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Exhibit 10.15
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of July 1, 1999 (the "Effective Date"), by
and between Metallurg, Inc., a Delaware corporation, with principal offices at 0
Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000 (the "Company"), and Xxxxxxx Xxxx
Xxxxxxx, residing at 000 Xxxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx 00000 (the
"Consultant").
WITNESSETH:
WHEREAS, the Company desires to engage the services of Consultant in
a consulting capacity and Consultant is willing to be engaged by the Company in
a consulting capacity as an independent contractor upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and Consultant (individually, a
"Party" and together, the "Parties") agree as follows:
1. Engagement. The Company hereby engages Consultant and Consultant
hereby accepts such engagement on the terms and conditions set forth herein to
serve the Company in a consulting capacity.
2. Term. The period of service of Consultant to the Company will be
for a term commencing on the Effective Date and continuing until terminated by
either party upon three (3) months' written notice (the "Consulting Period").
3. Duties. During his engagement hereunder, Consultant shall
provide such consulting services as the Company requires of him from time to
time to assist the Company in the operation of its business, its strategic
planning, supplier and customer relationships, subsidiary matters and any
related projects that may be requested of him by the President and Chief
Executive Officer of the Company or the Board of Directors. Consultant shall
use his best efforts and skill to perform these services on the terms and
conditions set forth herein. The parties hereby agree that Consultant will make
himself available for an aggregate of up to five (5) days per calendar quarter
through telephone contact and occasional meetings.
4. Compensation. As total and exclusive compensation for consulting
services rendered pursuant to this Agreement, the Company agrees to pay
Consultant U.S. $10,000 per calendar quarter payable in arrears on the last day
of each calendar quarter. Upon termination of this engagement by either party,
Consultant shall be paid through the end of the quarter in which notice of
termination has been given, as well as through the next immediate quarter
thereafter.
5. Expenses. All reasonable and customary expenses incurred by
Consultant in the performance of the services required by this Agreement,
including, but not limited to, all related out-of-pocket expenses, shall be
reimbursed by the Company upon appropriate documentation by Consultant in
accordance with the Company's policy for the reimbursement of expenses, as it
exists from time to time.
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6. Confidentiality. During the Consulting Period and thereafter,
Consultant shall not disclose to anyone or make use of any trade secret or
proprietary or confidential information of the Company, including any trade
secret or proprietary or confidential information of any customer or
other entity to which the Company owes an obligation not to disclose such
information, which he acquires during the Consulting Period, including but not
limited to records kept in the ordinary course of business, except (i) as such
disclosure or use may be required or appropriate in connection with his work as
a consultant to the Company, (ii) when required to do so by a court of law, by
any governmental agency having supervisory authority over the business of the
Company or by any administrative or legislative body (including a committee
thereof) with apparent jurisdiction to order him to divulge, disclose or make
accessible such information, or (iii) as to such confidential information that
becomes generally known to the public or trade without violation of this
Section 6.
7. Noncompetition.
(a) Consultant covenants and agrees that during the Consulting Period and
during the six-month period following the end of the Consulting Period, he
shall not at any time, without the prior written consent of the Company,
directly or indirectly, engage in a Competitive Activity. As used herein,
Competitive Activity means any activity engaged in by Consultant, whether as an
employee, principal, sole proprietor, consultant, agent, officer, director,
partner or shareholder (except as a less than one-percent shareholder of a
publicly traded company or a less than five-percent shareholder of a privately
held company), which directly competes with the Company or any subsidiary. For
this purpose, an activity which directly competes with the Company or any
subsidiary shall mean a business that was being conducted by the Company or any
subsidiary during the Consulting Period. Notwithstanding anything to the
contrary in this Section 7(a), an activity shall not be deemed to be a
Competitive Activity (x) solely as a result of Consultant's being employed by
or otherwise associated with a business of which a unit is in competition with
the Company or any subsidiary but as to which unit Consultant does not have
direct or indirect responsibilities for the products or product lines involved
or (y) if the activity contributes less than 5 percent of revenues for the
fiscal year in question of the business by which Consultant is employed or with
which he is otherwise associated.
(b) The Parties acknowledge that in the event of a breach or threatened
breach of Section 7(a) above, the Company shall not have an adequate remedy at
law. Accordingly, in the event of any breach or threatened breach of Section
7(a) above, the Company shall be entitled to such equitable and injunctive
relief as may be available to restrain Consultant and any business, firm,
partnership, individual, corporation or entity participating in the breach or
threatened breach from the violation of the provision of Section 7(a) above.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies available at law or in equity for breach or
threatened breach of Section 7(a) above, including the recovery of damages.
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8. Limitation on Authority. Consultant shall have no authority to bind
the Company by or to any obligation, agreement, promise or representation
without first obtaining the Company's prior written approval.
9. Entire Agreement; Previous Agreement; Modifications. This instrument
contains the entire agreement of the Parties with respect to the subject matter
hereof. Any other oral or written agreements entered into with respect hereto
are hereby revoked and superseded by this Agreement. No modifications shall be
made hereto except by agreement in writing signed by both Parties. The previous
Consulting Agreement, dated as of October 1998, between the parties is cancelled
and of no further force or effect, except with respect to Sections 6 and 7
thereof.
10. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect and such provision or portion
of this Agreement shall remain in effect to the fullest extent permitted by law.
11. Notices. All notices and other communications which are required or
permitted hereunder shall be in writing and shall be sufficient if mailed by
registered or certified mail, postage prepaid, to the address set forth at the
beginning of this Agreement or such other address as any Party hereto shall have
specified by notice in writing to the other Party hereto. All such notices and
communications shall be deemed to have been received on the earlier of the date
of delivery thereof or the third business day after the mailing thereof.
12. Successors; Assignability. This Agreement shall inure to the benefit
of, and shall be binding upon, the Parties hereto and their respective
successors, assigns, heirs and legal representatives. This Agreement shall not
be assignable by either Party without the prior written consent of the other
Party hereto.
13. Governing Law. This Agreement shall be construed and governed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof.
IN WITNESS WHEREOF, Consultant and the Company have executed this Agreement
on the date first above set forth.
METALLURG, INC.
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxx
Title: President and Chief
Executive Officer
