EXHIBIT C-9
CONSULTING AGREEMENT
This Agreement is between PMC International, Inc., a Colorado corporation
("PMC") and C.R. "Xxxxx" Xxxxxx, an individual resident of New Mexico
("Consultant"), and shall be effective as of August 24,1998.
1. Engagement.
a. Consulting Services. During the term of the this Agreement,
Consultant shall serve as a consultant performing as PMC's Interim Chief
Executive Officer. Consultant's duties shall include those duties normally and
customarily associated with the office of Chief Executive Officer.
b. Best Efforts. Consultant shall at all times, faithfully and to
the best of his abilities and experience, and in accordance with the standards
and ethics of the business in which PMC is engaged, perform all duties that may
be required of him by this Agreement, by PMC's policies and procedures, and by
the directives of PMC's Board of Directors.
c. Indemnification. In addition to the consulting services
described above, during the Term of this Agreement, Consultant shall, at the
request of the Directors of PMC, serve as an officer of PMC; provided, however,
Consultant shall not receive any additional compensation for serving as an
officer of PMC. Consultant shall be indemnified for all acts taken as an officer
of and consultant to the Company to the same extent as PMC's other officers and
Directors (consistent with the Company's charter, as amended from time to time,
which provisions are attached as Schedule A).
2. Compensation and Expenses.
a. Consulting Fee. Consultant's entire compensation shall be $28,350
per month, payable, less withholdings pursuant to Section 2(b), in semi-monthly
installments. Further, Consultant may be paid a bonus from time to time at the
sole discretion of the Board of Directors of the Company.
b. Withholding. Consultant has requested and PMC agrees to withhold
taxes and to pay social security and other taxes on Consultant's behalf,
commencing with the pay period ended October 15, 1998, in the same manner and
amount as PMC would do if Consultant were a PMC employee.
c. Expenses. Subject to the same PMC policies and procedures for the
reimbursement of business expenses to which its executive and management
employees are subject, and subject to PMC's approval and authorization, PMC
shall reimburse Consultant for all reasonable and necessary expenses incurred by
Consultant in connection with his performance of his duties under this
Agreement. Consultant shall document, in a manner reasonably satisfactory to
PMC, all expenses for which he seeks reimbursement under this paragraph.
3. Conflicting Activities. During the term of this Agreement, Consultant
shall not engage in any activity that conflicts with his obligations and
fiduciary responsibilities hereunder or that is detrimental to PMC's best
interests, as determined by PMC in its reasonable discretion.
4. Term and Termination.
a. Term. The initial term of this Agreement shall be two months
commencing August 24, 1998. The term shall be extended for successive periods of
one month, unless either party shall, by written notice to the other party
within 10 days prior to the end of the month, terminate this Agreement.
b. Termination by Consent. This Agreement may be terminated at any
time by the parties' mutual agreement, expressed in writing.
c. Termination for Cause. PMC may terminate this Agreement effective
immediately, with PMC's only obligation being the payment of salary accrued and
reimbursement of outstanding business expenses, as of the date of termination if
Consultant:
i. violates any term of this Agreement or any PMC policy, procedure
or guideline, or engages in any of the following forms of misconduct: conviction
of any felony or of any misdemeanor involving dishonesty or moral turpitude;
theft or misuse of PMC's property or time; use of alcohol or controlled
substances on PMC's premises or appearing on such premises while intoxicated or
under the influence of drugs not prescribed by a physician, or after having
abused prescribed medications; illegal use of any controlled substance; illegal
gambling on PMC's premises; discriminatory behavior, whether or not illegal
under federal, state or local law; wilful misconduct; or falsifying any document
or making any false or misleading statement relating to Consultant's engagement
by PMC; or
ii. injures the economic or ethical welfare of PMC by Consultant's
misconduct or inattention to Consultant's duties and responsibilities under this
Agreement, or in the judgment of the Board of Directors of PMC, fails to meet
Consultant's performance expectations.
d. Termination Due to Death. If Consultant dies during the term of
this Agreement, this Agreement shall terminate as of the date of Consultant's
death.
e. Termination Due to Disability. If during the term of this
Agreement Consultant becomes disabled, this Agreement shall terminate and PMC
shall have no further obligations hereunder except the payment of accrued, but
unpaid compensation and expenses. For purposes of this Section 4(e), Consultant
shall be "disabled" if he is unable to effectively perform his duties hereunder
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 15 days.
f. Termination by Consultant. Consultant may terminate this
agreement effective on notice if in the reasonable opinion of Consultant, PMC or
its Board of Directors has failed to act in an ethical and honest manner or
failed to meet its material financial obligations in a commercially reasonable
manner after notice thereof from Consultant.
5. Successors and Assigns. PMC, its successors and assigns may assign
this Agreement to a successor entity in connection with a merger, acquisition,
or consolidation of PMC. This Agreement thereafter shall bind, and inure to the
benefit of, PMC's successor or assign. Consultant shall not assign either this
Agreement or any right or obligation arising thereunder.
6. Miscellaneous.
a. Governing Law. This Agreement, and all other disputes or issues
arising from or relating in any way to PMC's relationship with Consultant, shall
be governed by the internal laws of the State of Colorado, irrespective of the
choice of law rules of any jurisdiction.
b. Severability. If any court of competent jurisdiction declares any
provision of this Agreement invalid or unenforceable, the remainder of the
Agreement shall remain fully enforceable. To the extent that any court concludes
that any provision of this Agreement is void or voidable, the court shall reform
such provision(s) to render the provision(s) enforceable, but only to the extent
absolutely necessary to render the provision(s) enforceable.
c. Integration. This Agreement constitutes the entire Agreement of
the parties and a complete merger of prior negotiations and agreements and,
except as provided in the preceding subparagraph, shall not be modified except
in a writing signed by Consultant and PMC's President.
e. Waiver. No provision of this Agreement shall be deemed waived, nor
shall there be an estoppel against the enforcement of any such provision, except
by a writing signed by the party charged with the waiver or estoppel. No waiver
shall be deemed continuing unless specifically stated therein, and the written
waiver shall operate only as to the specific term or condition waived, and not
for the future or as to any act other than that specifically waived.
Exhibit C-9 Page 2
f. Construction. Headings in this Agreement are for convenience only
and shall not control the meaning of this Agreement. Whenever applicable the
singular shall include the plural and the plural shall include the singular. The
parties have reviewed and understand this Agreement, and each has had a full
opportunity to negotiate the Agreement's terms and to consult with counsel of
their own choosing. Therefore, the parties expressly waive all applicable common
law and statutory rules of construction that any provision of this Agreement
should be construed against the Agreement's drafter, and agree that this
Agreement and all amendments thereto shall be construed as a whole, according to
the fair meaning of the language used.
g. Disputes. Any action arising from or relating any way to this
Agreement, or otherwise arising from or relating to Consultant's employment with
PMC, shall be tried only in the state or federal courts situated in Denver,
Colorado. The parties consent to jurisdiction and venue in those courts to the
greatest extent possible under law.
h. References. PMC will, upon request, provide a favorable
recommendation regarding Consultants abilities and performance under this
Agreement unless this Agreement is terminated by PMC under Section 4c.
* * * * *
Exhibit C-9 Page 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Consultant: PMC International, Inc.
/s/ X.X. Xxxxxx /s/ Xxxxx X. XxxXxxxxx
________________________________ By: ________________________________
C.R. "Xxxxx" Xxxxxx Xxxxx X. XxxXxxxxx, President
Exhibit C-9 Page 4
SCHEDULE A
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Article V of the Company's Articles of Incorporation requires
indemnification of all directors, officers, employees or agents of the Company,
as follows:
ARTICLE V
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Indemnification
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1. This corporation shall, subject to the provisions of this Article V,
indemnify any person who was or is a party or is threatened to be made a party
in any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against expenses, including reasonable attorneys' fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in good faith and in a manner
he reasonably believed to be in the best interest of this corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
2. This corporation shall, subject to the provisions of this Article V,
indemnify any person who was or is a party or is threatened to be made a party
in any threatened, pending, or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee, or agent of the corporation or is or
was serving at the request of the corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses, including reasonable attorneys' fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in the best interest of the corporation; provided, however, no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person has been adjudged to be liable for negligence or misconduct in
the performance of his duty to the corporation unless and only to the extent
that the court in which the action, suit, or proceeding was brought determines
upon application that, despite the adjudication of liability, in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses as the court deems proper.
3. Indemnification under paragraphs 1 or 2 of this Article V, unless
ordered by a court, shall be made by the corporation only as authorized in a
specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he met the
applicable standards of conduct set forth. Such determination shall be made by
the Board of Directors by a majority vote of a quorum of directors who are not
parties to such action, suit, or proceeding, or if such a quorum is not
obtainable, or even if obtainable, if a disinterested director so directs, by
independent legal counsel in a written opinion or by the shareholders.
Notwithstanding the foregoing, to the extent that a director, officer, employee,
or agent of this corporation has been successful on the merits in defense of any
action, suit, or proceeding referred to in paragraphs 1 or 2 of this Article V,
or in defense of any claim, issue, or matter therein, he shall be indemnified
against all expenses, including attorneys' fees, actually and reasonably
incurred by him in connection therewith.
4. Prior to final disposition of any action, suit, or proceeding, this
corporation may advance monies for expenses incurred by any person who might be
eligible for indemnification hereunder upon receipt of an undertaking by or on
behalf of such person to repay all amounts advanced unless it is ultimately
determined that he is entitled to be indemnified and will be indemnified by the
corporation hereunder.
Exhibit C-9 Page 5
