Exhibit 19
AMENDMENT NO 1. TO AMENDED AND RESTATED CONSULTING AGREEMENT
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CONSULTING AGREEMENT, made and
entered into as of November , 1998, by and among HOLOPAK TECHNOLOGIES, INC.
("HoloPak"), TRANSFER PRINT FOILS, INC. ("Transfer") and BRADFORD ASSOCIATES
(the "Advisor"). HoloPak and Transfer are referred to herein collectively as the
"Companies" and individually as a "Company."
RECITALS
A. HoloPak, Foilmark, Inc. ("Foilmark") and Foilmark Acquisition
Corporation ("FoilMark Sub") have entered into a Merger Agreement, dated as of
the date hereof, whereby HoloPak shall be merged with and into Foilmark Sub (the
"Merger"), with Foilmark Sub as the surviving corporation.
B. The Advisor and the Companies are parties to the Amended and Restated
Consulting Agreement, dated October 1, 1991, among the Advisor, HoloPak and
Transfer (the "Consulting Agreement"). The Advisor and the Companies have each
determined that it is appropriate to amend the Consulting Agreement to extend
the term of the Consulting Agreement until the fifth anniversary of the Merger.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Section 6 of the Consulting Agreement is hereby deleted in its entirety and
replaced by the following:
"6. DURATION. This Agreement shall become effective as of the date hereof
and shall continue in effect until March 1, 2004, but this Agreement shall
thereafter automatically renew for successive one-year terms unless notice of
termination is given by either party to the other at least 120 days prior to the
close of the then-current one-year period."
2. This Amendment may be executed in any number of counterparts, each of which
shall constitute an original, but all of which taken together shall constitute
one and the same instrument.
3. Except as hereby modified, the Consulting Agreement is hereby ratified and
affirmed in its entirety.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date first set forth above.
BRADFORD ASSOCIATES
By:
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Name:
Title:
HOLOPAK TECHNOLOGIES, INC.
By:
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Name:
Title:
TRANSFER PRINT FOILS, INC.
By:
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Name:
Title:
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AMENDED AND RESTATED CONSULTING AGREEMENT
AGREEMENT, made and entered into as of October 1, 1991, by and among
HOLOPAK TECHNOLOGIES, INC. (formerly TPF Holding Company, "HoloPak"), TRANSFER
PRINT FOILS, INC. ("Transfer") and BRADFORD ASSOCIATES (the "Advisor"). HoloPak
and Transfer are referred to herein collectively as the "Companies" and
individually as a "Company."
RECITALS
A. The Advisor has certain knowledge and experience in corporate
management and financial matters.
B. The Companies desire to avail themselves of the Advisor's expertise,
and are willing to do so on the terms and conditions set forth herein.
C. The Advisor is willing to render services to the Companies, on the
terms and conditions set forth herein.
D. The Advisor and the Companies have each determined that it is
appropriate to amend and restate the Consulting Agreement, dated February 23,
1990, among the Advisor and the Companies to restate, and reflect certain
changes to, the parties' original understandings.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. RETENTION OF ADVISOR.
(a) Subject to the terms and conditions of this Agreement, the Companies
hereby retain the Advisor, and the Advisor hereby agrees to render services to
the Companies, as a consultant in respect of the business of the Companies.
(b) The Advisor shall at all times be and conduct itself as an independent
contractor in respect of the Companies, and shall not, under any circumstances,
create or purport to create any obligation on behalf of the Companies.
2. DUTIES OF ADVISOR. The Advisor shall provide corporate advisory,
financial and other consulting services with respect to the affairs and
activities of the Companies in the ordinary course of their businesses, at such
times and from time to time as reasonably requested by the Companies. In
performing such services for the Companies, the Advisor shall, among other
things, be provided with information concerning the business strategy of the
Companies, and shall have the full cooperation of management to review and make
recommendations concerning all material business transactions of whatever type
effected or proposed to be effected by the Companies, and to review and make
recommendations concerning all matters relating to the manner, method and timing
of corporate financing transactions. This
Agreement shall not preclude the payment of additional compensation to the
Advisor for services performed by the Advisor that are beyond the scope of the
Advisor's duties hereunder, such as services as a broker or finder, provided
that the parties agree in writing that the Advisor is entitled to any such
additional compensation.
3. OTHER AGREEMENTS. It is understood that the Advisor may from time to
time act as consultant to or enter into similar agreements with other companies
that may compete with the Companies, without the necessity of obtaining approval
from the Companies.
4. FEES. Throughout the term of this Agreement, the Companies agree to
make equal monthly payments to the Advisor, as compensation for all of its
services hereunder (the "Advisory Fee"), of $16,666.67, with the first such
payment to be made on the date hereof and subsequent payments to be made on the
first day of each month thereafter.
5. EXPENSES. All reasonable out-of-pocket expenses and other
disbursements incurred by the Advisor in connection with the Advisor's services
hereunder shall be borne by the Companies and/or reimbursed to the Advisor.
6. DURATION. This Agreement shall become effective as of the date hereof
and shall continue in effect for 10 years from the date hereof, but this
Agreement shall thereafter automatically renew for successive one-year terms
unless notice of termination is given by either party to the other at least 120
days prior to the close of the then-current one-year period.
7. NOTICES. All notices relating to this Agreement shall be in writing
and shall be deemed to have been given when personally delivered or at the time
when mailed in any general or branch United States Post Office or sent by
Federal Express or a similar overnight courier service, addressed to the other
party at its address stated below, or to such changed address as the other party
may have been given by notice.
If to the Companies:
Transfer Print Foils, Inc.
X.X. Xxx 000
0 Xxxxxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
If to the Advisor:
Bradford Associates
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
8. BINDING EFFECT; ASSIGNABILITY. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors. This Agreement and the rights and obligations hereunder shall not be
assignable or delegable by the parties hereto.
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9. INDEMNIFICATION. The Companies agree to indemnify the Advisor, the
partners of the Advisor, and their agents and affiliates against, and to save
and hold them harmless from and in respect of, all (a) fees, costs and expenses
paid in connection with, resulting from or relating to any claim, action or
demand against any and all such indemnified parties that arise out of or in any
way relate to the Companies, their properties, business, or affairs and (b) such
claims, actions and demands and any losses or damages resulting from such
claims, actions and demands, including amounts paid in settlement or compromise
(if recommended by attorneys for the Companies) of any such claim, action or
demand; provided, however, that this indemnity shall not extend to conduct of
such indemnified parties not undertaken in good faith to promote the best
interests of the Companies, nor to any wilful misconduct. If such an indemnified
party seeks indemnification under this Agreement and the Companies challenge
such party's right to indemnification, the Companies shall advance the amounts
claimed hereunder to the indemnified party until a court of competent
jurisdiction determines in a final judgment that the party is not entitled to
indemnification hereunder, in which case the party receiving such advanced
amounts shall return such amounts to the Companies to the extent specified in
such judgment.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties relating to the subject matter hereof. None of the terms,
covenants or conditions hereof may be waived or amended except by a written
instrument signed by the party to be charged therewith.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
BRADFORD ASSOCIATES HOLOPAK TECHNOLOGIES, INC.
By: By:
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TRANSFER PRINT FOILS, INC.
By:
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