own account.
(ii) I am an "accredited investor" (as that term is defined in rule 501 of
Regulation D under the Securities Act of 1933 (the "Act")). I have received and
read all information and documentation as I deemed appropriate with regard to
the Company and its securities. I have relied on nothing other than this
Agreement and said information and documentation in deciding whether to enter
into the transactions contemplated by this Agreement. I acknowledge that I have
been given the opportunity to ask questions and receive satisfactory answers
concerning this Agreement, the operations and financial condition of the
Company and the accuracy of the information provided by the Company to me.
(iii) I have no intention of distributing or reselling the Shares, the
Warrants or any part thereof, or interest therein, in any transaction which
would be in violation of the securities laws of the United States of America or
any state securities laws.
(iv) If I desire to sell or otherwise dispose of all or any part of the Shares
or Warrants (other than pursuant to an effective registration statement under
the Act or a sale or other disposition made pursuant to Rule 144), if requested
by the Company, I will deliver to the Company an opinion of counsel, reasonably
satisfactory in form and substance to the Company and its counsel, that such
exemption is available. Upon original issuance thereof, and until such time as
the same is no longer required under the applicable requirements of the Act, the
certificates evidencing the Shares and the Warrants (and all certificates
issued in exchange therefor or substitution thereof) shall bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER ANY STATE SECURITIES LAWS.
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Riviera Tool Company
March 4, 1997
Page 3
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR SUCH
LAWS."
4. Nothing in this Agreement shall be considered to create the relationship of
employer and employee between the parties hereto. I shall be deemed at all
times to be an independent contractor, without the power or authority to bind
the Company in any manner.
5. The Company agrees that it will indemnify and hold me harmless for, and
against any and all losses, claims, damages and liabilities, joint or several
(including all legal or other expenses reasonably incurred by me in connection
with the preparation for or defense of any claim, action or proceeding whether
or not resulting in any liability), to which I may become subject under any
applicable Federal or state law or otherwise caused by or arising out of any
transaction covered by this agreement as to which I rendered services to the
Company hereunder as a result of an act or omission of the Company, its
officers, employees or agents prior to the date hereof.
6. Promptly after receipt by me of notice of any claim or the commencement of
any action or proceeding with respect to which I am entitled to indemnification
hereunder, I will notify the Company in writing of such claim or of the
commencement of such action or proceeding, and the Company will employ counsel
reasonably satisfactory to me and will pay the fees and expense of such
counsel. Notwithstanding the preceding sentence, I will be entitled to employ
counsel separate from counsel for the Company and from any other party in such
action if a conflict of interest exists which makes representation by the
Company's appointed counsel not appropriate. In such event, the reasonable
fees and disbursements of such separate counsel will be paid by the Company.
7. The Company agrees to notify me promptly of the assertion against it or any
person of any claim or the commencement of any action or proceeding relating to
a transaction arising out of the services provided by me pursuant to this
agreement.
8. This agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements
between us concerning such subject matter, and may be modified only by a
written instrument duly executed by each party.
9. Any waiver by either party of a breach of any provision of this letter shall
not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this letter. This
agreement shall be binding
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Riviera Tool Company
March 4, 1997
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upon and inure to the benefit of each of the parties, and their respective
successors and assigns.
10. The covenants, agreements, representations, and warranties contained in
or made pursuant to this letter agreement shall survive the termination of my
engagement hereunder, irrespective of any investigation made by or on behalf of
any party.
11. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered by next-day courier
(FedEx, UPS, etc.), by certified mail, return receipt requested, or by hand
against receipt to the party to whom it is to be given at the address of such
party set forth at the beginning of this letter agreement (or to such other
address as the party shall have furnished in writing in accordance with the
provisions of this Section 11). All such notices shall be deemed to have been
given on the date of receipt thereof by the addressee, or on the date of
attempted delivery thereof, if acceptance of such delivery is refused for any
reason by the addressee.
12. This letter agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. It shall be governed by, and construed
in accordance with, the laws of the State of Michigan, without giving effect to
conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this letter as of the
date first above written.
Very truly yours,
Xxxx X. Xxxxx
Xxxx X. Xxxxx
AGREED TO AND ACKNOWLEDGED:
Riviera Tool Company
By: Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx, President
