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EXHIBIT 10.33
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "AGREEMENT"), made and entered into as of
this 1st day of July, 1996, by and between The American Materials &
Technologies Corporation, a Delaware corporation ("EMPLOYER"), and Maple Wood,
Inc., a Delaware corporation (the "CONSULTANT"),
W I T N E S S E T H T H A T :
WHEREAS, Employer shall from time to time require the knowledge and
expertise of the Consultant in regard to acquisition strategy and
implementation; and
WHEREAS, Employer desires to draw upon and benefit from the Consultant's
expertise and the availability thereof and the Consultant desires to advise and
consult with Employer and to be available therefor;
NOW, THEREFORE, for and in consideration of the foregoing and intending to
be legally bound hereby the parties agree as follows:
1. APPOINTMENT. Employer hereby appoints and employs the Consultant to act
as its advisor and consultant upon and subject to the terms and conditions
hereinafter set forth, and Consultant hereby accepts such appointment and
undertakes to advise and consult with Employer during the term this Agreement
upon and subject to the terms and conditions hereinafter set forth.
2. TERM. The services of the Consultant under this Agreement shall be for a
term commencing on the date of the appointment of Mr. Xxxxxx Xxxxxx as a
Director of the Employer and expiring upon Xx. Xxxxxx ceasing to serve as a
director of the Employer (the "EXPIRATION DATE") unless earlier terminated by
(i) the Consultant for any reason upon thirty (30) days written notice to
Employer, or (ii) the Employer for Cause (as hereinafter defined) upon thirty
(30) days written notice to the Consultant. For the purposes of this Agreement
"CAUSE" shall mean the happening of any of the following with respect to Xx.
Xxxxxx or the Consultant (a) conviction of, or pleading NOLO CONTENDERE to,
embezzlement or any other act of dishonesty against the company, (b) conviction
of, or pleading NOLO CONTENDERE to, a felony, or (c) willful failure or gross
negligence in the performance of duties hereunder.
3. DUTIES OF THE CONSULTANT. The Consultant shall furnish consulting and
advisory services to Employer in connection with acquisition strategy and
implementation. Such services shall be rendered at such times and in such manner
as shall be mutually agreeable to Employer and the Consultant.
4. COMPENSATION. The consulting fees will be paid quarterly in advance, on
the first day of each fiscal quarter of the Employer. The Consultant shall be
paid $5,000 for each full quarter and a pro rata portion thereof for any part of
a quarter during the term of this Agreement.
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5. RELATIONSHIP OF THE PARTIES. In performing its services under this
Agreement, the Consultant shall be an independent contractor and, as between
Employer and the Consultant, Employer shall not be responsible for withholding,
collection or payment of income taxes or for other taxes of any nature on behalf
of the Consultant. Nothing contained herein shall make the Consultant the agent,
employee, joint venturer or partner of Employer or provide the Consultant with
the power of authority to bind Employer to any contract, agreement or
arrangement with any individual or entity except with the prior written approval
of such Employer.
6. ASSIGNMENT. Neither party hereto may assign, without the other party's
prior written consent, this Agreement, or any right or obligation hereunder, and
any and all assignments without such prior written consent shall be null and
void.
7. INDEMNIFICATION. The Employer shall indemnify, defend and hold the
Consultant harmless from and against any and all losses, claims, damages or
liabilities, joint, several, in connection with any pending or threatened action
proceeding or investigation to which the Consultant may be subject in connection
with the performance by the Consultant of its services hereunder; in addition,
the Employer will reimburse periodically the Consultant for any reasonable legal
or other expenses (including the cost of any investigation and preparation)
incurred by the Consultant and arising from or in connection with any pending or
threatened action, proceeding or investigation, which might give rise to a claim
for indemnification hereunder, whether or not actually resulting in any
liability; provided that the Employer shall not be liable under this SECTION 7
to the extent that a court of competent jurisdiction shall have determined by
final judgment that any such losses, claims, damages or liabilities resulted
from the Consultant's gross negligence or willful misconduct in the performance
of such services; and further provided that (i) the Consultant shall have
promptly provided the Employer written notice of the commencement of any action,
proceeding or investigation and shall provide reasonable cooperation,
information and assistance in connection therewith and (ii) the Employer shall
have sole control and authority with respect to the defense, settlement, or
compromise thereof. The indemnity contained in this SECTION 7 shall extend upon
the same terms and conditions to each person, if any, who may be determined to
control the Consultant and to any employee or agent of the Consultant performing
services hereunder. The provisions of this SECTION 7 shall survive termination
of this Agreement.
8. General Provisions.
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8.1 AMENDMENT OF THIS AGREEMENT. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing by both
parties hereto. No waiver of any of the provisions of this Agreement shall
operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as specifically
provided herein, no failure to exercise or any delay in exercising any right or
remedy hereunder shall constitute a waiver thereof.
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8.2 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, spouses, heirs, and personal and legal representatives.
8.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
8.4 NOTICES. Any notice required or permitted by this Agreement shall be
given in writing and shall be deemed effectively given upon personal delivery
or, if mailed, upon deposit with the United States Post Office by certified
mail, return receipt requested, postage prepaid, to the address for the
recipient set forth on the signature page hereto or to such other address as the
recipient shall hereafter have noticed the sending party in the manner set forth
above.
8.5 HEADINGS. Descriptive headings contained herein are for convenience
of reference only and shall not affect the meaning or interpretation of this
Agreement.
8.6 SEVERABILITY. Any provision of this Agreement, which is
unenforceable in any jurisdiction, shall be ineffective in such jurisdiction to
the extent of such unenforceability without invalidating the remaining
provisions of this Agreement, and any unenforceability in any in jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
8.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.8 APPLICABLE LAW. The rights and obligations under this Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts between Delaware residents made and to be
performed entirely within such State.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date set
forth above.
CONSULTANT:
MAPLE WOOD, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President
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EMPLOYER:
THE AMERICAN MATERIALS &
TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: President and Chief
Executive Officer
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