CONSULTING AGREEMENT
This Agreement is entered into as of the 1st day of June, 1996, by
and between METALCLAD CORPORATION, a Delaware corporation (hereinafter the
Company ), and XXXXXX X. XXXXXX (hereinafter Consultant ) under the
following terms and conditions:
RECITALS:
WHEREAS, it is in the best interest of the Company to retain the
services of Consultant to consult with the officers of the Company on
matters concerning the business of Metalclad Corporation, upon the terms
and conditions hereinafter set forth; and
WHEREAS, the compensation payable to Consultant will consist of
monthly cash payments; and
WHEREAS, in connection with the engagement of Consultant by the
Company, the Company desires to restrict Consultant s rights to compete
with the business of the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be for a period of 19 months,
commencing on the effective date of this Agreement subject however, to
prior termination as provided hereinbelow, in Paragraph 5 and 6.
2. COMPENSATION; COMMITMENT OF TIME; INDEPENDENT CONTRACTOR STATUS
2.1 The Company shall pay Consultant during the term hereof a
consulting fee at the rate of $5,000.00 per month, which compensation
shall be paid to Consultant in equal semi-monthly installments.
2.2 Consultant shall be required to devote such time to the
performance of his duties as Consultant deems necessary to accomplish the
tasks to be performed by him as outlined in Exhibit A, a copy of which
is attached hereto and incorporated herein by this reference. Consultant
shall be responsible for the performance of the services set forth in
Exhibit A, but shall determine the method, details, and means for the
performance of such services. At the end of each fiscal quarter during
the term of this Agreement, Consultant shall provide a memorandum to the
Company describing in reasonable detail the status of the services
rendered during the previous fiscal quarter and a report on the business
of the Company during such period.
2.3 Consultant shall be an independent contractor with respect to
the engagement contemplated by this Agreement. Consultant shall be
responsible for all self-employment taxes and other taxes as are required
with respect to compensation paid by a corporation to an independent
contractor.
3. COVENANT NOT TO COMPETE
During the term of this Agreement, Consultant shall not, without the
express written consent of the Company, engage in any activity competitive
with and/or adverse to the Company s business or practice (whether alone,
as a partner, or as an officer, director, employee or shareholder of any
other corporation, or a trustee or fiduciary or any other representative
of any other entity).
4. SERVICES
4.1 Consultant agrees to devote sufficient time (subject to the
limitations set forth in this Paragraph 4) to the performance of those
duties and accomplishment of those goals set forth in Exhibit A .
Consultant shall report and shall be responsible to the Board of Directors
and Chief Executive Officer of the Company. Consultant agrees that he
will serve the Company faithfully, diligently, competently and to the best
of his ability until the termination of his engagement hereunder.
4.2 The parties agree that the services to be rendered by Consultant
pursuant to this Agreement are contemplated to be performed primarily at
the offices of Consultant. However, Consultant agrees to perform periodic
on-site evaluations at the business offices of the Company or of any
subsidiary as Consultant deems reasonably necessary.
5. EFFECTIVE DATE
The effective date of this Agreement shall be June 1, 1996.
6. TERMINATION
6.1 This Agreement shall terminate upon the occurrence of any of the
following events:
(a) Upon the expiration of the term of this Agreement, pursuant
to Paragraph 1 hereof.
(b) Whenever the Company and Consultant shall mutually agree to
termination in writing.
(c) Upon the death of Consultant.
(d) Upon the disability of the Consultant due to physical
disability or other incapacity which renders Consultant unable to perform
the duties required of him for 60 calendar days and upon 30 days written
notice by the Company.
(e) For cause upon the occurrence of any of the following:
(i) Consultant s personal dishonesty directly relating to
his engagement;
(ii) Consultant s willful misconduct in the carrying out of
his duties;
(iii) Consultant s breach of a fiduciary duty involving
personal profit;
(iv) Consultant s intentional or habitual failure to
perform stated duties;
(v) Consultant s willful violation of any law, rule or
regulation resulting in a felony conviction by a court of competent
jurisdiction;
(vi) Consultant s material breach of any provisions of this
Agreement.
(f) Upon Consultant s breach of any of the terms of this
Agreement, Consultant shall receive written notice of the breach which
notice shall be set forth the term(s) of this Agreement which was (were)
breached and recommendations from 120 days from the date of notice, then
at the Company s option, this Agreement shall be terminated on the day
immediately following the period in which Consultant was to cure the
breach.
6.2 Upon termination for any of the foregoing causes, the Consultant
shall be entitled to receive 100% of only the compensation which
Consultant would otherwise be entitled to as of the date of this
termination.
7. TERMINATION WITHOUT CAUSE
The Company may terminate Consultant, without cause, upon 90 days
written notice to Consultant. In the event of termination without cause,
the Consultant shall be entitled to a severance allowance payable in the
manner in which Consultant received his compensation under this Agreement
for the period remaining under this Agreement if it were to continue for
its full term. The severance allowance shall be equal to 100% of the
compensation which Consultant would otherwise be entitled to if this
Agreement were to continue for its full term.
8. EXPENSES
8.1 Consultant shall be entitled to reimbursement of all reasonable
expenses actually incurred in the course of his engagement. Commuting
expenses Consultant shall submit to the Company a standardized expense
report form, provided by the Company, and shall attach thereto receipts
for all expenditure. Automobile expenses shall be reimbursed at a maximum
mileage rate allowed by the Internal Revenue Service.
8.2 The Company shall reimburse employee within 15 days after
submission by Consultant of his expense report.
9. THE COMPANY S AUTHORITY
Consultant agrees to observe and comply with the reasonable rules and
regulation so the Company as adopted by the Company s Board of Directors
either orally or in writing respecting performance of his duties and to
carry out and perform orders, directions and policies stated by the Board
of Directors, to him from time to time, either orally or in writing.
10. NON-TRANSFERABILITY
This Agreement shall not be transferable or assignable by Consultant,
nor shall Consultant s interest herein be transferred or assigned by
operation of law, and any assignment or attempted assignment, transfer,
mortgage, hypothecation, or pledge of this Agreement or his interest
herein by Consultant, shall be null and void.
11. NOTICES
All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and (unless otherwise specifically
provided herein) shall be deemed to have been given at the time when ailed
in any general or branch United States Post Office, enclosed in a
registered or certified postpaid envelope, addressed to the parties stated
below or to such changed address as such party may have fixed by notice:
TO THE COMPANY: Chief Executive Officer
Metalclad Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
COPY TO: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
CONSULTANT: Xxxxxx X. Xxxxxx
0000 Xxxxx 0000 Xxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
12. ENTIRE AGREEMENT
This Agreement supersedes any and all Agreements, whether oral or
written, between the parties hereto, with respect to the employment of
Consultant by the Company and contains all of the covenants and Agreements
between the parties with respect to the rendering of such serves in any
manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party,
which are not embodied herein, and that no other agreement, statement or
promise with respect to such employment not contained in this Agreement
shall be valid or binding. Any modification of this Agreement will be
effective only if it is in writing and signed by all the parties hereto.
13. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable the remaining
provisions shall nevertheless continue in full force and effect without
being impaired or invalidated in any way.
14. ATTORNEYS FEES
If any action in law or equity, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to reasonable attorneys
fees and costs, which may be set by the court in the same action or in a
separate action brought for that purpose, in addition to any other relief
to which that party may be entitled.
15. GOVERNING LAW
This Agreement will be governed by and construed in accordance with
the laws of the State of California.
16. BINDING NATURE
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representatives, heirs, successors and
assigns.
17. WAIVER
No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the
waiver.
18. CORPORATE APPROVALS
The Company represents and warrant that the execution of this
Agreement by their respective corporate officers named below have been
duly authorized by the Board of Directors of the Company, is not in
conflict with any Bylaw or other agreement and will be a binding
obligation of the Company enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date above written.
THE COMPANY
METALCLAD CORPORATION
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx,
Chief Executive Officer
CONSULTANT
/s/Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
