EXHIBIT 10.15
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as of
August 28, 1996, by and between A&R Materials, Inc., a California corporation
("Company"), and Xxxxx Xxxxx Co., Inc., a California corporation
("Consultant"). Company desires to retain Consultant in a consulting capacity
to assist it in strategic planning and financing matters, and Consultant wishes
to be so retained.
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS:
1. DUTIES OF CONSULTANT; TERM.
Consultant hereby undertakes to assist the Company in the following
capacities:
(i) analysis of the Company's financial situation, its market
position, and its competitive position vis-a-vis its competitors and
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presentation of the analysis to potential private accredited investors in the
Company;
(ii) continuing interaction with the Company in assisting the
Company to strategically position and market itself to the financial community;
(iii) consult with directors at meetings of the board of directors
and board committees;
(iv) participate as requested by the Company in the selection of co-
managers and syndicate participants;
(v) participate as requested by the Company in shaping the long
term strategic direction of the Company and how it will be implemented through
the planned public offering (collectively, the "Services").
No written work product is contemplated. Consultant shall perform the Services
specified in a timely and professional manner. The Consultant may use
subcontractors, at no additional cost to the Company, to assist, from time to
time, as appropriate in rendering the Services. The term of this Agreement
shall be two years, commencing on the date first set forth above.
2. REPRESENTATIONS OF CONSULTANT.
Consultant hereby represents and warrants to Company that (i) Consultant
has (and any subcontractors engaged by Consultant will have) the expertise and
general skills necessary to perform the Services in accordance with this
Agreement, (ii) Consultant is not (and any subcontractors will not be) a party
to or bound by any agreement, obligation or understanding which restricts or
limits in any way Consultant's right to enter into this Agreement or
Consultant's right or ability to perform Consultant's obligations under this
Agreement, and (iii) neither Consultant nor any subcontractor shall use the
trade secrets, intellectual property rights, copyrights, or other proprietary
rights of any third party in the performance of Consultant's obligations under
this Agreement.
3. COMPENSATION.
3.1 FEE. Company agrees to pay to Consultant on execution of this
Agreement (or, if later, when the loan proceeds are received) a consulting fee
of $30,000 plus 10% of the amount of 9.9% Loan Notes sold, excluding (a) the
first $500,000 of such Notes and (b) Notes sold to officers, directors,
employees or existing shareholders of the Company ("Insiders"). Thus, by way of
example, if a total of $1,400,000 of Loan Notes was sold, of which $250,000 was
to Insiders, the consulting fee would be $95,000 [i.e., ($30,000) + 10%
($1,400,000 - $500,000 - $250,000)]. The consulting fee shall be non-refundable
under any circumstances.
3.2 NO REIMBURSEMENT OF EXPENSES. Unless otherwise agreed in writing
by Company, Consultant shall not be reimbursed for out-of-pocket or other
expenses incurred in connection with this Agreement.
4. MISCELLANEOUS.
4.1 NOTICES.
Except as otherwise provided in the Agreement, any notice or other
communication required or permitted hereunder shall be in writing and shall be
deemed to have been duly given (i) on the date of service if served personally,
(ii) the day after transmission by telex or facsimile transmission, or (iii)
four days after mailing if mailed, by first class mail, certified or registered
with return receipt requested, postage prepaid to the follow addresses:
If to Consultant: Xxxxx Xxxxx
Xxxxx Xxxxx Co., Inc.
00000 Xxxxx XxXxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
If to Company A&R Materials, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: President
4.2 HEADINGS.
The headings appearing at the beginning of the several paragraphs
contained herein have been inserted for identification and reference purposes
and shall not by themselves determine the construction or interpretation of this
Agreement.
4.3 ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the
respective heirs, executors, administrators, successors, legal representatives
and assigns of the parties.
4.4 ENFORCEMENT.
If any portion of this Agreement shall be determined to be invalid or
unenforceable, the remainder shall be valid and enforceable to the maximum
extent possible.
4.5 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts entered into between
California residents and wholly to be performed in California.
4.6 ENTIRE AGREEMENT AND MODIFICATION.
This Agreement constitutes and contains the entire agreement of the
parties respecting the subject matter hereof and supersedes any and all prior
negotiations, correspondence, understandings and agreements between the parties
respecting the subject matter hereof. This Agreement may only be modified by a
written instrument signed by the parties hereto.
4.7 INDEPENDENT CONTRACTOR.
Consultant enters into this Agreement as, and shall continue to be, an
independent contractor. Under no circumstances shall Consultant look to Company
as Consultant's employer. Neither party has any authority to bind the other
party to any third party or otherwise to act as the agent or representative of
such other party. Consultant agrees to pay all federal, state and other income
taxes due and to properly file appropriate tax returns.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as
of the date first set forth above.
COMPANY:
A&R MATERIALS, INC.,
a California corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Its: President and Chief Executive Officer
CONSULTANT:
XXXXX XXXXX CO., INC.,
a California corporation
By:
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Xxxxx Xxxxx, President
