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Exhibit No. 10.57
Agreement between Company and Xxxxxxxxx X.
effective March 10, 1998
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AGREEMENT
BETWEEN
CONSOLIDATED CAPITAL OF NORTH AMERICA, INC.
AND XXXXXXXXX X. XXXX
THIS AGREEMENT is effective as of March 10, 1998 between Consolidated
Capital of North America, Inc. (the "Corporation") and Xxxxxxxxx X. Xxxx (the
"Consultant").
WHEREAS, the Corporation wishes to utilize the services of the
Consultant in connection with the acquisition of Form Tech Steel, Inc. (the
"Form Tech Acquisition"); and
WHEREAS, the parties desire to enter into this Agreement for their
mutual benefit.
1. RESPONSIBILITIES OF CONSULTANT. In consideration of the benefits
provided in paragraph 3 of this Agreement:
(a) Consultant will provide services to the Corporation in
connection with the Form Tech Acquisition as set forth in Section 2 of
this Agreement;
(b) Consultant will perform such duties for the Corporation as
are herein identified at such time and place as the Corporation and
Consultant mutually agree; and
(c) Consultant will report to the Chief Executive Officer and
the Board of Directors of the Corporation as requested from time to
time.
2. DUTIES OF CONSULTANT. Consultant will provide to the Corporation
and its subsidiaries the following:
(a) Assistance in analyzing, structuring, negotiating and
effecting the acquisition of Form Tech Steel, Inc. ("Form Tech") by the
Corporation;
(b) Assistance in analyzing, structuring, negotiating and
effecting the financing of the Form Tech Acquisition by the Corporation
and its subsidiaries; and
(c) Such other services as are requested of Consultant by the
Corporation and its subsidiaries and which are reasonably related to
the scope of Consultant's engagement.
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3. PAYMENTS FOR SERVICES. In consideration for the services
provided by Consultant as specified in Section 1 and Section 2 above, and other
good and valuable consideration, the Corporation agrees that:
(a) The Corporation shall pay Consultant ninety days of fees to
be paid monthly as a retainer in the amount of twelve thousand five
hundred ($12,500) per month plus the cost of COBRA health and dental
insurance.
(b) The Corporation shall issue to Consultant within ten
business days of the filing of a Form S-8 Registration Statement by the
Corporation covering the Corporation's 1997 Stock Incentive Plan,
150,000 Common Shares (the "Shares") of the Corporation, which Shares
shall be subject to the following resale restrictions: The Shares will
be placed in a brokerage account at Ladenburg Xxxxxxxx with Xxxx
Xxxxxxx as Broker and Consultant as the owner and beneficiary. From
time to time Consultant will advise Xx. Xxxxxxx of his desire to sell a
specified number of Shares at a specified minimum net price per Share.
Thereafter, the execution of specific trades that meet such minimum
criteria must receive the prior approval of the Chairman of the
Corporation. Failure of Consultant to comply with this provision will
result in the forfeiture to the Corporation of the remaining Shares in
the account. All moneys realized from the sale of Shares in compliance
with this provision shall be immediately paid to Consultant. The
foregoing resale restrictions shall terminate on September 15, 1998 and
thereafter Consultant shall be free to sell the balance of the Shares
without any restriction.
(c) Consultant shall be entitled to reimbursement for all
reasonable business expenses related to the Form Tech Acquisition to
the extent that such expenses are incurred on behalf of the Corporation
and with the prior approval of the Corporation. Consultant is
responsible for the timely submission of appropriate written receipts
therefor.
4. CONTINGENT COMMON STOCK AWARDS. As an additional incentive to
Consultant
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to diligently pursue and assist in facilitating the Form Tech Acquisition, the
Corporation agrees to issue to the Consultant additional Common Shares of the
Corporation upon the following events:
(a) upon the execution of a definitive letter of intent by Form
Tech with the Corporation no later than June 1, 1998 containing terms
that are acceptable to the Corporation's Board of Directors, the
Corporation shall issue to the Consultant 100,000 Common Shares of the
Corporation; and
(b) upon the consummation of the Form Tech Acquisition by the
Corporation no later than December 31, 1998, the Corporation shall
issue to the Consultant an additional 100,000 Common Shares of the
Corporation, and pay Consultant a cash fee (the "Transaction Fee")
equal to the following percentages of the Transaction Value, as defined
below:
o 5% on the first $1,000,000
o 4% on the second $1,000,000
o 3% on the third $1,000,000
o 2% on the fourth $1,000,000
o 1% on the amounts over $4,000,000
The Transaction Fee shall be payable in cash upon the closing of the
Form Tech Acquisition. For purposes of this Agreement, the term "Transaction
Value" means an amount equal to the sum of the aggregate fair market value of
any securities issued, and any cash consideration paid, to Form Tech or its
stockholders in connection with a acquisition, plus the value ascribed to any
non-compete contracts (but not employment contracts). The fair market value of
any securities issued as consideration for the acquisition will be the value
ascribed to the securities by the Company and Form Tech.
5. DURATION. This Agreement will be in effect until December 31,
1998. These terms may be modified by written instrument mutually agreed upon by
the parties at any time.
6. VOLUNTARY TERMINATION BY CONSULTANT. Consultant has the option
to terminate this Agreement at any time for any reason upon ten (10) days
written notice. Such termination would immediately terminate the obligations of
the Company under Section 4 hereof.
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7. TERMINATION OF AGREEMENT BY THE COMPANY.
(a) WITHOUT CAUSE. The Corporation may terminate this Agreement
at any time upon written notice; however, in the event this provision
is exercised by the Corporation, Consultant shall not receive less
compensation than would otherwise be due to Consultant under Sections 3
and 4 of this Agreement.
(b) WITH CAUSE. The Corporation may terminate this Agreement for
cause, effective upon written notice, and upon such a termination the
Corporation shall be obligated to pay Consultant any reasonable fees
and expenses earned pursuant to Sections 3 and 4 only through the date
of termination. For purposes of this paragraph, "cause" shall mean that
Consultant has: (i) knowingly acted fraudulently in Consultant's
relations with the Corporation, (ii) misappropriated information or
done intentional damage to the negotiations of this transaction, (iii)
willfully and materially failed to follow a legal and reasonable order
or directive by the Chairman of the Board of Directors of the
Corporation, or (iv) failed to reasonably perform the duties as
described herein.
8. CONFIDENTIALITY AND NON-COMPETITION.
(a) Consultant hereby agrees that during the term of this
Agreement and at all times thereafter, Consultant shall: (i) keep
secret and confidential and not make any written or oral announcement
or disclosure of (other than as permitted herein) Consultant's
discussions with the Corporation or any information about, or directly
or indirectly pertaining to, the business, strategy, properties, or
prospects of the Corporation or any of its subsidiaries or affiliates
("Confidential Information") except to those agents of Consultant who
have a direct need to know such information; (ii) not use any
Confidential Information to obtain a commercial, trading or other
advantage; (iii) at any time on request from the Corporation return any
written record of any Confidential Information or other record in any
form in Consultant's possession; and (iv)
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promptly notify the Corporation if any Confidential Information is
required to be disclosed by reason of law or governmental or other
regulation and cooperate with the Corporation regarding the manner of
such disclosure or any action which the Corporation, at its sole cost
and expense, may elect to take to challenge legally the validity of
such requirement.
(b) The above undertakings shall not apply to information
which: (i) becomes generally available to the public other than as a
result of disclosure by Consultant or any party to whom Consultant has
disclosed it or other than by way of any breach of any obligation of
confidentiality; (ii) Consultant can demonstrate was in Consultant's
possession at the time of disclosure to Consultant and which Consultant
lawfully acquired other than from Form Tech or the Corporation or any
of its subsidiaries; (iii) was otherwise available in the public
domain; or (iv) was disclosed with the Corporation's consent.
9. SEVERABILITY. Each paragraph and subparagraphs of this Agreement
shall be construed and considered separate and separable from the validity and
enforceability of any other provision contained in this Agreement.
10. TITLES AND HEADINGS. Titles and headings to paragraphs hereof
are for purposes of reference only and shall in no way limit, define or
otherwise affect the provisions hereof.
11. COLORADO LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado without giving effect to
any conflicts of law doctrines.
12. COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
counterpart.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties hereto and may be modified or amended only by a written
instrument executed by both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
which is effective as of the date first set forth above.
CONSOLIDATED CAPITAL OF
NORTH AMERICA, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Chief Executive Officer
By: /s/ Xxxxxxxxx X. Xxxx
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Xxxxxxxxx X. Xxxx
